# Mountain Valley Properties, Inc. v. The River Preserve Owners' Association, Inc.

> Court of Appeals of Tennessee · June 13, 2011

URL: https://www.frixlaw.com/law-library/cases/1047960

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** June 13, 2011
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge D. Michael Swiney
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 2, 2011 Session

MOUNTAIN VALLEY PROPERTIES, INC. v. THE RIVER PRESERVE
OWNERS’ ASSOCIATION, INC., ET AL.

Appeal from the Chancery Court for Hamilton County
No. 09-0531 W. Frank Brown, III, Chancellor

No. E2010-01728-COA-R3-CV-FILED-JUNE 13, 2011

Mountain Valley Properties, Inc. (“Plaintiff”) sued The River Preserve Owners’ Association,
Inc., Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott, and Paula A. Scott
(“Defendants”) with regard to disputes concerning a tract of land owned by Plaintiff located
in a residential development situated on Chickamauga Lake in Hamilton County, Tennessee.
Both Plaintiff and Defendants filed motions for summary judgment. After a hearing, the
Trial Court entered its order denying Plaintiff’s motion for summary judgment and granting
Defendants’ motions for summary judgment after finding and holding, inter alia, that
Plaintiff does not have standing to contest the building of a community parking area on land
not owned by Plaintiff; that Plaintiff does not have the right to close off an existing drive to
other land owners in the community; and that Plaintiff should not be allowed to produce
additional evidence after the hearing on the motions for summary judgment. Plaintiff appeals
to this Court. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Adam U. Holland, Chattanooga, Tennessee, for the appellant, Mountain Valley Properties,
Inc.

Sam D. Elliott, Chattanooga, Tennessee, for the appellee, The River Preserve Owners’
Association, Inc.

Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the appellees, Richard J. Prichard and
Pamela L. Prichard, and Joseph E. Scott and Paula A. Scott.
OPINION

Background

In 2005, Plaintiff purchased at auction a tract of land (“Lot 7”) located within
The River Preserve, a residential development on Chickamauga Lake in Hamilton County,
Tennessee. As the outcome of the issues raised on appeal depends upon the interpretation
of several documents associated with Plaintiff’s purchase of Lot 7, we will quote the
pertinent portions of the relevant documents.

Plaintiff took title to Lot 7 by virtue of a Warranty Deed, which provides, in
pertinent part:

THIS CONVEYANCE MADE SUBJECT TO THE FOLLOWING:

Restrictions and Easements contained in Special Warranty Deed from the
United States of America, acting by and through its legal agent, the Tennessee
Valley Authority, to R.H. Siskin and Sons, Inc., recorded in Book 997, Page
369, in the Register’s Office of Hamilton County, Tennessee, as amended by
Modification of Special Warranty Deed and Abandonment of Lake Access
Rights and Declaration of Restrictive Covenants (between the Tennessee
Valley Authority and Robmer Partners) of record in Book 7823, Page 409, in
the Register’s Office of Hamilton County, Tennessee.

Terms and conditions contained in Declaration of Covenants, Restrictions and
Easements for The River Preserve of record in Book 7855, Page 346, in the
Register’s Office of Hamilton County, Tennessee (the “Declaration”).

Fifty (50) foot Shoreline Management Zone as shown on Exhibit “A” of the
Declaration.

Forty (40) foot Non-Exclusive Easements for Ingress, Egress and Utilities as
shown on Exhibit “A” of the Declaration.…

Lot 7 is subject to a Declaration of Covenants, Restrictions and Easements For
The River Preserve (“the Covenants”), which provides, in pertinent part:

2.1. The River Preserve Owners’ Association, Inc. There has been or
will be formed the Association having the name The River Preserve Owners’
Association, Inc., a Tennessee nonprofit corporation (the “Association”),

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which Association shall be the governing body for all of the Owners and shall
be operated to provide for the maintenance, repair, replacement,
administration, operation and care of the utility easements, community dock,
community parking area, the Existing Drive as set forth on the Plat, and any
and all appurtenances (the “Common Properties”).…

