Paul B. Schodowski, D.P.M. v. Tellico Village Property Owners Association, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 6, 2016 Session

PAUL B. SCHODOWSKI, D.P.M. ET AL. v. TELLICO VILLAGE PROPERTY

OWNERS ASSOCIATION, INC. ET AL.

Appeal from the Chancery Court for Loudon County

No. 12293 Frank V. Williams, III, Chancellor

No. E2015-01145-COA-R3-CV-FILED-APRIL 22, 2016

This case originated with the filing of a declaratory judgment action by the plaintiffs,

Paul B. Schodowski, D.P.M., and Sharon Ann Ziegler (“Plaintiffs”), against the Tellico

Village Property Owners‟ Association and its individual board members, Alan Hart,

Ginny Ranck, Tom Lee, Claire Frazer, Joe Marlette, Cap Purvis, and Bob Coates

(collectively, “TVPOA”). Plaintiffs alleged that the restrictive covenant regarding

payment of annual assessments applicable to their lot in the Tellico Village development

should not be enforced. TVPOA filed a motion to dismiss, asserting, inter alia, that

Plaintiffs failed to state a claim upon which relief could be granted. The trial court

granted the motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6),

determining that the restrictions were enforceable as written and that Plaintiffs had notice

of the restrictions when they purchased their lot. Plaintiffs have appealed. Discerning no

reversible error, we affirm the trial court‟s dismissal of Plaintiffs‟ complaint.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Sharon Ann Ziegler, Kingsport, Tennessee, for the appellants, Paul B. Schodowski,

D.P.M., and Sharon Ann Ziegler.

Kevin C. Stevens and Briton S. Collins, Knoxville, Tennessee, for the appellees, Tellico

Village Property Owners Association, Inc.; Alan Hart; Ginny Ranck; Tom Lee; Claire

Frazer; Joe Marlette; Cap Purvis; and Bob Coates.

OPINION

I. Factual and Procedural History

Plaintiffs have owned an undeveloped lot in the Tellico Village community since

2002. In their complaint filed on March 4, 2015, Plaintiffs requested a declaratory

judgment invalidating the restrictive covenant contained in the Declaration of Covenants

and Restrictions of Tellico Village, Tennessee (“the Declaration”), which required the

payment of annual assessments by all property owners. Plaintiffs attached a copy of the

Declaration to their complaint. The Declaration provides in pertinent part:

[E]ach Owner of a lot . . . by acceptance of a deed or certificate therefor . . .

whether or not it shall be so expressed in any such deed, certificate, contract

of purchase or other conveyance, shall be deemed to covenant and agree to

pay to the Association: (1) Annual Assessments, and (2) Special

Assessments, such Assessments to be fixed, established and collected from

time to time as hereinafter provided. The Annual and Special Assessments,

together with such interest thereon and costs of collection thereof, including

a reasonable attorneys fee, as hereinafter provided, shall be a continuing

charge and lien upon the Lot . . . against which each such Assessment is

made. Each such Assessment, together with such interest, costs and

reasonable attorneys fees, shall also be the personal obligation of the

Owners of such property at the time when the Assessment fell due.

The Declaration further provides that “[t]he covenants and restrictions of this Declaration

shall run with and bind the land and shall inure to the benefit of and be enforceable by the

Association or the Owners subject to this Declaration . . . .” Plaintiffs admitted in their

complaint that the Declaration had been in force since 1985 and was recorded in the

Loudon County Register of Deeds office.

The annual assessments required by the Declaration are dedicated to the

maintenance of common properties, defined in the Declaration as “property . . . intended

to be devoted to the common use and enjoyment of the Owners.” The Declaration further

provides that “[e]very Member of the Association . . . shall have a right and easement of

enjoyment in and to the Common Properties.” Plaintiffs claimed, however, that (1) the

obligation to pay annual assessments did not “touch” their lot or “run with the land”; (2)

they had, at best, a revocable license to use common properties and not an easement; (3)

the owners had no right to enforce the terms of the Declaration; and (4) the obligation to

pay annual assessments constituted an unreasonable restraint on the alienability of their

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lot. For these reasons, Plaintiffs asked the trial court to declare the Declaration regarding

the payment of annual assessments invalid.

