# FILED May 8, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk OAK HI GHLA NDS HOMEO

WNERS’ ) ASSOCIATI ON, INC., ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 94- 530 -II VS. ) ) Appeal No. ) 01-A-01-9511-CH-00535 CONTINENTAL

DEVELOPMENT AND ) CONSTRUCTION, I

NC., and ) NICH OLAS S . PSIL

LAS, )

) Defend ants/Appe

llees. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
HONORABLE C. AL

LEN HIGH, CHANCELLOR
JAMES R. TOMKINS Jennings and Tomkins Suite 2240-L & C Tower Nashville, Tennessee 37219 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
IRWIN J. KUHN Eisenstein, Moses and Mossman Suit e 500, One Ch urch S treet Bldg. Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANTS/APPEL LEES

AFFIRMED AND

REMANDED
HENRY F. TODD

PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

OAK HI GHLA NDS HOMEO

WNERS’ ) ASSOCIATI ON, INC., ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 94- 530 -II VS. ) ) Appeal No. ) 01-A-01-9511-CH-00535 CONTINENTAL

DEVELOPMENT AND ) CONSTRUCTION, I

NC., and ) NICH OLAS S . PSIL

LAS, )

) Defend ants/Appe

llees. )

O P I N I O N The captioned plaintiff has appealed from the non-jur y dismissal of its suit to enforce restrictions and has presented the following issues for r eview: 1. Whether Continental Development & Construction, Inc. ever applied for architectural a pproval as to the nine lots upon which it bu

ilt houses. 2. Whether the Court erred in allowing the testimony of NicholasPsillas abo

ut the Nas hville 50 joint ventur e’s res ponse or lack of response to his alleged reque st of architectural approva l. 3. Whether

Oak Hig hlands Ho meowner s’ Associ ation, I nc. is entitled to injunctive relief and a judgment aga inst Continental Development & Construction, Inc. f or the cost of removing overhea d electr ical con nectionsand repl acing t

hem with underg round co nnection s at the nin e lots upon

which it bu

ilt houses. Prior to October 17, 1992, a recorded Decla ration of Restrictive Covenants required approval of plans and specifications of proposed construction by the developer of the subdivision. Effective October 17, 1992, the required approva l was that of the Board of Directors of plaintiff Association.
The judgment of the

Trial Judg e states: . . . Defendant Continental Development and Construction, Inc. submitted a request for a rchitectural approval to the Developer when it still maintained the right to grant architectural approval under the Declaration of Restrictive-3- Covenant s, that the

develope r failed to reject said req

uest within thirty day s, and that therefore, the approval proce ss was complied with by Continental Development and Construction, Inc.; . . . .
The restriction in effect before October 17, 1992, stated: [n] o bui ldin g, fence , wall , or ot her st ructu re (in cludi ng a detached garag e) shall be commenced, erected, or maintained upon t he Pro perti es, no r shal l any ext erior addit ion t o or ch ange or alteration therein be made until the plans and specifica tions showing the nature, kind, shape, height, mater ials, and location of the sa me shall ha

ve been submitted t

o and app roved in writing as to the h armony

of extern al design and loca tion in relation to surrounding structures and topogra phy by the Developer. . . . In the e

vent said Developer . . . fails to approve or di sa pp ro ve su ch de si gn an d l oc at io n w it hi n t hi rt y (3 0) da ys after sa id plans a nd specif ications h ave bee

n submitted

to it, approva l will not be

required and this A

rticle will be dee

med to have been fully

complied with.
Plaintiff insists tha

t there isno eviden

ce that d efenda nts reque sted appr

oval of their plans prior to June 8, 1993.
The defendant, Psillas testified: Q. Before you entered into the option contract, did y ou review the restrictive covenants that were filed for the Oak Highlands Subdivision? A. Yes, I did. Q. Are you a

ware there is a clause in there r equiring architectural approval of homes y ou expected to built? (sic) A. Yes, I did. Q. Did you take plans to Na shville 50 Joint Venture regarding - take the plans which y ou expected to obtain? A. Yes, I did. Q. And the se were

