Session September 7, 2017
from the Circuit Court for Sumner County No.
83CC1-2015-CV-188 Joe H. Thompson, Judge
appeal arises out of a suit to enforce restrictive covenants.
Plaintiffs filed suit seeking an injunction to prevent their
neighbors from operating a commercial horse facility. After a
hearing, the court permanently enjoined Defendants from using
or allowing their property to be used for a commercial horse
operation and from constructing any additional buildings
before they built a residence on the property. The trial
court also ruled that Defendants did not have to remove or
relocate the already-constructed "run-in shed" at
this time, but that once a residence is built, the shed must
be removed or moved to the rear of the residence. Defendants
appeal. Upon our review, we reverse the judgment enjoining
Defendants from conducting a commercial horse operation; in
all other respects we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in Part and Affirmed in Part
Russell E. Edwards and Michael W. Edwards, Hendersonville,
Tennessee, for the appellants, Carla Hurley, Laurale Lowery,
and Marcia Johnston.
Elizabeth Sitgreaves, Brentwood, Tennessee; and C. Jay
Ingrum, Gallatin, Tennessee, for the appellees, Homeowners of
Ash Grove Estates, Ken LouAllen, Sr., Vicki LouAllen, James
Wallace, Jamie Wallace, Paul Curd, Jr., Paul Curd, Sr., and
Richard H. Dinkins, J., delivered the opinion of the court,
in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
Hurley, Laurale Lowery, and Marcia Johnston (collectively,
"Defendants") purchased an 18-acre tract of land in
Ash Grove Estates in Sumner County at an estate auction in
2009. The property, known as Tract 7, is subject to
restrictive covenants, including that "each residence .
. . must have a minimum total of 2000 square feet of interior
heated floor space" and that "[s]tock barns are
permitted but must be to the rear of the dwelling." The
covenants permit horses to be kept on the tracts but prohibit
other types of animals. Defendants have constructed a
barn-like structure they refer to as a "run-in shed,
" which measures 36 feet by 50 feet and provides shelter
for the horses, hay, and equipment they keep on the property.
February 25, 2015, several of the neighboring homeowners in
Ash Grove Estates, namely Paul M. Curd, Sr., Paul M. Curd,
Jr., Teresa Curd, Ken LouAllen, Vicki LouAllen, and James
Wallace (collectively, "Plaintiffs"), filed a
petition seeking a restraining order or other injunctive
relief to prevent the Defendants from constructing a
commercial horse training facility on their property. The
petition alleged that construction had already begun that
disregarded certain restrictive covenants. A hearing was
held, after which the court entered an order holding that
"there was no immediate 'irreparable' harm being
done, " that "any harm that was being done could be
remedied, " and advising Defendants "that any
further work on the building, except for the addition of
gutters and gravel, should cease pending a final
hearing;" the court did not enter an injunction. The
matter was set for trial on June 16, 2015; for reasons
unclear from the record, the trial was not held on that date.
a fire that destroyed a barn on another property owned by
them in November 2015, Defendants filed a motion on December
9, seeking the court's permission to "add stalls and
a lean-to to the existing structure" on Tract 7 to
shelter the horses from the other barn that had been
destroyed in the fire. The trial court denied the motion in
an order entered December 30, and set the case for trial for
filed an amended petition on January 25, 2016; Defendants
answered, denying most of the allegations and denying that
they "knowingly, willfully violated the Declaration of
Covenants, Conditions and Restrictions for Ash Grove."
For reasons not clear in the record trial was not held on the
scheduled date; rather, a hearing was held and an order
entered on March 2 permitting the Defendants to "assume
the risk and build a 10' by 10' feed room onto the
existing barn structure on their
property." The order also required Defendants'
counsel to file a description of the Defendants' current
and prospective uses for the property within 20 days. On
March 28, Plaintiffs moved the court to "visit the
property with or without counsel for both parties."
Defendants did not file a response to the motion. Following a
status conference the court entered an order granting the
motion, stating that the court, counsel, and a representative
of each party, if desired, "shall visit the property in
question after the final hearing set for June 27, 2016, in
order to assist the Court in making its ruling in the matter
court entered a Memorandum Opinion and Order on September 9,
stating that: As framed by the litigants, the two issues
before the court are:
1. What Lead Me On Farm, LLC activities may be conducted on
2. What constitutes the "front" of the property for
purposes of determining where the "rear of the
residence" is located?
court found that the restrictive covenants "permit
horses to be kept on a noncommercial basis" and that a
residence proposed to be constructed on the tract should
"face north towards the easement giving access to the
property." The court permanently enjoined Defendants
from using or allowing their property to be used for a
commercial horse operation and from constructing any
additional buildings prior to constructing a residence.