On April 6, 2015, TVPOA filed a motion to dismiss pursuant to Tennessee Rule of

Civil Procedure 12.02(1) and (6). TVPOA asserted that the trial court lacked subject

matter jurisdiction because Plaintiffs failed to join as parties all persons who might be

affected by the requested declaration, such as other lot owners in the Tellico Village

community. TVPOA also posited that the complaint was time-barred by the applicable

statute of limitations and/or laches. TVPOA further asserted that the express language of

the Declaration contradicted Plaintiffs‟ claims. TVPOA sought dismissal of the

complaint and an award of attorney‟s fees pursuant to the terms of the Declaration and

Tennessee Code Annotated § 20-12-119(c)(1). Attached to the motion was a plat map of

the Chota Hills Subdivision, the portion of the Tellico Village community wherein

Plaintiffs‟ lot lies.

Plaintiffs filed a response and a “cross motion for summary judgment,” alleging

that because TVPOA attached a document outside the pleadings, the plat map, to its

motion to dismiss, the motion should have been treated as a motion for summary

judgment. Plaintiffs attached other documents to their motion, including the Restated

Articles of Incorporation of Tellico Village Property Owners Association, Inc., and the

Restated By-Laws of Tellico Village Property Owners Association, Inc.

A hearing was held on the motion to dismiss on May 11, 2015. On May 28, 2015,

the trial court entered an order granting TVPOA‟s motion to dismiss. The court ruled

that the motion to dismiss would not be granted based upon lack of subject matter

jurisdiction pursuant to Tennessee Rule of Civil Procedure 12.02(1). Rather, the court

granted the motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6),

finding that Plaintiffs had failed to state a claim upon which relief could be granted.

Specifically regarding Plaintiffs‟ claim that the obligation to pay annual

assessments did not run with the land, the trial court determined that such claim failed as

a matter of law because the Declaration explicitly provided that the covenants contained

therein “run with and bind the land” and would inure to the benefit of the owners and

their legal representatives, heirs, and assigns. The court stated that the Declaration was

referenced in Plaintiffs‟ warranty deed for their lot.1 The court also stated that the

Declaration explicitly provided that Plaintiffs held easement rights in common properties

and that Plaintiffs had the right to file suit to enforce the Declaration despite Plaintiffs‟

assertions to the contrary.

1

Plaintiffs‟ warranty deed does not appear in the record.

3

With regard to the alleged restraint on alienability, the trial court determined that

because Plaintiffs knew at the time they purchased the lot that they were bound by the

Declaration and its required annual assessments, the assessments were “a matter of

contract” and Plaintiffs could not now claim that this contract was a restraint on

alienability. Finally, the court ruled that TVPOA‟s motion to dismiss had not been

converted to a motion for summary judgment due to the attachment of a copy of the plat

map. The court stated that such document was a matter of public record and further

indicated that the court had not considered the map in reaching its decision.

The trial court also ordered that TVPOA would be granted an award of attorney‟s

fees pursuant to Tennessee Code Annotated § 20-12-119(c), which provides for an award

of fees to be paid by a party whose claims are dismissed pursuant to Tennessee Rule of

Civil Procedure 12.02(6). The trial court accordingly directed TVPOA to file a schedule

of fees incurred. TVPOA filed its schedule of attorney‟s fees and expenses, totaling over

$15,000. The trial court subsequently ordered that Plaintiffs pay attorney‟s fees of

$10,000 to TVPOA, which amount represented the statutory cap on such an award. See

Tenn. Code Ann. § 20-12-119(c)(4). Plaintiffs timely appealed.

II. Issues Presented

Plaintiffs present the following issues for our review, which we have restated

slightly:

1. Whether the trial court erred in granting TVPOA‟s motion to

dismiss Plaintiffs‟ complaint for failure to state a claim upon which

relief could be granted.

2. Whether the trial court erred in declining to join other Tellico

Village property owners in this lawsuit.

3. Whether the trial court erred in declining to treat the motion to

dismiss as a motion for summary judgment.

4. Whether the trial court erred in enforcing the Declaration regarding

the requirement of annual assessments.

5. Whether the trial court erred in determining that Plaintiffs failed to

plead or state a claim of restraint on alienation.

6. Whether the trial court erred in awarding TVPOA $10,000 in

attorney‟s fees.

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7. Whether the trial court erred in allowing TVPOA‟s attorneys to draft

the order of dismissal without first entering its own findings of fact

and conclusions of law.

