IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 7, 2004 Session

AUSTA LA VISTA, LLC and TAKE IT EASY, LLC, and BOARDWALK

PROPERTY OWNERS ASSOCIATION, v. MARINER’S POINTE

INTERVAL OWNERS ASSOCIATION, INC., and HENRY PHILLIPS,

individually

Direct Appeal from the Chancery Court for Cumberland County

No. 8339-899 Hon. Vernon Neal, Chancellor

No. E2004-00184-COA-R3-CV - FILED MARCH 17, 2005

In this dispute, plaintiffs sought declaratory judgment as to use of their lake by defendant, payment

of fees and injunctive relief. Defendant counter-claimed for a declaratory judgment as to its use of

the lake, disputed any obligation to pay fees to the plaintiff, and sought monetary damages and

attorney’s fees. The Trial Court held that plaintiffs’ owned the lake and the master deed provided

for maintenance fee and membership fees, that defendant’s members were required to pay. But if

the defendants’ members did not use the lake they would not be required to pay the fees. On appeal,

we hold the Court correctly found that the lake was an amenity and that a lake use fee was required

to be paid to plaintiffs pursuant to the master deed and exhibits. But the Court erred in holding that

defendant owners could choose not to use the lake and not pay the fees. We otherwise affirm the

Court’s rulings on the issues raised on appeal.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,

Reversed in Part, and Remanded.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which SHARON G. LEE, J.,

and WILLIAM H. INMAN, Sp. J., joined.

Gary R. Patrick, Chattanooga, Tennessee, for appellant.

M. Taylor Harris, Nashville, Tennessee, for appellee, Mariner’s Pointe Interval Owners Association,

Inc.
-2-

OPINION

Plaintiffs’ action against Mariner’s Pointe Interval Owners Association, Inc.,

(MPIOA) asked injunctive relief, quiet title, declaratory judgment, and payment of fees. Plaintiffs

alleged that they owned Lake Holiday, which bordered a 25 acre tract of property owned by MPIOA,

as well as several hundred adjoining acres of property. They claim that their predecessor in title,

Boardwalk, had owned plaintiffs’ and defendant’s properties, and a registered document titled

“Declaration of Horizontal PropertyRegime and Master Deed” (“master deed”) on March 31, 1981,

allowed the sale of time-share interests in property now owned by defendant. Amendments to this

document were filed over the ensuing years by Boardwalk and its successor, Lake Properties, Inc.

 

The Complaint alleged that MPIOA bought the 25 acre tract known as Mariner’s

Pointe after it was seized by the IRS in 1993, and that MPIOA then filed a document which

purported to be an amendment to the above-referenced document, which significantly changed

relevant portions of the document, namely the right of Boardwalk or its successors to control the lake

or receive fees from same. Plaintiffs averred that MPIOA was selling weekly time-shares on its

property, but telling purchasers that they had the right to use the lake year round, and a declaratory

judgment was sought to the effect that MPIOA had no right to use the lake, or if they did have a right

to its use, it was only for those weeks which had been purchased as a time-share interest, and only

after paying the appropriate fee. 

Plaintiffs also sought an injunction preventing people from using the lake who had

no right, sought clear title to the lake, and asked for damages for non-payment of fees for the use of

the lake. 

MPIOA Answered and filed a Counterclaim for Declaratory Judgments, Injunctions

and Damages. It admitted that it was a “not-for-profit condominium association whose

approximately 2,000 members own an equal share of Mariner’s Pointe Resort, consisting of 25.25

improved acres, an appurtenant easement for nonexclusive use of Lake Holiday, and buildings and

other improvements extending into Lake Holiday which have been used continuously by Defendant

since 1981.” Defendant averred that plaintiffs have no right to claim control of Lake Holiday,

because the lake is an impoundment of the Obed River, is regulated by the Tennessee Wildlife

Resources Agency (“TWRA”) and the City of Crossville, and Crossville has the right to take water

from Lake Holiday by use of the dam. Defendant also asserted that the original Declaration of

Horizontal Property Regime and Master Deed gave the condominium property owners “easements

and rights appurtenant thereto” including the use of recreational amenities, such as the lake. 

