IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

 March 27, 2013 Session

MICHAEL T. and DANA N. BERNIER v. ROBERT (“SHAWN”) and

JAMIE MORROW

Direct Appeal from the Circuit Court for Sumner County

No. 2011CV234 C.L. Rogers, Judge

No. M2012-01984-COA-R3-CV - Filed April 26, 2013

This case presents the question of whether certain notes on a final subdivision plat constitute

restrictive covenants, which prevent the purchasers of property in the subdivision from

installing an experimental wetland sewage disposal system on their property or on an

easement for the benefit of their property. The trial court concluded that the plat notes

constitute restrictive covenants preventing the installation, and permanently enjoined the

purchasers from installing or constructing such a system on their own property or on the

easement. We affirm and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS,

P.J.,W.S., and HOLLY M. KIRBY, joined.

Philip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the appellants, Robert

(“Shawn”) and Jamie Morrow.

William L. Moore, Jr., Gallatin, Tennessee, for the appellees, Michael T. and Dana N.

Bernier.

OPINION

I. Background

The Plaintiffs/Appellees Michael T. (“Shawn”) Bernier and Dana Bernier (together,

“the Berniers” or “Appellees”) own certain lake-front property on Odoms Bend Road in

Gallatin, Tennessee. In 2009, the Berniers subdivided the property pursuant to a Final
Subdivision Plat (“Final Subdivision Plat” or “Plat”) recorded in the Plat Book in the

Register’s Office for Sumner County, Tennessee. The Bernier’s home sits on Lot #1 of the

property. The Berniers conveyed Lot #2 to the Defendants/Appellants Robert Shawn

Morrow and Jamie Morrow (together, “the Morrows” or “Appellants”). The transfer from

the Berniers to the Morrows was made pursuant to a warranty deed of record, which was

also recorded in the Register’s Office for Sumner County, Tennessee. The warranty deed

states, in pertinent part:

Being Lot No. 2 on the Final Subdivision Plat for Michael T.

Bernier and wife, Dana N. Bernier, a plat of which is of record

in Plat Book 26, page 208, Register’s Office of Sumner County,

Tennessee, to which reference is hereby made for a more

complete description of said lot. 

The Final Subdivision Plat Notes referenced in the deed state, in pertinent part:

11. A portion of lot #3 shown is to be used for the subsurface

sewage disposal of lot #2, as shown in the respective easement

provided.

* * *

14. The shaded areas are reserved for the installation of the

subsurface sewage disposal system. . . . 

15. Lot #2 is approved for a maximum three (3) bedroom

residence with use of a conventional subsurface sewage

disposal system.

In order to build a home on the property, a sewage system was required. However,

the soil conditions of Lot #2 proved unsuitable for the installation of a conventional

subsurface sewage disposal system. Accordingly, the Berniers conveyed to the Morrows a

subsurface sewage disposal easement for the use and benefit of Lot #2. The easement was

located on a portion of Lot #3, which the Berniers also owned. The Morrows sought, and

obtained from the Tennessee Department of Environment and Conservation Division of

Ground Water Protection (“TDEC”) a permit to install an underground low pressure pipe

sewage system (“low pressure system”) on Lot #3. The low pressure system was installed

and is presently in use by the Morrows for the benefit of Lot #2. The TDEC further required

that the land be suitable for a secondary system, should the need for one ever arise.

However, during installation of the primary system, it was determined that the soil in the

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area was unsuitable for the secondary low pressure system. Accordingly, the Morrows

sought and obtained from the TDEC permission to install an experimental wetland sewage

disposal system for use as the secondary waste disposal system for Lot #2.

To prevent the installation of the wetland sewage disposal system, on March 2, 2011,

the Berniers filed a Complaint and Application for Temporary Restraining Order in the

Sumner CountyCircuit Court. The Berniers argued that the wetland sewage disposal system

was in violation of the restrictive covenants contained on the Final Plat. The Berniers

asserted that these restrictive covenants required the Morrows to install a “conventional,”

“subsurface” sewage system. The Berniers attached to their complaint a letter from Mark

Dew, a Certified Tennessee Soil Consultant. In his letter, Mr. Dew stated that the

experimental wetland system sought by the Morrows was not a subsurface system because

a portion of the system was above ground. In addition, Mr. Dew noted that, without proper

maintenance, wetland systems can cause odors and above ground exposure to wastewater. 

