Michael D. Hershey v. Wallace Cathey

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 13, 2010 Session
MICHAEL D. HERSHEY ET AL. v. WALLACE CATHEY ET AL.
Appeal from the Circuit Court for Wilson County
No. 15088 John D. Wootten, Jr., Judge
No. M2009-01887-COA-R3-CV - Filed July 26, 2010
This is an action to enforce a Declaration of Covenants, Conditions and Restrictions for a
subdivision. The trial court found the defendant homeowners erected a fence without having
obtained proper approval from the Architectural Control Committee, that the fence was in
violation of restrictive covenants, and that the fence must be removed. We have determined
the evidence does not preponderate against the trial court’s findings that defendants failed
to obtain the necessary approval to construct the fence and that the fence is in violation of
restrictive covenants; thus, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and A NDY D. B ENNETT, J., joined.
Timothy A. Davis, Lebanon, Tennessee, for the appellants, Wallace Cathey and wife,
Darlene Cathey.
Byron M. Gill, Lebanon, Tennessee, for the appellees, Michael D. Hershey and wife, Suzana
Hershey, and Robert E. Black.
OPINION
The matters at issue pertain to the restrictive covenants found in the Declaration of
Covenants, Conditions and Restrictions of South Fork Subdivision, Section III
(“Restrictions”), in Wilson County, Tennessee.
Plaintiffs, Michael D. Hershey and wife, Suzana Hershey, and Defendants, Wallace
Cathey and wife, Darlene Cathey, own adjoining lots in the subdivision known as South Fork
III. Plaintiffs own one residential lot which fronts Amarillo Drive. Defendants own two lots
which back up to each other. Defendants’ home is built on the lot that fronts Cartel Court;
Defendant’s second lot faces Amarillo Drive and is immediately adjacent to Plaintiffs’ lot.
Plaintiffs filed this action, a Petition for Temporary Injunction and Permanent
Injunction, seeking to enforce the Restrictions when Defendants began construction of a
fence on both of their lots. Plaintiffs asserted that Defendants had not obtained approval to
erect a fence and that the fence was not in compliance with the applicable restrictive
covenants stated in the Restrictions. Defendants asserted that they obtained the requisite
approval to erect the fence and that strict compliance with the Restrictions had been waived.
The Restrictions applicable to this action include, inter alia, Article III Section 1, and
Article III Section 2 Paragraph 2.
Article III Section 1 of the Restrictions mandates that:
No building, fence, wall or other structure, including material changes in the
landscaping of each lot, shall be commenced, erected, or maintained upon the
Properties, nor shall any exterior addition to or change or alteration therein be
made until the plans and specifications showing the nature, kind, shape,
heights, materials, and location of the same shall have been submitted to and
approved in writing as to harmony of external design and location in relation
to surrounding structures and topography by the Declarant, or after completion
of initial construction on each lot by the Architectural Control Committee. For
any proposed construction on a lot or lots, one (1) set of plans shall be
submitted, upon approval, it will be signed and returned.
Article III Section 2 Paragraph 13 places further restrictions on the placement of
fences:
No fence of any kind may be erected on any lot except for a fence approved by
the Architectural Control Committee. Such fence must be approved as to
location and materials in the sole discretion of the Architectural Control
Committee. Any fence shall extend no further forward than the rear of the
principal structure. The front yard shall not be fenced.
At trial, Wallace Cathey testified that when he purchased the lots he told the developer
of South Fork, Tony Watson, who instituted the Restrictions, that he intended to build a fence
on both lots. Cathey, however, admitted that he never gave Watson any specifics about the
proposed fence and that no plans or specifications for a fence were submitted to Watson;
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Cathey merely informed Watson that he wanted to build a fence. Watson testified that he
does not remember specifics of the conversation with Cathey. Watson also testified that he
did not approve and never would have agreed to the location of Cathey’s fence – one that
extended from the back of the residential dwelling on the improved lot through the
unimproved lot to Amarillo Drive.
Following a bench trial, the trial court determined that the Restrictions required that
plans and specifications to be submitted to the Architectural Control Committee for its
approval, that no plans or specifications were ever submitted, and that Defendants had not
obtained the requisite approval to construct the fence at issue.1 Based on these findings the
trial court granted a permanent injunction, which included an order that Defendants remove
the fence and return the property to its previous condition. The trial court also ordered that
any future plans for a fence be submitted to the attention of Bob Black, who constituted the
Architectural Control Committee. This appeal followed.
Defendants assert the trial court erred in finding that they failed to obtain proper
approval for construction of the fence. Defendants also assert the trial court erred in ruling
that any future construction plans would have to be presented to Bob Black. We will deal
with each of those issues in turn.