Defendant also averred that the marina building extended from defendant’s property

into and over the lake, and was shown as an improvement to defendant’s tax parcel in the tax

assessor’s office. It claimed that in addition there was a fishing pier, boat ramp, beach area, lakeside

boardwalk, and boat slips, which it owned and which were attached to its land/buildings, and for

which it maintained, operated, and paid utilities, taxes and insurance. Defendant claimed that it was
-3-

a successor in interest to Boardwalk, and that it owned all “easements and rights appurtenant thereto,

intended for use in connection with the Condominium”, which gave it the right to use the lake and

to collect fees for the use from its members. 

Defendant also raised the affirmative defense of estoppel, claiming its members had

relied on representations made by plaintiffs’ predecessor, Lake Properties, Inc., wherein they were

told that they had perpetual rights to use the lake and related recreational facilities. That plaintiffs

had allowed defendant’s members to use the lake for 3 1⁄2 years after plaintiffs’ purchased the

property. It also raised the defense of res judicata based on a prior lawsuit between defendant and

Lake Properties, Inc., and its Chapter 11 bankruptcy, as well as laches, unclean hands, and statutes

of limitation. 

Defendant asked the Court to declare that its members could use the lake, that its

members did not have to pay fees to plaintiffs, and that plaintiffs be enjoined from trespassing on

defendant’s property, and for monetary damages and attorneys fees. Ultimately, the Court conducted

an evidentiary hearing in August of 2003. Following the hearing, the Court took the matter under

advisement and delivered a bench ruling on November 21, 2003. The Court held that the lake was

clearly an amenity, and that MPIOA admitted as much in its Answer. The Court found there was

no dispute that Austa owned the lake, and that the master deed provided for a maintenance fee and

a membership fee, and that the membership fee was for the use of amenities owned by Boardwalk.

Further, the Court said the master deed stated that failure to pay a fee would preclude the owner from

using the amenities, and that the public offering filed the same date as the master deed also said the

membership fee was for the use of Boardwalk-owned amenities, and that the Purchaser/Seller

Verification listed the lake as an amenity. The Court found that MPIOA relied on these documents

in its Answer, and was judicially estopped from taking a contrary position. The Court also held that

the master deed provided that all provisions were covenants running with the land and all unit

owners and their assigns were bound by these covenants. 

The Court said that while Boardwalk owned the development, all fees went to

Boardwalk, and that LPI collected fees from interval owners in the form of a single maintenance fee.

The Court found that after MPIOA sought to amend the master deed, it then asked the bankruptcy

court to rule that res judicata would bar the plaintiffs’ claims, but the bankruptcy court refused. The

Court noted that Austa did not own the property when MPIOA went into bankruptcy, and Mary Lou

Wibel, principal owner and manager of Austa, testified that she never knew that MPIOA had tried

to amend the master deed. The Court found that no one gave MPIOA consent to amend the master

deed. 

The Court found that LPIsold to Austa in 1995, and that Austa then sought to charge

interval owners a fee for the use of Austa’s amenities, and that other property owners paid such fees.

The Court found that MPIOA charged a maintenance fee to the interval owners, and one owner

testified that she thought the lake use fee was included. The Court found that MPIOA took those

fees and used them to pay expenses for its property, and paid nothing to Austa, and that if the interval

owners wished to use Austa’s lake, they had to pay a fee of $3.00 for their week, or $156.00 if they
-4-

wanted to use it for the whole year. But if the interval owner did not wish to use the lake, they did

not have to pay a fee. 

The Court held that Austa or its successors could not raise these fees until they

demonstrated that the cost of maintaining the lake exceeded the fees collected, and that res judicata

did not arise from the previous State court proceedings. Also there had been no waiver by Austa to

collect such fees. The Court found no laches or abandonment, and that Austa had the right to make

reasonable rules with respect to the use of the lake, but could not prohibit paddle boats. The Court

found that MPIOA had the right to make reasonable rules for the water within 300 feet of its

dock/marina. 

Plaintiffs and defendant have appealed, and these issues are presented for review:

1. Whether the trial court erred in determining that MPIOA has the right to

make reasonable rules and regulations of the area of lake within three

hundred feet of its marina, dock and shoreline?

2. Whether the trial court erred in determining that an interval owner is not

limited to the week of interval ownership in using the lake?

3. Whether the trial court erred in determining that neither Austa nor its

successors could increase the fee charged for use of the lake until its was

shown that the expenses of stocking and maintaining the lake exceeded the

fees collected from all sources for its use?

4. Whether the trial court erred in determining that no fee was required if the

interval owner did not wish to use the lake?

5. Whether the trial court erred in finding that the 1981 Master Deed contains

a restrictive covenant requiring timeshare owners to pay a fee to use the lake?

6. Whether the trial court erred in holding that MPIOA could not amend the

Master Deed without approval of Austa?

7. Whether plaintiffs’ claims are barred by waiver, estoppel and/or unclean

hands?

The right to use the lake and fees related to its use, are essentially controlled by the

documents which were introduced as exhibits at trial, i.e., the master deed and its related exhibits

and amendments. The Trial Court found that the lake was clearly intended to be an amenity pursuant

to the master deed and its related documents, and was also intended for use by the interval owners,

subject to the payment of any required fees. MPIOA argues that the transfer of Mariner’s Pointe

property carries with it an inherent right to use the lake, because the Mariner’s Pointe property
-5-

adjoins the lake, and defendant relies upon the case of The Pointe, LLC v. Lake Management Ass’n.,

Inc., 50 S.W.3d 471 (Tenn. Ct. App. 2000). Pointe dealt with the sale of lake front property to a

developer, wherein the deed stated that the land was conveyed together with “all of the

appurtenances and hereditaments thereunto belonging.” The Pointe Court held that this language

granted the developer the right to use and enjoy the lake, because riparian rights were an

appurtenance to the property, and the Court said that “the conveyance of upland by the owner of both

the upland and the adjacent water transfers the riparian rights absent an express provision to the

contrary.” Id. at 477. 

The Trial Court distinguished Pointe, and we agree. The master deed in this case

provides for a timeshare transfer, which would not be selling the land and all appurtenances, but

selling the right to occupy a condominium unit for a certain week of the year. Moreover, the master

deed and exhibits restrict use of the lake by providing that it, like other amenities, can be used only

if the interval owner pays any applicable fees. These fees are described in the master deed as well

as the public offering statement. Thus, it is clear from the documents that the timeshare owners were

intended to use the lake, but it is also clear that this right carries with it the burden of paying the

appropriate fees.

While MPIOA points out, that restrictive covenants “will be enforced according to

the clearly expressed intention of the parties; but being in derogation of the right of unrestricted use

of property will be strictly construed, and will not be extended by implication to anything not clearly

and expressly prohibited by their plain terms”, (see Beacon Hills Homeowners Ass’n, Inc. v. Palmer

Properties, Inc., 911 S.W.2d 736 (Tenn. Ct. App. 1995)), the documents in this case contain plain

terms which expressly limit use of the lake to those owners who pay the appropriate fee. While

defendant argues that the master deed itself does not mention the lake, all of the related documents

must be construed together to determine the intent of the parties. See McCall v. Towne Square, Inc.,

503 S.W.2d 180 (Tenn. 1973). Considering all of the related documents, it is clear that the interval

owners were intended to have use of the lake upon payment of the appropriate fee to the owner of

the lake, which is now Austa. The Trial Court was correct in holding that a lake use fee must be paid

to Austa by the interval owners.