The trial court granted the Berniers’ request for an emergency temporary restraining

order on March 2, 2011. A hearing was scheduled to determine whether a temporary

injunction should be granted on March 9, 2011. In advance of the temporary injunction

hearing, on March 8, 2011, the Bernier’s filed a Memorandum of Law in support of their

position. In the Memorandum, the Berniers’ again argued that the wetland system was not

a “subsurface” system as required by the Final Subdivision Plat.

On March 11, 2011, the Berniers amended their complaint to add a cause of action

for breach of other subdivision restrictions, as well as to name Phillip D. Dickerson as a

defendant to the action. Mr. Dickerson created a map of the area that erroneously stated that

the area was suitable for a secondary low pressure system. The complaint was later amended

to remove Mr. Dickerson as a defendant and the Berniers’ claimagainst himwas non-suited.

On March 23, 2011, the trial court entered an order enjoining the Morrows from

constructing the wetland sewage system and requiring the Berniers to pay a bond in the

amount of $1,000.00. 

On March 31, 2011, the Morrows filed an answer to the Berniers’ complaint. In their

answer, the Morrows denied that the wetland sewage systemwas above ground, but asserted

that it was, in fact, a subsurface sewage system. In addition, the Morrows denied that Mr.

Dew was competent to testify as to an experimental wetland sewage system because he

admitted he had only encountered one such system throughout his career. On May 5, 2011,

the Morrows also sought leave to file a third-party complaint against Mr. Dickerson. On the

same day, the trial court entered an agreed order allowing the third-party complaint. The

Morrows subsequentlyfiled their complaint, which alleged thatMr.Dickerson was negligent

in mapping the area.

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On May 16, 2011, the Berniers filed a second motion for a Temporary Injunction.

This motion sought an injunction to prevent the Morrows fromconstructing an experimental

wetland sewage disposal system on Lot #2, the lot the Berniers had conveyed to the

Morrows for construction of a home. The Berniers raised the additional argument that the

Final Subdivision Plat Notes specifically require that the sewage system be “conventional,”

and argued that an experimental wetland sewage system does not meet that requirement.

The Morrows filed a response to the motion on May 19, 2011, agreeing that they had

been approved by the TDEC to install a wetland system on their own lot, Lot #2, but

denying that the Final Subdivision Plat in any way restricted their ability to do so. 

On May 24, 2011, the Morrows filed a counter-complaint against the Berniers,

alleging that they had suffered damages for breach of warranty, negligence and intentional

and negligent misrepresentation from the Bernier’s refusal to consent to the Morrows 

constructing the needed secondary sewage system on their easement and their own lot, as

well as by failing to ensure that the soil in the property conveyed to them was suitable for

the stated purpose of the lot, i.e., to build a three-bedroom home with a sewage system. On

June 7, 2011, the Berniers filed an answer to the counter-complaint, denying the material

allegations contained therein. On the same day, the Berniers also filed a cross-claim against

third-party defendant Mr. Dickerson. The Morrows were later allowed to amend their

counter-complaint against the Berniers to include more specific factual allegations. 

On October 19, 2011, Mr. Dickerson filed a Motion for Summary Judgment, arguing

that it was undisputed that he prepared the soil map in accordance with the recognized

standard of professional care for those in his field. The Morrows responded with an affidavit

from a licensed soil scientist, who opined that Mr. Dickerson’s conduct fell below the

recognized standard of care. Eventually, the Morrows voluntarily dismissed their claim

against Mr. Dickerson and Mr. Dickerson obtained summary judgment in his favor with

regard to the Berniers’ claim. The Berniers do not appeal this ruling. Thus, Mr. Dickerson

is not a party to this appeal.

On March 19, 2012, the Berniers again amended their complaint to add a claim of

anticipatory nuisance and to clarify their other claims. On June 1, 2012, the Morrows filed

a Motion for Summary Judgment based on the Bernier’s alleged failure to state a claim upon

which relief may be granted. Attached to the motion was the affidavit of the Director of the

TDEC, Britton Dotson, who stated that an experimental wetland sewage system is, in fact,

a subsurface system. On August 1, 2012, the trial court granted partial summary judgment

in favor of the Morrows, concluding that the Berniers failed to state a claim with regard to

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the express subdivision restrictions of record or the anticipatory nuisance claim.

1

Accordingly, the Bernier’s only remaining claim involved the implied restrictive covenants

allegedly created by the Final Subdivision Plat.

The trial court held a bench trial on the Bernier’s one remaining issue, as well as the

Morrow’s counter-claim, on July 30, 2012. At trial, the Morrows gave oral notice of their

intent to voluntarily dismiss their counter-claim. On August, 7, 2012, the trial court entered

an order voluntarilydismissing the Morrows’ counter-claimagainst the Berniers. On August

9, 2012, the trial court entered a final order granting the Bernier’s a permanent injunction

preventing the Morrows fromconstructing an experimental wetland sewage systemon either

Lot #2, or on the easement on Lot #3, unless and until the Berniers agree to amend the Final

Subdivision Plat. In the trial court’s oral findings, incorporated into the final order by

reference, the trial court stated, in pertinent part:

Now, the subdivision plat, the representation, the deed of

[the Morrows] all have a condition in there that the subsurface

sewage disposal system indicated lot two is approved naturally

for a three bedroom residence with the use of a conventional

subsurface sewage disposal system. 

The Court finds that this wetland experimental system is

not, based on the prior testimony of the State, also the

descriptions of these systems, is not a conventional subsurface

sewage disposal system. And then it states that a portion of lot

three, again plat condition, is to be used for a subsurface sewage

disposal system. . . . That’s what everybody thought they were

going to get, and refers to it as subsurface sewage disposal

easement for the benefit of lot two. 

The plat is applicable to lot two, the deed is. It’s a

condition set out. It can only be changed in the Court’s opinion

by the owner of lot three, which remains [the Berniers] . . . .

Thus, the trial court held that the Notes on the Final Subdivision Plat created a restrictive

covenant that any sewage disposal system installed for the benefit of Lot #2, either on Lot

#2, or on the easement on Lot #3, be conventional, and further held that the proposed

wetland sewage disposal system, being experimental, did not meet that requirement. The

Morrows appeal. 

II. Issues Presented

 The Berniers do not appeal the trial court’s summary dismissal of these claims. 1

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The Morrows raise two issues for review, as slightly restated from their brief:

1. Whether the plat notes on the Berniers’ subdivision plat

or the easement on Lot #3 amount to restrictive

covenants, which prohibit the Morrows’ installation of

a wetland sewage disposal system on their easement?

2. Even if the subdivision plat notes are construed as

restrictive covenants, whether the covenants go so far as

to bar the Morrows from constructing a wetland sewage

disposal system on their own lot, Lot #2?

In their brief, the Berniers also seek damages for a frivolous appeal. 

III. Standard of Review

This case was tried by the trial court without a jury. We review the trial court’s

findings of fact de novo with a presumption of correctness, unlessthe evidence preponderates

otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the

trial court’s conclusions of law and our review is de novo. Blair v. Brownstone, 197 S.W.3d

681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The

issues in this case involve the existence and construction of restrictive easements. “The

construction of restrictive covenants, like other written contracts, is a question of law.”

Massey v. R.W. Graf, Inc., 277 S.W.3d 902, 908 (Tenn. Ct. App. 2008) (citing Maples

Homeowners Ass'n, Inc. v. T & R Nashville Ltd. P'ship, 993 S.W.2d 36, 38–39 (Tenn. Ct.

App. 1998)). 

IV. Analysis

In this case, the Morrows argue that the trial court erred in concluding that a

restrictive covenant exists preventing themfrominstalling awetland sewage disposal system

on their easement on Lot #3 or on their own lot, Lot #2. The dispute concerns whether the

Notes on the Final Subdivision Plat constitute restrictive covenants on the use of the

property, and if so, whether those restrictive covenants prevent the installation of a wetland

sewage disposal system. We begin first with a discussion of whether the Notes on the Final

Subdivision Plat constitute restrictive covenants.

The Restatement (Third) of Property defines a “restrictive covenant” as “ a negative

covenant that limits permissible uses of land.” Restatement (Third) of Property (Servitudes)

§ 1.3 (2000). Tennessee courts have recognized and enforced implied restrictive covenants

under certain circumstances. See generally Stracener v. Bailey, 737 S.W.2d 536 (Tenn. Ct.

