# FILED July 12, 1999 Cecil Crowson, Jr. Appellate Cou rt 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 WILLIAMSO N COUNTY CHANCERY C OURT THE HONORABLE CORNELIA A. CLARK, JUDGE

David H. King; King , Turnbow & Brisby of Franklin For Appellants William Carter Con

way of Franklin For Appellee

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.
CONCUR: DAVID R. FARMER,

JUDGE HOLLY KIRBY LILLARD, JU DGE
This is an action to enforce restrictive covenants against a landowner. Plaintiffs/appell

ants, Randall Graham and Charles Fyke (Plaintiffs), appeal the order of the trial court granting summary judgment to defendant/appellee, Loraine Edmondson (Edmondson).2 Plaintiffs i n this action are homeowners in the upscale neighborhood of Bluff Road Acres in Brentwood. They allege that Edmondson has a mobile home andoperates businesses on her property in violation of restrictive covenants placed on the neighborhood. The facts are undisputed. In March 1978, Fitts and John son Developm ent Company (Fitts & Johnson) acquired title to a large tra ct of land which eventually became Bluff Road Acres. On April 7, 1978, Fitts & Johnson sold two tra cts of land to

Ha sty Construction Company (Ha sty). On September 13, 1978, Fitts & Johnso n executed restr

ictive 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 an d in pertinent part state:

RESTRICTIONS FOR BLUFF ROAD ACRES

* * * Whereas, the undersigne d dev elopers of the property known as Bluf f Road Acres, desi

re to place rest

rictive covenan

ts w hic h shall be applicable to all the lots shown on the recorded plat of said subdivision and bind

ing upon all

present and futureowners for the period hereinafter. Th ese restri ctions only govern property appearin g on the west side of Ow l Creek. Property

on the east side of Owl Creek remains unrestricted.

* * * 2. No trailer, base

me n t house, tent, garage, barns, or other outbuil ding shall be erected or used as either a temporary or permanent residence.

* * * 8. No school buses, trailer trucks, dump tru cks, mobile homes, etc., are to be p

arked or stored o

n any lot.
* * * 12. No commercial activities permitted to b e conducted on the west side of Owl Creek. . . . 13. If the parties he

reto or any of the

m 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 t o prosecute any pr

oceedings at law

or in equity agains

t th e person or persons violati ng or attempti

n g 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 t racts it owned.3 On November 17, 1978, some two months after Fitts & John s on filed the restrictive covenants covering Bluff Road Acres, Hasty sold part of the land in question to M r. and Mrs. Thomas. Edmondson and her husb and 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. Ed mondson subsequently installed a mobile home on her property, expanded a barn, held rodeos, and began a beauty shop on her property. Plaintiffs, on beha lf of twenty-one ( 21) homeowners in

Bluff Road Acres , filed suit against Edmondson asserting that she was in violation of the restrictive cove nants and seeking injunctive relief by removal of her mobile home and removal of a garage located on her property. The complaint also see

ks to enjoin

Edmondson from holding rodeos and from o perating a beau

ty 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 per

tinent part: Plaintiffs in this lawsuit allege that defendant is cur

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

in the subdivision, and that this action violates the above- refer enced restrictive covenant. Defendant claims her property is not

subject to th e restri ctive covenants because it was deeded to her predecessor

in ti tle 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 p r operty as it existed at the time of the covenant. . . . Although c o urts 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, record ed or otherwise, this court cannot impose such restrictions upon her land. . . . It is therefore ORDERED, ADJUDGED and DECREED that def endan t’s motion for summa ry judgment shall be

, and is hereby, granted. The action is dismissed. . . . Plaintiffs timely appealed the tri al 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 the4

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 summar y judgment, the cou

rt must take the stronges

t legitimate view of the evide

nce 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 mov ing party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or disco very materials, that th ere is a genuine, material fact dispute to war rant a trial. In this regard, Rule 56.05 [now Rule 56. 06] provides that t he nonmoving party cannot simply rely upon his p

leadings but must

set forth specific facts showing that there is a genui ne issue of material fact for trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appr opriate 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 involv ed, there is no pre

sumption of corre

ctness 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 be fore this Court. Warren v. Estate of Ki

rk , 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 ic 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. InStracener 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 enjo 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 en 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 developer5

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 Stracenerand 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 c onfined to the property as it existed at the time of the cov

enant. 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 en a n a t t e m pt i s m a d e to a p p ly t h e co v en 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 an y particul ar se t 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 en 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 her6

pro c e e d ings a s are n e c essa ry. C osts of ap p e al are assessed

to A p p ell a n ts.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE