IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 22, 2022 Session

GARY HAISER ET AL. V. MICHAEL MCCLUNG ET AL.

Appeal from the Chancery Court for Cumberland County

No. 2011-CH-508 Robert E. Lee Davies, Senior Judge

No. E2021-00825-COA-R3-CV

This appeal involves a long-running dispute between two groups of property owners in the 

real estate community development of Renegade Mountain over composition of the board 

of directors and resultant control of the community organization. Plaintiffs, members of 

the Renegade Mountain Community Club, Inc. (“RMCC”), a homeowner’s association, 

brought this action in 2011, seeking a declaratory judgment affirming their status as 

directors and officers of RMCC. The Defendants contested the validity of the election at 

which Plaintiffs were allegedly elected. Plaintiffs also sought a declaration of whether the 

purported developer possessed developer’s rights. After two prior appeals and a 

subsequent retrial, the trial court held that Defendant Moy Toy, Inc., a property owner, 

does not have developer’s rights. The trial court further ruled that Plaintiffs were properly 

elected as members of RMCC’s board and enforced an easement of enjoyment to use 

certain property in the development that was designated as “common areas,” in favor of 

Plaintiffs and all other members of RMCC. Defendants appeal. We vacate the trial court’s 

findings that the parties stipulated that the old golf course property was not “common 

property,” and that Plaintiffs “have no interest” in it because the parties agreed and 

stipulated only that the old golf course property was “not an issue” in this case. We affirm 

the judgment of the trial court in all other respects.

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

Vacated in Part and Affirmed in Part; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY, 

C.J., and JOHN W. MCCLARTY, J., joined.

Scott Hall, Sevierville, Tennessee, for the appellants, Michael McClung, Phillip Guettler, 

Darren Guettler, and Moy Toy, LLC.

Melanie E. Davis, Maryville, Tennessee, for the appellees, Gary Haiser, Joel Matchak, 

Renegade Mountain Community Club, Inc., John Moore, and Gerald Nugent.

11/01/2022
2

OPINION

I. BACKGROUND

This is the third appeal of this action. In the first appeal, we affirmed the trial court’s 

denial of Plaintiffs’ request to certify the case as a class action. Haiser v. Haines, No. 

E2013-02350-COA-R3-CV, 2014 WL 7010723 (Tenn. Ct. App. Dec. 12, 2014). The case 

has been embroiled in litigation for over a decade. Its factual and procedural history is 

long and convoluted. Much of the pertinent background has already been established by 

this Court in the second appeal, Haiser v. McClung, No. E2017-00741-COA-R3-CV, 2018 

WL 415087 (Tenn. Ct. App. Aug. 29, 2018) (“Haiser II”), which we quote in relevant part 

at length:

This case involves two consolidated actions brought by opposing boards of 

directors of a residential development community club, with each board 

claiming legitimacy. The plaintiffs to the original action were owners of real 

property in the development who held a special meeting in September 2011 

in order to elect a new board of directors for the community club. The 

previous board of directors and defendants to the original action contested 

the validity of the election, claiming that none of the counted votes were cast 

by members in good standing. The defendants subsequently met in 

November 2011 and again in March 2012 to ratify their positions on the 

community club board of directors. In December 2011, the “new” board of 

directors, purportedly elected in September 2011, filed a declaratory 

judgment action against the original board of directors in the Cumberland 

County Chancery Court, requesting that the court declare which board of 

directors was legally in control. The complaint also requested that the court 

declare whether the purported developer properly possessed developer’s 

rights and that the court award damages to the new board for breach of 

fiduciary duties by the original board. . . . 

In 1972, the [RMCC] was established as a non-profit homeowners’ 

association for Renegade Mountain, and by-laws and restrictive covenants 

were put in place to govern its operations. . . [T]he original developers . . . 

adopted the Declaration of Covenants and Restrictions in 1972 for Renegade 

Mountain, with the stated intention of developing “a residential and 

commercial community with streets, water and sewer systems, recreational 

facilities of various types, and other common facilities for the use and benefit 

of the owners of the said properties described herein.” This document 

granted the developers the ability to plat and improve land and designate 

certain areas as “common areas” for the use of RMCC members. The 
3

“developer’s rights” contained therein also entitled the developers to ten 

votes for each lot or living unit owned by a developer, as opposed to one vote 

of regular membership, without the obligation to pay yearly dues. Pursuant 

to the Declarations, the developer’s rights were transferrable[.]

In 1987, RMCC adopted a set of by-laws and amended its restrictive 

covenants with a new set of controlling documents. The developed and 

undeveloped real property . . . changed ownership several times over the 

course of the years along with, purportedly, the developer’s rights. The 

Renegade Mountain development included, over time, a sports complex, a 

pool, a golf course, gated security, and a network of private roads.

By January 2000, an entity named Cumberland Gardens Acquisitions 

Corporation had acquired a large portion of real property in Renegade 

Mountain and allegedly the developer’s rights as well. . . . Renegade Resort, 

LLC, ultimately purchased the real property at Renegade Mountain and 

interests therein held by Cumberland Gardens Acquisitions Corporation. Joe 

Looney, an attorney assisting Cumberland Gardens Acquisitions Corporation

with the sale of its real property in Renegade Mountain, testified that 

developer’s rights were not discussed during the negotiations concerning this 

sale. In contrast, Phillip Guettler, a controlling partner of Renegade Resort, 

LLC, testified that he entered into the transaction believing that the sale 

included developer’s rights.

In March 2000, RMCC held a members’ meeting announcing the sale of the 

properties owned by Cumberland Gardens Acquisitions Corporation to 

Renegade Resort, LLC. According to the minutes of RMCC taken at this 

meeting, Edward Curtis, Phillip Guettler, and Michael Haines were elected 

as directors and officers of RMCC. In June 2000, a meeting of the members 

of RMCC was conducted. The record indicates that this was the last 

members’ meeting that occurred until 2011.

According to the deposition of Joseph Wucher, Renegade Resort, LLC, 

began conveying improved and unimproved real property to different entities 

involved in the development of Renegade Mountain shortly after its 

acquisition of the real property and purported developer’s rights from 

Cumberland Gardens Acquisitions Corporation. J.L. Wucher Company, 

owned by Mr. Wucher, was one such entity that purchased property in 

Renegade Mountain. Another such entity was LKM Group, LLC, which 

executed a contract to purchase the unimproved real property and 
4

developer’s rights of Renegade Resort, LLC, in September 2005. Also in 

2005, Mr. Wucher became a member of the RMCC Board of Directors.

On October 26, 2005, a document entitled, “Amended and Restated 

Declaration of Amended Covenants and Restrictions for Renegade

Mountain” (“First 2005 Amendments”), was recorded . . . Among the other 

changes to the existing declarations and restrictive covenants of Renegade 

Resort, the First 2005 Amendments granted developer’s rights specifically to 

Renegade Resort, LLC. The First 2005 Amendments were dated October 20, 

2005 . . .

Also on October 26, 2005, two additional documents, entitled, “By-laws of 

Renegade Community Club” (“2005 By-laws”) and “Renegade Resort First 

Amendment to Declaration of Covenants and Restrictions” (collectively, 

“Second 2005 Amendments”), were filed in the Cumberland County Register 

of Deeds office. The Second 2005 Amendments are similar to the First 2005 

Amendments, with one exception being the specification of “Renegade 

Resort, LLC, a Tennessee limited partnership,” as the developer. . . . The 

Second 2005 Amendments were signed by the same parties on the same day 

as the First 2005 Amendments.

. . . The lots owned by LKM Group were later sold to TIG Holdings, LLC, 

(“TIG Holdings”) in March 2011 through a foreclosure sale. On September 

28, 2010, Renegade Resort, LLC, and J.L. Wucher Company conveyed the 

improved and unimproved real property they respectively owned in 

Renegade Mountain to Moy Toy, LLC (“Moy Toy”), a company owned in 

part by Michael McClung and, indirectly, Phillip Guettler. [The sellers] also 

separately conveyed any existing developer’s rights they respectively 

claimed in Renegade Mountain to Moy Toy.

After Moy Toy purchased the improved and unimproved real property and 

purported developer’s rights, Phillip Guettler, acting as the vice president of 

RMCC, reinstated RMCC as a non-profit corporation with the Tennessee 

Secretary of State. On June 23, 2011, Phillip Guettler purportedly appointed 

himself and Mr. McClung to the RMCC Board of Directors.