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App. 1986). As explained by the Tennessee Supreme Court:

Ordinarily when the owner of the tract of land subdivides it and

sells different lots to separate grantees, and puts in each deed

restrictions upon the use of the property conveyed, in

accordance with the general building, improvement or

development plan, such restrictions may be enforced by any

grantee against any other grantee. Likewise, the property

remaining in the hands of the vendor may also be held in equity

to be subject to a servitude so as not to be used in a manner

different from that contained in the restrictions.

Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 912 (Tenn. 1976). It is undisputed that

no restrictive covenants are recorded on the deed conveying Lot #2 to the Morrows. It is

well-settled, however, that “[r]estrictive covenants may be implied by reference to a plat.”

Hughes v. New Life Development Corp., 387 S.W.3d 453, 484 (Tenn. 2012); see also

Stracener, 737 S.W.2d at 539 (“The weight of authority supports a holding that equitable

servitudes may be created by restrictions noted on a plat with reference to which lots are

sold.”). Thus, “a plat may be utilized in establishing implied restrictive covenants if the deed

of the party seeking to impose the restriction refers to the plat.” Arthur v. Lake Tansi Vill.,

Inc., 590 S.W.2d 923, 929 (Tenn. 1979). “A deed and the plat which includes the property

granted must be read together, and whatever appears on the plat is to be considered as a part

of the deed.” 20 Am. Jur. 2d Covenants, Etc. § 161.

As discussed above, the deed in this case specifically references the Plat, noting that

reference to the Plat “is hereby made for a more complete description of said lot.” The

Morrows, however, point to the affidavit of Carroll Carman, the Tennessee Licensed

surveyor who drew the Final Subdivision Plat, to argue that the Notes contained therein

were not intended as restrictive covenants. In his affidavit, Mr. Carman stated that the Notes

on the Plat referring to the “conventional subsurface sewage system” were placed on the

map for descriptive purposes and to satisfy TDEC rules. According to the Morrows, Mr.

Carman’s affidavit shows that the Plat Notes were not “intended to mandate, nor did [they]

serve to mandate, the specific type of sewage disposal system that may ultimately be

permitted.” The Morrow’s reliance on this parol evidence, however, is misplaced without

some finding of ambiguity in the plain language of the Plat. Instead, this Court must apply

the well-settled rules of contract interpretation:

Rules governing the construction of covenants imposing

restrictions on the use of land are generally the same as those

applicable to any contract or covenant, including the rule that

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where there is no ambiguity in the language used, there is no

room for construction, and the plain meaning of the language

governs. Primarily, the question is one of intention, subject to

the further principle that restrictive covenants are strictly

construed in favor of the free use of property.

20 Am. Jur. 2d Covenants, Etc. § 168 (footnotes omitted). As recently explained by this

Court:

Because the instant case involves the interpretation of

restrictive covenants, we apply well-established rules of

construction and law in order to construe the terms of the

covenants. Parks v. Richardson, 567 S.W.2d 465, 467 (Tenn.

Ct. App. 1977). . . . Thus, if the “meaning of the covenant is

reasonable and unambiguous, there is no need to seek further

clarification outside its language.” Shea v. Sargent, 499 S.W.2d

871, 874 (Tenn. 1973). If the language of the restrictive

covenant is unambiguous, and its plain meaning is fair and

reasonable, then its terms may not be altered or varied by parol

evidence. Hicks, 978 S.W.2d at 547–48 (citations omitted).

However, if [parol evidence is] needed, then we would also

interpret [the covenants] in compliance with the

well-established rules governing interpretation of other written

contracts, where the primary goal is to ascertain the intention of

the parties as expressed by the language of the document itself.

See Hicks v. Cox, 978 S.W.2d 544, 547 (Tenn. Ct. App. 1998).

The words of a contract must be given their usual and ordinary

meaning. Hicks, 978 S.W.2d at 547 (citingAldridge v. Morgan,

912 S.W.2d 151, 153 (Tenn. Ct. App. 1995); Rainey v.

Stansell, 836 S.W.2d 117, 119 (Tenn. Ct. App. 1992)).

Grand Valley Lakes Property Owners Ass'n, Inc. v. Burrow, 376 S.W.3d 66 (Tenn. Ct.

