FILED

June 5, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

VILLAGES OF BRENTWOOD )

HOMEOWNERS ASSOCIATION, INC., )

)

Plaintiff/Appellee, ) Davidson Chancery

) No. 95-3733-III

VS. )

) Appeal No.

STEVEN J. WESTERMANN and wife ) 01A01-9708-CH-00388

MARIA A. WESTERMANN, )

)

Defendants/Appellants. )

APPEAL FROM THE CHANCERY COURT

FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

For Plaintiff/Appellee: For Defendants/Appellants:

Robert F. Spann John A. Ascione

Nashville, Tennessee Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Art. V of the Villages of Brentwood restrictive covenants provides in applicable part:

ARCHITECTURAL CONTROL

No building, fence, wall or other structure shall be commenced, erected or

maintained upon the Properties, nor shall any exterior addition to or change,

including color, or alteration therein be made until the plans and specifications

showing the nature, kind, shape, height, materials, and location of the same shall

have been submitted to and approved in writing as to harmony of external design and

location in relation to surrounding structures and topography by the Board of

Directors of the Association, or by an architectural committee composed of three (3)

or more representatives appointed by the Board.

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O P I N I O N

This appeal involves the enforcement of the restrictive covenants in aNashville

subdivision. After two residents began to construct improvements on their property

without first obtaining approval of the subdivision’s architectural committee, the

homeowners association filed suit in the Chancery Court for Davidson County

seeking injunctive relief to enforce the architectural control provisions in the

subdivision’s restrictive covenants. The trial court heard the case without a jury and

issued an injunction directing the residents to cease the construction and to restore

their property to a condition consistent with the subdivision covenants. The residents

have appealed. Since neither party has filed a verbatim transcript of the proceedings

or a statement of the evidence, we have reviewed the papers filed in the trial court and

have determined that they contain no basis for reversing the trial court. Accordingly,

the trial court’s judgment is affirmed.

I. 

In March 1993 Steven and Maria Westermann bought a house in a Nashville

subdivision called the Villages of Brentwood. Their property, like the other property

in the subdivision, was subject to recorded restrictive covenants governing such

things as maintenance assessments, dwelling size, and architectural uniformity. One

of the restrictions required residents desiring to build a fence, wall, or other structure

on their property to first obtain the approval of the board of directors of the

homeowners association or an architectural committee appointed by the board.1

 

In September 1995 the Westermanns began constructing an in-ground pool, a

retaining wall, a privacy fence, and an expansion of their deck without first seeking
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the approval of the homeowners association. Soon after construction began, the

homeowners association notified the Westermanns in writing that their project

violated the subdivision’s restrictive covenants because their plans had not been

reviewed or approved. The homeowners association requested the Westermanns to

cease construction and to take steps to obtain approval of their project. The

Westermanns ignored the homeowners association’s letter and continued

construction. 

The homeowners association sent a second letter to the Westermanns on

October 19, 1995. When the Westermanns disregarded this letter, the homeowners

association filed suit on November 29, 1995 in the Chancery Court for Davidson

County requesting injunctive relief to enforce the subdivision’s restrictive covenants.

The trial court issued a temporary restraining order stopping the construction.

Approximately three months later, the trial court entered an order directing the

Westermanns to submit their plans to the homeowners association for review and

approval. The Westermanns submitted plans to the homeowners association on

March 26, 1996. On April 8, 1996, the attorney representing the homeowners

association informed the Westermanns that their planswere incomplete and requested

a more complete set of plans. The Westermanns provided new plans on June 7, 1996,

and on June 26, 1996, the architectural review committee disapproved the

Westermanns’ project.

The trial court heard the evidence on December 4, 1996 and entered a detailed

memorandum opinion on January 24, 1997. The trial court concluded that the

architectural committee had acted reasonably and in good faith and directed the

parties to attempt to reach an agreement concerning the Westermanns’ project. After

the parties were unable to agree to a mutually satisfactory resolution of their

differences, the trial court entered a final order on April 10, 1997, ordering the

Westermanns to remove all construction materials from their property and to restore

the property to a condition consistent with the subdivision’s restrictive covenants.