Defendants appealed, and this Court remanded the case for
entry of a final order. While the case was on remand,
Plaintiffs moved the trial court to rule on the issue of
whether the "run-in shed" should be removed;
Defendants opposed the motion. After a hearing on April 3,
2017, the court entered a final order memorializing the
parties' agreement that neither party would be awarded
attorney's fees; ruling that the Defendants did not have
to remove or relocate the run-in shed; and modifying the
memorandum opinion and order to require that "at the
time a residence is built on the Defendants/Appellants'
property, the restrictive covenants must be complied with by
either removing the run-in shed or moving it to the rear of
the residence." The Defendants appeal, raising the
following issues for our review:
1. Whether the trial court erred by sua sponte
ordering one of the Appellants to submit a document that
contains hearsay as a late-filed exhibit at the trial;
2. Whether the trial court erred by visiting the locus in
3. Whether the trial court erred by permanently enjoining the
Appellants from using their property for a commercial horse
4. Whether the trial court erred by permanently enjoining the
Appellants from constructing any additional buildings on
their property prior to the construction of a residence; and
5. Whether the trial court erred by requiring the Appellants
to remove the existing run-in shed at the time a residence is
built on their property or move it to the rear of the
Standard of Review
judgment was rendered after a non-jury trial; accordingly, it
is "subject to our de novo review upon the
record of the proceedings below. Tenn. R. App. P. 13(d)
mandates that there is a presumption that the trial
court's findings of fact are correct, and we must honor
that presumption unless the evidence preponderates to the
contrary." Cannon v. Loudon Cty., 199 S.W.3d
239, 241 (Tenn. Ct. App. 2005) (citing Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).
For the evidence to preponderate against the trial
court's factual finding, it must support another finding
of fact with greater convincing effect. Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 70-71 (Tenn. Ct.
App. 2000). We afford no presumption to the correctness of
the court's conclusions of law. Cannon, 199
S.W.3d at 241 (citing Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 35 (Tenn. 1996)).
covenants are property interests that run with the land but
arise from a series of contractual transactions; accordingly,
they are treated as contracts and construed using the rules
of construction applicable to other contracts. Maples
Homeowners Ass'n, Inc., 993 S.W.2d at 38-9. To
determine whether a contract's language is ambiguous,
this Court in VanBebber v. Roach has explained:
The language in dispute must be examined in the context of
the entire agreement. The language of a contract is ambiguous
when its meaning is uncertain and when it can be fairly
construed in more than one way. A strained construction may
not be placed on the language used to find ambiguity where
252 S.W.3d 279, 284 (Tenn. Ct. App. 2007) (internal citations
and quotations omitted). When the language in question is not
ambiguous, the court must look no further than the four
corners of the document to discern its meaning. Kiser v.
Wolfe, 353 S.W.3d 741, 748 (Tenn. 2011) (quoting
Whitehaven Cmty. Baptist Church v. Holloway, 973
S.W.2d 592, 596 (Tenn. 1998) ("'An elementary
precept of contract law' is that when the language is
clear, courts must not look beyond the four corners of the
instrument.")). Because construction of a contract is a
matter of law, we review the covenant's language de
novo, with no deference to the trial court's ruling.
VanBebber, 252 S.W.3d at 284.
Williams v. Fox, the Tennessee Supreme Court held:
[R]estrictive covenants are not favored in Tennessee because
they are in derogation of the right of free use and enjoyment
of property. Therefore, such restrictive covenants are
strictly construed. Courts refrain from extending a
restrictive covenant to any activity not clearly and
expressly prohibited by its plain terms. When the terms of a
covenant may be construed more than one way, the courts must
resolve any ambiguities against the party seeking to enforce
the restriction and in a manner which advances the
unrestricted use of the property.
S.W.3d 319, 324 (Tenn. 2007) (internal citations omitted).
This Court has also explained:
The courts enforce restrictions according to the clearly
expressed intentions of the parties manifested in the
restrictions themselves. We give the terms used in
restrictions their fair and reasonable meaning, and we
decline to extend them beyond their clearly expressed scope.
We also construe the terms of a restriction in light of the
context in which they appear. . . . [F]inally we
should resolve all doubts concerning a covenant's
applicability against applying the covenant.
Maples Homeowners Ass'n, Inc. v. T & R Nashville
Ltd. P'ship, 993 S.W.2d 36, 39 (Tenn. Ct. App. 1998)
(internal citations omitted).
Whether the Court Correctly Construed the ...