Thus, the issue becomes whetherthe Trial Court correctly held that an interval owner

who did not wish to use the lake did not have to pay the fee. The Trial Court stated no basis for this

holding, and as we stated, the documents are clear that a fee was required for the use of any and all

of the amenities, and there is no basis to make a distinction between the lake and other facilities, nor

is there any provision in the documents for allowing an interval owner to escape paying an amenity

fee because they choose not to use one or all of the facilities. The documents set forth that fees will

be due, and any purchaser would have been aware of those fees from the documents that were

contained in the public offering and purchaser/seller verification, which the witnesses testified were

given to every purchaser. Accordingly, we reverse the Trial Court’s holding on this issue.

Next, Austa argues that the Trial Court erred in determining that an interval owner

was not limited to his/her week of ownership when using the lake. Austa argues that the master deed
-6-

states in Article XXIV that owners can only use the common elements during their ownership week,

but the master deed also defines common elements as “the portions of the Condominium property

not included in the Units”. By its terms, it does not apply to the lake, which is not a part of the

condominium property. Austa next argues that Article XXIII of the master deed states that no owner

shall occupy his unit or exercise any other rights during any other weeks unless expressly authorized

to do so. This provision is embedded in the section dealing with “Termination”, which is prefaced

by “If all Unit Owners and holders of all liens and mortgages affecting any of the Condominium

Parcels execute and duly record an instrument terminating the Condominium property”. Such

termination has not taken place. Reliance on this provision by Austa is misplaced.

Finally, Austa argues that Exhibit 4 to the master deed, which is titled “Management

Agreement”, states in paragraph 28 that use of recreational facilities is limited to the owner during

the ownership week. However, this paragraph then provides that Boardwalk “shall have the right

to grant use of the facilities to such other persons and under such terms and conditions as it shall

determine advisable in its sole discretion pursuant to the provisions of the Declaration” (master

deed). The evidence at trial showed that Boardwalk’s successor, LPI, granted use of the recreational

facilities year-round to local residents, in exchange for their purchase of off-season timeshare weeks.

Substantial testimony at trial established that the purchasers were promised year-round use of the

lake and other amenities. 

Since year-round use of the recreational facilities, including the lake, was granted to

the interval owners by Austa’s predecessor, as it was so empowered by the documents, the Trial

Court properly found that interval owners could use the lake all year upon payment of the appropriate

weekly fee. We find this issue to be without merit.

As to the amount of the weekly fee, Austa argues that it was improper for the Court

to require a showing that the expenses of stocking and maintaining the lake exceed the fees collected

before the use fee can be increased, because this requirement does not appear in the master deed and

related documents. Our review of the documents supports this contention, as they do not appear to

place a limit upon the fee that can be collected. As this Court has previously recognized, however:

Every contract imposes upon each party a duty of good faith and fair dealing in its

performance and enforcement. Covington v. Robinson, 723 S.W.2d 643, 645 (Tenn.

App.1986) (citing Restatement (Second) of Contracts § 205 (1979); 17 Am. Jur. 2d

Contracts § 256 (1964)); see also 17A C.J.S. Contracts § 328 (1963). Section 256

of American Jurisprudence, Second Edition, on Contracts, further provides:

[T]here is an implied undertaking in every contract on the part of each party

that he will not intentionally or purposely do anything ... which will have the

effect of destroying or injuring the right of the other party to receive the fruits

of the contract. Ordinarily if one exacts a promise from another to perform

an act, the law implies a counter promise against arbitrary or unreasonable

conduct on the part of the promissee. However, essential terms of a contract
-7-

on which the minds of the parties have not met cannot be supplied by the

implication of good faith and fair dealing. (footnotes omitted).

Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn. Ct. App. 1995). 

We hold that the Trial Court properly imposed a reasonableness requirement on the

lake use fee that can be levied by Austa. The Chancellor did not require that Austa had to bring the

matter before the Court before the fee could be increased, however, he simply said that Austa could

not raise the fee until it could demonstrate that such was necessary. 

