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Inc. v. Wilkerson

Court of Appeals of Tennessee, Knoxville

June 1, 2017

WALNUT RUN HOMEOWNER'S ASSOCIATION, INC.
v.
JERRY WAYNE WILKERSON

          Session March 23, 2017

         Appeal from the Chancery Court for Hamilton County No. 13-0552 Jeffrey M. Atherton, Chancellor

         The owner of property in a residential subdivision appeals the order of the trial court prohibiting construction of an eight-foot wooden fence. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Buddy B. Presley, Jr., Chattanooga, Tennessee, for the appellant, Jerry Wayne Wilkerson.

          Neil A. Brunetz, M. Ellis Lord, Robert F. Parsley, and Lynzi J. Archibald, Chattanooga, Tennessee, for the appellee, Walnut Run Homeowner's Association.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J. joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         In 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 Covenants provided:

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 CONVEYANCES.
* * *
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 PROCURED.

         The 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, [1] to create an Architectural Review ...


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