RIVER PLANTATION HOMEOWNER'S ASSOCIATION, INC.
R. RANDALL CAPPS, ET AL.
Session April 16, 2019
from the Chancery Court for Greene County No. 20130205
Douglas T. Jenkins, Chancellor
appeal arises from a lawsuit concerning the enforcement of
restrictive covenants in a subdivision. River Plantation
Homeowner's Association, Inc. ("the
Association"), later joined by certain individual
property owners ("Plaintiffs" collectively), sued
property owners R. Randall Capps and his wife Carolyn Brown
Capps ("the Capps") in the Chancery Court for
Greene County ("the Trial Court") seeking
enforcement of a restrictive covenant requiring homeowners to
have a paved driveway. The Capps have a gravel driveway and
wish to keep it. The Trial Court found in favor of Plaintiffs
and ordered the Capps to install a concrete driveway. The
Capps appeal, raising several issues, including one as to
whether the Association lacks standing. We hold, inter
alia, that the Association, although not specified in
the restrictive covenants as a party capable of suing to
enforce restrictions, has standing to do so. In light of the
unambiguous driveway restriction and the fact that the
Association never waived enforcement, we affirm the Trial
Court's judgment in favor of Plaintiffs. However, we
modify the Trial Court's judgment to allow the Capps, if
they so choose, to use asphalt instead of concrete, as the
Association has no objection to it. In addition, we reverse
the Trial Court's decision to not award Plaintiffs their
attorney's fees incurred in successfully bringing this
enforcement action where the restrictive covenants
specifically provide for such attorney's fees. We,
therefore, remand for the determination and award to
Plaintiffs of reasonable attorney's fees. Otherwise, we
affirm the judgment of the Trial Court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed as Modified, in Part, and Reversed, in Part;
C. Jessee, Johnson City, Tennessee, for the appellants, R.
Randall Capps and Carolyn Brown Capps.
William S. Nunnally, Greeneville, Tennessee, for the
appellees, River Plantation Homeowner's Association, Inc.
and Robert Clayton Northrop, Tammy Northrop, Teddy Brown
Haley, Mary June Haley, Steven Goad, Jan Willis McAlpin, and
Judy A. McAlpin.
Michael Swiney, C.J., delivered the opinion of the court, in
which Richard H. Dinkins and John W. McClarty, JJ., joined.
MICHAEL SWINEY, CHIEF JUDGE
Plantation is an upscale subdivision in Greene County,
Tennessee. The Capps are residents of River Plantation.
Construction began on the Capps' home in 2005 and
concluded in 2007. Restrictive covenants run with the land in
this community. The restrictive covenants provide, as
5. DRIVEWAYS: Before any construction is begun, a temporary
driveway shall be installed and said drive shall be crowned
and have proper drainage so that overflow, if any, from the
building site shall not flow upon the main road. After
construction is completed, the driveway shall be constructed
of either concrete or a surface approved by Developer. Owners
shall be responsible to reimburse Developer for any cost for
removal of debris or for damage to public streets caused by
the owner or his agents.
12. TERM: Each and every one of the aforesaid covenants,
conditions, and restrictions shall attach to and run with
each and every lot of land; and all titles to, and estates
therein, shall be subject thereto and the same shall be
binding upon each and every owner of said lots until October
15, 2019, and shall be extended automatically for successive
period of ten (10) years, unless by action of a minimum of
Sixty-Seven percent (67%) of the then owners of lots, the
owners agree to modify these covenants and restrictions in
whole or in part, provided that the instrument evidencing
such action or modification must be in writing and shall be
duly recorded in the Register's Office of Greene County,
Tennessee. The Developer may amend these restrictions
unilaterally at any time so long as it owns over Fifty
percent (50%) of the lots shown on the recorded plat of the
17. ENFORCEMENT: If any owner or their heirs or assigns shall
violate or attempt to violate any of the covenants herein, it
shall be lawful for any other person or persons owning any
real property situated in said RIVER PLANTATION SUBDIVISION,
to prosecute any proceedings at law or in equity against the
person or persons violating or attempting to violate any such
covenants and either enjoin him or them from doing so and/or
to recover damages or any other dues for such violations.
