The opinion
OAK HIGHLANDS HOMEOWNERS’ )
ASSOCIATION, INC., )
)
Plaintiff/Appellant, )
) Davidson Chancery
) No. 94-530-II
VS. )
) Appeal No.
) 01-A-01-9511-CH-00535
CONTINENTAL DEVELOPMENT AND )
CONSTRUCTION, INC., and )
NICHOLAS S. PSILLAS,
Defendants/Appellees.
)
)
)
FILED
May 8, 1996
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE C. ALLEN HIGH, CHANCELLOR
JAMES R. TOMKINS
Jennings and Tomkins
Suite 2240-L & C Tower
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLANT
IRWIN J. KUHN
Eisenstein, Moses and Mossman
Suite 500, One Church Street Bldg.
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANTS/APPELLEES
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
OAK HIGHLANDS HOMEOWNERS’ )
ASSOCIATION, INC., )
)
Plaintiff/Appellant, )
) Davidson Chancery
) No. 94-530-II
VS. )
) Appeal No.
) 01-A-01-9511-CH-00535
CONTINENTAL DEVELOPMENT AND )
CONSTRUCTION, INC., and )
NICHOLAS S. PSILLAS, )
)
Defendants/Appellees. )
OPINION
The captioned plaintiff has appealed from the non-jury dismissal of its suit to enforce
restrictions and has presented the following issues for review:
1. Whether Continental Development & Construction, Inc.
ever applied for architectural approval as to the nine lots upon
which it built houses.
2. Whether the Court erred in allowing the testimony of
Nicholas Psillas about the Nashville 50 joint venture’s response
or lack of response to his alleged request of architectural
approval.
3. Whether Oak Highlands Homeowners’ Association, Inc. is
entitled to injunctive relief and a judgment against Continental
Development & Construction, Inc. for the cost of removing
overhead electrical connections and replacing them with
underground connections at the nine lots upon which it built
houses.
Prior to October 17, 1992, a recorded Declaration of Restrictive Covenants required
approval of plans and specifications of proposed construction by the developer of the
subdivision. Effective October 17, 1992, the required approval was that of the Board of
Directors of plaintiff Association.
The judgment of the Trial Judge states:
. . . Defendant Continental Development and Construction,
Inc. submitted a request for architectural approval to the
Developer when it still maintained the right to grant
architectural approval under the Declaration of Restrictive
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Covenants, that the developer failed to reject said request
within thirty days, and that therefore, the approval process was
complied with by Continental Development and Construction,
Inc.; . . . .
The restriction in effect before October 17, 1992, stated:
[n]o building, fence, wall, or other structure (including a
detached garage) shall be commenced, erected, or maintained
upon the Properties, nor shall any exterior addition to or change
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 the harmony of external design and location in
relation to surrounding structures and topography by the
Developer. . . . In the event said Developer . . . fails to approve
or disapprove such design and location within thirty (30) days
after said plans and specifications have been submitted to it,
approval will not be required and this Article will be deemed to
have been fully complied with.
Plaintiff insists that there is no evidence that defendants requested approval of their
plans prior to June 8, 1993.
The defendant, Psillas testified:
Q. Before you entered into the option contract, did you review
the restrictive covenants that were filed for the Oak Highlands
Subdivision?
A. Yes, I did.
Q. Are you aware there is a clause in there requiring
architectural approval of homes you expected to built? (sic)
A. Yes, I did.
Q. Did you take plans to Nashville 50 Joint Venture regarding
- take the plans which you expected to obtain?
A. Yes, I did.
Q. And these were the plans for the lots that you wanted to
build at Oak Highlands?
A. That’s correct.
***
Q. How did you go about attempting to obtain approval of the
plans?
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A. By just giving them copies of floor plans of the houses.
Q. Where did this take place?
A. It took place at Southeast Title’s offices in Green Hills.
Q. When did it take place?
A. Sometime in the Spring of 1992.
Q. After you submitted those plans, did any one from
Nashville 50 Joint Venture object to the plans?
A. Not at all.
At this point, plaintiff stated the following objection:
Mr. Tomkins: Objection, your Honor. That’s hearsay.
Whether it’s negative or positive hearsay, it’s still hearsay.
The Trial Court properly overruled the objection. The delivery of the plans to the
developer was an act, of which the witness had personal knowledge. The failure of the
developer to respond was a negative fact of which the witness had personal knowledge.
Hearsay was not involved in the quoted testimony.
Plaintiff relies upon other testimony that the plans submitted were not adequate for
the purpose, but no evidence is cited that the developer made any objection to the form or
substance of the plans.
Plaintiff also relies upon plaintiff’s action in submitting plans again in 1993 to
plaintiff’s Board. If the rights of defendants were established by submission of plans to the
developer and lack of objection, such rights were not necessarily waived as a matter of law by
resubmission to plaintiff’s Board. Such action was a circumstance to be considered in
respect to the weight to be given the quoted testimony. However, it is not a conclusive
circumstance, and the Trial Judge saw fit to believe the quoted testimony and conclude
accordingly.
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Any conflict in testimony requiring determination of credibility of witnesses is for the
Trial Court and binding on the reviewing court unless other real evidence compels a contrary
conclusion. State, ex rel Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803
(1968); Jackson for Bohan Group, Inc. v. Bohan, Tenn. 1993, 861 S.W.2d 241. No real
evidence is found to compel a contrary conclusion.
Moreover, the evidence does not preponderate against the finding of the Trial Judge
that plans were submitted to the developer and approved by failure to approve or disapprove
within thirty days.
The foregoing disposes of plaintiff’s first two issues and precludes the necessity of
discussing the third issue.
However, there is another ground which supports the conclusion of the Trial Court.
The particular complaint of plaintiff is that defendants failed to conform to the practice of
most builders in the development in planning and arranging for electrical service to be
delivered by underground conductors.
The record does not reflect who had the power to determine whether wires should be
overhead on poles or underground. It is generally known that electric wires and supporting
poles within the public right of way are installed by and are the property of the electric utility
which would presumably have the power and authority to determine their location. It is not
generally known who installs and owns the wires from the public way to a residence. There
is no evidence that the constructor of a residence has any control over the manner of
connecting a residence to the wires of the utility in the public way.
Under these circumstances, this Court is unable to find that the location and nature of
connections from a residence to the electric utility lines is comprehended within the
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phraseology of the restriction, i.e: “building, fence, wall or other structure (including a
detached garage). - plans and specifications showing the nature, kind, shape, height,
materials and location of same.”
The prohibition of overhead wires on private property should have been specifically
mentioned in the restriction. Whether the Board has any control of the location of utilities in
the public way is beyond the scope of this appeal.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the
appellant. The cause is remanded to the Trial Court for any necessary further proceedings.
Affirmed and Remanded.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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