### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 6, 2001 Session STACY HARRIS v. 4215 HARDING ROAD HOMEOWNERS

ASSOCIATION Appeal from the Chancery Court for Davidson County No. 99-1309-II Carol McCoy, Chancellor

No. M2000-02414-COA-R3-CV - Filed October 16, 2001

The app ellant, a unit owner in a high-rise condominium, sued the Homeowners Associat ion , claiming that her assessment for common expenses h ad been too h igh for the twenty years she ha d ownedthe unit. She s ough t reimbursement of the overpayment and an injunction against further ass essments based on the percentage of her ownership stated in the Master Deed. T he Chancer y Courtof Davidson County granted summary judg ment to the Association andordered the appellant to pay attorney’s fees a

nd costs. We affirm and remand the cause for the assessment

of attorney’s fees for the app

eal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded B EN H. C ANTR ELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined. Lawrence Wi

lson, Nashville, Te

nnessee, for the

appellant, Stacy

Harris. Dudley M

. West, Nashville, Tennessee, for the appellee, 4215 Harding Road Homeowners Association. OPINION I. Stacy Harris bought Unit No. 107 in the Windsor To wer Condom inium complex in 1979. According to the Master Deed and B y-Laws of the Association, which were recorded in 1978, 0.374% of the common elem ents of the comple

x as described in

the Master Deed

were allocated

to Unit No. 107. Ms. Harri

s’ warranty

deed from the former owner of Unit No. 107 convey

ed the unit to her along with

the undivided 0.374

% of the common ele

ments. The Master Deed

requires each unit owner to pay his/her proportionate share of the expenses of the Associ ation in acc ordance with his/h er percentag

e of ownership in t

he common element

s.1 The asso ciation disp utes the squ are footag e of Ms . Harris’ un it but insists that the real area is im material. -2- Since 1978, Unit No. 107 has been assessed 0.374% of the Association’s expenses. Ms. Harris has paid the assessment since 1979. In 1998, Ms. Harris learned that Unit No. 107 contained only 672 square feet of living area, rather than the 850 square feet shown on the plat for Windsor Tow ers. 1 She confi rmed, to her satisfaction, that the percentage o f ownership of the

common areas (a

nd hence her due

s assessment) was originally calculated on a ratio of the area of he r unit to th e total ar

ea in the e

ntire com plex, using 850 square feet as the numerator. She, therefore, demanded (1) a refund of the overpayment and (2) a reduction in her assessment for the future. II. The chancellor granted summary judgment to the Association, findi

ng that all the relevant fa cts were undisputed, and that the Association was entitled to judgment as a matter of l aw. Th e chancellor

held that the size

of Unit No. 107 was i

mmaterial, since

Ms. Harris had re

ceived title to an undivided 0.374% share of the common elements of the com ple x, a nd t he M ast er De ed an d ByLaws requir

ed her to pay

that proportion of

the maintenance

and operational e

xpenses. We agree. A condominium may be established, according to statute, by recording a Master Deed. See Tenn. Code Ann. § 66 -27-103, 107. The

Master Deed sha

ll also include By-Laws for the administration of the building, Tenn. Code Ann. § 66-27-107(a)(4), and the By-L aws must provide for the care and upkeep of the building and its common elements, and the manner of collecting from the co-owners for the

payment of the common expenses. See Tenn. Code Ann. § 66-27-112 (a)(3) and (4). In this ca

se, the Master De

ed allocated an u

ndivided 0.374% of

th e ownership of the common elements to Unit No. 107. Whether the allocation re

sulted from a

mistake or is essen

tially corr ect is beside the p

oint. The fact remains tha

t Ms. Harris has been deeded 0.374% of the common elements of the condominium. Her ownership rights obligate her to pay that proportion of the common expenses. The obli gation in the Master Deed and By-L aws is an encumbrance on her unit of which she ha d notice w hen she purchased the unit in 1979. See Association of O wners of Regency

Park v . Thomasson , 878 S.W.2d 560 (Tenn. Ct. App. 1994). Covenants, conditions, and restrictions con tai ned in the declaration (Master Deed) are property interests that run with the land. Maples Homeowners

Ass’n v. T & R Nashvill

e , 993 S.W.2d 36 (Tenn.

Ct. App. 1998). There

fore, Ms. Harris is bound by the

conditions contain

ed in the Master De

ed and By-

Laws. III. Paragraph

10(b) of the Master Deed provid es that all costs and ex penses, in cluding a reasonable

attorney’s fee, are recoverable in an action to enforce or defend the lien given the association to secure the payment of dues. The chancellor awarded attorney’s f ees to the Association for defending the a

ction below. On ap

peal, Ms. Harris asserts that theMaster Deed provision does notapply to this case and that the chancellor set the amount awarded to the Association without an-3-

evidentiary

hearing. We think that the Master Deed clearl y covers thi s situation. Ms. Har

ris contestedthe amount

of her part of the Association’s costs and expenses, for which the Association retained a lien on her unit and

her share of the common elements. Therefore, the Master Deed allows the Association to recover its attorney’s fees in this action. The chancellor set the fee in accordance with the local rules of the court which pr ovide: Whenever

it is necessary for the court to determine fees of attorneys, the attorney w

ill filean affidavit setting forth an itemized statement of the services rendered, the time, a suggestion

of the fee to be awarded along with a statement of

other pertinent f

acts including but not limited to that required by DR 2-106 of the Code of Professional Responsibility

and applicable case l aw, and such other information as may be requested by

the court. The affidavits contained itemized statements of the time spentby the Assoc iation’s counsel, and the expenses incurred by them in defending Ms. Harris’ claims. Her only response to the motion concerned

the Master

Deed provision for attorney’s fees; it did not contest the reasonableness of the fee. She did not req

uest a hea ring. We are of the opinion that Ms. Harris cannot raise the issue of the reasonableness of the fee on appeal. Rule 36(a), Tenn. R. App. P. r equires a party to take reasonable

measures in the trial court to cure an error before raising the error as an issue on appea l. See Grandstaff v. Hawks , 36 S.W.3d 482 (Tenn. Ct. App. 2000); State v. Gregory , 862 S.W.2d 574 (Tenn. Crim. App. 1993). By failing to contest the reasonableness of the fee in the trial court, Ms. Harris is precluded from raising that issue here. The Association has requested that this court allow an additional fee for the service

s of its counsel on appeal . Wehold that the reque st is proper and re

mand the cause to t

he trial court to

set a reasonable fe

e for the servic

es rendered by

counsel on appea

l. IV. The chancellor also

held that the ten-year statute of limitations in Tenn. Code Ann. § 28-3- 110(3) would bar the plaintiff’s effort to refor m their deed. We will not address that issue since we have found that th

e chancellor sho

uld be affirmed o

n other grounds. Th e judgment o f the court below is affirmed and the cause is remanded for further proceedings c

onsistent with this op

inion. Tax the costs on

appeal to the app

ellant, Stacy

Harris.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.