Incident thereto, any successful enforcing party shall be
entitled to recover from a party found to be in violation of
these covenants, reasonable attorney's fees incurred in
so doing, and the violator or violators shall also be liable
for any such other and additional damages as may occur
including, but not be limited to, court costs.
18. WAIVER: For the purpose of property improvements, as long
as it retains record ownership of any lot in the subdivision,
the Developer reserves the right to grant waivers from these
restrictive covenants. Said waiver must be in writing and
recorded in the Register's Office for Greene County,
Tennessee. The grant of any waiver shall be conclusive proof
that the waiver shall not materially effect the protective
purposes sought by the Developer. Other owners of lots in the
subdivision shall not be entitled to bring suit to enforce
the compliance of the original restriction where a waiver has
been given by the Developer, nor will any owner be entitled
to recover damages from the Developer for any waiver granted
Capps have a gravel driveway, which drew opposition from the
Association. In October 2013, the Association, as successor
to the developer, sued the Capps for breaching the
restrictive covenants. The Association sought specific
performance, costs, expenses and attorney's fees. The
Capps filed an answer asserting a number of affirmative
defenses, including the following:
1. The plaintiff's complaint should be dismissed for
failure to state a claim upon which relief can be granted.
The defendants further allege that the plaintiffs have failed
to join all of the landowners of River Plantation
Subdivision, Phase I. Because of all the existing variances
approved, the defendants affirmatively allege that all
landowners must be parties to this action.
3. The defendants affirmatively allege that they obtained
approval from the developer to install a gravel driveway when
the developer was in control of the homeowners association.
The defendants affirmatively allege that they are in
compliance with enumerated paragraph number five,
labeled Driveways, of the restrictive covenants of the River
Plantation Subdivision, Phase I.
4. The defendants affirmatively allege that the slope of the
defendants' residence in the River Plantation
Subdivision, Phase 1 is steep and hazardous, thereby
necessitating a gravel surface for health and safety reasons.
The defendants affirmatively allege that to deny the
defendants the gravel surface would place the defendants and
their guests at risk. The plaintiff's denial also
constitutes an unreasonable abuse of discretion by the
plaintiff in applying enumerated paragraph number five,
labeled Driveways, of the restrictive covenants of the River
Plantation Subdivision, Phase I.
5.The defendants affirmatively allege that the plaintiff
waived any objection and granted approval to the
defendants' driveway surface by not alleging a violation
of the restrictive covenants of the River Plantation
Subdivision, Phase I until six years after the
defendants' home was constructed and the defendants
started their occupancy and use of the residence. The
defendants would affirmatively allege that their lender
worked closely with the developer to confirm that the
driveway access ultimately approved by the developer was in
compliance in order to protect their first mortgage.
6.The defendants affirmatively allege that the plaintiff has
either not enforced or selectively enforced the covenants and
restrictions of the River Plantation Subdivision, Phase I,
thereby rendering such covenants and restrictions
matter was tried in June 2017, by which point certain
subdivision property owners had been added as plaintiffs.
Subdivision developer Glen Glafenhein testified regarding
whether he ever had approved the Capps' gravel driveway:
Q. Okay. Well, let's do it like that. What if somebody
said, "I want to just do a gravel driveway"?
MR. JESSEE: Objection, Your Honor. It's speculative.
THE COURT: Overruled. I think he can answer that. Go ahead.
A. No. I wouldn't have approved a gravel, a soft surface
next to a hard surface for erosion purposes.
Q. All right.
A. You know, if you've got dirt and gravel going out onto
a street, that's not, that's not something you want
Q. Do you recall having any discussions with Mr. or Mrs.
Capps about that subject?