Subsequently, acting on behalf of RMCC, Mr. McClung and Phillip Guettler 

ceased maintenance and upkeep of the roads, amenities, street lighting, and 

private security at Renegade Mountain. By December 2010, the roads were 

no longer being cleared of winter snow or being repaired, the street lights had 

been shut off, and the private security had been removed. Throughout 2011, 
5

several homeowners of Renegade Mountain attempted to contact the 

directors of RMCC, expressing their dissatisfaction with the state of affairs 

within Renegade Mountain. These homeowners requested that a special 

meeting be called and also requested access to the financial records and 

membership lists of RMCC. Receiving no response, a number of dissatisfied 

homeowners, believing themselves to be members in good standing, 

organized a special meeting to elect a new RMCC Board of Directors to 

RMCC and to amend the RMCC by-laws.

On August 24, 2011, TIG Holdings, the holder of 325 of the LKM Group 

lots sold at a foreclosure sale, executed a document granting Mr. McClung 

the proxy votes associated with the lots. On September 2, 2011, the 

homeowners held the special meeting, which Mr. McClung attended as 

president of RMCC. At the meeting, Mr. McClung appeared and 

immediately attempted to adjourn, alleging that none of the homeowners 

calling the special meeting were members in good standing. The gathered 

homeowners refused to allow adjournment.

During the September 2, 2011 meeting, the homeowners voted the existing 

Board of Directors out of office with an ostensible majority vote. Mr. 

McClung challenged this vote by claiming proxy votes for TIG Holdings, 

which outnumbered the collective votes of the gathered homeowners. The 

homeowners rejected these proxy votes as invalid, however, asserting that 

the TIG Holdings’ votes were not properly registered in advance and that 

TIG Holdings was not a member in good standing, having never paid dues 

since its purchase of real property in Renegade Mountain. The homeowners 

also rejected Mr. McClung’s assertion that Moy Toy could claim ten votes 

for each of the lots it owned through its purported developer’s rights. As a 

result, Mr. McClung was only able to cast three votes.

After voting the existing RMCC Board out of office, the homeowners voted 

in a replacement Board (“Owner Board”) for RMCC with Joel Matchak, 

Gary Haiser, and Judy Patterson elected as directors. The homeowners at the 

September 2, 2011 meeting also approved a new set of amendments to the 

RMCC by-laws. Contesting the validity of the September 2, 2011 meeting, 

Mr. McClung and Phillip Guettler executed a document on September 22, 

2011, appointing Phillip Guettler’s son, Darren Guettler, to the Board of 

Directors of RMCC. Mr. McClung, Phillip Guettler, and Darren Guettler 

later held a “properly noticed Annual Meeting of Members” on March 1, 

2012, and voted to ratify their positions on the RMCC Board of Directors 

(“Moy Toy Board”).
6

On December 22, 2011, Mr. Haiser and Mr. Matchak, identifying themselves 

as acting members of the Owner Board, filed a complaint in the [trial court]

on behalf of RMCC against Mr. McClung, Mr. Haines, Phillip Guettler, Mr. 

Wucher, and Moy Toy (“Owner Complaint”). The complaint alleged, inter 

alia, that Renegade Mountain had fallen into a state of disrepair due to the 

neglect of the defendants and that the Owner Board was properly elected as 

the RMCC Board of Directors on September 2, 2011, despite the Moy Toy 

Board’s continuing claims. The plaintiffs requested a declaratory judgment 

as to which Board of Directors controlled RMCC and which set of 

restrictions and by-laws were in legal effect, as well as damages for breach 

of fiduciary duty.

Shortly after the Owner Complaint was filed in the trial court, Moy Toy 

purchased the 325 lots in Renegade Mountain owned by TIG Holdings. On 

April 10, 2012, the Moy Toy Board filed a separate action in the trial court, 

individually and on behalf of RMCC, against the individuals on the Owner 

Board (“Moy Toy Complaint”). The Moy Toy Complaint essentially 

mirrored the allegations of the Owner Complaint and sought a declaratory 

judgment determining which Board of Directors was properly in place, an 

injunction preventing the Owner Board from acting on behalf of RMCC, and 

damages for allegedly converted funds that the Owner Board had collected 

as annual assessments.

* * *

On May 14, 2012, Mr. McClung and Phillip Guettler filed a joint answer to 

the amended Owner Complaint, denying all substantive allegations and 

alleging as an affirmative defense that the declaratory judgment action 

challenging the by-laws was missing indispensable parties. According to the 

answer, “[i]n order to make such a challenge, the Plaintiffs will be required 

to join each and every owner subject to the Bylaws and Declarations of 

Renegade [Mountain].” On May 14, 2012, the Owner Board also filed an 

answer to the Moy Toy Complaint, denying all substantive allegations and 

the validity of the Second 2005 Amendments.

* * *

On July 23, 2013, the Owner Board filed another motion to amend its

complaint, adding a request that the trial court order Moy Toy to convey real 

property classified as “common areas” to RMCC and a request for class 
7

action certification in order to include other property owners in Renegade 

Mountain as plaintiffs. . . . 

* * *

The third amended complaint challenged Moy Toy’s purported developer’s 

rights, requested that the trial court order Moy Toy to convey title to all 

“Common Property” in Renegade Mountain to RMCC, and requested that 

the court declare RMCC the controlling entity for the private roads of 

Renegade Mountain.

Haiser II, 2018 WL 4150877, at *1-5 (footnotes omitted). 

The trial court held a seven-day trial ending on April 14, 2016. The trial court held, 

in pertinent part, that (1) neither the Owner Board of Directors nor the Moy Toy Board of 

Directors was validly elected; (2) Plaintiffs acted in good faith in trying to call the Sept. 2, 

2011 meeting, and Moy Toy had unclean hands; and (3) the first and second 2005 

Amendments were valid because the statute of limitations to challenge them had run. The 

trial court made several alternative rulings in the event that its ruling on the statute of 

limitations issue was reversed, stating:

As an alternative ruling, if the Court of Appeals determines that the statute 

of limitations issue does not bar the challenge of the prior recorded 

Restrictions and By-Laws, the Court finds that based on the evidence that the 

By-Laws and Amendments recorded in 2005 are invalid because they were 

not enacted in accordance with their terms. In such event, the By-Laws and 

Restrictions in 1987 . . . would be the valid By-Laws and Restrictions for 

Renegade [Mountain]. The 2005 Restrictions and By-Laws were never 

approved by the members of the RMCC which were required for the 

amendment to be valid. 

* * *

[T]he Court has not ruled or determined that Moy Toy is the developer under 

the 2005 Restrictions which are [the First 2005 Amendments], where 

Renegade Resorts, LLC named itself as developer. The court has only 

determined that the [Owner Board] cannot obtain an affirmative ruling from 

this court that Moy Toy is not the developer because the statute of limitations 

has run out on that claim for declaratory relief before the [Owner Complaint] 

was filed. As an alternate ruling in the event the Court is incorrect on the 

statute of limitations issue, the Court finds that the evidence in this case is 
8

that Moy Toy, LLC received no developer rights when it purchased what is 

now Renegade [Mountain], then Renegade Resorts, LLC and or any other 

entity. . . . There is no evidence by deed or contract of the legitimate transfer 

of developer rights to Moy Toy, LLC. The Court finds that though [the First 

2005 Amendments] states developer rights existed, they did not exist because 

there was a breach in title that occurred and these rights were not properly 

conveyed in the chain of title or possession of such rights to Moy Toy, LLC 

or its predecessor in title except through what is stated in the 2005 Amended 

Restrictions.

Haiser II, 2018 WL 4150877, at *6, *7. 

On the second appeal, this Court did in fact reverse the trial court’s statute of 

limitations ruling, finding that the statute was inapplicable to bar the court from 

determining the issues of the validity of the First and Second 2005 Amendments and 

whether Moy Toy had developer’s rights. But the Haiser II Court also found that Moy Toy 

should have been allowed to present proof on these issues, concluding as follows:

we determine that the issue of the validity of the 2005 Amendments must be 

remanded to the trial court for further hearing and determination. On remand, 

the trial court should allow both sides to present evidence concerning the 

process of adoption of the 2005 Amendments and whether the requirements

for such adoption were properly followed. The validity and applicability of 

the 2005 Amendments not only affects the issue of Moy Toy’s possession of 

developer’s rights but also the remaining issues raised on appeal. . . . The 

court should allow both sides to present evidence concerning the chain of 

title of developer’s rights in Renegade Mountain.

