WALNUT RUN HOMEOWNER'S ASSOCIATION, INC.
JERRY WAYNE WILKERSON
Session March 23, 2017
from the Chancery Court for Hamilton County No. 13-0552
Jeffrey M. Atherton, Chancellor
owner of property in a residential subdivision appeals the
order of the trial court prohibiting construction of an
eight-foot wooden fence. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
B. Presley, Jr., Chattanooga, Tennessee, for the appellant,
Jerry Wayne Wilkerson.
A. Brunetz, M. Ellis Lord, Robert F. Parsley, and Lynzi J.
Archibald, Chattanooga, Tennessee, for the appellee, Walnut
Run Homeowner's Association.
W. McClarty, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J., and Andy D. Bennett, J. joined.
W. McCLARTY, JUDGE
1987, Harvey and Linda Robinson ("the Robinsons")
acquired property in Ooltewah, Tennessee. Working with
Marshall Berry, Bill Fine, and Terry Payne, the Robinsons
developed a plan to create a residential subdivision called
the Walnut Run Subdivision ("the Subdivision"). In
September 2006, a final plat was recorded establishing the
Subdivision, and in March 2007, Restrictive Covenants
("the Covenants") governing the subdivision were
recorded in the Register's Office of Hamilton County. The
Covenants, signed by Terry Payne as an "Authorized
Representative" on behalf of Walnut Run, provided for
the establishment of the Walnut Run Homeowner's
Association ("the Association" or
"Plaintiff"). As pertinent to this appeal, the
WHEREAS, WE HARVEY AND LINDA ROBINSON, BILL FINE, AND
MARSHALL BERRY ARE THE OWNERS OF PROPERTY IN THE SECOND CIVIL
DISTRICT OF HAMILTON COUNTY, TENNESSEE, KNOWN AS WALNUT RUN
SUBDIVISION LOTS 1 THRU 80.
WHEREAS IT IS OUR INTENT, PURPOSE, AND DESIRE TO INSURE THAT
THE VARIOUS LOTS IN SAID SUBDIVISION ARE DEVELOPED INTO A
RESIDENTIAL SECTION, AND FOR SUCH PURPOSES, THERE ARE IMPOSED
ON THE VARIOUS LOTS, UNLESS SPECIFIED OTHERWISE, THE
RESTRICTIVE COVENANTS AND CONDITIONS HEREINAFTER SETFORTH,
WHICH SHALL BE DEEMED TO BE A PART OF THE CONSIDERATION OF
THE CONVEYING OF SAID LOTS, AND SAID RESTRICTIVE COVENANTS
AND CONDITIONS SHALL RUN WITH THE LAND, THE SAME BEING FOR
USE, PROTECTION, AND BENEFIT OF THE PRESENT AND FUTURE OWNERS
OF LOTS IN SAID SUBDIVISION, AND ARE TO BE EFFECTIVE, WHETHER
OR NOT THEY ARE SET FORTH SPECIFICALLY IN SUBSEQUENT
* * *
TERMS OF COVENANTS. THESE COVENANTS RUN WITH THE LAND AND ARE
BINDING ON ALL PARTIES AND ALL PERSONS CLAIMING UNDER THEM
FOR A PERIOD OF TWENTY-FIVE (25) YEARS FROM THE DATE THESE
COVENANTS ARE RECORDED, AFTER WHICH TIME SAID COVENANTS SHALL
BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE TEN (10) YEAR
PERIODS, UNLESS AN INSTRUMENT SIGNED BY A MAJORITY OF THEN
OWNERS OF THE LOTS HAS BEEN RECORDED AGREEING TO CHANGE SAID
COVENANTS IN WHOLE OR IN PART.
ENFORCEMENT. IN THE EVENT OF VIOLATION OR ATTEMPTED VIOLATION
OF ANYONE OR MORE OF THE FOREGOING RESTRICTIVE COVENANTS AND
CONDITIONS, THE PARTY OR PARTIES GUILTY THEREOF SHALL BE
SUBJECT TO AND LIABLE AT THE SUIT OF LINDA AND HARVEY
ROBINSON, AND/OR MCDANIEL AND SON CONSTRUCTION COMPANY INC.
THEIR HEIRS OR ASSIGNS, TO BE ENJOINED BY PROPER PROCESS FROM
SUCH VIOLATION, AND SHALL BE FURTHER LIABLE FOR SUCH DAMAGES
AS MAY ACCRUE, IT BEING STIPULATED THAT COURT COSTS AND
REASONABLE ATTORNEY FEES INCIDENT TO ANY SUCH PROCEEDINGS
SHALL CONSTITUTE LIQUIDATED DAMAGES, WE RESERVE THE RIGHT AND
THE PRIVILEGE OF WAIVING MINOR VIOLATIONS OF THESE
RESTRICTIVE COVENANTS AND CONDITIONS WHEN THE SAME DO NOT, IN
OUR OPINION, MATERIALLY AFFECT THE PURPOSES SOUGHT TO BE
ATTAINED BY THESE RESTRICTIVE COVENANTS, AND PROVIDING THAT
IF SUCH VARIANCE OR VIOLATIONS, A VIOLATION OF ANY ZONING
ORDINANCE, VARIANCE FOR SUCH ZONING VIOLATION MUST ALSO BE
Covenants prohibited lot owners from erecting a fence of a
"height more than four feet from the ground."
Further, lot owners were specifically required to "get
written permission from the developers or their
representatives" before erecting a fence. The Covenants
were amended on May 8, 2010,  to create an Architectural Review