II.
2We would reach the same conclusion were we to address the merits of this issue. The thirtyday period in Article V of the restrictive covenants did not begin to run on March 26, 1996 because

the plans submitted to the homeowners association were not complete. After the Westermanns

submitted a complete set of plans on June 6, 1996, the architectural committee declined to approve

the plans on June 26, 1996 - well within the thirty-day period.

3

In addition, without a factual record, we have no basis for determining that the architectural

committee acted unreasonably when it determined that the Westermanns’ project would change or

retard the flow of groundwater, that it would likely have a substantial negative impact on

neighboring property, and that it could result in the diminution of the value of the adjacent property.

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We turn first to a preliminary issue concerning the scope of this appeal. Two

settled principles of appellate review come into play here. First, appellate courts

cannot review the evidence de novo in accordance with Tenn. R. App. P. 13(d) in the

absence of a verbatim transcript or statement of the evidence and, therefore, presume

that a trial court’s order has adequate evidentiary support in the absence of an

evidentiary record. See Word v. Word, 937 S.W.2d 931, 932 (Tenn. Ct. App. 1996);

Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992); Scarbrough v.

Scarbrough, 752 S.W.2d 94, 97 (Tenn. Ct. App. 1988). Second, appellate courts will

ordinarily decline to consider issues being raised for the first time on appeal. See

Civil Service Merit Bd. v. Burson, 816 S.W.2d 725, 734-35 (Tenn. 1991); Department

of Human Servs. v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996). Thus,

arguments not asserted at trial are deemed waived on appeal. See Devorak v.

Patterson, 907 S.W.2d 815, 818 (Tenn. Ct. App. 1995).

Every one of the issues raised by the Westermanns on appeal are affected by

one or both of these principles. The Westermanns argue for the first time on this

appeal that the committee should be deemed to have approved their construction

plans because it did not decline to approve their project within thirty days after they

first submitted a set of plans on March 26, 1996. Because the record contains no

indication that they presented this argument to the trial court, we find that they have

waived their right to assert this issue for the first time on appeal.2 The same fate must

befall the Westermanns’ argument relating to the speculative nature of the

architectural committee’s decision because this argument was likewise not presented

to the trial court.3

The Westermanns’ remaining issues challenge the reasonableness of the

architectural committee’s disapproval of their project. The question of whether the

architectural committee acted reasonably is heavily fact-dependent and must be

considered in light of the unique circumstances of the case. See Indian Hills Club
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Homeowners Ass’n, Inc. v. Cooper, No. 01A01-9507-CH-00319, 1995 WL 763823,

at *4 (Tenn. Ct. App. Dec. 29, 1995) (No Tenn. R. App. P. 11 application filed). This

record lacks a verbatim transcript of the proceedings before the trial court or even a

statement of the evidence. In addition, the record does not contain the exhibits filed

with and considered by the trial court. Thus, we are unable to examine the review

criteria used by the architectural committee to determine whether the Westermanns’

project should be approved. In the absence of this evidentiary material, we are able

only to review the legal issues raised by the Westermanns that can be decided based

on the technical record alone.

III.

Restrictive covenants conditioning the right of property owners to make

improvements on the approval of a homeowners association or architectural

committee are generally valid and enforceable. See Association of Owners of

Regency Park Condominiums, Inc. v. Thomasson, 878 S.W.2d 560, 563-565 (Tenn.

Ct. App. 1994); see also Snowmass Am. Corp. v. Schoenheit, 524 P.2d 645, 647-48

(Colo. Ct. App. 1974); Hollingsworth v. Szczesiak, 84 A.2d 816, 821 (Del. Ch. 1951).

The prevailing view in this jurisdiction is that these sorts of restrictive covenants will

be enforced as long as the entity administering them acts reasonably and in good

faith. See Indian Hills Club Homeowners Ass’n, Inc. v. Cooper, 1995 WL 763823,

at *3.

