### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Marc h 19 , 200 8 S es sio n GREI G MASSE Y, ET AL 

### . v. R. W. GRAF, INC., ET AL 

### . Appeal from t he Chancery Court for Knox County No. 158129-1 M ichael W. Moyer s, Chancellor

No. E2007-02474-COA- R3-CV - FILED JUNE 26, 2008

Charles D. Susano, Jr., J., dissenting.

Th e ma jority fo c us e s, a s it

mus t, o n th e fo llo wi ng la ng ua ge in th e Dean Es ta te ’s wa rr a nty deed to the U niversity of Tenne ssee:

Th is c on ve ya nc e , h ow e ve r, is m a de su bje c t to Re stric tiv e Cov e na nts applicable to all of the lots located in the Deanbrook Sub-divisions of rec o rd in book of dee ds 954, page 564, in the Register ’s Off ice of Knox County, Tennessee , to which said instrument specif ic re fer ence is hereby ma de for

said conditions, limi tation s , rese rvations and re stric tio ns
. The majority conc ludes that “[t]his language is susceptible to two very diff ere nt meanings,” one of wh ic h is , in the jud gme nt of the ma jority , “th a t the De a n Estate [i n th e wa rr a nty de e d] int e nd e d to have the [De anbrook Subdivisions’] restric tive coven an t s ap ply only to the lots within the Dea nbrook [S]ubdivi sions.” This leads the majority to “conc lude t hat ambigui ty exists.” I disagr ee. When I give the wor ds in the subject language their usual and ordinary meaning – as I am re quired to d o – I d o n ot f indthe wa

rr a nty de e d to be a mbi gu ou s. As I un de rs ta nd the la ng ua ge a t hand , it c a nn ot b e c on str

ue d a s b e ing lim ite d to the c on ve ye d lo ts i n th e platte d s ub div isi on s. The langua ge at issue addresse s “[t]his conveyanc e.” The only re asonable interpre tation of these two wor ds is that they refe r to the conve yed platted lots in the Dea nb ro o k Subdivis ions and the conve yed ac rea ge outside the platted subdivisions. This is what w as “c onvey[e d].” The re c an be no do ub t a

bo ut this

. “This conve yance ” – henc e, both the platted lots and the a cre age outside the Deanbrook Subdivis ions – is st ated in the wa rra nty deed to be “ made subject to.” To me this clearly means that-2-

allof t he real property conveye d to the University of Tennessee was burdened with s omething. We have all exper

ience d transac tions, sales, or what-ha ve-you that are stated t o be “subject to” terms and conditions. In some instances, those “terms and conditions ” ar e not expr essed in the doc ument itself, but, in such a ca se, we are usually told wher e they can be f ound. In any e vent, what we know in such a situation is that there are terms and conditions and the transac tion or sale is subject to them. In the case now bef

ore us, the “subject to” materia l is clear ly and unambiguously defined a s the restric tive covenants that can be found in Book of Dee ds 954, pag e 5 6 4 , i n t he Register’ s Offic e of K nox County. In my o p inion, the Dean E state said what it meant and meant what it said. I do not understand how the s ubject language can be rea sonably interpre ted to mean that only a portion of “[t]his c onveyanc e” is subjec t to the restrictions. I would hold that the plaintiffs’ contention rega rding the subject langua ge is corr ect; vac ate the trial court’s grant of summary judgment; and re ma ndfo r f

urthe r p ro c e e din gs
. Ac c or din gly , I re sp e c tf

ull y d iss e nt.

_______________________________

CHARLES D. SUSANO, JR., JUDGE