III. Standard of Review

As our Supreme Court has elucidated with regard to motions seeking dismissal of

a complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6):

A Rule 12.02(6) motion to dismiss only seeks to determine whether the

pleadings state a claim upon which relief can be granted. Such a motion

challenges the legal sufficiency of the complaint, not the strength of the

plaintiff‟s proof, and, therefore, matters outside the pleadings should not be

considered in deciding whether to grant the motion. In reviewing a motion

to dismiss, the appellate court must construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the

benefit of all reasonable inferences. It is well-settled that a complaint

should not be dismissed for failure to state a claim unless it appears that the

plaintiff can prove no set of facts in support of his or her claim that would

warrant relief. Great specificity in the pleadings is ordinarily not required

to survive a motion to dismiss; it is enough that the complaint set forth “a

short and plain statement of the claim showing that the pleader is entitled to

relief.”

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002) (internal

citations omitted).

IV. Propriety of Dismissal/Enforcement of Declaration

Plaintiffs maintain that the trial court erred in dismissing their complaint pursuant

to Tennessee Rule of Civil Procedure 12.02(6). Plaintiffs specifically contend that the

duty to pay annual assessments contained in the Declaration does not “touch and concern

or run with the land,” but is rather a personal obligation between the original developer

and the original purchaser of Plaintiffs‟ lot.2 Plaintiffs also assert that they properly pled

a claim of restraint on alienation based upon the requirement of annual assessment fees.

Article X of the Declaration provides:

[E]ach Owner of a lot . . . by acceptance of a deed or certificate therefor . . .

2

It is undisputed that Plaintiffs were not the original purchasers of the lot from the developer.

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whether or not it shall be so expressed in any such deed, certificate, contract

of purchase or other conveyance, shall be deemed to covenant and agree to

pay to the Association: (1) Annual Assessments, and (2) Special

Assessments, such Assessments to be fixed, established and collected from

time to time as hereinafter provided. The Annual and Special Assessments,

together with such interest thereon and costs of collection thereof, including

a reasonable attorneys fee, as hereinafter provided, shall be a continuing

charge and lien upon the Lot . . . against which each such Assessment is

made. Each such Assessment, together with such interest, costs and

reasonable attorneys fees, shall also be the personal obligation of the

Owners of such property at the time when the Assessment fell due.

Article XVII of the Declaration also provides that “[t]he covenants and restrictions of this

Declaration shall run with and bind the land and shall inure to the benefit of and be

enforceable by the Association or the Owners subject to this Declaration . . . .”

The Declaration further provides that “[e]very Member of the Association . . .

shall have a right and easement of enjoyment in and to the Common Properties.”

According to Plaintiffs, however, (1) the obligation to pay annual assessments does not

“touch and concern” their lot or “run with the land”; (2) they have, at best, a revocable

license to use common properties and not an easement; (3) only TVPOA and not the

owners can enforce the restrictions; and (4) the obligation to pay annual assessments

constitutes an unreasonable restraint on the alienability of their lot. For these reasons,

Plaintiffs asked the trial court to declare the Declaration regarding the payment of annual

assessments invalid.

Plaintiffs admitted in their complaint that the Declaration was applicable and was

in force when they purchased their lot in 2002. Plaintiffs also admitted in their complaint

that the Declaration was duly recorded in the Loudon County Register of Deeds office

following its execution in 1985. Plaintiffs further acknowledged that their deed stated

that it was subject to any restrictions of record.

“The construction of restrictive covenants, like other written contracts, is a

question of law.” Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 480-81 (Tenn. 2012).

Rules regarding the proper construction of restrictive covenants have been explained by

this Court as follows:

Generally speaking, unambiguous restrictive covenants are to be

interpreted in the same manner as any writing; thus, words in such

covenants must be given their usual and ordinary meaning. Furthermore,

when the meaning of a restriction “is reasonable and unambiguous, there is

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no need to seek further clarification outside its language.” Shea v. Sargent,

499 S.W.2d 871, 874 (Tenn. 1973). The terms of an unambiguous

restrictive covenant cannot be varied or altered by parol evidence.

It is true that restrictions on the free use of real property are not

favored and will be strictly construed. Nevertheless, the overriding factor

is the intent of the parties. This Court has stated that

[i]t is well established law in this State that a person owning a

body of land may sell portions thereof and make restrictions

as to its use for the benefit of himself as well as those to

whom he sells. (Citations omitted).