the plansfor the lots that y ou wante d to build at Oa

k Highla nds? A. That’ s correct. * * * Q. How did you g o about attempting to obtain approval of the plans?-4- A. By just giving them c opies of f loor plan s of the houses. Q. Where did this take place? A. It took plac e at Southe ast Title’ s office s in Gree n Hills. Q. When did it take place? A. Sometime in the Spring of 1992. Q. After y ou submitted those plans, did any one from Nashville 50 Joint Vent

ure object to the p lans? A. Not at a

ll. At this point, plaintiff stated the following objection: Mr. Tomkins: Objection, your Honor. Tha t’s hearsay
. Wh et he r i t’ s n eg at iv e o r p os it iv e h ea rs ay, it ’s st il l h ea rs ay. The Trial Court properly

overruled the objection. The delivery of the plans to the developer was an act, of which the witness had pe rsonal knowledge. The failure of the developer to respond was a nega tive fact of which the witness had personal knowledg e. He ar sa y wa s n ot in vo lv ed in th e q uo te d t es ti mo ny.
Plaintiff relies upon other testimony that the plans submitted were not adequate for the purpose, but no evidence is cited that the developer made any objection to the for

m or substanc e of the p lans.

Plaintiff also reli es upon pla

intiff’saction in

submitting

plans ag ain in 1993 to plaintiff’s Board. If

the rights of defendants were e stablished by submission of plans to the developer and lack of objection, such rig hts were not necessarily

waived as a matter of law by resubmiss ion to plain

tiff’s B oard. Suc

h action w as a cir

cumstanc e to be considere d in respect to the weight to be given the quoted testimony. However, it is not a conc lusive circumstance, and the Trial Judge saw fit to believe the quoted testimony and conclude
ac co rd in gl y.-5- Any conflict in testimony requiring determination of credibility of witnesses is for the Trial Court and binding on the reviewing court unless other real evidence compels a contrar y conclusion. State, ex rel Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968); Jackson for Bohan Group, Inc. v. Bohan , Tenn. 1993, 861 S.W.2d 241. No real evidence is found to compel a contrary conclusion.

Moreo ver, t he evi dence d oes no t prep onder ate agai nst t he fin ding o f the T rial J udge that plans were submitted to the developer and approved by failure to approve or disapprove within thirty day s.
The foregoing disposes of plaintiff’s f irst two issues and precludes the necessity of discussing the third issue.
However, there is another gr ound which supports the conclusion of the Trial Court. The particular complaint of plaintiff is that defendants failed to conf orm to the practice of most builders in the development in planning and arranging for electrical service to be deliver ed by underg round co nductors
.

The record does not reflect who had the power to determine whether wires should be overhead on poles or underground. I t is generally

known that electric wires and supporting poles with

in the publ

ic righ t of way are insta lled by and are the prope rty of the el ectric u

tility which would presumably ha ve the power and authority to determine their location. It is not generally known who installs and owns the wires from the public way to a residence. There is no evidence that the constructor of a residence has any contr

ol over the manner of
co nn ec ti ng a r es id en ce to th e w ir es of th e u ti li ty i n t he pu bl ic wa y.
Under these circumstances, this Court is unable to find that the location and nature of connections from a residence to the electr ic utility lines is comprehended within the-6-

phras eology of t he rest ricti on, i .e: “b uild ing, fe nce, wa ll or o ther s truct ure (i nclud ing a detached gara

ge). - plans and

specific ations sho wing the nature, kind, shap e, heig ht, materials and location of same.”
The proh ibition of o verhea

d wires on

private propert y should have

been specifically mentione d in the re striction . Whether the Boa rd has an y c ontrol of

the loca tion of util

ities in the public way is beyond the sc ope of thi s appeal
. The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appella nt. The c ause is r

emanded to the Tri al Court f

or any necessa ry further proceedings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE