FILED

July 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

 ______________________________________________

RANDALL GRAHAM and 

CHARLES J. FYKE, 

Plaintiffs-Appellants, 

Williamson Chancery No. 24797

Vs. C.A. No. 01a01-9809-CH-00482

LORAINE EDMONDSON, 

Defendant-Appellee.

____________________________________________________________________________

FROM THE WILLIAMSON COUNTY CHANCERY COURT

THE HONORABLE CORNELIA A. CLARK, JUDGE

David H. King; King, Turnbow & Brisby of Franklin

For Appellants

William Carter Conway of Franklin

For Appellee

AFFIRMED AND REMANDED

Opinion filed: 

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

This is an action to enforce restrictive covenants against a landowner.

Plaintiffs/appellants, Randall Graham and Charles Fyke (Plaintiffs), appeal the order of the trial

court granting summary judgment to defendant/appellee, Loraine Edmondson (Edmondson).
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Plaintiffsin this action are homeowners in the upscale neighborhood of Bluff Road Acres

in Brentwood. They allege that Edmondson has a mobile home and operates businesses on her

property in violation of restrictive covenants placed on the neighborhood.

The facts are undisputed. In March 1978, Fitts and Johnson Development Company

(Fitts & Johnson) acquired title to a large tract of land which eventually became Bluff Road

Acres. On April 7, 1978, Fitts & Johnson sold two tracts of land to Hasty Construction

Company (Hasty). On September 13, 1978, Fitts & Johnson executed restrictive covenants,

which they recorded in the Register’s Office of Williamson County. The restrictions purported

to cover all of Bluff Road Acres including the two tracts previously sold to Hasty and in

pertinent part state:

RESTRICTIONS FOR BLUFF ROAD ACRES

* * *

Whereas, the undersigned developers of the property known as

Bluff Road Acres, desire to place restrictive covenants which

shall be applicable to all the lots shown on the recorded plat of

said subdivision and binding upon all present and future owners

for the period hereinafter. These restrictions only govern property

appearing on the west side of Owl Creek. Property on the east

side of Owl Creek remains unrestricted.

* * *

2. No trailer, basement house, tent, garage, barns, or other

outbuilding shall be erected or used as either a temporary or

permanent residence.

* * *

8. No school buses, trailer trucks, dump trucks, mobile homes,

etc., are to be parked or stored on any lot.

* * *

12. No commercial activities permitted to be conducted on the

west side of Owl Creek. . . .

13. If the parties hereto or any of them or their heirs or assigns

shall violate or attempt to violate any of the covenants or

restrictions herein before May 10, 2003, it shall be lawful for any

other person or persons owning any other lot in said development

to prosecute any proceedings at law or in equity against the

person or persons violating or attempting to violate any such

covenant or restrictions for such violation.

There is no evidence that Hasty agreed to or acquiesced in the covenants placed on the two tracts

it owned.
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On November 17, 1978, some two months after Fitts & Johnson filed the restrictive

covenants covering Bluff Road Acres, Hasty sold part of the land in question to Mr. and Mrs.

Thomas. Edmondson and her husband acquired the property on October 28, 1981 from the

Thomases. In 1991, after Edmondson and her husband divorced, the land in question was

quitclaimed to her. Edmondson subsequently installed a mobile home on her property, expanded

a barn, held rodeos, and began a beauty shop on her property.

Plaintiffs, on behalf of twenty-one (21) homeowners in Bluff Road Acres, filed suit

against Edmondson asserting that she was in violation of the restrictive covenants and seeking

injunctive relief by removal of her mobile home and removal of a garage located on her property.

The complaint also seeks to enjoin Edmondson from holding rodeos and from operating a beauty

shop. Edmondson answered the complaint and filed a motion for summary judgment. After a

hearing on the motion, the trial court entered an order granting Edmondson summary judgment

which states in pertinent part:

Plaintiffs in this lawsuit allege that defendant is currently

in the process of erecting a trailer on the lot owned by her in the

subdivision, and that this action violates the above-referenced

restrictive covenant. Defendant claims her property is not subject

to the restrictive covenants because it was deeded to her

predecessor in title prior to the placement of the restrictions on

the property.