***

Notwithstanding the law‟s unfavorable regard toward

restrictive covenants and its strict construction of them, such

restrictions, like other contracts, will be enforced according to

the clearly expressed intention of the parties. (Citations

omitted).

Benton v. Bush, 644 S.W.2d 690, 691 (Tenn. App. 1982); Jones, 870

S.W.2d at 529.

Hicks v. Cox, 978 S.W.2d 544, 547-48 (Tenn. Ct. App. 1998) (other internal citations

omitted).

In the instant action, the language of the Declaration is clear that every lot owner

within the Tellico Village development, by accepting a deed to or contracting to purchase

a lot, has agreed to pay annual assessments to TVPOA. The Declaration also provides

that those annual assessments, if unpaid, will constitute both a lien on the lot and a

personal obligation of the owner. Furthermore, the Declaration expressly states that the

covenants and restrictions contained therein “run with and bind the land.”

Plaintiffs argue that the provision requiring the payment of annual assessments

cannot be enforced because it does not “touch or concern” their land, citing Gambrell v.

Nivens, 275 S.W.3d 429 (Tenn. Ct. App. 2008). In Gambrell, this Court explained that in

order for “a covenant to bind remote grantees in equity, (1) it must „touch and concern‟

the land; (2) the original parties to the covenant must intend that it run with the land and

bind remote grantees; and (3) the remote grantee must have had notice of the covenant.”

Id. at 437. The Gambrell Court recognized that there was a dispute among authorities

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regarding the proper test for the “touch and concern” requirement, but the Court found

that building restrictions satisfied the test. Id. at 438. A similar result has arisen in other

cases involving building restrictions, although there has been no clear test articulated by

Tennessee appellate courts regarding the “touch and concern” requirement. See Tennsco

Corp. v. Attea, No. M2001-01378-COA-R3-CV, 2002 WL 1298808 at *2 (Tenn. Ct.

App. June 13, 2002). In Tennsco, this Court explained:

As to what covenants “touch and concern” the land there seems to be no

universal test, see 2 American Law of Property § 9.13 (A.J. Casner ed.

1952), but covenants containing building restrictions, entered into between

owners in fee, are almost universally held to satisfy the “touch and

concern” requirement—both as to the burden and the benefit. Id.

Id. Restrictive covenants preventing the sale of alcoholic beverages on certain property

have also been determined to “touch and concern” the land. See Leach v. Larkin, No. 01-

A-01-9302-CH-00066, 1993 WL 377629 at *5 (Tenn. Ct. App. Sept. 24, 1993).

Although Tennessee courts have not created a specific test regarding the “touch

and concern” requirement, such a test has been generally defined as follows:

In order to meet the requirement that a covenant “touch and

concern” the land, the covenant must be so related to the land as to enhance

its value and confer a benefit upon it or, conversely, impose a burden on it.

Other authority says that to touch and concern the land, a covenant must

bear upon the use and enjoyment of the land, and must be of the kind that

an owner of an estate or interest in land may make because of his or her

ownership right. One court has said that the clearest example of a covenant

that “touches and concerns” the land is one which calls for a party to do, or

refrain from doing, a physical act on the land.

Whether a particular covenant is sufficiently connected with the use

of land to touch and concern it is in many cases a question of degree.

Covenants that require grantees to pay assessments for upkeep of a

particular parcel of property are real covenants which “touch and concern

the land,” and which therefore “run with the land.”

20 AM. JUR. 2D Covenants, Etc. § 24 (2016) (citations omitted). Utilizing this definition,

the restrictive covenant requiring the payment of annual assessment fees in the case at bar

touches and concerns the land because (1) the requirement of payment imposes a burden

on the land and (2) the payment of fees allows for maintenance of common properties to

which the owners have an easement of use, thus also conferring a benefit and enhancing

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the value of the land.

Plaintiffs assert that there are no Tennessee cases upholding a restrictive covenant

regarding the payment of an annual fee. We disagree. In Travis v. Trustees of Lakewood

Park, No. M2009-01935-COA-R3-CV, 2010 WL 3488522 at *4 (Tenn. Ct. App. Sept. 3,

2010), the defendant county was required to pay annual assessments on lots purchased by

the county, pursuant to a restrictive covenant requiring such payment, because the county

acquired the lots with notice of the restriction. Although the Travis Court did not address

the “touch and concern” requirement, it did uphold the restrictive covenant requiring the

payment of annual fees as written. Id.

