# FILED

June 5, 1998 Cecil W. Crowson Appellate Cou rt 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. WESTERMAN N and wife ) 01A01-9708-CH-00388 MARIA A. WESTERMANN, ) ) Defendants/Appel

lants. )



### APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELL OR

For Plaintiff/Appellee : For Defendants/A ppellants : Robert F. Spann John A. Ascione Nashville, Tennessee Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Art. V of the Villa ges of Brentwood r

estrictive cove

nants provides in a

pplicable part: ARCHITECTURAL CONTROL No bu ilding, fence, wall or other structure shall be commenced, erected or maintainedupon the Properties, no r sh all any exterior addition to or change, including color, or alteration therein be made until the pl ans an d specifications sh owing the nature, kind, shape, height, ma

terials, and loca

tion of the same

shal l have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding stru ctu res 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. -2- 

## O P I N I O N

This appeal involves the e nforcement of the r

estrictive covenan

ts in a Nashvill e subdivision. After two residents began to construct improve ments on their proper

ty without fi rstobtaining approval of t he subdivision’s archi

tectural committe

e, the homeowners association filed sui t in the Chancery Cou

rt for Davidson Coun

ty seeking injunctive relief t o enforce the arc

hitectural control p

rovision s in the subdivision’s restrictive covenants. The trial court heard the ca se without a

jury and issued an injunction directi ng the residents

to ce ase the construction and to restore their property to a conditio

n consistent with the

subdivision covenants.The residents have appealed. Since neither party has filed a verbatim transc

ript of the proceedings
or a statement of the evidence, we have reviewed the papers filed in t

he trial court and have determined that the

y contain no basis for r

eversing the

trial court. Accordingly, the trial court’s ju

dgment is affirmed

.
I.

In March 1993 Steve

n and Maria Wester

mann bought a house

in a Nashville subdivision

called the Villages of Brentwo od. Their property, like the other proper

ty in the subdivision, was subject to recorded res trict ive covenants governing such things as maintenance assessments, dwelling size, and architecturaluniformity. One of the restrictions required residents desiring to build a fence, wall, or other structure
on thei r property to first obta in the approval of the

board of directors of the homeowners associa

tion or an architec

tural committee a

ppointed by the board. 1

In September 1995 the Wes termanns began cons tructing an in-gro und pool, a retainingwall, a privacy fence, and an expansion of the ir deck without

first seeking-3-

the approval of the home owne rs a ssociation. Soon af ter construction began, the homeowners association notified the We sterma nns in writing that their project violated the subdivision’s rest rictive covenants be

cause their pla

ns h ad not been reviewedor

approved. The hom

eowners associati

on requested the

Westermanns to
ceaseconstruction and to take steps to obtain approval of their project

. The Westermanns

ignored the homeowne rs association’s let

ter and contin ued construction.

The homeowners associa tion sent a second lett

er to the Westerm

anns on October 19, 1995. When the Westermanns disregardedthis letter, the homeowners association

filed suit on Nove

mber 29 , 1995 in the Chancer y Court for Davidson County requesting injunctive relief to enforc

e the subdivision’s re strictive covenants

. The trial court issued a temporary restra

ining order stopping the cons t ruction. Approximately

three months later

, the trial court e

ntered an order d irecting the Westermanns

to submit their plans to the homeowners as s ociation for revie w and approval. The Westermanns submitted plans to th

e home owners association on March 26, 1996. On Apri l 8, 1 996, the attorney representing the homeowners association

informed the Weste

rmanns that the

ir plans were incomplete

and requested
amore complete set of pl ans. The Westermanns provided new plans on J

une 7, 1996, and on June 26, 1996, the a rchitec tural review com mittee disapproved t

he Westermanns’ proj ect.

The trial court heard the evidence on December 4, 1996 and entered a detailed
memora ndum opi nion on January 24, 1997. The trial court c

oncluded that the architectural committee had acted reasona bly and in good faith and d irected the parties to attempt

to reach an agree

ment concerning the Westermanns’ project. After the parties were unable to agree to a mu tua lly satisfactory resolution of their differences,

the trial court entere d a final order on April 10, 1 997, ordering the Westermanns

to remove

all construction mat

erials from their

property and

to restore the property to a cond

ition consistent with t

he subdivision’s restr

ictive covenants.

II.2 We would reach the s ame conclusion we

re we to address

the merits

of this issue. The thirtyday periodin Article V of the restrictive covenants did not begin to run on March 26, 1996 because t he plans submitted to the homeowners association were not complete. After the Westerman n s 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 unreason ably when it determined that the Westermanns’ project would change or retard the flow of groundwater, that it would l ikely have a substantial negative impact on neighboring property, and that it could result in the diminution of the value of the adjacent property. -4- We turn first to a prelimin ary issue concernin

g the scope of this appe

al. Two settled principles of appellate review come i nto play he re. First, appe llate courts cannot review the evidenc

e de novo in accordanc

e with Tenn. R. App. P. 13(d ) in the absence of a verbatim

transcript or statement of the evidence and, therefore, presume thata 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); Sherro d v. Wix , 849 S.W.2d 780, 783 (Tenn. Ct. A

pp. 1992); Scarbrough v. Scarbrough , 752 S.W.2d 94, 97 ( Tenn. Ct. App. 1988). Sec ond, appellate cour

ts will ordinarily decline to consider issues being raised for the first time o n appe al. See Civil Service Merit Bd. v. Burson , 816 S.W.2d 725, 734-35 (Tenn. 1991); Department of Human Servs. v. Defriece , 9 37 S.W.2d 954, 960 ( Tenn. Ct. App.1996). Thus, arguments not asser ted at trial are deemed waived o n 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 aff

ected by
one or both of these principles . The Weste rmanns argue for th

e first time on this appeal that the committee should be deemed to have approved their construction plans because it did not dec line to approve their

project within thir

ty days after

they first submitted a set of pla

ns on March 26 , 1996. Because the reco rd contains no indication

that they presented this argum ent to the trial cour

t, we find that they ha

ve waived their

right to assert this i ssue for the first t ime on appeal. 2 The same fate m ust befallthe Westermanns’ argument relating to the speculat ive nature of the architectural committee’s decis ion because this argu

ment was likewise not presented to the trial court. 3 The Westermanns ’ rema ining issues challenge the reasonableness

of the architectural committee’s disapproval of their project. The question of whether the architectural committee acted r easonably is heavily f

act-dependent and m

ust be considered in light of the uni que circumstances of the case. S ee Indian Hills Club-5-

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. A pp. P. 11 applicati

on filed). This record lacks a

verbatim transcript of the proceedings before the trial court or e ven a statement of the evidence. In addition, the record does not contain the exhibit s filed withand considered by the trial c ourt. Thus, we are unable to examine the review criteria used by the

architectural co

mmittee to determi

ne whether the Westermanns’ projectshould be approved. I n the absence of this evidentiary mater ial, we are abl

e only to review the legal issues raised by the Weste rmanns that can be

decided based on the technical record alone.

III.

Restrictive

covenants conditioning t he right of pr operty owners to ma ke improvementson the approval of a homeowners association or a rchitect ural committee are g eneral ly valid and enforce able. See Association of O wners of Regency Park

Condominiums, Inc. v. Thomasson , 878 S.W.2d 560, 563-565 (Tenn. Ct. App. 1994); see also Snowmass Am. Corp. v. Schoenhei t , 524 P.2d 645, 647-4 8 (Colo. Ct. App. 1974); Hollingsworth v. Szc zesiak , 84 A.2d

816, 821 (Del. Ch. 1951). The prevailing

view in this jurisdiction is that these sorts of restr ictive covenants wi

ll be enforced as long as the entity administer ing them acts reason

ably and in good faith. See Indian Hills Club Homeowners Ass’n, Inc. v. Cooper , 1995 WL 763823, at *3.