* * *

Having determined that the six-year statute of limitations is inapplicable to 

the Moy Toy Board’s reliance on the 2005 Amendments as valid instruments 

and that the issue of whether Moy Toy possessed developer’s rights must be 

remanded to the trial court, we are unable to determine . . . whether the 

special master properly counted 3,363 votes for Moy Toy during such 

election. For this reason, the August 25, 2017 special election results are 

vacated. The trial court must first make a determination concerning the issue 

of whether Moy Toy validly possessed developer’s rights before another 

special election can be held.
9

The Owner Board contends that the special meeting held on September 2, 

2011, was valid because the members calling and attending the meeting were 

in good standing. . . .

We note that resolution of this issue turns on the applicability and resultant 

interpretation of the 2005 Amendments. Without a determination by the trial 

court regarding the validity of the 2005 Amendments, after hearing all of the 

evidence from both sides, this Court cannot properly rely upon the provisions 

contained within those Amendments to determine which members were in 

good standing at the time of the September 2, 2011 special election. This 

Court also cannot consider whether any prior versions of the Restrictions 

and/or By-Laws would or should be applied to such determination. 

Accordingly, we reverse the trial court’s ruling on this issue and remand the 

issue for further determination.

Haiser II, 2018 WL 4150877, at *14-15.

Following the second remand, Defendants filed a motion asserting that all property 

owners within the resort must be joined in this action in order for the court to have 

jurisdiction, arguing they are “necessary and indispensable parties.” The trial court denied 

this request, stating, “the Moy Toy Defendants continue to take the position that every 

owner must be made a defendant. Nowhere in the Court of Appeals’ opinion is there any 

suggestion that this needs to be done on remand.”

Later, twenty-one property owners filed a “complaint in intervention” seeking to 

intervene in this action. The trial court held, “[w]ith regard to any of the Intervenors who 

were property owners at Renegade Mountain prior to September 2019, the Court finds their 

motion to intervene is not timely in that they knew or reasonably should have known of 

their interest in this case when the trial court entered its judgment regarding these issues 

on June 29, 2016 and when the Court of Appeals entered its judgment on August 29, 2018.” 

The trial court further reasoned as follows:

there is no impairment to any of the Intervenors’ ability to protect their 

interest because the relief which all of the Intervenors are requesting and the 

position which all the Intervenors are taking is identical to that of Moy Toy’s. 

. . . If either party to the underlying suit can adequately represent the 

Intervenors’ interest, then the intervention serves no purpose. That being the 

case, the Intervenors are not necessary and indispensable parties to this 

proceeding.
10

The trial court allowed two landowners who acquired their property after September 2019 

to intervene but barred them from raising “any new theories, claims, defenses, or issues of 

fact which have not been disclosed by Defendant Moy Toy in discovery.”

Before the retrial, Defendants filed motions in limine arguing that the action should 

be dismissed for lack of standing and failure to join all necessary and indispensable parties. 

The trial court denied these motions. 

The lengthy retrial began in September and ended in December of 2020. The trial 

court entered an extensive 36-page order of judgment containing detailed factual findings 

and legal conclusions. As summarized by Defendants in their appellate brief, the trial court 

generally held:

(1) that Moy Toy has no developer rights, such rights not having been 

conveyed in a previous foreclosure on the last developer identified by the 

Court, Cumberland Gardens Limited Partnership, thus breaking the chain of 

title leading to Moy Toy. Alternatively, any such developer’s rights were 

conveyed to an entity other than Moy Toy, LKM Group, LLC.; 

(2) the 2005 Amendments [and] bylaws were all invalid, having been 

improperly adopted, wherein Moy Toy was deemed to have failed in carrying 

its burden of proof regarding their validity;1

(3) the specially-called RMCC meeting of September 2, 2011, was legitimate 

and the Court endorsed actions taken there, reinstating the board as 

composed of the Plaintiffs; 

(4) an easement of enjoyment for the benefit of Plaintiffs was imposed on 

common areas and properties otherwise belonging to Moy Toy. In 

furtherance of that the Trial Court invoked reliance on Innerimages, Inc. v. 

Newman, 579 S.W.3d 29 (Tenn. [Ct. App.] 2019)[.] 

(5) Unplatted roads, on Moy Toy’s property, currently in use by residents 

were to be maintained and controlled by RMCC, though Moy Toy was free 

to redevelop such trails thereafter as it wished.

(Citations to record omitted; footnote added). Defendants Michael McClung, Phillip 

Guettler, Darren Guettler, and Moy Toy, LLC, filed a timely notice of appeal. 

 

1 Defendants have not appealed the trial court’s ruling that the First and Second 2005 Amendments are 

invalid and “null and void.”
11

II. ISSUES

We address the following issues raised by Defendants:

1. Whether the trial court erred in holding that the proposed intervenors who owned 

property prior to September 1, 2019, were not necessary and indispensable parties, and 

denying their request for joinder in the case. 

2. Whether the trial court erred in holding that Plaintiffs had standing to challenge Moy 

Toy’s entitlement to developer’s rights.

3. Whether the trial court erred in ruling that Moy Toy had no developer’s rights.

4. Whether the trial court erred by holding that Plaintiffs’ actions were not barred by the 

statute of limitations. 

5. Whether the trial court erred in holding that all members of RMCC, including Plaintiffs, 

have an easement of enjoyment to use the roads and all common areas of the community 

development.

6. Whether the trial court erred in upholding the September 2, 2011 special election where 

the board consisting of Plaintiffs was elected.

Plaintiffs, in their posture as appellees, raise the following additional issues:

7. Whether the trial court erred in its definition of common properties in Renegade Resort.

8. Whether the trial court erred in holding that Plaintiffs have no interest in the former golf 

course property of the resort. 

III. STANDARD OF REVIEW

Our review of this non-jury case is de novo upon the record with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is otherwise. 

See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). “In order 

for the evidence to preponderate against the trial court’s findings of fact, the evidence must 

support another finding of fact with greater convincing effect.” Wood v. Starko, 197 

S.W.3d 255, 257 (Tenn. Ct. App. 2006). “The trial court’s determinations regarding 

witness credibility are entitled to great weight on appeal and shall not be disturbed absent 

clear and convincing evidence to the contrary.” Haiser II, 2018 WL 415087, at *10 (citing

Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)). Our review of the trial court’s 
12

conclusions of law, including its interpretation of a written agreement, is de novo with no 

presumption of correctness. See Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 

S.W.3d 653, 659 (Tenn. 2013); Ray Bell Constr. Co., Inc. v. State, Tenn. Dep't of Transp., 

356 S.W.3d 384, 386 (Tenn. 2011).

IV. ANALYSIS

A. Proposed Intervenors’ Request to Intervene

Defendants argue that the trial court erred in denying the proposed intervenors’ 

motion to intervene, which was first made by twenty-one landowners after roughly eight 

and a half years of litigation, a week-long first trial, and two appeals. The trial court noted 

the proposed intervenors’ “position that as homeowners, they do not wish their HOA fees 

to increase because of expenses which may be associated with the development and 

maintenance of the common area[s] in the event Plaintiffs are successful.” The proposed 

intervenors also “assert[ed] that it is their unified position the 2005 first amendments are 

valid and binding, and that Intervenors are ‘diametrically opposed’ to the claim of Plaintiffs 

that Moy Toy lacks developer rights which were lost by way of a broken chain of title of a 

previous developer.”

Our standard of review of this issue is as follows:

The standard of review on appeal for the denial of intervention as of right is 

de novo, except for the timeliness of the application which is reviewed under 

an abuse of discretion standard. Michigan State AFL-CIO [v. Miller], 103 

F.3d [1240] at 1245 [(6th Cir.1997)]. The standard of review for the denial 

of permissive intervention is abuse of discretion. Chaille v. Warren, 635 

S.W.2d 700, 703 (Tenn. App. 1982). An abuse of discretion exists when the 

reviewing court is firmly convinced that the lower court has made a mistake 

in that it affirmatively appears that the lower court’s decision has no basis in 

law or in fact and is therefore arbitrary, illogical, or unconscionable. See 

Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); State v. Carter, 890 

S.W.2d 449, 454 (Tenn. Crim. App. 1994).