Defendant’s position is correct. Under Tennessee law, at

least in the absence of an expressed contrary intention, a covenant

running with the land must be confined to the property as it

existed at the time of the covenant. . . .

Although courts recognize the validity of restrictive

covenants, they are not favored and will not be extended by

implication. (citation omitted) Since defendant’s property is not

burdened by restrictions either directly in the chain of title or by

any other document, recorded or otherwise, this court cannot

impose such restrictions upon her land. . . .

It is therefore ORDERED, ADJUDGED and DECREED

that defendant’s motion for summary judgment shall be, and is

hereby, granted. The action is dismissed. . . . 

Plaintiffs timely appealed the trial court’s order and ask this Court to determine whether

summary judgment was appropriate.

A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the
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burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine

issue of material fact, the nonmoving party must then

demonstrate, by affidavits or discovery materials, that there is a

genuine, material fact dispute to warrant a trial. In this regard,

Rule 56.05 [now Rule 56.06] provides that the nonmoving party

cannot simply rely upon his pleadings but must set forth specific

facts showing that there is a genuine issue of material fact for

trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

P lain t i ffs fir st a s s e rt th a t th e tria l c o u rt e r r e d in g r a n tin g E d m o n d s o n ’ s m o tio n fo r su m m ary j udgm ent beca use

a genui ne i s s u e exi s t s a s t o Edm ondson’ s knowle dge of t h e r e s t r i c t i ve cove nant s . Pl a i n t i f f s c i t e t w o cas e s f r o m t h i s c our t

w h i c h deal w i t h not i ce of r e s t r i c t i ve cove nant s not f ound i n t he cha i n of ti t l e. In Stracener v. Bailey, 737 S. W . 2 d

536 ( Tenn. A pp. 1986) , a deve l oper pur chas ed a pa r cel of pr oper t y w h i ch had be en des i gnat ed on a pl a t as a par k .

W hen t he dev e l oper att e m pted to de v e lop this l a n d, othe r ow n e rs i n the sub divisi o n fi led su i t to enj o i n t he deve l opm ent .

T h i s C ourt hel d t hat by des i gnat i ng t he ar ea on t he pl a t as a par k and s e l l i ng l o t s a ccor d i n g t o t he pl a t , t he ow ner of t h e

subdi v i s i o n cr eat ed a r e s t r i c t i on on t he us e of t he pr oper t y . T he on l y qu est i on then for t he C ourt t o decide w as w het her

t h e developer, as t he pu rchas er of t he propert y , w as boun d by t he res t r i c t i on. I n ho l d i ng that t he res t r i c t i on w a s

appl i cabl e t o t he propert y , t he C ourt noted t hat a title se a r ch of t he deve l oper ’ s c hai n of t i t l e w oul d have r evea l ed t h i s

r e str i c tio n . Th i s ca s e is d isti n g u ish a b le fro m t he ca s e at bar , beca use at t he t i m e t he r e s t r i c t i ve cove nant w a s pl ace d on

t h e par k pr oper t y , t he par k pr oper t y w a s ow ned by t he ent i t y pl aci ng t he r e s t r i c t i o n on the propert y . In t he case at bar,

the e nti ty establishi n g the restri cti v e co v e n a nts did not ow n t he pr oper t y w h i ch i s now ow ned by Edm ondson.

I n KLN Assoc. v. Metro Dev. & Housing Agency, 797 S.W . 2d 8 98 (T enn. A pp. 1990), a developer
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file d a d e c larat ory judg m e n t acti o n claim ing tha t i ts prop ose d o ffi c e de v e lopm e n t shou ld no t be su b j ect t o an urban

renew a l pl an not found in i t s chai n of t i t l e . T he KLN C our t hel d i n part t hat “[o] t herw i se val i d res t r i c t i ons on propert y

are bi nding even w hen they are not i n t he chain of t i t l e if th e o w ner had ac t ual know l edge of t he r e s t r i c t i ons when i t

acquir ed t he propert y . ” Id. at 904. 