Restrictive

covenants are e nf

orceable even though they vest discretionary powers with the architec tural committ

ee. See Co untry Club of La. Pro p. Owners Ass’n, Inc. v. Dornier , 691 So. 2d 142, 150 (La. Ct. App. 1997) (Fitzsimm ons, J., concurring). The courts will uph old review crite

ria a s long as they provide a
reaso n able framework for the committ ee’s decision, see Winslette v. Keeler , 137 S.E.2d 288, 289 (Ga. 1964), and as long as the comm ittee developing the c

riteria 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 specif ic criteria for

the committee to fo

llow, the validity of the criteria and t

he committee’s inte

rpretation of the c

riteria will b e judged by a-6-

standard of reasonableness. See 4626 Corp. v. M erriam , 329 So. 2d 885, 889 (La . Ct. App. 1976). A.

In light of these authori

t ies, we decline to find as a m atter of law that

the homeowners association of the Villages of Brentwood was acting unreasonably when itprepared criter

ia that w ould be us ed to determine the acceptability of proposed improvements to houses inthe subdivision. On th e contrary, we f

ind that the homeowners association could establish criteria as long as they were consiste nt with Article V of the restrict

ive covenants that pe

rmits cons iderin g the “nature, kind, shape, height, material s, and location” of proposed buildings, fences, walls, or other structures. Because the review criteria employe d by the Villages of Brentwood are not in the appellate re

cor d, we will

presume they are c

onsistent with the restrictive covenants, that they are rea sonable, and

that they provided a r

easonable basis for the architectural co

mmittee’s decision

.
The W estermanns’ ignorance of the existence or substance of the r evie w criteria is of little conseque

nce. The restr

ictivecovenants in their de ed put them on notice that the homeowner s association retain

ed the right to approve ext erior improvementsto their property. Had the Westermanns complied with Article V before they commenced construction, they w ould have learned of

the review crite

ria and would have been able to conform their im

provements to the cr

iteria ’ s requirements. By deciding to proceed wit h construction without first seeking and obtai ning the required approv als, the Westerm

anns assumed the risk that thei r proposed improve ments would not be a cceptable to the archi tectural committee.

B.

The Westermanns also insist that the architectura l com mittee’s refusal to permit them to construct their privacy fence deprives the m of the free and

full use and enjoyment

of their property.Specifically, t hey assert that limi

ting the height of their4 The restrictive covenants do not prescribe specific fence heigh ts; however, Article V empowers the architectur al committee to

consider the “harmony of external desi gn 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. -7- fence to six feet 4 is unreasonable beca use it will interfe

re with their priva

cy. Because of the sloping elevation of

their lot, they insis

t they should be abl

e to build a fence taller than six feet.
We find it impossible

to review this argu

ment based on the record before us. The trial court noted that a civil engineer testified that the Wester manns required a retainingwall on their prope rty “because of the

slope of the yard” and that a

retaining wall that was six feet

high wo uld not “be adequate to retain the proposed improvement.” However, we find nothing in the techn ical record that sh

eds any light
on the relationship betwe en the privacy fenc

e, the retaining w

all, and the slope

of the Westermanns’ yard. While the Westermanns state in their brief that “the effect of a six feet pri vacy fence erec ted at the lower side of [their] yard . . . is reduced substantially,” the mere contentions in a party’s brief cannot be cons id ered 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 reco rd, we are precluded from consi dering 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 commit tee. The trial court h ad that evidence before it and applied the correct standard of re view

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

l committee acted reasonably and in good f aith. Based on tha t presumption, we affirm the ju dgment and remand th

e case to the trial court f or whatever further proceedi

ngs may be required.

We tax the costs of thi s a ppeal to Steve n J. Westermann and Maria A. Westermann and their surety for whic h execution, if necessary, may issue.-8- ______________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_______________________________ BEN H. CANTRELL, JUDGE

__________________________________ WILLIAM B. CAIN, JUDGE