Parking Guys, Inc. v. Metro. Gov’t. of Nashville & Davidson Cnty. ex rel. Traffic &

Parking Comm’n., 605 S.W.3d 451, 460 (Tenn. Ct. App. 2019) (quoting State v. Brown & 

Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000)).

In support of their motion to intervene, the proposed intervenors stated to the trial 

court that they “assert four means by which the Court may permit their intervention in this 

case: 1) pursuant to Tenn. R. Civ. Rule 24.0[1] (Intervention as of Right); 2) Tenn. R. Civ. 
13

Rule 24.02 (Permissive Intervention); 3) Tenn. R. Civ. Rule 19.01; and 4) T.C.A. § 20-1-

115.”2 Rule 24.01 provides that

[u]pon timely motion any person shall be permitted to intervene in an action: 

(1) when a statute confers an unconditional right to intervene; or (2) when 

the movant claims an interest relating to the property or transaction which is 

the subject of the action and the movant is so situated that the disposition of 

the action may as a practical matter impair or impede the movant’s ability to 

protect that interest, unless the movant’s interest is adequately represented 

by existing parties; or (3) by stipulation of all the parties.

In State v. Brown & Williamson, the Supreme Court explained the burden of a 

potential intervenor as follows:

A party seeking to intervene as of right under Rule 24.01 must establish that 

(1) the application for intervention was timely; (2) the proposed intervenor 

has a substantial legal interest in the subject matter of the pending litigation; 

(3) the proposed intervenor’s ability to protect that interest is impaired; and 

(4) the parties to the underlying suit cannot adequately represent the 

intervenor’s interests. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989). 

The intervenor has the burden of establishing all four of these elements or 

else the motion to intervene will be denied.

18 S.W.3d at 190-91. The trial court analyzed the motion to intervene in light of these four 

elements and held:

With regard to any of the Intervenors who were property owners at Renegade 

Mountain prior to September 2019, the Court finds their motion to intervene 

is not timely in that they knew or reasonably should have known of their

interest in this case when the trial court entered its judgment regarding these 

issues on June 29, 2016 and when the Court of Appeals entered its judgment 

on August 29, 2018. Thus, with regard to all Intervenors who owned 

 

2 On appeal, Defendants assert that the trial court should have applied Tenn. Code Ann. § 29-14-107(a), 

which provides that “[w]hen declaratory relief is sought, all persons shall be made parties who have or 

claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights 

of persons not parties to the proceedings.” However, it appears that nowhere in the pleadings filed by 

potential intervenors or Defendants did they ever cite this statute or ask the trial court to apply it. Therefore, 

this issue has been waived for failure to raise it with the trial court. See, e.g., Black v. Blount, 938 S.W.2d 

394, 403 (Tenn. 1996) (“Under Tennessee law, issues raised for the first time on appeal are waived.”). 

Moreover, we observe that none of the proposed intervenors is listed on the notice of appeal, so it is not 

clear that any of them are even participants in this appeal. 
14

property prior to September 1, 2019, the Court finds their motion is untimely 

for the reasons set forth above.

With regard to the other elements set forth in State v. Brown & Williamson[,]

the Court finds that there is no impairment to any of the Intervenors’ ability 

to protect their interest because the relief which all of the Intervenors are 

requesting and the position which all the Intervenors are taking is identical 

to that of Moy Toy’s. While it is true that the intervenors’ interests are 

diametrically opposed to that of Plaintiffs, they are in lockstep with the 

positions of Moy Toy. If either party to the underlying suit can adequately 

represent the Intervenors’ interest, then the intervention serves no purpose. 

That being the case, the Intervenors are not necessary and indispensable 

parties to this proceeding.

This Court has set forth the factors to consider in determining whether a motion for 

intervention is timely as follows:

The timeliness of an intervention is governed by equitable principles, and is 

determined by the facts and circumstances of each particular case. In 

determining whether an intervention is timely, courts consider the following 

factors:

(1) the point to which the suit has progressed; (2) the purpose for which 

intervention is sought; (3) the length of time preceding the application during 

which the proposed intervener knew or reasonably should have known of his 

interest in the case; (4) the prejudice to the original parties due to the 

proposed intervener’s failure after he knew or reasonably should have known 

of his interest in the case to apply promptly for intervention; and (5) the 

existence of unusual circumstances militating against or in favor of 

intervention.

In re Estate of Smith, No. W2017-02035-COA-R3-CV, 2018 WL 4859045, at *5-6 (Tenn. 

Ct. App. Oct. 8, 2018) (quoting Am. Materials Techs., LLC v. City of Chattanooga, 42 

S.W.3d 914 (Tenn. Ct. App. 2000); internal citations omitted). 

The trial court correctly analyzed the proposed intervenors’ claim for intervention 

as of right under Rule 24.01. We find no abuse of discretion in the trial court’s decision 

that the motion was not timely filed by proposed intervenors who owned property before 

September of 2019. As the trial court held, they knew or should have known of this case 

and their interest in it and waited to file their motion until a very late point in the 

proceedings. Furthermore, there is no error in the trial court’s finding that the proposed 
15

intervenors were not necessary and indispensable parties, because all of their positions

were “in lockstep with the positions of Moy Toy” and thus adequately represented. 

Regarding permissive intervention, Tenn. R. Civ. P. 24.02 provides that “[u]pon 

timely motion any person may be permitted to intervene in an action: (1) when a statute 

confers a conditional right to intervene; or (2) when a movant’s claim or defense and the 

main action have a question of law or fact in common.” The trial court ruled that only 

those proposed intervenors who bought property after September of 2019 filed timely, 

stating:

the Court will not consider permissive intervention for any property owners 

with a recorded interest prior to September 2019 because of their failure to 

show proper diligence in the timeliness of their request for intervention. 

American Materials Tech., LLC. v. City of Chattanooga, 42 S.W. 3d 914, 

916 (Tenn. Ct. App. 2000).

In exercising its discretion for the remaining Intervenors, the Court was 

concerned with the potential prejudice to the Plaintiffs regarding discovery. 

However, counsel for Intervenors stipulated that his clients would waive 

discovery, be bound by the discovery responses of Moy Toy, and be ready 

for trial in September 2020.

In balancing all of the above interests, the Court, exercising its discretion, 

will allow the Intervenors set forth in the complaint who had an interest in 

the Renegade Mountain Resort after September 1, 2019 to proceed as parties 

in this case. However, Intervenors will be prohibited from introducing any 

new theories, claims, defenses, or issues of fact which have not been 

disclosed by Defendant Moy Toy in discovery. All other Intervenors have 

failed to qualify under Rule 24.02 as being untimely.

As we have already held, the trial court did not abuse its discretion in finding the 

majority of the proposed intervenors did not timely file their motion to intervene. Our 

Supreme Court has observed that in exercising the discretion afforded under Rule 24.02, 

“the court must consider whether the intervention will unduly delay or otherwise prejudice 

the rights of the original parties.” Brown & Williamson, 18 S.W.3d at 192. In this case, as 

in Brown & Williamson, “it cannot be said that the trial court’s denial of permissive 

intervention had no basis in law or fact or was otherwise arbitrary, illogical, or 

unconscionable[.]” Id. at 192-93. 

Tennessee Rule of Civil Procedure 19.01 requires joinder of a party who is 

indispensable and necessary to an action. It provides in pertinent part:
16

A person who is subject to service of process shall be joined as a party if (1) 

in the person’s absence complete relief cannot be accorded among those 

already parties, or (2) the person claims an interest relating to the subject of 

the action and is so situated that the disposition of the action in the person’s 

absence may (i) as a practical matter impair or impede the person’s ability to 

protect that interest, or (ii) leave any of the persons already parties subject to 

a substantial risk of incurring double, multiple, or otherwise inconsistent 

obligations by reasons of the claimed interest. If the person has not been so 

joined, the court shall order that the person be made a party. 

This Court has recently reiterated that “[o]nly a party who will be directly affected by a 

decree and whose interest is not represented by any other party to the litigation is an 

indispensable or necessary party, that is, one without which no valid decree may be entered 

settling the rights between the parties that are before the [c]ourt.” Locke v. Locke, No. 

M2021-01454-COA-R3-CV, 2022 WL 3650806, at *4 (Tenn. Ct. App. Aug. 25, 2022) 

(quoting Moore v. Teddleton, No. W2005-02746-COA-R3-CV, 2006 WL 3199273, at *6

(Tenn. Ct. App. Nov. 7, 2006)). 