Restrictive covenants are enforceable even though they vest discretionary

powers with the architectural committee. See Country Club of La. Prop. Owners

Ass’n, Inc. v. Dornier, 691 So. 2d 142, 150 (La. Ct. App. 1997) (Fitzsimmons, J.,

concurring). The courts will uphold review criteria as long as they provide a

reasonable framework for the committee’s decision, see Winslette v. Keeler, 137

S.E.2d 288, 289 (Ga. 1964), and as long as the committee developing the criteria is

acting reasonably and in good faith. See Indian Hills Club Homeowners Ass’n, Inc.

v. Cooper, 1995 WL 763823, at *4; Country Club of La. Prop. Owners Ass’n, Inc. v.

Dornier, 691 So. 2d at 150. When the restrictive covenants establish a review

committee but do not contain specific criteria for the committee to follow, the validity

of the criteria and the committee’s interpretation of the criteria will be judged by a
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standard of reasonableness. See 4626 Corp. v. Merriam, 329 So. 2d 885, 889 (La. Ct.

App. 1976).

A.

In light of these authorities, we decline to find as a matter of law that the

homeowners association of the Villages of Brentwood was acting unreasonably when

it prepared criteria that would be used to determine the acceptability of proposed

improvements to houses in the subdivision. On the contrary, we find that the

homeowners association could establish criteria as long as they were consistent with

Article V of the restrictive covenants that permits considering the “nature, kind,

shape, height, materials, and location” of proposed buildings, fences, walls, or other

structures. Because the review criteria employed by the Villages of Brentwood are

not in the appellate record, we will presume they are consistent with the restrictive

covenants, that they are reasonable, and that they provided a reasonable basis for the

architectural committee’s decision.

The Westermanns’ ignorance of the existence or substance of the review

criteria is of little consequence. The restrictive covenants in their deed put them on

notice that the homeowners association retained the right to approve exterior

improvements to their property. Had the Westermanns complied with Article V

before they commenced construction, they would have learned of the review criteria

and would have been able to conform their improvements to the criteria’s

requirements. By deciding to proceed with construction without first seeking and

obtaining the required approvals, the Westermanns assumed the risk that their

proposed improvements would not be acceptable to the architectural committee. 

B.

The Westermanns also insist that the architectural committee’s refusal to

permit them to construct their privacy fence deprives them of the free and full use and

enjoyment of their property. Specifically, they assert that limiting the height of their
4The restrictive covenants do not prescribe specific fence heights; however, Article V

empowers the architectural committee to consider the “harmony of external design and location in

relation to surrounding structures.” In light of the trial court’s finding that “all other fences in the

development are six feet,” we assume the Westermanns are challenging the validity of Article V as

applied to them.

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fence to six feet4

 is unreasonable because it will interfere with their privacy. Because

of the sloping elevation of their lot, they insist they should be able to build a fence

taller than six feet. 

We find it impossible to review this argument based on the record before us.

The trial court noted that a civil engineer testified that the Westermanns required a

retaining wall on their property “because of the slope of the yard” and that a retaining

wall that was six feet high would not “be adequate to retain the proposed

improvement.” However, we find nothing in the technical record that sheds any light

on the relationship between the privacy fence, the retaining wall, and the slope of the

Westermanns’ yard. While the Westermanns state in their brief that “the effect of a

six feet privacy fence erected at the lower side of [their] yard . . . is reduced

substantially,” the mere contentions in a party’s brief cannot be considered as

evidence. See Outpatient Diagnostic Ctr. v. Christian, No. 01A01-9510-CV-00467,

1997 WL 210842, at *2 (Tenn. Ct. App. April 30, 1997) (No. Tenn. R. App. P. 11

application filed). In the absence of an evidentiary record, we are precluded from

considering this issue. State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App.

1990).

IV.

We do not have before us a record of the evidence considered by the trial court,

including the written criteria considered by the architectural committee. The trial

court had that evidence before it and applied the correct standard of review.

Accordingly, we will presume that the evidence supported the trial court’s conclusion

that the architectural committee acted reasonably and in good faith. Based on that

presumption, we affirm the judgment and remand the case to the trial court for

whatever further proceedings may be required. We tax the costs of this appeal to

Steven J. Westermann and Maria A. Westermann and their surety for which

execution, if necessary, may issue.
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______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, JUDGE 

__________________________________

WILLIAM B. CAIN, JUDGE