***

4.1. Utility Easement. All utilities shall be underground, except for
required above ground appurtenances. A perpetual easement is reserved for
the installation, construction and maintenance of utilities, including but not
limited to electricity, gas, water, telephone, cable T.V., and drainage, and no
structure of any kind shall be erected or maintained upon or over said
easement. Such easements are part of the Common Properties. The utilities
shall be located within the southern portion of Foster Hixson Cemetery Road
as it extends from Lake Ridge Drive to the forty (40) foot Non-exclusive
Easement for Ingress, Egress & Utilities containing the Existing Drive, as
shown on the Plat, and then shall be located within said easement, as shown
on the Plat, from its beginning point to its terminus at the western boundary
line of Lot Eight (8).…

***

4.3. Community Parking Area. Within sixty (60) days of the date of
this Declaration, the owner of Lot Seven (7) shall designate the placement of
and grant to the Association, upon Lot Seven (7) (near the Community Dock),
a parking area easement within which the Association shall construct a
community parking area containing ten (10) parking spaces. The Association
shall pay for the construction and maintenance of the community parking area
and maintain liability insurance for the same. The construction of the
community parking area is mandatory and is not subject to any limitations on
capital expenditures in the Bylaws. Construction shall be completed on or
before the date of the completion of the community dock. The community
parking area shall be part of the Common Properties. The Association shall
also construct a walking path from the community parking area to the
Community Dock. The Association shall pay for the construction and
maintenance of the walking path and maintain liability insurance for the same.
The only portions of Lot Seven (7) available for the use of the community as
a whole are the community parking area, walking path, and those portions of
the Community Dock located within Lot Seven (7). The community as a

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whole shall not have the use or enjoyment of any other portions of Lot Seven
(7), except for the Common Properties as set forth herein.

In connection with the purchase of Lot 7, Plaintiff also executed a
1
Certification which states:

I, the undersigned, affirm that I have carefully and completely read
and/or have had my attorney review on my behalf (1) the Declaration of
Covenants, Restrictions and Easements for The River Preserve of record in
Book 7855, Page 346, in the Register’s Office of Hamilton County, Tennessee
and (2) the Modification of Special Warranty Deed and Abandonment of Lake
Access Rights and Declaration of Restrictive Covenants (between the
Tennessee Valley Authority and Robmer Partners) of record in Book 7823,
Page 409, in the Register’s Office of Hamilton County, Tennessee. I
affirmatively represent I fully understand, accept, and agree to the terms and
effect of each of the terms contained in the above referenced documents.

In pertinent part, a Modification of Special Warranty Deed and Abandonment
of Lake Access Rights and Declaration of Restrictive Covenants (“Modification Deed”)
between the Tennessee Valley Authority as the grantor and Robmer Partners as the grantee
or owner provides:

WHEREAS, by virtue of the Deed, GRANTOR also conveyed the
following: … 2) the right of suitable ingress and egress over the adjoining land
lying between the 685.44-foot mean sea level (“msl”) contour elevation and
the waters of the lake (“Lake Access Rights”); ….

***

WHEREAS, in exchange therefor, GRANTEE has agreed to pay to
GRANTOR the amount set forth below and has agreed to place certain
restrictions upon said Land and to abandon it’s [sic] Lake Access Rights with
respect to all of said Land except to the extent necessary to make application
for TVA approval to locate one community dock facility within said
development for the common use of all lot owners; ….

***

1
The Certification was executed by Plaintiff’s President, Steven F. Barnhart.

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2. ABANDONMENT OF LAKE ACCESS RIGHTS

OWNER hereby declares that it has abandoned all present use of, has no
further need for, and has no intention of making any further use of and does
hereby waive, abandon, and extinguish said Lake Access Rights; provided
however, OWNER specifically reserves such Lake Access Rights at a location
to be identified by OWNER and approved in advance and in writing by TVA
to the extent necessary to make application for TVA approval to construct,
maintain and use one community dock facility for the common use of all lot
owners in The River Preserve development. Said facility shall be constructed
as approved in advance and in writing by TVA in accordance with its policies
and procedures. FURTHERMORE, OWNER hereby jointly and severally
renounces all right, title, and interest which it has in and to said Lake Access
Rights to the extent described herein, it being the intention of this instrument
to effect and record the formal abandonment and legal extinguishment of said
Lake Access Rights except as reserved by OWNER herein.