KLN deal s s o l e l y w i t h t he po w er of t he go vernm ent at both t he st a t e an d l o c a l l evel s t o exerci se i t s pol i c e

pow e r to im p o s e re str i c tio n s on p r i vat e pr oper t y . Id. at 901. O f cour s e , suc h pow e r i s f i r m l y es t abl i she d under pr i o r

c a s e la w a n d is lim ite d on ly by the state an d fe d e ral con sti tut ions. T h u s , KLN is e a sily d istin g u ish a b l e fr o m th e pr e s ent

case.

W h ile w e agree w i t h t he ho l d i ng o f t he Stracener and KLN C ourt s , w e do n o t bel i eve t hat t hey are

appl i cabl e t o t he fact s i n t he case befor e us. Ins t ead, t he pert i nent i s s ue i n t h e pres ent case deal s w i t h t he po w e r of a

devel oper t o bi nd pr oper t y i t does not own by fi l i n g a su b d ivi sion p lat w hich includ es restri cti v e co v e n a nts. 

This C our t has pr evi ousl y hel d :

I f i t i s a covena n t r unni ng w i t h t he l and, at l eas t i n t h e absence of an express e d

contr ary i n t ent i on, its operation must be confined to the property as

it existed at the time of the covenant. A nd t he r u l e of st r i c t cons t r uct i o n

a p pli es w h e n a n a t t e m pt i s m a d e to a p p ly t h e co v e n a nt t o o ther land s .

Southern Advertising Co. v. Sherman, 308 S . W . 2d 491 , 493 , 43 T enn. A pp. 323, 326 (1957) ( e m phasi s

added) .

 Furt her , t he Supr e m e Court has di s c uss ed at w hat poi n t i n t i m e a r e s t r i c t i ve cove nant bi nds pr oper t y :

T h e pr e s ent r ecor d r evea l s no r eas on w h y t he r e s t r i c t i ve cove nant s s houl d not be

appli e d acc o r d i n g t o t hei r t erm s agai nst buy ers of l o t s w ho p ers onall y agreed to

t hem o r w hose pu rchas es occurred after the recordation of any

particular set of covenants. W e have al r eady s t a t ed t hat no se t of

coven ant s s hou l d be g i ven an y gen era l ret roact i ve eff ect .

East Sevier County Util. Dist. v. Wachovia Bank & Trust Co., 570 S. W . 2 d 850, 853 ( Tenn. 1978)

( e m phas i s a dded) .

I t i s cl ear fr o m t he fact s i n t h i s cas e t hat Fit t s & Johnson sold t he t rac t s of l and in quest i on o ver f i ve m ont h s

bef o r e reco rding the restri cti v e co v e n a nts for B luff R o a d A cres. I t i s e qual l y cl ear t hat t he l a w appl i e s r e s t r i c t i v e

covena n t s t o l and “as i t exi s t ed at t he t i m e . . . t he cov enant” w a s r ecor ded. Sherman, 308 S. W . 2d at 493, 43 Tenn.

A pp. at 326. Thus, Edm ondson’ s pr oper t y i s not bur dened by t he r e s t r i c t i ons whic h appl y t o al l ot her t r act s c o m p r i s i n g

B luff R oad A cre s . Furt her , w e agr ee w i t h t he t r i a l cour t t hat w het her Edm ondson ha d know l edge o f res tri ctio n s, o r ev e n

f o r som e t i m e bel i eved t he r e s t r i c t i ons a ppl i ed t o her pr oper t y , i s not per t i nent .

T h e order gr ant i ng sum m a r y j udgm ent t o Edm ondson i s a f f i r m ed, and the case i s r e m anded for such fur t her
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pro c e e d ings a s are n e c essa ry. C osts of ap p e al are asse ssed to A p p ell a n ts.

_________________________________

W. FRANK CRAWFORD, 

PRESIDING JUDGE, W.S.

CONCUR:

____________________________________

DAVID R. FARMER, JUDGE

____________________________________

HOLLY KIRBY LILLARD, JUDGE