S TANDARD OF R EVIEW
The standard of review of a trial court’s findings of fact is de novo, and we presume
that the findings of fact are correct unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296
(Tenn. Ct. App. 2001). For the evidence to preponderate against a trial court’s finding of fact,
it must support another finding of fact with greater convincing effect. Id.; see also The Realty
Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).
Where the trial court does not make findings of fact, there is no presumption of correctness,
and “we must conduct our own independent review of the record to determine where the
preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999).
We also give great weight to a trial court’s determinations of credibility of witnesses. Estate
of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); B & G Constr., Inc. v. Polk, 37
S.W.3d 462, 465 (Tenn. Ct. App. 2000). Issues of law are reviewed de novo with no
presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.
1999).
1
In its order the trial court stated, “Defendants had full knowledge of [the] Restrictions and, despite
that fact, violated the same by failing to obtain proper approval for their construction plans and by attempting
to construct a non-compliant fence on their [p]roperties.”
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A NALYSIS
I.
Defendants claim that Watson, while serving in his capacity as the Architectural
Control Committee, approved the construction of the fence following his conversation with
Wallace Cathey. They contend that Watson had full authority to grant approval by waiving
the Restrictions and they claim the term “changes in the character of the community” is
ambiguous and that the clause should be stricken or that the character of the community has
changed as to justify waiver of the Restrictions by the Architectural Control Committee. We
disagree for several reasons.
The trial court made a specific finding of fact that Defendants did not obtain approval
to build the fence. Pursuant to the de novo standard of review, we presume that the findings
of fact by the trial court are correct unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Rawlings, 78 S.W.3d at 296. For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater
convincing effect. Id. We have determined the evidence does not preponderate against this
important finding of fact.
Defendants admit that Cathey had but one brief conversation with Watson concerning
his desire to build a fence and that brief conversation occurred when Defendants were
purchasing the lots in question. Moreover, Defendants admit that no plans and specifications
were ever presented. Further, Watson states that he did not approve the fence and more
emphatically, he insisted that he would never approve a fence such as that being constructed
by Defendants.
Although the Restrictions authorize the Architectural Control Committee to waive any
restrictive covenants and approve “plans presented if the development of new materials,
construction techniques or changes in the character of the community justify such actions,”
no plans were “presented.” The Restrictions expressly make the presenting of “plans” a
condition precedent to the right of the Committee to waive any restrictive covenants. As no
plans were ever presented, the Architectural Control Committee was without authority to
waive any restrictive covenants. Moreover, there is no evidence of a change in character of
the community, certainly not one to justify the waiver alleged by Defendants. Most
importantly, Watson made it perfectly clear that he did not waive any requirements for the
construction of the fence being built by Defendants.
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For the reasons stated above, the evidence does not preponderate against the trial
court’s finding that Defendants did not obtain approval to build the fence or that the
restrictive covenants were waived.
II.
Defendants also challenge the trial court’s order that requires Defendants submit to
Bob Black any future requests for approval to construct a fence.
Watson resigned as the sole member of the Architectural Control Committee in a 2005
letter, and filled “the vacancy” on the committee by appointing Black as his successor. In the
letter Watson states that Black is to be the Architectural Control Committee for South Fork
IV; however, there is no section IV; only sections I, II and III. It appears that the reference
to South Fork “IV” is a typographical error; however, it is not necessary for this court to
make that determination or to decide whether Black was duly appointed to fill the vacancy
in 2005. This is because Black has made no decisions relative to the issues on appeal in his
capacity as the Architectural Control Committee for South Fork III. Moreover, the makeup
of the Architectural Control Committee for South Fork III may change from time to time and
Black may or may not be serving as the Architectural Control Committee if and when
Defendants choose to submit written plans and specifications to obtain approval to construct
a fence in the future.2
Accordingly, we modify the trial court’s order to the extent the order mandates that
any future request for approval to construct a fence be submitted to “Bob Black.” On remand
the order should be modified by the trial court to reflect that any future request(s) shall be
submitted as required by the Restrictions then in effect to the person or persons then serving
as the Architectural Control Committee of South Fork III.
I N C ONCLUSION
The judgment of the trial court is affirmed, except as modified herein, and this matter
is remanded for further proceedings. Costs of appeal are assessed against Defendants,
Wallace and Darlene Cathey, for which execution may issue.
______________________________
FRANK G. CLEMENT, JR., JUDGE
2
Article III Section 1 states in pertinent part: “Any vacancy on [the Architectural Control] Committee
shall be filled by Declarant [Tom Watson] until such time as the duty to fill such vacancy shall be delegated
to the Owners.”
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