A. I talked to Carolyn probably a year ago, and she was -- we
had [a] phone conversation, and I basically said I don't
recall. She said that I represented that I may have given a
variance on the driveway there, and I don't recall doing
that. And I don't believe I would because of very reasons
[sic]. Now typically I'll look at a situation because in
the restrictions it allowed if something came up for me to
look at where I didn't think it would hurt the value or
hurt the neighborhood, I could make clarity to what my intent
was when I wrote the -- had the restrictions written. So I
mean I did keep something in. I know Carolyn's driveway
is long, and we did have a conversation, and. . .
Q. Do you know about when you had a -- would there have been
an earlier conversation besides the one that took place about
a year ago?
A. I'm sorry. I just -- I mean if I did, I don't
A. So I apologize. I mean it's. . .
Q. Do you have any recollection of ever granting Mr. or Mrs.
Capps permission to just have a gravel driveway as opposed to
a hard surface or concrete driveway?
A. No. I don't. I'm sorry. I don't.
Q. Do you -- looking backwards or with your knowledge of what
you do, would you have consented to a request of a. . .
MR. JESSEE: Objection, Your Honor. Speculative. What he would
have done in the past? He's answered and says he
THE COURT: I'm going to let him -- I'm going to let
him -- overruled. Go ahead.
Q. To the extent that she will testify or has testified that
you gave her some sort of permission to just keep a gravel
driveway, would that be true?
A. No. I don't recall that. If I had looked at the
situation, you know, her drive, I've got a Google map so
I can see switchbacks and everything, you know, I'll just
-- if this came to me today and I was the developer, I would
look at it, and I could see where you could probably pave the
drive maybe until you got to where there wasn't a problem
with erosion, where it wasn't going to hurt anyone and
probably would have given her a variance. But that would be,
you know, sitting and studying and looking at it. Typically,
if I do that, and I've done some variances, I get with
both of the adjoining neighbors because I wouldn't tick a
neighbor off because they already own. So I would have a
document prepared to give the neighbors to agree if I did
anything like that. So I look at it, and I can see -- I could
see where maybe that needed to be done, but that's none
of my business.
Q. Do you have any recollection or any records that suggest
that you did such a thing in this case?
Q. What is the concern about gravel in a steep, a relatively
steep area? What's the problem with that?
A. Well, you're coming from a good hard surface road, and
you're -- if you've got dirt and rock going out on
the road, that's not good for, you know, the community. I
mean you don't want erosion going on the road and having
to have clean-up. I mean. . .
Q. And is that the -- what is the effect of rain or heavy
rain on gravel, and what does the effect of gravity do?
A. Well, it becomes a maintenance issue. I mean, you know, if
you're in a city or a town, they're going to require
a certain amount of asphalt so that doesn't happen. But
that would be the purpose of a hard surface connecting to the
existing county hard surface road. That's. . .
Q. Now, again in searching your memory back, do you have any
recollection of ever giving any kind of consent, oral or
otherwise, to the Capps to not have to pave, you might say,
A. No. I don't recall that.
Q. Okay. Let me call your attention to. . .
THE COURT: Have you got what you need?
THE COURT: Let me ask you a question while he's getting
ready there. Did you ever grant a variance on anything? Did
you ever grant a variance?
A. Yes. Usually in a subdivision of this size something will
come up where I could grant a variance for clarity of what
the intentions were.
THE COURT: So you remember granting one or more in this?
Q. We're about to talk about it.
THE COURT: Okay. I was going to ask you how did you do that?
Did you just over the phone go, "Yeah. Go ahead.
It's fine," or did you have something prepared and
A. We would have a paper trail. We'd put it in a, some
type of agreement.
THE COURT: Okay.
THE COURT: Well, in response to their assertion, it might be
more safe graveled. Are you saying you don't agree with
that or you do?
A. Well, if you have ice on the road and maybe in certain
circumstances, g[r]avel would be -- I mean I'm sure there
are -- you know, if you've got ice, you'd probably be
better off with gravel than being an asphalt or a concrete
Brannan, owner of a lot in River Plantation and a former
President of the Association, testified regarding a
conversation he had with Mrs. Capps sometime in ...