App. 2011); see also 20 Am. Jur. 2d Covenants, Etc. § 169 (noting that the surrounding

circumstances are only “taken into consideration in determining the intention in some cases,

where it is necessary to do so by reason of the uncertainty or ambiguity in the language

giving rise to the restriction”).

From our review of the Final Subdivision Plat, we must conclude that the Plat Notes

unambiguously create restrictive covenants in this case. As previously noted, a restrictive

covenant is a covenant or agreement that restricts the use of the land. The Notes on the

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Subdivision Plat contain clear restrictions on the use of the land, including limiting

construction on easement areas,requiring compliance with applicable performance standards

and subdivision regulations, and, importantly, reserving an easement on an area of the

property contained on the Plat for the installation of the subsurface sewage disposal system

for the benefit of Lot #2. Indeed, the Morrows do not dispute that the easement was

conveyed to them solely as a result of the drawings and Notes contained on the Final

Subdivision Plat. It would be unreasonable to conclude that the other Notes contained on

the Plat do not also operate to affect the property at issue or bind the parties. Further, we

note nothing in the plain language of the Final Subdivision Plat or the warranty deed to

disregard the well-settled rule that Notes to a subdivision plat may be considered restrictive

covenants on the use of the property. 

Indeed, from our research, none of the cases in which Tennessee Courts have

concluded that Plat Notes do not constitute restrictive covenants are analogous to the present

case. For example, in Arthur v. Lake Tansi Village, Inc., the Tennessee Supreme Court

affirmed the Court of Appeals’s ruling that a plaintiff was not entitled to rely on certain

recorded plats when: (1) the plats at issue were not included as a part of the record on

appeal; and (2) the plats relied on by the plaintiff did not include the plaintiffs own property

and, thus, were not incorporated by reference into the plaintiff’s deed of conveyance.

Arthur, 590 S.W.2d at 929. In a recent case, the Tennessee Supreme Court likewise

concluded that no restrictive covenants limiting development of portions of a subdivision

to forest preserves were created by the notes on the subdivision plat because the plat notes

that allegedly contained the mention of the preserves were illegible. See Hughes, 387

S.W.3d at 483–4. As explained by the Supreme Court:

[T]he 2002 plat in this case bears no legible reference to

forest preserves. Sheets 2 through 5, which contain no illegible

writing, contain no reference whatsoever to forest preserves.

Sheet 1 contains virtually no legible writing with respect to the

tract, and not surprisingly contains no legible reference to an

East Preserve or a West Preserve. Thus, having examined all

five sheets comprising the 2002 plat, we can only conclude that

the 2002 plat does not clearly designate an East Preserve or a

West Preserve . . . .

Id. at 484. In this case, however, the Final Subdivision Plat contains clearly legible

restrictions on the use of the property and contains a clear reference to the property owned

by the Morrows. There is no dispute that the Morrows had notice of the Notes on the Final

Subdivision Plat prior to the conveyances at issue. In addition, the Plat is clearly referenced

in the deed of conveyance. Thus, we must conclude that the Notes on the Final Subdivision

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Plat at issue unambiguously place restrictive covenants on the use of land contained therein

(i.e., Lot# 2 and Lot #3). We next turn to consider whether the restrictive covenants at issue

operate to bar construction of the proposed wetland sewage disposal system on both Lot #2

and Lot #3.

The Morrows argue that even if the Plat Notes are considered restrictive covenants,

a proper construction of the Notes does not prevent the installation of a wetland sewage

disposal system on either the easement on Lot #3, or on their own property, Lot #2. As

previously discussed, the construction of a restrictive covenant is a question of law. In

construing restrictive covenants, however, we must keep in mind that: “[b]ecause restrictive

covenants are in derogation of the fundamental right of free use and enjoyment of real

property, they are not favored under Tennessee law.” Massey, 277 S.W.3d at 908 (citing

Williams v. Fox, 219 S.W.3d 319, 324 (Tenn. 2007)). As explained by this Court:

Restrictive covenants are strictly construed. Arthur [v. Lake

Tansi Vill., Inc., 590 S.W.2d 923, 927 (Tenn. 1979)].

Any doubt concerning the applicability of a restrictive

covenant will be resolved against the restriction, Richards v.