***

D. With the exception of the 2-acre building site, the remaining acreage within
each lot shall be maintained in a natural state with no removal of vegetation or
clearing of trees; provided however, OWNER may conduct limited clearing
and tree trimming activities to the extent necessary to establish a view corridor
for a building site. In addition, access roads or driveways to building sites may
be constructed as generally located and indicated on The River Preserve
Drawing or as approved in advance and in writing by TVA. Provided, such
activities shall not impact or disturb the Shoreline Management Zone (“SMZ”)
or the Sensitive Area as set forth in covenants F. and G. below;
notwithstanding the foregoing, that portion of the existing drive (generally
shown as a “field road” on said Exhibit B) located within the SMZ and
fronting Lots 7 and 8 may continue to be maintained so long as said
maintenance area does not exceed twenty (20) feet in width, utilities may be
installed along said drive in the SMZ, and a small parking area may be
constructed on Lot 7 to serve the community dock facility referred to herein,
all in accordance with plans approved in advance and in writing by TVA in
accordance with established policies and procedures.

Disputes arose between Plaintiff and defendant The River Preserve Owners’
Association, Inc. and the individual defendants who own other lots within The River
Preserve. Plaintiff filed a complaint seeking, in part, a declaration that Plaintiff has the right

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to select the location of the community parking lot, and that Defendants are enjoined from
further construction of a roadway and paving of the community parking area designated by
Defendants. Plaintiff also sought damages for breach of contract and trespass, among other
things. Defendants answered the complaint and filed counterclaims seeking, in part, a
declaration enjoining Plaintiff from interfering with Defendants’ use of the existing drive and
the non-exclusive easement.

The River Preserve Owners’ Association, Inc., filed a motion for summary
judgment in February of 2010. Plaintiff filed a motion for summary judgment in March of
2010. The individual defendants, Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott,
and Paula A. Scott, also filed a motion for summary judgment in March of 2010.

A hearing was held on the motions for summary judgment. After that hearing,
Plaintiff filed a Notice of Late Filing of Exhibits seeking to properly file the documents
which were attached to Plaintiff’s brief but not attached to Plaintiff’s motion for summary
judgment, and also to file additional exhibits as rebuttal2 to arguments made during the
hearing on the motions for summary judgment. When Defendants objected to the additional
evidence, Plaintiff filed a motion seeking approval of the Trial Court to file the additional
evidence.

The Trial Court entered its Memorandum Opinion and Order June 9, 2010
denying Plaintiff’s motion for summary judgment and Plaintiff’s motion for submission of
additional evidence, and granting Defendants’ motions for summary judgment. In the June
9, 2010 order, the Trial Court found and held, inter alia:

This dispute surrounds a tract of land that Plaintiff Mountain Valley
Properties, Inc. (“Plaintiff”) purchased at auction on August 27, 2005. The
tract sits on the Chickamauga Lake and is known as “Lot 7.” Lot 7 is subject
to a Modified Special Warranty Deed (“Modified Deed”) and a Declaration of
Covenants, Restrictions, and Easements for the River Preserve (“Covenants”).
The Defendants are The River Preserve Owners’ Association, Inc. (“the
Association”) and Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott,
and Paula A. Scott, owners of other lots in the subdivision.

2
When Defendants’ filed a partial objection to Plaintiff’s notice of late filing of exhibits, Plaintiff
responded that it was offering one of the proposed exhibits to rebut argument made by one of the attorney’s
during oral argument on the motion for summary judgment. Statements made by an attorney during
argument, however, are not evidence and thus there was no evidence introduced in oral argument to be
rebutted.

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The Modified Deed restricts a certain usage of the land for the
Tennessee Valley Authority (“TVA”). This deed sets aside a portion of the
land at the shore of the lake as the Shoreline Management Zone (“SMZ”), and
the owner relinquishes all rights to that portion of the property. This deed
asserts that the property owner relinquishes all lake access rights, except those
necessary to “construct, maintain, and use one community dock facility for the
common use of all lot owners in The River Preserve Development.”
Furthermore, TVA must approve building sites on the land.

The Modified Deed also provides that a “small parking area may be
constructed on Lot 7 to serve the community dock facility … in accordance
with plans approved in advance and in writing by TVA in accordance with
established policies and procedures.” The Modified Deed further provides for
an existing drive or field road located within the SMZ, which may continue to
be maintained and have utilities installed.

The Covenants also provide certain restrictions on the use of the land.
The Covenants grant the Association the right to construct a community
parking area on Lot 7, at a place selected by the owner within 60 days. The
Covenants also provide for the Association to construct a walking path on Lot
7 which would lead to a community dock. The Covenants list several parts of
Lot 7 as “Common Properties” and indicate that the community will have use
and enjoyment of these parts of the property. These Common Properties
consist of “the utility easements, community dock, community parking area,
the Existing Drive as set forth on the Plat, and any and all appurtenances.”