The courts of other states that have addressed the “touch and concern” requirement

in this context have found that a restriction requiring the payment of annual fees to a

homeowners‟ association satisfies the “touch and concern” requirement. See Neponsit

Prop. Owners’ Ass’n v. Emigrant Indus. Sav. Bank, 15 N.E.2d 793, 797 (N.Y. 1938)

(concluding that a covenant requiring payment of assessment did touch and concern the

land because the grantee received “easement or right of common enjoyment with other

property owners in roads, beaches, public parks or spaces and improvements in the same

tract.”); Four Seasons Homeowners Ass’n, Inc. v. Sellers, 302 S.E.2d 848, 852 (N.C. Ct.

App. 1983) (concluding that a covenant to pay annual fees did touch and concern the land

because fees paid for recreational facilities for the use of all who lived in the

subdivision); Queen’s Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 628

S.E.2d 902, 913 (S.C. Ct. App. 2006) (“Restrictive covenants that require grantees to pay

assessments for the upkeep of a particular parcel of property are held to be real covenants

which „touch and concern‟ land, and therefore, run with the land.”). In the case at bar, we

conclude that the Declaration‟s requirement that Plaintiffs pay annual assessments for the

maintenance of common properties does touch and concern the land.

Plaintiffs contend that the Declaration‟s requirement for the payment of annual

assessments should also not apply to them because the requirement does not “run with the

land.” As the trial court found, however, Article XVII of the Declaration expressly states

that the “covenants and restrictions of this Declaration shall run with and bind the land . .

. .” The Declaration further states that if an assessment becomes delinquent, that

obligation “shall bind such property in the hands of the then Owner, his heirs, devisees,

personal representatives and assigns.” Given the plain language of the Declaration, the

assessment requirement clearly runs with the land.

Plaintiffs counter with the argument that the language of the Declaration merely

creates a personal obligation of the owner. As stated above, the Declaration provides that

in addition to the assessment constituting a “continuing charge and lien upon the Lot,”

“[e]ach such Assessment, together with such interest, costs and reasonable attorneys fees,

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shall also be the personal obligation of the Owners of such property at the time when the

Assessment fell due.” (Emphasis added.) We find this argument to be without merit.

Plaintiffs further argue that they should be relieved of paying the annual

assessments because they do not have an easement allowing them to use the common

properties. Plaintiffs insist that they possess, at most, a revocable license because (1) the

use of certain common properties requires that an additional admission fee be paid and

(2) the Declaration states that the easement rights can be revoked by the TVPOA. A

review of the Declaration‟s terms demonstrates, however, that “[e]very Member of the

Association . . . shall have a right and easement of enjoyment in and to the Common

Properties.” The Declaration subsequently states that this easement of enjoyment is

subject to the right of TVPOA to charge reasonable admission and other fees for the use

of any recreational facility or improvement upon the common properties. The

Declaration provides that this easement is revocable only upon nonpayment of the

assessments. Therefore, as the trial court found, the express terms of the Declaration

belie Plaintiffs‟ assertions. Plaintiffs have presented no authority to support their

argument that these provisions establish anything other than an easement of enjoyment.

The plain language of the Declaration also contradicts Plaintiffs‟ assertion that the

owners have no right to enforce the Declaration‟s terms and provisions. As previously

stated, Article XVII provides:

The covenants and restrictions of this Declaration shall run with and bind

the land and shall inure to the benefit of and be enforceable by the

Association or the Owners subject to this Declaration, their respective legal

representatives, heirs, successors and assigns . . . .

***

Enforcement of this Declaration shall be by any proceeding at law or in

equity against any person or entity violating or attempting to violate any

covenant, condition or restriction herein, either to restrain violation or to

recover damages against the party in violation, and/or against the land to

enforce any lien created by these covenants. Failure by the Association, the

Developer or any Owner to enforce any covenant, condition or restriction

herein contained shall in no event be deemed a waiver of the right to do so

thereafter.

Inasmuch as the above provisions clearly provide a right of enforcement to owners as

well as TVPOA, we conclude that Plaintiffs‟ argument in this regard is without merit.