In this case, the trial court expressly held that “the Intervenors are not necessary and

indispensable parties to this proceeding” as a result of its finding that “there is no 

impairment to any of the Intervenors’ ability to protect their interest because the relief 

which all of the Intervenors are requesting and the position which all the Intervenors are 

taking is identical to that of Moy Toy’s.” The positions taken and arguments presented in 

the proposed intervenors’ complaint in intervention ̶that none of the Plaintiffs “are duly

elected as purported or putative members of any alleged Board of the RMCC,” that “the 

2005 First Amendments are valid and binding,” and that Moy Toy has valid developer 

rights on Renegade Mountain ̶ were all identical to Moy Toy’s strenuously-litigated 

positions at trial. As in Moore and Locke, the proposed intervenors were correctly 

determined not to be necessary and indispensable parties for purposes of Rule 19.01. See 

Locke, 2022 WL 3650806 at *5 (“any interest [the proposed intervenor] may have held in 

the Disputed Property was represented by Defendants”); Moore, 2006 WL 3199273 at *7 

(“although [the proposed intervenor] was affected by the chancellor’s decree in the Kyle 

suit, he and the Moores would appear to have had an identity of interests”).3 

 

3 We apply a similar analysis and reach the same result under Tenn. Code. Ann. § 20-1-115, which is quoted 

only in passing in Defendant’s brief, and states, “[i]n actions for the recovery of property, any person not a 

party to the action, on showing interest in the subject matter of the suit, may be allowed to appear as 

defendant in the action.” (Emphasis added). The language of the statute is permissive, which suggests that 

the trial court is afforded discretion in determining its application. Defendants cite no authority interpreting 

it, which is unsurprising given that our research indicates only fourteen appellate opinions citing it, half of 

which were issued in the nineteenth century.
17

B. Standing

Defendants argue that the trial court should have held that Plaintiffs have no 

standing to “effectively intervene in th[e] contract arrangement[s]” composing the chain of 

title to the rights at issue here, including the pivotal question of developer’s rights. In 

Haiser II, however, this Court expressly directed the trial court to “allow both sides to 

present evidence concerning the chain of title of developer’s rights in Renegade Mountain.” 

2018 WL 4150877, at *14. The issue of standing, first raised by Defendants after two 

appeals to this Court and at least eight years of litigation, is thus outside the scope of Haiser 

II’s mandate upon remand. 

In Lovlace v. Copley, 418 S.W.3d 1, 17 (Tenn. 2013), the Supreme Court observed 

that “[w]hen a statute creates a cause of action and designates who may bring an action, 

the issue of standing is interwoven with that of subject matter jurisdiction and becomes a 

jurisdictional prerequisite.” (quoting Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)). 

In this case, Defendants do not cite or rely upon such a statute creating a cause of action or 

designating who may bring an action. They merely argue as follows:

Plaintiffs were attacking the contractual arrangements between third parties

in their effort to establish that such contract did not come with the contingent 

developer’s rights. . . . As strangers or third parties to this contract, Plaintiffs 

herein have no standing to effectively intervene in this contract arrangement 

long after the fact, where there is no evidence they were intended third party

beneficiaries of it. 

The opinion issued in Haiser II constitutes the law of this case upon remand. As we have 

stated, Haiser II expressly directs the trial court to allow and consider evidence from both 

sides regarding whether developer’s rights transferred to Moy Toy. Under the particular 

circumstances presented by the long odyssey of this case, the question of Plaintiffs’ 

standing was not “interwoven with that of subject matter jurisdiction” as in Lovlace. We 

find no error in the trial court’s decision to follow Haiser II’s mandate and reject 

Defendant’s untimely attempt to raise standing as a defense. 

C. Statute of Limitations

In their appellate brief, Defendants argue that “[a]fter Haiser II returned the case to 

the Trial Court to retry certain issues, Defendants . . . renewed [their] argument that 

Plaintiffs’ effort to seek construction of Moy Toy’s developer rights, through declaratory 

action, was barred under the six-year limitations period governing contract rights, pursuant 

to Tenn. Code Ann. § 28-3-109(a)(3).” This argument is made despite the fact that a 

primary focus and holding of Haiser II was “that § 28-3-109(a)(3) is inapplicable to the 
18

case at bar. We therefore reverse the trial court’s ruling that the 2005 Amendments were 

valid due to expiration of the six-year statute of limitations.” 2018 WL 4150877, at *13. 

Defendants’ “renewed” argument regarding the statute of limitations is without merit. 

D. Developer’s Rights

Defendants argue that the trial court erred in finding that Moy Toy did not have 

developer’s rights. In this case, it appears that the primary, and perhaps only, practical 

significance of the developer’s rights at issue pertains to voting rights to determine control 

of the RMCC.4 A holder of developer’s rights does not have to pay yearly dues to maintain 

good standing in the community association. Only members in good standing are able to

cast a vote. A holder of developer’s rights also would have ten votes for each residential 

unit owned by the developer, as opposed to a single vote allowed an ordinary resident. 

In 1991, the owner of the remaining unsold lots and undeveloped land was an entity 

called Cumberland Gardens Limited Partnership. It defaulted on loans made from a 

German bank, and Cumberland County attorney Joseph Looney, acting as substitute 

trustee, foreclosed on the property in June of 1991. A primary issue at trial was whether 

developer’s rights transferred at foreclosure, because if not, then there were no developer’s 

rights passed along the chain of title to Moy Toy. The trial court summarized the testimony

it heard as follows, in pertinent part:

Mr. Looney prepared the trustee’s deed for DG Bank that transferred the 

property at foreclosure to Cumberland Gardens Acquisitions Corp

(“CGAC”). According to Mr. Looney, the sole purpose of the trustee’s deed 

was to take title in the property, and only the real property was conveyed.

No personal property was conveyed, and Mr. Looney testified that 

developer’s rights were not discussed when CGAC received the property at 

foreclosure. CGAC was the wholly owned subsidiary of DG German Bank. 

Mr. Looney had no knowledge of the original loan documents between DG 

Bank and Cumberland Gardens Limited Partnership; however, his client’s 

(CGAC’s) intent was to maintain the property as a whole for sale. CGAC 

was not interested in developing the property and over the nine years that 

CGAC owned the property, there was no development at all. Its goal was 

simply to maintain the property for a potential buyer, and the only marketing 

which was done was for attracting players to the golf course.

Edward Hill, an attorney from Connecticut represented Renegade Resort, 

LLC, the buyer in the transaction with Cumberland Gardens Acquisition 

 

4

It appears undisputed that no significant traditional “development,” in the sense of marketing or selling 

lots, or construction, has been done on Renegade Mountain for at least thirty years.
19

Corp. . . . Mr. Hill dealt mainly with Mr. Looney, the authorized 

representative for CGAC, and it took approximately a year to negotiate the 

contract. At the time, Renegade Resort, LLC was acquiring an eighteen-hole 

golf course, a lodge, and a water system which was being run by CGAC.

Although Mr. Hill believed the contract for sale contained language in

paragraph 1.01 (“All rights in connection therewith”) which would include 

developer rights, he acknowledged that nowhere in any of the purchase and 

sale documents was “developer rights” ever mentioned. His testimony is also 

consistent with Mr. Looney’s testimony that the issue of developer rights was 

never brought up between the two negotiators. Schedule 101B to the contract 

for sale is a schedule of intangible personal property which is being 

transferred to the buyer; however, it fails to list developer rights. Although 

Mr. Hill indicated that this was not an exhaustive list of intangible personal 

property, one would expect to see these rights if they were as important to 

the transaction as indicated by Mr. Hill. Perhaps the explanation for Mr. 

Hill’s conduct concerning developer rights is because he had a title insurance 

policy which protected his client. As a result, he intentionally did not 

investigate whether Cumberland Gardens Acquisition Corp obtained 

developer rights when it foreclosed on the German developers.

* * *

Each side presented expert proof. The Owner board called Jack Atkins and 

Moy Toy called Joe Huey. Both Mr. Huey and Mr. Atkins have been 

practicing attorneys since the 1970’s or 1980’s. Both of these gentlemen 

made excellent witnesses. Each was well qualified, gave straightforward 

answers, and advocated for their client’s positions.

Mr. Atkins testified that developer rights are based upon the restrictive 

covenants and the plat recorded in the Register of Deeds office. These 

documents establish the developer’s rights to govern the homeowner’s 

association and add property to the development, along with amenities. In 

this particular case, Mr. Atkins noted that no property has been added to the 

plan since 1987, and there has been no development since that time. Mr. 

Atkins noted that the substitute trustee’s deed to Cumberland Gardens 

Acquisition Corp on June 4, 1991 did not have broad language that could 

arguably include developer rights such as “all rights, title and interest.” This 

deed only conveyed real property, no personal property. When CGAC 

conveyed the property to Renegade Resort, LLC on January 6, 2000, it was 

the same property that CGAC received from the trustee’s deed in 1991. The 

only evidence of developer rights was when Wucher and Renegade conveyed 
20

the property to Moy Toy. Those bills of sale do have specific language which 

includes developer rights. However, Atkins opined that neither Wucher nor

Renegade had developer rights to convey in the first place because it does 

not appear that CGAC retained developer rights when it received the property 

from the DG German bank upon foreclosure. The only purpose of this 

corporation was to sell the property. There was never any development, only 

maintenance.

* * *

Joe Huey was actually involved when Moy Toy purchased the property. Mr. 

Huey reviewed the chain of title performed by Atkins, Atkins’ prior affidavit, 

Ed Hill’s deposition, and Joe Looney’s trial testimony. . . . Although Mr. 

Huey indicated that Mr. Atkins limited himself to looking only at the deeds, 

that conclusion is incorrect. If Mr. Huey focused only on the Atkins affidavit, 

that might be true, but Mr. Atkins’ trial testimony went far beyond the deeds. 

Mr. Huey did agree that Joe Looney’s substitute trustee deed only conveyed 

real property, and that Mr. Looney indicated he did not believe that CGAC 

maintained any developer rights to convey. Mr. Huey also acknowledged 

that although Ed Hill and Mr. Looney negotiated for many months over this 

particular transaction, there was no specific mention of developer rights 

being conveyed. Finally, Mr. Huey admitted that his opinion was based upon 

the assumption that DG Bank acquired developer rights in its security 

instruments when it foreclosed on Cumberland Gardens.

After assessing this testimony, the trial court concluded:

when Attorney Edward Hill representing Renegade Resort, LLC negotiated 

the purchase of the property, neither he nor Mr. Looney ever discussed 

developer rights, and there is no evidence in any of the ancillary documents 

such as the contract for sale that mentions the transfer of developer rights in 

the property. The Court concludes that at the time CGAC transferred the

property to Renegade Resort, LLC, it had no developer rights to convey. Joe 

Looney’s testimony indicated that all he intended to transfer was the real 

property and no personal property. He also indicated that there was no other 

collateral document which existed to transfer developer rights to Renegade 

Resort, LLC. Thus, there was a break in the chain of title where developer 

rights were not transferred in the foreclosure sale and the substitute trustee’s 

deed from Cumberland Gardens Limited Partnership to Cumberland Gardens 

Acquisition Co. While Mr. Hill and Renegade Resort, LLC may have 

possessed the intent to purchase developer rights from CGAC, this intent was 
21

never communicated either orally or in any document. On the other hand, 

Mr. Looney testified that he intended to convey only the personal property 

identified in the bill of sale, and developer rights were not included. Both 

parties had excellent attorneys representing them, the negotiations lasted for 

a year, so if developer rights were intended to be included, they would have 

been mentioned or referenced somewhere in the conveyance documents. 

Since Renegade Resort, LLC did not acquire title to developer rights through 

the chain of title, Moy Toy cannot possess developer rights because of this 

break in the chain of title.

Developer’s rights “are typically held and exercised by a real estate developer, and 

can be encumbered under a mortgage or deed of trust held by a lender who finances such 

a development.” Civis Bank v. Willows at Twin Cove Marina Condo. & Home Owners 

Ass’n, Inc., No. E2016-00140-COA-R3-CV, 2016 WL 7468202, at *5 (Tenn. Ct. App. 

Dec. 28, 2016). They are also sometimes called “declarant’s rights.” Id.; see also Tenn. 

Funding, LLC v. Worley, No. M2018-01099-COA-R3-CV, 2019 WL 631243, at *3 (Tenn. 

Ct. App. Nov. 26, 2019). In Civis Bank, we observed that “[t]he Supreme Court addressed 

the issue of whether such rights were transferred in a sale from the initial property 

developer to a successor developer in Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 

465-67 (Tenn. 2012),” and concluded as follows:

We glean two pertinent points from the Hughes decision. First, . . . 

developer’s or declarant’s rights can be transferred by general language. 

Specific and precise language describing what property is to be conveyed is 

preferable and potentially more effective. But Hughes teaches that a general 

transfer of, for instance, “all personal property” or “all contract rights” can 

be effective to transfer declarant’s rights, provided the intent to make such a 

transfer is evident from an examination of the pertinent documents and the 

conduct of the parties. . . .

Second, the Supreme Court in Hughes strongly suggests that as a general 

matter, declarant’s or developer’s rights are personal interests, which, 

although freely transferable, do not run with the land. Id. at 466-67.

Civis Bank, 2016 WL 7468202, at *6; see also Tenn. Funding, 2019 WL 6331243, at *3 

(“Unlike restrictive covenants, declarant’s rights are not property interests; they are 

considered personal property.”).

In the present case, many of the ancillary transactional work product documents, 

such as loan agreements, security instruments, or other documents describing the rights 

relative to the transfer of property, were destroyed by Mr. Looney in the ordinary course 
22

of business due to the passage of time, before he became aware of this litigation. The trial 

court thus properly relied on the testimony of the witnesses to ascertain their intentions at 

the time the property was transferred in foreclosure to Cumberland Gardens Acquisitions 

Corp. in 1991. Defendants argue that the trial court “misstated, mischaracterized and failed 

to give proper effect to the testimony of the witnesses.” We disagree. The evidence does 

not preponderate against the trial court’s findings, as summarized in the lengthy quote 

above from the trial court’s judgment. Mr. Looney was asked “what did you intend to 

convey?” He responded, “It was real property . . . It had no personal property ̶we conveyed 

no personal property.” Mr. Looney also testified, “I have no recollection of developer

rights being mentioned at any time during the course of these negotiations, and I think we 

went over this last time and concluded that this bill of sale does not mention developer 

rights.”

Mr. Hill, the attorney who represented Renegade Resort, LLC, testified as follows 

in his deposition:

Q. Are developer rights listed anywhere in any deed or any document that 

you’ve encountered, as far as a conveyance to Renegade Resort, LLC, 

specifically using those words?

THE WITNESS: You and I both looked at the deed and the bill of sale. And 

I -- and that term is not used in the -- in those documents. It’s not used in the 

contract. And I would have to review every other one of the documents in 

the closing binder to answer your question completely.

Q. Are you aware of one, such a document?

A. As I sit here, no. But I don’t remember what the other documents were.

Q. Okay. Were developer rights ever discussed with anyone?

* * *

THE WITNESS: I don’t think that we ever said that term was ever used 

throughout all of the discussions. It was always presumed.

The trial court’s findings were informed in significant part by its ability to view and assess 

the demeanor and credibility of the witnesses on both sides. The evidence supports the 

trial court’s findings. We affirm its decision that no developer’s rights passed to 

Cumberland Gardens Acquisitions Corp. in 1991, and therefore none passed through the 

chain of title to Moy Toy.
23

E. Validity of September 2, 2011 Board of Directors Special Election

The trial court, addressing the questions of who possessed a valid vote and whether 

the September 2, 2011 election of the owners’ board of directors was properly conducted, 

held that “there were findings made by the prior trial court which were not appealed, and

therefore were final determinations which could not be retried.” Among those, the trial 

court found:

1. The Moy Toy Board consisting of Phillip Guettler, Michael McClung and 

Darren Guettler was not elected by the membership. Instead, they appointed 

themselves and their family as board members, which was not in compliance 

with state statutes or the relevant bylaws.

2. The Plaintiffs . . . acted in good faith in attempting to call the September 

2, 2011 meeting. The residents in Renegade Resort made repeated requests 

to the Moy Toy Board to see the books and minutes of the RMCC. Those 

requests were ignored. The indifference demonstrated by the Moy Toy 

Board regarding the termination of services in the resort in 2010 and 2011 

would have upset any reasonable resident.

3. Moy Toy, LLC, Michael McClung and Phillip Guettler had unclean hands 

in its action towards the residents of Renegade Mountain.