The Covenants further provide that the owners of Lots 7, 8, and 9 will
construct and share a driveway, for which they will share the maintenance
costs. This is to be built in the “Proposed Drive” area as set forth in the Plat.

At the sale closing on March 10, 2006, Plaintiff’s president certified
that he understood and accepted the Declaration of Covenants and Modified
Deed. Plaintiff did not select a place for the parking area to be built on Lot 7,
and the Association sought and received TVA approval to build it within the
Shoreline Management Zone adjacent to Lot 7. Furthermore, Plaintiff wishes
to close off the existing road to all but utilities and maintenance, and
Defendants disagree that Plaintiff has this right. The Association, the
Prichards, and the Scotts filed Counterclaims for a Declaration of Rights, an
order that Plaintiff not interfere with Defendants’ use of the disputed
properties, and attorneys’ fees.

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***

In this case, all of the parties agree that there are no undisputed facts
and that summary judgment is the appropriate means of resolution in this case.
This case involves only the interpretation of a written contract.…

1. Association’s Placement of Parking Lot

Under the terms of the Covenants, a community parking area was to be
placed on Lot 7, and Lot 7’s owner, Plaintiff, was required to set a place for
the parking area within 60 days. The Association agreed with TVA that they
would build the Parking Area not on Plaintiff’s Lot, but within the TVA
controlled Shoreline Management Zone. Plaintiff objects that this would block
its view of the lake and reduce its property value.

While the court appreciates Plaintiff’s concerns about the placement of
the parking area in relation to Lot 7, there does not appear to be any genuine
dispute that the parking area is to be built on land to which Plaintiff has no
rights. “In the absence of statute or contract, the general rule is that a
landowner may, by building on his own land, deprive the adjoining owner of
the view which he had before the structure was erected without subjecting
himself to legal liability.” Southern Advertising Co. v. Sherman, 308 S.W.2d
491, 494 (Tenn. Ct. App. 1957). Under the terms of the Modified Deed,
Plaintiff relinquished all control of the Shoreline Management Zone. Here,
TVA has full control of the land, and it has agreed to allow the Association to
build on it. Unless a contract prohibits it, Plaintiff does not have a right to
hold another party liable for the loss of its view.

Plaintiff asserts that the contract prevents building on the Shoreline
Management Zone because the contract makes other provisions for the parking
area to be built on Lot 7. While it is true that the agreement between the
parties does specifically provide for a parking area and walking path to be built
on Lot 7, it does not prohibit building such an area elsewhere. In fact, the
Modified Deed specifically provides that Plaintiff has abandoned its general
lake access rights exclusive to Lot 7. It specifically states “Owner hereby
declares that it has abandoned all present use of, has no further need for, and
has no intention of making any further use of and does hereby waive, abandon,
and extinguish said Lake Access Rights.” The Covenants provide for a
parking area on Lot 7, but do not mandate that that area be exclusive. Plaintiff
has not pointed to any part of the agreements that prohibit anyone from

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building in the SMZ with TVA’s permission.

Plaintiff also argues that it purchased the property based on the
representation that it would be lakefront property, based on representations
made at the auction and by auction materials provided stating that Lot 7 was
being sold and developed as lakefront property. This argument fails for
several reasons. First, the Modified Deed and Covenants came later in time
than Plaintiff’s purchase of the property at auction. Second, when Plaintiff
signed these agreements, it acknowledged that it had “fully underst[ood],
accept[ed], and agree[d] to the terms and effects of each of the terms”
contained in the Modified Deed and Restrictive Covenants. Third, Plaintiff
acknowledges that it did not rely on any representations from The River
Preserve Owners[’] Association, Inc., in connection with the purchase. If
Plaintiff believes that it was misled by the seller, it could have taken the proper
action against that seller.

Plaintiff further argues that the Association’s intentions contravene the
free use of property, and the agreement should therefore be narrowly
construed. It is true that Tennessee law provides that restrictions on the free
use of property are to be narrowly construed. Richards v. Abbottsford
Homeowners Ass’n, 809 S.W.2d 193, 195 (Tenn. Ct. App. 1990).
Furthermore, covenants are to be “strictly construed because they are in
derogation of a property owner’s right of unrestricted use of their property.”
Id. Plaintiff argues that placing the parking area in the Shoreline Management
Zone would be a greater burden on the estate than placing it on Lot 7;
therefore, it would be in violation of the covenants and the above case law.
This overlooks the fact, discussed above, that the land in question is simply not
Plaintiff’s land to control. There is no need for concern about strictly
construing the covenants or narrowly construing restrictions on the free use of
land because Plaintiff’s land is not in question here. TVA controls the land,
and TVA gave permission for the Association to use it to build. Plaintiff has
no rights to the land and no ability to prevent the use of it.

The issue ultimately comes down to one of standing. In order to
establish standing, a plaintiff must show that it has sustained a “distinct and
palpable injury,” which must be “an injury to a recognized legal right or
interest.” Wood v. Metropolitan Nashville & Davidson County Government,
196 S.W.3d 152, 158 (Tenn. Ct. App. 2005). Here, Tennessee law is clear that
there is no recognized right or legal interest in a view. Southern Advertising
Co., 308 S.W.2d at 494. Therefore, Plaintiff has no standing to challenge any

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deprivation of the view it might have had if TVA had not allowed the
Association to build in the SMZ.

2. Plaintiff’s Right to Close the Existing Drive

Plaintiff also argues that the Covenants and Modified Deed give it the
right to close off the Existing Drive to everything except utilities and
maintenance. Covenants are valid and are generally binding on all purchasers
with notice. Richards v. Abbottsford Homeowners Ass’n, 809 S.W.2d 193, 195
(Tenn. Ct. App. 1990). However, they are strictly construed because they are
in derogation of a property owner’s right to unrestricted use of his or her
property. Id. Here, the court must determine whether the Covenants and
Modified Deed, even when strictly construed, give the Plaintiff rights to
control the road.

***

Plaintiff argues that the language in the Modified Deed “plainly states
that a ‘portion of the existing drive located within the SMZ’ may continue to
be maintained for the placement of utilities.” This is an inaccurate portrayal
of the language in the Modified Deed, which states that the existing drive may
be maintained, and “utilities may be installed,” but not that it can be
maintained specifically for utilities, to the exclusion of anything else. Plaintiff
also argues that “[t]he SMZ is an area that is to remain ‘in a natural condition’
and there are [sic] to be no ‘clearing of trees’ or other vegetation without
TVA’s express permission. TVA granted Robmer Partners, and the
Association as a successor in interest, the right to place utilities along the
portion of the field road that crosses TVA’s SMZ and nothing more.” This is
also not a complete characterization of the facts. TVA also granted the
[A]ssociation the right to build a parking area within the SMZ, as discussed
above. The court fails to see how the provisions of the Modified Deed as
stated above are not met by TVA’s permission in this matter. If TVA believes
that the Association is overstepping the bounds of its permission, TVA may
take action. Furthermore, the Covenants give a right for common usage of the
Existing Drive at Article 4.4., by stating that the community as a whole has the
use and enjoyment of the “Common Properties,” which include the Existing
Drive under Article 2.1.

Plaintiff further argues that the Existing Drive cannot be available for
ingress and egress to the River Preserve Lots because the documents do not

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specifically identify this road as an easement for ingress or egress. This is not
consistent with the language in the Modified Deed and Covenants. While
these documents do not specifically state ingress and egress, they also do not
state or indicate that a separate driveway, to be built late in time, would be the
only means of access to the other lots. Nor do they state that Plaintiff has a
right to close that road. In fact, they specifically state that the Existing Drive
is included as part of the “Common Properties” which the community as a
whole have [sic] access to, and nowhere does it state that this access is limited
to utilities.

Plaintiff claims that the work on the drive is trespass and requests
appropriate damages. However, as discussed above, the Association has a
right to maintain the existing drive or field road as conferred by the Modified
Deed and by the Covenants at Art. 2.2C. Therefore, Plaintiff’s claims for
trespass have no merit.

***

4. Plaintiff’s Additional Evidence

Plaintiff further moves to be allowed to submit additional evidence in
the form of 1) a March 6, 2006 letter from the president of the Association to
TVA, 2) TVA’s April 6, 2009 response, and 3) the original TVA deed to the
land showing the boundary lines at that time. Defendants argue that this
evidence cannot be allowed on the basis that it was not included in the original
Motions and Responses for Summary Judgment.

In order to determine whether a material dispute of fact exists in a
Motion for Summary Judgment, the court looks primarily to the Statement of
Undisputed Material Facts and Response. See Bennett v. Trevecca Nazarene
University, 216 S.W.3d 293, 299 (Tenn. 2007). Plaintiff previously admitted
that it was undisputed that the property at issue is subject to the Modified
Special Warranty Deed and the Declaration of Covenants. Plaintiff now, after
the Motions and Responses have been completed, offers additional evidence
that it asserts should be used in interpreting the documents that it has agreed
apply to their [sic] circumstances. This is clearly improper. If Plaintiff
believed that this information was necessary to interpreting the Covenants or
Modified Deed, it should have offered this information as part of the
proceedings, either as part of its Motion for Summary Judgment or as part of
its Response to Defendants’ Motions for Summary Judgment.

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Even if the evidence had been submitted properly and considered, it
would not have made a difference to the disposition of this case. As stated
above, the parties agree that this is a case involving interpretation of the
Covenants and Modified Deed, and that these are the documents which show
the rights of the parties with regards to the land at issue. Plaintiff has not
argued that these documents are ambiguous or that the court has any need to
look to outside evidence in order to interpret their meanings. When an
agreement is “clear and unambiguous, the parties’ intentions are to be
determined from the four corners” of that agreement. Boker v. Holder, 722
S.W.2d 676, 679 (Tenn. Ct. App. 1986) (citing Pierce v. Flynn, 656 S.W.2d
42 (Tenn. Ct. App. 1983)). Here, as discussed above, the Covenants and
Modified Deed unambiguously show the rights of the parties to the land, and
they do not require additional evidence to interpret these two documents.
Interpretation of the parties’ rights should be limited to interpretation of the
Modified Deed and Covenants.

However, even if the evidence in question was not disallowed for the
above reasons, it is still irrelevant to the issues at hand. Plaintiff wishes to
present a letter exchange between Attorney James Howard and a representative
from TVA, stating that TVA’s deed modification does not prohibit lot owners
from using the property to walk across or use the lake. It goes on to discuss
restrictions against individual docks and how these restrictions could
potentially be modified. At no point does TVA affirm that Plaintiff or other
lot owners have any more rights to the land than permission to walk across it
or use the lake recreationally [sic], activities which the parking area or field
road would not prevent. This does not alter or contradict the Covenants and
Modified Deed giving control of the SMZ to TVA, nor does it alter the fact
that Plaintiff clearly waived any shoreline rights. Additionally, the original
TVA land deed, earlier in time than the Modified Deed that determines
Plaintiff’s rights to the property, in no way impacts Plaintiff’s current rights to
the property under the current Modified Deed. For all of the above reasons,
this additional evidence should not be considered and is not relevant to the
ultimate decision of this case.

(citations to the record omitted).

Plaintiff filed a motion to alter or amend. The Trial Court entered a Final
Order and Judgment on July 13, 2010 finding and holding, inter alia:

1. The Plaintiff’s Motion to Alter or Amend is GRANTED. The

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Memorandum and Order is hereby amended to delete the award of attorney’s
fees and expenses to the Defendant The River Preserve Homeowners’
Association, Inc. (“Association”), as the Court upon reconsideration deems
that Plaintiff Mountain Valley Properties, Inc.’s (“Plaintiff”) Declaratory
Judgment Action itself does not constitute a “default” as defined under Article
5.2 of the Declaration of Covenants and that no other facts or circumstances
are present which constitute a “default” by Plaintiff of any of the Covenants’
provisions entitling Defendant Association to an award of attorney’s fees.

2. Alternatively, if this judgment is appealed and said appeal results in
a remand for any purpose, the Court reserves the right to reverse its ruling on
the attorney’s fees issue and restore its original award of attorney’s fees to the
Defendant Association. Should an appeal of this matter result in the
restoration of the award of attorney’s fees and expenses to the Defendant
Association, the Court determines that the attorney’s fees and expenses set
forth in the Application for Attorney’s Fees filed by the Defendant Association
are reasonable and were necessary for the conclusion of the case in the
Defendant Association’s favor[.]…

Plaintiff appeals to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises four issues on appeal: 1)
whether the Trial Court erred in interpreting the recorded instruments with regard to the
placement of a community parking area; 2) whether the Trial Court erred in interpreting the
recorded instruments with regard to the existing drive; 3) whether the Trial Court erred in
refusing to consider Plaintiff’s additional late-filed evidence; and, 4) whether the Trial Court
erred in stating that it reserved the right to reverse its decision regarding an award of
attorney’s fees if the Trial Court’s order was appealed and the appeal resulted in a remand.

Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

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A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion “that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

“Issues relating to the interpretation of written instruments involve legal rather
than factual issues. These essentially legal questions can be resolved using summary
judgment when relevant facts are not in dispute.” The Pointe, LLC v. Lake Management
Association, Inc., 50 S.W.3d 471, 474 (Tenn. Ct. App. 2000) (citations omitted).

The Trial Court interpreted the written instruments which form the contract in
this case, i.e., the Warranty Deed, the Covenants, the Modification Deed, and the
Certification. As this Court stated in Kafozi v. Windward:

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In resolving a dispute concerning contract interpretation, our task is to
ascertain the intention of the parties based upon the usual, natural, and
ordinary meaning of the contract language. Planters Gin Co. v. Fed.
Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)(citing
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A determination of
the intention of the parties “is generally treated as a question of law because
the words of the contract are definite and undisputed, and in deciding the legal
effect of the words, there is no genuine factual issue left for a jury to decide.”
Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on
Contracts, § 24.30 (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc.,
46 S.W.3d 191, 196 (Tenn. 2001)). The central tenet of contract construction
is that the intent of the contracting parties at the time of executing the
agreement should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’
intent is presumed to be that specifically expressed in the body of the contract.
"In other words, the object to be attained in construing a contract is to ascertain
the meaning and intent of the parties as expressed in the language used and to
give effect to such intent if it does not conflict with any rule of law, good
morals, or public policy." Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).

This Court's initial task in construing the Contract at issue is to
determine whether the language of the contract is ambiguous. Planters Gin
Co., 78 S.W.3d at 890. If the language is clear and unambiguous, the literal
meaning of the language controls the outcome of the dispute. Id. A contract
is ambiguous only when its meaning is uncertain and may fairly be understood
in more than one way. Id. (emphasis added). If the contract is found to be
ambiguous, we then apply established rules of construction to determine the
intent of the parties. Id. Only if ambiguity remains after applying the pertinent
rules of construction does the legal meaning of the contract become a question
of fact. Id.

Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698-99 (Tenn. Ct. App. 2005).

We first consider whether the Trial Court erred in interpreting the recorded
instruments with regard to the placement of a community parking area. With respect to this
issue, the Trial Court specifically found that “Plaintiff’s land is not in question here. TVA
controls the land, and TVA gave permission for the Association to use it to build. Plaintiff
has no rights to the land and no ability to prevent the use of it.” The evidence in the record
on appeal shows that there is no genuine material dispute that the land upon which the
community parking lot was located belongs to TVA and not to Plaintiff. Furthermore, it is
undisputed that TVA gave The River Preserve Owners’ Association, Inc. permission to build

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the community parking area on the land controlled by TVA.

We agree with the Trial Court’s analysis of this issue. “In the absence of
statute or contract, the general rule is that a landowner may, by building on his own land,
deprive the adjoining owner of the view which he had before the structure was erected
without subjecting himself to legal liability.” Southern Advertising Co., Inc. v. Sherman, 308
S.W.2d 491, 494 (Tenn. Ct. App. 1957). We agree with the Trial Court that the relevant
documents do not give Plaintiff any right to prevent defendant The River Preserve Owners’
Association, Inc. from building a community parking lot on land owned by TVA. In
addition, although the Covenants provide that a community parking area shall be constructed
upon Lot 7, nowhere is it stated that this will be the only or exclusive community parking
area constructed. We affirm the Trial Court’s decision with regard to this issue.

We next consider whether the Trial Court erred in interpreting the recorded
instruments with regard to the existing drive. The Modification Deed clearly and
unambiguously provides:

that portion of the existing drive (generally shown as a “field road” on said
Exhibit B) located within the SMZ and fronting Lots 7 and 8 may continue to
be maintained so long as said maintenance area does not exceed twenty (20)
feet in width, utilities may be installed along said drive in the SMZ,….

Plaintiff argues on appeal that this language means that the existing drive may
be used only for utilities. We disagree, as did the Trial Court. The clear and unambiguous
language of the Modification Deed provides that the existing drive “may continue to be
maintained so long as said maintenance area does not exceed twenty (20) feet in width …”
and then provides that “utilities may be installed along said drive ….” Nowhere is it stated
that the existing drive may be used only for the installation or maintenance of utilities.
Furthermore, the existing drive is shown on the plat and referred to in the Covenants wherein
it is defined as part of the Common Properties of which the community as a whole shall have
the use and enjoyment. Plaintiff does not have the right to close off the existing drive and
prevent its use by the other lot owners.