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Finally, Plaintiffs contend that the Declaration constitutes an unreasonable

restraint on alienation of their lot. According to Plaintiffs, the value of their property has

decreased because of the exorbitant assessments charged by TVPOA, which in turn have

made their lot more difficult to sell. Once again, Plaintiffs cite no authority for the

proposition that annual assessment fees charged by a homeowners‟ association, of which

the lot owner had notice at the time of purchase, constitute an unreasonable restraint on

alienation. As the trial court found, the Declaration is a “matter of contract to which

Plaintiffs bound themselves when they bought their lot.” With regard to such contracts,

our Supreme Court has explained:

Contract law in Tennessee plainly reflects the public policy allowing

competent parties to strike their own bargains. Courts do not concern

themselves with the wisdom or folly of a contract, and they cannot

countenance disregarding contractual provisions simply because a party

later finds the contract to be unwise or unsatisfactory.

Hughes, 387 S.W.3d at 475-76 (internal citations omitted). Furthermore, as Plaintiffs

concede, an “otherwise valid servitude is valid even if it indirectly restrains alienation by

. . . reducing the amount realizable by the owner on sale or other transfer of the property,

or by otherwise reducing the value of the property.” Restatement (Third) of Property:

Servitudes § 3.5 (2000). We find unpersuasive Plaintiffs‟ contention that the

requirements of the Declaration have created an unreasonable restraint on the alienability

of their property. As the trial court properly determined, the allegations in Plaintiffs‟

complaint were expressly contradicted by the terms of the Declaration, which Plaintiffs

attached to the complaint. Plaintiffs admitted that the Declaration was in effect and duly

recorded at the time they purchased their lot. As such, Plaintiffs are bound by the terms

of the Declaration. The trial court properly dismissed their complaint.

V. Joinder

Plaintiffs have raised an issue regarding whether the trial court erred in failing to

join other Tellico Village property owners as parties to this action. Plaintiffs did not,

however, request that other owners be joined at the trial court level and do not make such

an argument on appeal. Rather, Plaintiffs‟ position on appeal appears to be in response to

an argument presented by TVPOA in its motion to dismiss, wherein TVPOA asserted that

the trial court lacked subject matter jurisdiction because Plaintiffs had failed to join all

persons who might be affected by the Declaration. The trial court denied TVPOA‟s

motion to dismiss on this basis, determining that such argument was not well taken.

Therefore, the trial court did not find that joinder of other property owners was necessary,

and Plaintiffs, by the argument presented in their brief, agree. As such, this issue is moot.

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VI. Alleged Conversion of Motion to Dismiss to Motion for Summary Judgment

Plaintiffs contend that the trial court should have utilized summary judgment

standards when determining whether judgment should be granted to TVPOA because the

court considered a document outside the pleadings, namely the plat map attached to

TVPOA‟s motion to dismiss. See Patton v. Estate of Upchurch, 242 S.W.3d 781, 786

(Tenn. Ct. App. 2007) (“If matters outside the pleadings are presented in conjunction

with either a Rule 12.02(6) motion or a Rule 12.03 motion and the trial court does not

exclude those matters, the court must treat such motions as motions for summary

judgment and dispose of them as provided in Rule 56.”) TVPOA asserts that the trial

court expressly addressed this issue in its order, stating that it had excluded and declined

to consider any document outside the pleadings. Upon our careful review of the record,

we agree.

With regard to Plaintiffs‟ claim that the motion to dismiss should be treated as a

motion for summary judgment due to the attachment of the plat map, the trial court

stated:

The Court also finds the Plaintiffs‟ contention that the Motion to Dismiss

has been converted to one for summary judgment to be without merit. The

documents attached by the Defendants to the Motion to Dismiss are matters

of public record in this county and as such may be considered by the Court

without converting the motion into one for summary judgment. First Cmty.

Bank, N.A. v. First Tennessee Bank, N.A., 2013 WL 4472514, at *17 (Tenn.

Ct. App. Aug. 20, 2013). In any event, said documents were not relied on

by the Court in reaching its decision.

We determine that, as expressly noted by the trial court in its order, the plat map attached

to the motion to dismiss was not considered by the court in rendering its decision. As

such, the mere attachment of the document would not convert the motion to dismiss to a

motion for summary judgment. See, e.g., Finchum v. Ace, USA, 156 S.W.3d 536, 538

(Tenn. Ct. App. 2004).

VII. Propriety of Attorney‟s Fee Award

Plaintiffs claim that the trial court erred in awarding TVPOA attorney‟s fees of

$10,000 pursuant to Tennessee Code Annotated § 20-12-119(c). This statutory section

was amended effective July 1, 2012,3 and now provides in pertinent part:

3

Prior to the 2012 amendment, the statute only contained subsections (a) and (b). See 2012 Pub. Acts.,

Ch. 1046 § 1 (H.B. 3124).