Austa argues the Trial Court erred in holding that defendant could make reasonable

rules and regulations for that area of the lake within 300 feet of its dock, shoreline, and marina. The

evidence before the Trial Court was that the lake use rules proposed by Austa would likely cause

damage to defendant’s marina and other structures, and any vessels located in the area. The Trial

Court also had before it boating rules promulgated by the TWRA, which state that all boats being

operated within 300 feet of a commercial dock or marina shall be operated at a slow, no-wake speed,

which was not provided for by Austa’s proposed rules. The Trial Court’s ruling simply recognizes

that the 300 foot restriction imposed by TWRA and seeks to protect defendant’s property interests.

This is an equitable ruling, and we affirm the Chancellor.

Defendant argues that it should have been allowed to amend the master deed without

Austa’s approval, because it is a successor to Boardwalk as “Boardwalk” is defined in the master

deed. Both defendant and Austa are successors to Boardwalk in different pieces of property, which

was originally part of a larger development until the tax sale. Defendant argues that Austa is not a

successor to Boardwalk as to the Mariner’s Pointe property, and thus Austa does not have to give

approval. The master deed, however, recognizes that Boardwalk owned not only the timeshare

property, but the surrounding development as well, and expressly set forth the manner in which

amendments could be adopted by timeshare owners, and specifically provided that “No amendment

shall change the rights and privileges of Boardwalk without its written approval.” In this context,

Boardwalk intended that certain changes could be adopted by the voting owners so long as those

changes did not affect its rights. Defendant is a successor to Boardwalk asto the timeshare property,

and Austa is a successor to Boardwalk as to the rest of the property, including the lake. Thus, the

interval owners cannot, as the Trial Court found, adopt changes which modify or destroy rights

belonging to Austa as successor to the remainder of the Boardwalk property. We affirm the Trial

Court’s ruling on this issue.

Finally, defendant argues that Austa’s claims should be barred by the doctrines of

waiver, estoppel, and/or unclean hands. It argues that the lake use fees were waived by LPI for

failing to charge the same, but this is not established by the proof, as the testimony was that the lake

use fees were included in the maintenance fee by LPI. Defendant argues that a further waiver

occurred when LPI failed to counterclaim for lake use fees in the 1993 lawsuit between LPI and

defendant. This was, however, prior to the amendments which purported to delete the requirement

that such fees be paid, which were not adopted until 1995, after LPI no longer owned the property.
MPIOA argues that Austa waited too long to file suit and should be barred, but Ms. Wibel 1

did testify that she had been trying to get a list of MPIOA members’ names from Dave Burgess so

that she could send them bills, and was unable to obtain same. As the trial court found, waiver is

the voluntary relinquishment of a known right, and there was no proof of such relinquishment in this

case.

-8-

It does not appear that LPI has ever claimed that it was owed lake use fees that were not paid. The

dispute arose after Austa bought the property and lake and sought to charge lake use fees to

defendant’s members. It was established that when defendant failed to cooperate with Austa in

collecting those fees, this lawsuit was filed. 

1

Defendant also argues that Austa’s claims are barred by the unclean hands of LPI in

that LPI collected property taxes and such from MPIOA members but did not submit those funds to

the proper taxing authority. As we have noted, this is also conduct of LPI and not Austa, and Austa

is not responsible for that behavior and cannot be held accountable for its predecessor’s actions over

which it had no control. 

For the foregoing reasons, we affirm the Judgment of the Trial Court in part and

reverse in part and remand, and assess one-half of the cost of the appeal to appellants, Austa La

Vista, LLC and Take it Easy, LLC, and one-half of the cost of appeal to Mariner’s Pointe Interval

Owners Association, Inc., and Henry Phillips, individually.

______________________________

HERSCHEL PICKENS FRANKS, P.J.