Plaintiff also argues on appeal that because the Covenants provide for a joint
driveway easement for Lots 7, 8, and 9, this fact precludes the owners of Lots 8 and 9 from
using the existing drive. We disagree, as did the Trial Court. Nowhere within the Covenants
is it stated that the joint driveway easement will be the exclusive method of ingress and
egress. Furthermore, as stated above, the existing drive is listed within the Covenants as part
of the Common Properties which are provided for the use and enjoyment of all of the lot
owners. We affirm the Trial Court’s decision with regard to the existing drive.

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Next, we consider whether the Trial Court erred in refusing to consider
Plaintiff’s additional late-filed evidence. As this Court stated in Delapp v. Pratt:

Issues regarding admission of evidence in Tennessee are reviewed for abuse
of discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001).
“[T]rial courts are accorded a wide degree of latitude in their determination of
whether to admit or exclude evidence, even if such evidence would be
relevant.” Id. Our Supreme Court discussed the abuse of discretion standard
in Eldridge v. Eldridge, stating:

Under the abuse of discretion standard, a trial court’s
ruling “will be upheld so long as reasonable minds can disagree
as to [the] propriety of the decision made.” A trial court abuses
its discretion only when it “applie[s] an incorrect legal standard,
or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.” The abuse of
discretion standard does not permit the appellate court to
substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

Appellate courts ordinarily permit discretionary decisions to stand when
reasonable judicial minds can differ concerning their soundness. Overstreet
v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A trial court’s
discretionary decision must take into account applicable law and be consistent
with the facts before the court. Id. When reviewing a discretionary decision
by the trial court, the “appellate courts should begin with the presumption that
the decision is correct and should review the evidence in the light most
favorable to the decision.” Id.

Delapp v. Pratt, 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004).

With regard to Plaintiff’s additional evidence, the Trial Court specifically
found that “Plaintiff previously admitted that it was undisputed that the property at issue is
subject to the Modified Special Warranty Deed and the Declaration of Covenants.” The Trial
Court also found that these documents are clear and unambiguous. We agree. As the
documents that are determinative of the issues involved in the motions for summary
judgment are clear and unambiguous, it would have been improper to consider evidence
outside of the four corners of those documents.

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Furthermore, the documents which Plaintiff attempted to late file included a
letter from the president of The River Preserve Owners’ Association, Inc. to TVA, TVA’s
response to this letter, and the deed by which R. H. Siskin and Sons, Inc. took title from
TVA, which was recorded in 1949. The Trial Court stated that consideration of the
documents which Plaintiff attempted to file late would not have changed the outcome of this
case in any event. We agree.

At most, reasonable minds could disagree as to the propriety of the Trial
Court’s decision to deny Plaintiff’s motion to submit additional evidence, the very essence
of a discretionary decision. We will not substitute our judgment for that of the Trial Court.
This issue is without merit.

Finally, we consider whether the Trial Court erred in stating that it reserved the
right to reverse its decision regarding an award of attorney’s fees to The River Preserve
Owners’ Association, Inc. if the Trial Court’s judgment was appealed and the appeal resulted
in a remand. We note that Plaintiff does not assert that the Trial Court reached the wrong
decision when it held that defendant The River Preserve Owners’ Association, Inc. was not
entitled to attorney’s fees. Furthermore, defendant The River Preserve Owners’ Association,
Inc. concedes in its brief on appeal that existing law does not allow it as the prevailing party
in this case to recover attorney’s fees from Plaintiff.

Plaintiff’s issue pertains to the language used by the Trial Court which states
that the Trial Court reserved the right to revisit the issue of attorney’s fees if the case were
appealed and the appeal resulted in a remand. This attempt to reserve the right to revisit the
issue of attorney’s fees upon an appeal and subsequent remand was invalid. The Trial Court
does not have such power. Upon remand for collection of the costs below, the Trial Court
may not revisit this issue.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court solely for collection of the costs below. The costs on appeal are assessed against
the appellant, Mountain Valley Properties, Inc., and its surety.

_________________________________
D. MICHAEL SWINEY, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1047960. Public record. Not legal advice.