(Paragraphs renumbered). The trial court found as follows in pertinent part regarding the 

story of the contested election:

Once Moy Toy took over, there was no communication with any of the 

homeowners in 2010. Both McClung and Guettler and later, Guettler’s son, 

claimed to be the only board members of the RMCC from 2011 to 2016. . . 

. In 2011, McClung appointed himself as president of the RMCC. McClung 

directed that the streetlights be turned off. He also terminated the guards at 

the guardhouse. Moy Toy has never marketed, has never advertised any lots 

for sale, and has conducted no development since its purchase in 2010. It has

never prepared a development plan or any proposed plats. As a result of its 

purchase, Moy Toy owned three condominiums, the two German houses 

inside the platted properties, and twenty-five hundred additional acres of 

unplatted lots. This is the same status that existed at the time of trial, ten 

years later. Not a single lot has been developed.

For reasons that remain unexplained, Moy Toy never sent an invoice to the 

homeowners to pay dues in 2011. In fact, the first statement sent by Moy 
24

Toy for dues occurred in January of 2012, and it was an invoice for 2011 and 

2012 dues.

The winter of 2010 - 2011 was a tough one. Moy Toy stopped clearing the 

roads of snow. When spring approached in 2011, Moy Toy failed to mow the 

common areas. Two culverts collapsed in 2011. Although Moy Toy paid 

for the stone, the labor was provided by the residents.

One of the owners, John Moore, began meeting with his neighbors. 

Together, they created a list of complaints, which Moore presented to 

McClung in April 2011. When the meeting produced no results, the residents 

then requested records from the officers that were identified by the filings in 

the Secretary of State’s office. Again, there was no response. 

The homeowners, lead by Moore, decided to call a special meeting of the 

homeowners. Gerald Nugent sent a letter dated June 23, 2011 to the 

registered agent for the RMCC requesting a special meeting. Mr. Nugent 

bought a lot on Renegade Mountain in 1987. He testified that at the time he 

wrote his letter in June 2011, the gated community was gone; the golf course, 

along with the swimming pool and tennis courts were closed. Mr. Nugent 

paid his dues in 2010 at the rate of $20 a month; however, since he received 

no invoice for 2011, he did not pay anything. The residents then attempted 

to qualify various homeowners as members in good standing by requesting 

records and cancelled checks for dues which had been paid in 2009 for the 

2010 year. After going through the cancelled checks, the residents came up 

with twenty-seven members who were considered to be in good standing for 

2010. . . . 

The meeting on September 2, 2011 took place. . . . McClung initially chaired 

the meeting and objected to the calling of the meeting. Moy Toy contended 

that the special meeting had insufficient signatures of members in good 

standing and that it controlled three hundred and twenty-five votes which it 

received as a proxy from TIG Holdings on August 24, 2011. Several 

members then objected that TIG had not offered any proof that it had paid 

their dues. In fact, TIG had not paid any membership dues and of course, 

neither had LKM Group. McClung claimed that the only members in good 

standing at the September 2, 2011 meeting were himself and his family

members since he was the only one who paid dues for 2011. However, the 

reason for that is due to the fact that Moy Toy never sent an invoice to any 

member to pay 2011 dues. The Court finds that there were eighty-six eligible 

votes present either in person or by proxy at the meeting of September 2, 
25

2011, more than the ten percent quorum required of eligible members. 

Additionally, the TIG proxy of three hundred twenty-five votes were not 

authorized due to the fact that no dues had ever been paid by LKM Group; 

nor did LKM Group have developer rights to excuse its nonpayment of dues; 

nor did TIG make any application for membership as required for voting 

rights to attach to the new owners of these lots. As a result, Moy Toy only 

had three votes and even if Moy Toy had ten votes to every one of its lots, it 

would still only have thirty votes and would not control the HOA.

* * *

The minutes of the September 2, 2011 RMCC special meeting certify that 

there was a total of 115 potential members in good standing, and that 89 

voting memberships were present (either in person or by proxy), or a quorum 

of seventy-seven percent present. The minutes of the meeting confirmed the 

vote removing the RMCC officers and directors by a vote of eighty-one to 

three, with four abstentions; the adoption of new bylaws by a vote of eightysix to three; and the approval of three new directors for the RMCC.

(Footnotes and citation to record in original omitted). The court concluded that “the 

September 2, 2011 RMCC meeting was legitimate and that the actions approved at this 

meeting were legal.”

On appeal, Defendants do not challenge any of the trial court’s factual findings, 

which comprise the tale of the homeowners’ long struggle to take care of their 

neighborhood property. Defendants only briefly argue that “the trial court’s treatment of 

the election is inconsistent with the trial court’s finding that there has been no valid 

developer [for the past 30 years] for the resort since developer rights were not transferred.” 

This argument is neither particularly pertinent to the issue of the validity of the special 

election, nor is it persuasive. Again, the trial court’s factual findings are driven in large 

part by its evaluation of the demeanor and credibility of the various witnesses. We affirm 

the trial court’s ruling on this issue. 

F. Roads and Common Areas of Renegade Mountain

As the trial court found, “[s]ince 1972, Renegade Resort was a planned community 

which provided a golf course, swimming pool, tennis courts, sports park and a guard shack 

for many years.” The trial court held that all RMCC members have an easement of 

enjoyment to use the roads, “both platted and unplatted,” from Highway 70 to their 

property, and to use the “common properties . . . subject to the governing documents for 

Renegade Resort.” In support of this conclusion, the court held and reasoned as follows:
26

Since Moy Toy purchased the property in 2010, it has not sold a single lot, 

undertaken any construction, and has failed to market the property in any 

significant way. In fact, from the very beginning, Moy Toy elected to allow 

the amenities to fall into disrepair and eliminate expenses for maintenance of 

roads, signs, security, lights, etc. Any reasonable amount of time for 

development by any purported developer has long since passed.

Numerous members and residents testified that they or other members used 

the common properties in question; were promised the common properties in 

question to purchase their property; relied on those promises; and paid dues 

which in the past were used to improve and maintain these common 

properties. Attorney Looney confirmed that RMCC members were allowed 

to use common properties; that he considered those properties in question to 

be common properties; and that he was unaware these common properties 

were not platted.

Considering the testimony and exhibits, the Court finds that the entrance 

area, guard shack, platted roads, certain unplatted roads, sports park, pool 

and tennis courts were all intended, promised, promoted, used, operated and 

maintained in the past as common property for the benefit of the developer 

and the RMCC members. Control of this unplatted land, which was intended 

and used as common properties in this community by the developer is not 

absolute, and the property remaining in the hands of a developer may be held 

in equity to be subject to these rights of enjoyment. Innerimages, [Inc. v. 

Newman, 579 S.W.3d 29, 45 (Tenn. Ct. App. 2019)]; Land Developers, Inc. 

v. Maxwell, 537 S.W. 2d 904, 912 (Tenn. 1976); Stracener v. Bailey, 737 

S.W. 2d 536 (Tenn. Ct. App. 1987). While the common areas in Renegade 

Resort are not shown on plats, they are referenced in all versions of the 

restrictions, and lots were sold in reliance on these recorded equities. An 

easement of enjoyment is identified in every set of restrictions and in the 

1987 bylaws for members of the RMCC who are in good standing. Here, 

Moy Toy effectively negated the RMCC’s members[’] easement of 

enjoyment by failing to maintain these common areas, thereby making them

impossible to enjoy.

In making the above findings, the trial court has hit on each salient point explaining 

why it is equitable to enforce the easements of enjoyment of the common areas of Renegade 

Mountain held by the property owners who are in good standing. The recorded 1972 

declaration of restrictive covenants expressly provides that “every member, so long as such 

membership shall continue, shall have a right and easement of enjoyment in and to the 

Common Properties and such easement shall be appurtenant to and shall pass with the title
27

to every Lot or Living Unit.” The definition in the 1972 declaration of restrictive covenants 

provides that “Common Properties . . . shall specifically include, but not to the exclusion

of other improvements which may hereinafter be designated as Common Properties by the 

Developer, the following: Roads and streets, golf course, tennis courts, swimming pools, 

permanent parks, and permanent recreational plots.” As the trial court found, although “the 

common areas in Renegade Resort are not shown on plats, they are referenced in all 

versions of the restrictions.” 