12

(a) In all civil cases, whether tried by a jury or before the court without a

jury, the presiding judge shall have a right to adjudge the cost.

(b) In doing so, the presiding judge shall be authorized, in the presiding

judge‟s discretion, to apportion the cost between the litigants, as in the

presiding judge‟s opinion the equities of the case demand.

(c)(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a

trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee

Rules of Civil Procedure for failure to state a claim upon which relief may

be granted, the court shall award the party or parties against whom the

dismissed claims were pending at the time the successful motion to dismiss

was granted the costs and reasonable and necessary attorney‟s fees incurred

in the proceedings as a consequence of the dismissed claims by that party

or parties. The awarded costs and fees shall be paid by the party or parties

whose claim or claims were dismissed as a result of the granted motion to

dismiss.

(2) Costs shall include all reasonable and necessary litigation costs actually

incurred due to the proceedings that resulted from the filing of the

dismissed claims, including, but not limited to:

(A) Court costs;

(B) Attorneys‟ fees;

(C) Court reporter fees;

(D) Interpreter fees; and

(E) Guardian ad litem fees.

(3) An award of costs pursuant to this subsection (c) shall be made only

after all appeals of the issue of the granting of the motion to dismiss have

been exhausted and if the final outcome is the granting of the motion to

dismiss. The award of costs and attorneys‟ fees pursuant to this section

shall be stayed until a final decision which is not subject to appeal is

rendered.

(4) Notwithstanding any other provision of this section, the court shall not

require a party to pay costs under this section in excess of a combined total

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of ten thousand dollars ($10,000) in any single lawsuit. Where multiple

parties are entitled to recover their costs from a single party under this

section and those parties‟ combined actual costs under this section exceed

ten thousand dollars ($10,000), then the court shall apportion the awarded

costs to the moving parties in proportion to the amount of each moving

party‟s incurred costs unless agreed otherwise by the moving parties.

Nothing in this section shall be construed to limit the award of costs as

provided for in other sections of the code or at common law.

This statutory section provided the basis for the trial court‟s award of attorney‟s

fees in the amount of $10,000 to TVPOA. In their initial brief, Plaintiffs assert that this

award was in error only because the trial court should not have granted the motion to

dismiss. Although Plaintiffs cursorily argue on appeal that the amount of the award is too

high, Plaintiffs “[did] not dispute the amounts of attorney fees/costs listed in the schedule

of fees” submitted to the trial court and presented no countervailing proof or argument

regarding the fees claimed. Rather, Plaintiffs generally argue that the award of attorney‟s

fees was in error. As this Court has previously noted, however, such an award is

mandatory once a motion to dismiss for failure to state a claim has been granted. See

Snyder v. First Tenn. Bank, N.A., No. E2015-00530-COA-R3-CV, 2016 WL 423806 at

*8 (Tenn. Ct. App. Feb. 3, 2016).

In their reply brief, Plaintiffs argue for the first time that the 2012 amendment to

Tennessee Code Annotated § 20-12-119 is unconstitutional because its mandatory

requirement that the “loser pays” is a usurpation of judicial power and discretion. We

note, however, that Plaintiffs did not raise this issue at the trial court level. As a result,

the issue is deemed waived. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.

1983) (“It has long been the general rule that questions not raised in the trial court will

not be entertained on appeal and this rule applies to an attempt to make a constitutional

attack upon the validity of a statute for the first time on appeal unless the statute involved

is so obviously unconstitutional on its face as to obviate the necessity for any

discussion.”); City of Elizabethton v. Carter Cty., 321 S.W.2d 822, 827 (Tenn. 1958)

(“We do not have any sympathy for the practice of raising constitutional questions for the

first time on appeal, unless a statute is so obviously unconstitutional on its face as to

obviate the necessity for any discussion.”) In the case at bar, we conclude that the statute

is not obviously unconstitutional on its face.

Further compounding Plaintiffs‟ error in failing to raise this issue at the trial court

level is the fact that Plaintiffs failed to properly notify the Attorney General with regard

to the constitutional challenge. Tennessee Rule of Appellate Procedure 32 provides, in

pertinent part:

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(a) Service; When Required. When the validity of a statute of this state or

an administrative rule or regulation of this state is drawn in question in any

appeal to which the state or an officer or agency is not a party, the party

raising such question shall serve a copy of the party‟s brief on the Attorney

General.