Abbottsford Homeowners Ass'n, 809 S.W.2d 193, 195 (Tenn.

Ct. App. 1990) and, likewise, any ambiguity in the terms of the

restrictive covenant will be resolved against the restriction.

Parks v. Richardson, 567 S.W.2d 465, 467–468 (Tenn. Ct.

App. 1977). Similarly, when the terms of a covenant may be

construed more than one way, the courts must resolve any

ambiguities against the party seeking to enforce the restriction

and in a manner which advances the unrestricted use of the

property. Hillis v. Powers, 875 S.W.2d 273, 275–76 (Tenn. Ct.

App. 1993); Parks, [567 S.W.2d] at 468.

Massey, 277 S.W.3d at 908. However,

[s]uch construction in favor of the unrestricted use . . .

must be reasonable. The strict rule of construction as to

restrictions should not be applied in such a way as to defeat the

plain and obvious purposes of a restriction, nor will the rule of

strict construction render covenants unenforceable. Similarly,

the rule that a deed must be construed most strictly against the

grantor has no application where in the light of the surrounding

circumstances the meaning of the language of the deed is plain.

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20 Am. Jur. 2d Covenants, Etc. § 170 (footnotes omitted). 

As previously discussed, we first turn to the language of the restrictive covenants at

issue. In pertinent part, the Notes on the Final Subdivision Plat state:

11. A portion of lot #3 shown is to be used for the subsurface

sewage disposal of lot #2, as shown in the respective easement

provided.

* * *

14. The shaded areas are reserved for the installation of the

subsurface sewage disposal system. . . . 

15. Lot #2 is approved for a maximum three (3) bedroom

residence with use of a conventional subsurface sewage

disposal system.

The Berniers argue that Note 15's statement that Lot #2 is approved for a home with a

conventional subsurface sewage systemamounts to a requirement that anyhome built on Lot

#2 use only a conventional subsurface sewage system. It is undisputed that the wetland

sewage disposal system sought by the Morrows is an experimental, rather than a

conventional system. Accordingly, the Berniers argue that the wetland sewage disposal 2

system is prohibited pursuant to the restrictive covenants above. The Berniers rely on the

case of Stracener v. Bailey, 737 S.W.2d 536 (Tenn. Ct. App. 1986) to support their

position. In Stracener, the defendant-developer subdivided a large tract of land pursuant to

a subdivision plat, which was filed with in the county register’s office. The plat contained

an area that was marked as a “future park.” The plaintiffs purchased one of the subdivided

lots. When the developer moved to develop the property marked as a future park into more

residences, purchasers of certain subdivided propertysued to enjoin the defendant-developer

from developing the area into anything but a park. Id. at 537. The dispositive question in the

The trial court, in its findings of fact and conclusions of law, made an express finding that the 2

wetland sewage disposal system was not a conventional system based on the testimony of TDEC Director

Dotson. Mr. Dotson testified that a wetland system is an experimental system and does not qualify as a

conventional system. Nothing in the record preponderates against this finding, nor do the Morrows appear

to take issue with the trial court’s conclusion. Indeed, Tennessee Compiled Rules and Regulations

1200-01-06-.16 defines an experimental sewage system as one “in lieu of those provided herein,” such as the

conventional systems defined by Tennessee Compiled Rules and Regulations 1200-01-06-.02

(““Conventional Subsurface Sewage Disposal System” means a disposal system that pre-treats sewage by

use of a septic tank and applies effluent to the soil as described in Rule 1200-01-06-.07.”).

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case was whether the note on the plat, marking the area as a “future park,” was sufficient to

create a restriction on the use of the property for anything other than a park. The Court of

Appeals concluded that the note on the recorded plat, designating the area as a future park,

was sufficient to create a restrictive covenant preventing the area at issue from being

developed into anything other than a park. Id. at 538–39. In Stracener, the restrictive

covenant at issue did not contain a negative limitation (e.g., this property may not be used

for residential purposes), but rather contained an affirmative restriction on the use of the

property by expressly naming the future use (i.e., a future park). Id. Thus, the Court of

Appeals concluded that an express designation as to what use the property may be put

created a restriction on the land against any use that was inconsistent with that restriction.