The trial court heard from landowners and club members Norman Renaud, Joel 

Matchak, John Peters, Thomas Bauer, and John Moore, who testified that, as generally and 

accurately summarized by the trial court, “they or other members used the common

properties in question; were promised the common properties in question to purchase their

property; relied on those promises; and paid dues which in the past were used to improve 

and maintain these common properties.” Mr. Matchak provided copies of roughly a 

decade’s worth of budgets for RMCC showing that funds, provided by members’ dues, 

were budgeted and spent on maintenance of the common areas such as the roads, pool, 

sports park, and guard shack entrance. 

In Innerimages, Inc. v. Newman, 579 S.W.3d 29, 45 (Tenn. Ct. App. 2019), this 

Court considered “whether a developer who has failed to establish a homeowners 

association and provides only minimal services may continue to enforce restrictive 

covenants against residents in a common-interest community.” We stated:

“A property owner’s right to own, use, and enjoy private property is a 

fundamental right.” Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 474 

(Tenn. 2012) (citations omitted). “Not surprisingly, then, Tennessee law 

does not favor restrictive covenants, because they are in derogation of the 

rights of free use and enjoyment of property.” Id. at 474-75. Generally, 

restrictive covenants are only enforceable in equity if: (1) the restrictions 

“‘touch and concern’ the land”; (2) the original parties intended that the 

restrictions would “run with the land and bind remote grantees”; and (3) the 

remote grantees had notice of the restrictions. Gambrell v. Nivens, 275 

S.W.3d 429, 437 (Tenn. Ct. App. 2008) (quoting Tennsco Corp. v. Attea, No. 

M2001-01378-COA-R3-CV, 2002 WL 1298808, at *2 (Tenn. Ct. App., filed 

June 13, 2002)).

Here, the trial court determined that [the restrictive covenants], as initially 

drafted, were valid and therefore binding on remote grantees. We agree. The 

restrictions, which govern the use and appearance of property in The Village, 

certainly “touch and concern the land.” The restrictions also expressly state 

the developer’s intent that the restrictions “run with the title to said land[.]” 
28

Finally, the developer presented proof that the restrictions were recorded and 

appear in the chain of title to each of the defendants’ properties, thus putting 

the defendants on constructive notice.

Id. at 41. The Innerimages Court adopted and applied the Restatement (Third) of Property: 

Servitudes § 6.19(1)-(2) (Am. Law Inst. 2000), which provides that

(1) The developer of a common-interest-community project has a duty to 

create an association to manage the common property and enforce the 

servitudes unless exempted by statute.

(2) After the time reasonably necessary to protect its interests in completing 

and marketing the project, the developer has a duty to transfer the common 

property to the association, or the members, and to turn over control of the 

association to the members other than the developer[.]

Id. at 45 (emphasis in original omitted). We held that “developers have a duty (1) to create 

an association and (2) to turn over control to that association ‘[a]fter the time reasonably 

necessary to protect its interests in completing and marketing the project,’” observing in 

pertinent part as follows:

The developer and the purchasers of property in a common-interest 

community have interests in controlling the common property and the 

association that may come into conflict. The developer’s primary interest is 

in completing and selling the project, while that of the purchasers is in 

maintaining their property values and establishing the quality of life they 

expected when buying the property. Both the developer and the purchasers 

have substantial investment interests that are affected by the amount of 

assessments, the level of maintenance and capital improvements, and the 

establishment of reserves for future maintenance and replacement of 

common property. The developer needs to retain control of the association 

long enough to avoid changes that will jeopardize its ability to sell the 

remainder, while the purchasers need to stabilize assessments and take 

charge of the rules governing operation of the community. The longer the 

developer retains control, the greater the likelihood of conflict. Accordingly, 

modern common-interest-community statutes specify timetables within 

which the developer must turn over control to the members.
29

Comment (b) elaborates:

In determining when control of a project reasonably must be 

turned over to the members, the percentage of lots or units that 

have been sold, the interval since the first unit was sold, and 

the level of the developer’s construction and marketing 

activities are relevant. The Uniform Common Interest 

Ownership Act [UCIOA] provides a timetable for turnover of 

control based on these factors. In the absence of a controlling 

statute, a court may look for guidance to such a timetable in 

determining when the developer is required to cede control.

* * *

Thus, under the Restatement, developers have a common law duty to create 

an association and to turn over control “[a]fter the time reasonably necessary 

to protect its interests in completing and marketing the project[.]” Rest. 

(Third) of Property: Servitudes § 6.19(1)-(2). The Restatement recommends 

considering three factors in determining “the time reasonably necessary to

protect [the developer’s] interests”: (1) “the percentage of lots or units that 

have been sold”; (2) “the interval since the first unit was sold”; and (3) “the 

level of the developer’s construction and marketing activities.” Id. at § 6.19 

cmt. b. In states that have not adopted the UCIOA, such as Tennessee, the 

Restatement also recommends looking to the UCIOA as a barometer of 

reasonableness. Id.

* * *

The trial court also found that the developer had not constructed a new home 

since 2007. Under the UCIOA, a developer must cede control “two years 

after any right to add new units was last exercised.” UCIOA § 1-103(d)(3). 

If that is any measure of reasonableness, then ten years without construction 

of a new home is patently unreasonable. . . .

The evidence in the record does not preponderate against the court’s finding 

that the developer has only constructed four homes and provided minimal 

services in the twenty-four years since The Village’s conception. Because 

the developer has failed to discharge its duty to create a homeowners 

association and to turn over control “[a]fter the time reasonably necessary to 

protect its interests in completing and marketing the project,” we affirm the 
30

judgment of the trial court to the extent that it prohibits the developer from 

exercising any further control over the defendants and their property.

Id. at 45-48. 

In the present case, the trial court correctly applied the factors and principles 

espoused in Innerimages in holding that “all control, access, maintenance, and operation 

of these unplatted properties,” defined by the court as “the entrance area, guard shack, 

platted roads, certain unplatted roads, sports park, pool and tennis courts,”5is “transferred 

to the RMCC” in order to secure and enforce the members’ easement of enjoyment of these 

common properties. Defendants argue that Innerimages applies to developers, and that 

Moy Toy was determined not to be a “developer” here. This is true in the respect that the 

developer’s rights at issue did not pass to Moy Toy. But Moy Toy’s central position 

throughout the litigation, and its actions leading to the lawsuit, was that it was the 

developer. Moy Toy, as the owner, is still trying to maintain complete control over the 

areas designated and long-used as “common properties” on Renegade Mountain. Although 

there are some differences in the factual scenarios of this case and Innerimages, they are 

similar in that they both involve a developer (or a party claiming to be and acting as one), 

who desires to maintain perpetual power and control over the development, without 

shouldering the responsibility and expense of maintaining its common areas, at a time when 

any actual “development” of the residential community has long passed. 

As a final matter, Plaintiffs raise an issue of relatively uncomplicated semantics 

regarding the property where the golf course was. Both sides agree that the trial court’s 

post-trial order incorrectly stated that the golf course was included as common property. 

The old golf course property is owned by an entity that was apparently never a party to this 

action. The parties stipulated that “the golf course is not an issue” at the trial. In response 

to both sides’ motion to alter or amend, the trial court issued an order stating “that both 

parties agreed that the golf course property was stipulated not to be considered a common 

property” and finding that “Plaintiffs have no interest in the former golf course property.” 

On appeal, Plaintiffs argue that this language is overbroad, imprecise, and incorrect. They

express concern that it might conceivably be used against them in a future dispute. The 

transcript indicates that the stipulation was that the golf course property was “not an issue” 

before the court, not that the property was not considered as common property. It appears 

that the parties agreed before the trial court that it was being asked to make no 

determination whatsoever regarding the old golf course property because it was “not an 

issue.” 

 

5 Plaintiffs point out on appeal that this definition of “common properties” in the trial court’s order is 

somewhat different from the language used in the trial court’s order disposing of the issues raised in the 

parties’ motion to alter or amend the judgment. To the extent that the definitions are inconsistent, we hold 

that the trial court’s more expansive definition, quoted above, is the correct one.
31

V. CONCLUSION

We vacate the trial court’s findings that the parties stipulated that the old golf course 

property was not to be considered “common property,” and that Plaintiffs “have no 

interest” in it. We affirm the trial court’s judgment in all other respects. Costs on appeal 

are assessed to the appellants, Michael McClung, Phillip Guettler, Darren Guettler, and 

Moy Toy, LLC, for which execution may issue if necessary.

______________________________________

KRISTI M. DAVIS, JUDGE