(b) Proof of Service. Proof that service has been made on the Attorney

General shall be filed with the brief of the party raising such question.

Although Plaintiffs did file a proof of service of their brief on the Attorney General, said

proof of service was not filed with the brief as required in subsection (b). Rather, the

proof of service was filed six months following the filing of Plaintiffs‟ initial brief and

nearly two months following oral arguments. For the foregoing reasons, we conclude

that any issue with regard to the constitutionality of Tennessee Code Annotated § 20-12-

119(c) has been waived. See, e.g., In re Adoption of E.N.R., 42 S.W.3d 26, 33 (Tenn.

2001); In re C.A.F., 114 S.W.3d 524, 530 (Tenn. Ct. App. 2003). We therefore affirm

the trial court‟s award of attorney‟s fees to TVPOA in the amount of $10,000.4

VIII. Order

Finally, Plaintiffs contend that the trial court erred in directing TVPOA‟s attorneys

to draft the order of dismissal without stating the grounds for dismissal. Plaintiffs rely

upon our Supreme Court‟s decision in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303,

316 (Tenn. 2014), wherein the Court held that “Tenn. R. Civ. P. 56.04 requires the trial

court, upon granting or denying a motion for summary judgment, to state the grounds for

its decision before it invites or requests the prevailing party to draft a proposed order.”

Plaintiffs insist that this rule should apply with equal force to an order granting a motion

to dismiss.

TVPOA asserts that there is no similar requirement contained within Tennessee

Rule of Civil Procedure 12 regarding the drafting of a proposed order. We agree.

Tennessee Rule of Civil Procedure 12 contains no language that mirrors or assimilates

the above-quoted language of Tennessee Rule of Civil Procedure 56.04. Furthermore,

TVPOA contends that the order signed by the trial court accurately represented the

court‟s ruling from the bench. We agree with TVPOA that a trial court speaks only

through its written orders. See Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn.

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We note that the plain language of the statute provides that an “award of costs pursuant to this

subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss

have been exhausted and if the final outcome is the granting of the motion to dismiss.” See Tenn. Code

Ann. § 20-12-119(c)(3). Having determined that the motion to dismiss was properly granted, we find that

the trial court‟s act of prematurely awarding attorney‟s fees before exhaustion of the right to appeal was

harmless error.

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2015). We further recognize that, in the absence of a hearing transcript or any other

documentation to demonstrate that the signed order does not accurately reflect the trial

court‟s ruling, we have no basis upon which to perform review of this issue. See

McAllister v. Rash, No. E2014-01283-COA-R3-CV, 2015 WL 3533679 at *8 (Tenn. Ct.

App. June 5, 2015), perm. app. denied (Tenn. Oct. 16, 2015) (“It is well-settled that it is

the appellant‟s duty to prepare a record for our review that includes everything contained

in the trial court record that is necessary for our examination of the issues presented on

appeal.”). We conclude that this issue is without merit.

IX. Attorney‟s Fees on Appeal

At the conclusion of its brief, TVPOA requests an award of attorney‟s fees for

defending this appeal, which TVPOA characterizes as frivolous. TVPOA did not,

however, properly raise this as an issue in a statement of issues. As our Supreme Court

has elucidated:

Appellate review is generally limited to the issues that have been presented

for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353

(Tenn. 2007). Accordingly, the Advisory Commission on the Rules of

Practice and Procedure has emphasized that briefs should “be oriented

toward a statement of the issues presented in a case and the arguments in

support thereof.” Tenn. R. App. P. 27, advisory comm‟n cmt.

Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012); see also Culpepper v. Culpepper,

No. E2014-00815-COA-R3-CV, 2015 WL 6735909 at *5-6 (Tenn. Ct. App. Nov. 4,

2015). Therefore, TVPOA‟s request for attorney‟s fees on appeal is denied.

X. Conclusion

For the foregoing reasons, the trial court‟s order dismissing Plaintiffs‟ complaint is

affirmed. TVPOA‟s request for attorney‟s fees on appeal is denied. Costs on appeal are

assessed to the appellants, Paul B. Schodowski, D.P.M., and Sharon Ann Ziegler. This

case is remanded to the trial court, pursuant to applicable law, for collection of costs

assessed below.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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