Id. Similarly, in this case, the Berniers argue that the Plat Note approving Lot #2 for a

conventional subsurface sewage system is a restrictive covenant, which prevents the

Morrows from installing any sewage system that does not meet that requirement, i.e. a nonconventional system. 

In contrast, the Morrows contend that the trial court interpreted Note 15 on the Final

Subdivision Plat “too narrowly” in concluding that it required the use of a “conventional

subsurface sewage system,” to the exclusion of all other types of systems. The Morrows

argue that because the construction of the wetland system is consistent with the purpose of

the easement, to allow the Morrows to build a home on Lot #2 with an adequate, stateapproved sewage system, the trial court erred in enjoining the Morrows from doing so. The

Morrows rely on two Tennessee Supreme Court cases to support their contention that

preventing their installation of the wetland sewage disposal system is to unreasonably

expand, by implication, the restrictive covenants contained on the Final Subdivision Plat.

First, in Turnley v. Garfinkel, 362 S.W.2d 921 (Tenn. 1962), the Tennessee Supreme Court

held that an express restriction that “[n]ot more than one dwelling be built on any lot” did

not operate to bar a property owner from re-subdividing his own lot into two, thereby

allowing two homes to be built on the original lot. The Supreme Court explained: 

Since the covenants in this case contain no express

restriction against a resubdivision of any of the lots, they cannot

be extended by implication to prevent complainants'

re-subdivision of their lot. Nor can such restriction be implied

from the conveyance of these lots with reference to this

recorded plat showing the dimensions of the lots.

While we have no decision upon this particular point, we

think it is generally well settled on principle and authority,

which we deem sound and are content to follow, that such a

conveyance of the lots by reference to a recorded plat raises no

implied covenant that the lots shall remain as shown on the

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map, or that they may not later be subdivided.

Id. at 923. In a more recent case, Williams v. Fox, 219 S.W.3d 319 (Tenn. 2007), the

Tennessee Supreme Court likewise held that a covenant restricting the construction or

installation of “mobile homes” or “trailers” on the property could not be extended by

implication to restrict the construction or installation of “modular homes.” The Court

reasoned that the plain language of the covenant did not expressly restrict the installation of

modular homes, and that modular homes were defined by statute and case law as separate

from mobile homes or trailers. Id. at 326. These cases, however, are inapposite to the caseat-bar. In both Turnley and Williams, one property owner argued that the express covenants

at issue in the case should be extended by implication to prohibit actions, i.e. re-subdividing

the property or installing a modular home, that was not expressly prohibited by the plain

language ofthe covenants. In this case, however, the plain language ofthe covenants at issue

expressly states that the home to be constructed on Lot #2 is to utilize a “conventional”

subsurface sewage system. As previously discussed, the Court cannot construe a restrictive

covenant “to defeat the plain and obvious purposes of a restriction.” 20 Am. Jur. 2d

Covenants, Etc. § 170. Instead, where “the meaning of the language of the [covenant] is

plain” the restriction need not be construed against the grantor and may be enforced as

written. Id. Here, the restrictive covenants contained on the Final Subdivision Plat

“plain[ly] and obvious[ly]” state that the home on Lot #2 is approved for a conventional

subsurface sewage system. Because reference to a conventional system is clearly contained

in the Plat Notes, this Court is not required to extend the covenant at issue by implication

to come to the conclusion that the Plat Notes contemplate the use of a conventional system

for the benefit of the home on Lot #2. 

Instead, we agree with the reasoning in Stracener that a restriction that expressly

designates what may be placed on the property operates as a bar to any non-conforming uses

of the property. See Stracener, 737 S.W.2d at 538–39. The plan language of the restrictive

covenants contained on the Final Subdivision Plat clearly states that the Morrows are

approved to install a “conventional” sewage disposal system for the benefit of the home on

Lot#2. Following the reasoning of Stracener, the express designation that the home on Lot

#2 have a “conventional” system is a bar to the installation of any non-conventional system,

i.e. an experimental wetland system. In addition, this restriction applies equally to a system

built on Lot #2 or to one built on the easement on Lot #3 because the plain language states

that the home on Lot #2 is approved for the conventional system, rather than limiting such

restriction to one lot or the other. It is undisputed that any sewage disposal system installed

by the Morrows, whether on Lot #2 or on the easement on Lot #3, would be for the use and

benefit of the home on Lot #2. Accordingly, the restrictive covenants limiting the home on

Lot #2 to the use of a conventional sewage disposal systemapplywith equal force regardless

of whether the Morrows choose to install the system on Lot #2 or on the easement on Lot

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#3. 

The Morrows next argue that, even if the restrictive covenants at issue require the

installation of a conventional system, the court should allow the installation of the

experimental wetland sewage disposal system because this system is consistent with the

purpose of the contract between the Morrows and the Berniers—to allow the Morrows to

build a home on Lot #2 with an adequate, state-approved sewage system— and, therefore,

is not a non-conforming use of the property. To support this argument, the Morrows cite the

recent case ofRogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616 (Tenn.

Ct. App. June 19, 2012). Rogers involved the extent of an egress/ingress easement. The

parties did not dispute that the plaintiff held an implied easement to cross the defendant’s

property on the basis of necessity and prior use. The dispute concerned the width of the

easement and whether the owner of the servient estate was permitted to place a fence close

to the easement, which decreased the useable area of the easement. The trial court dismissed

the plaintiff’s interference claim. The Court of Appeals, however, reversed and remanded

for further proceedings, concluding that the plaintiff had presented evidence establishing the

prima facie elements of her interference claim. In another case, Regen v. East Form Farms

LP, No. M2008-01414-COA-R3-CV, 2009 WL (Tenn. Ct. App. Nov. 4, 2009), this Court

held that an increase in traffic on an easement was not unreasonable because the easement

contained no restrictions regarding the number or type of vehicles that could use the

easement, or any other restrictions from which the Court could conclude that the increased

traffic would create an unreasonable increase in burden on the servient estate. The cases

cited by the Morrows are inapposite to the case-at-bar, however, because they concern only

the unreasonable use of an easement as inferred from the circumstances of the case. In this

case, the Berniers do not argue that the use of the property at issue for a wetland sewage

disposal system is an unreasonable burden, but that the express language of the restrictive

covenants prevents such a use. Accordingly, the reasonableness or unreasonableness of the

use of the property is not at issue. The question in this case simply concerns the plain

language of the Final Subdivision Plat. Regardless of whether any restriction is reasonable

or unreasonable, this Court simply cannot rewrite the parties’ contract. “Our courts will not

rewrite contracts just because they are ill advised or the parties miscalculated future events.”

Wilson v. Scott, 672 S.W.2d 782 (Tenn. Ct. App. 1984). Instead, we must enforce the

contract, or in this case, the restrictive covenant, as written. See Planters Gin Co. v. Fed.

Compress & Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn. 2002). The restrictive

covenants contained on the Final Subdivision Plat expresslyrequire that the sewage disposal

system used by the home on Lot #2 be “conventional.” As previously discussed, it is

undisputed that the experimental wetland sewage disposal system sought by the Morrows

is “experimental,” rather than “conventional.” Accordingly, regardless of whether the use

of the land for a wetland system is reasonable, it is prohibited by the plain language of the

parties’ contract, as evidenced by the Plat Notes. Therefore, the judgment of the trial court

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enjoining the Morrows from installing or constructing an experimental wetland sewage

disposal system on either Lot #2 or the easement on Lot #3 is affirmed. 

Finally, we consider the Berniers’ argument that they should be awarded their

attorneys fees on appeal pursuant to Tennessee Code Annotated Section 27-1-122, which

provides:

When it appears to any reviewing court that the appeal fromany

court of record was frivolous or taken solely for delay, the court

may, either upon motion of a party or of its own motion, award

just damages against the appellant, which may include but need

not be limited to, costs, interest on the judgment, and expenses

incurred by the appellee as a result of the appeal.

“Imposing a penalty for a frivolous appeal is a remedy which is to be used only in obvious

cases of frivolity and should not be asserted lightly or granted unless clearly applicable,

which is rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). Although we

have not decided the issues before us in the Morrow’s favor, we are not persuaded that this

appeal is frivolous or taken solely for delay. We, therefore, decline to award attorney’s fees

to the Berniers.

V. Conclusion

The judgment of the Sumner County Circuit Court is affirmed and this cause is

remanded to the trial court for all further proceedings as may be necessary and are consistent

with this opinion. The costs of this appeal are taxed to Appellants Robert Morrow and Jamie

Morrow, and their surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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