Southwind Residential Properties Association, Inc. v. Kelvin Ford

03/14/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 14, 2017 Session

SOUTHWIND RESIDENTIAL PROPERTIES ASSOCIATION, INC. v.

KELVIN FORD

Appeal from the Circuit Court for Shelby County

No. CT-003095-13 Jerry Stokes, Judge

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No. W2016-01169-COA-R3-CV

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The association obtained a favorable judgment for unpaid assessments against property

owner of 1.6 lots as well as attorney’s fees in the trial court. Property owner appeals.

We vacate the trial court’s attorney’s fee award in favor of the association and remand for

consideration of the reasonableness factors as outlined in the Tennessee Rules of

Professional Responsibility. We affirm the trial court’s judgment in all other respects.

Affirmed in part, vacated in part, and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part; Vacated in Part; and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. Michael

Swiney, C.J., and ARNOLD B. GOLDIN, J., joined.

Joshua B. Bradley, Memphis, Tennessee, for the appellant, Kelvin Ford.

Peter D. Baskind, Robin H. Rasmussen, Memphis, Tennessee, for the appellee,

Southwind Residential Properties Association, Inc.

OPINION

BACKGROUND

Defendant/Appellant Kelvin Ford (“Mr. Ford”) and his wife Tasha Ford (“Dr.

Ford” and together with Mr. Ford, “the Fords”) purchased a piece of property by special

warranty deed on July 30, 2010. The property is located in a portion of the Southwind

Planned Development known as “The Estates.” The subdivision plat for The Estates was

filed on May 6, 1991 and reflects twelve large lots. According to the special warranty

deed, the property purchased by the Fords consists of “Lot 1 and part of Lot 2, Phase

XXVII, . . . as recorded in Plat Book 134, Page 39, in the Register’s Office of Shelby

County, Tennessee.” Of the twelve original lots in the recorded subdivision plat, only

Lots 1–4 survive to this day; Lots 5–12 were subdivided into smaller plots, referred to as

Lots 1–26 of Phase XL, and recorded in the plat book.

All of the property in the subdivision is subject to the Declaration of Protective

Covenants, Agreements, Easements, Charges and Liens for Southwind (Residential),

referred to as the “CCRs” by the parties. Under a 1995 amendment to the CCRs (“1995

Amendment” or “Amended CCRs”), the properties in the subdivision are subject to the

“Assessment of Annual Charge,” which is to be determined by the Board of Directors

(“the Board”) of the Plaintiff/Appellee Southwind Residential Properties Association,

Inc. (“the Association”).1 The assessment is to be calculated taking into account the “Lot

Share” of each parcel, as discussed in detail, infra. The CCRs do not specifically address

parcels that include partial lots. In addition to rules regarding the Annual Assessment, the

CCRs provide rules regarding the maintenance of property. Specifically, Section 1.01 of

Article X of the CCRs provides that: “Each owner shall keep all or thereon, in good order

and repair, including the seeding, watering, and mowing of all lawns [and] the pruning

and cutting of all trees and shrubbery[.]” Additionally, the Association Bylaws, adopted

in 2009, specifically provide that: “The membership rights of any Member, including the

right to vote, may be suspended by the [Association] for any period during which any

assessment or charge owed to the Association by any such Member remains unpaid.”

The dispute in this case largely stems from the assessment charged for the Fords’

property. According to the Fords, the Association initially charged them for two full Lot

Shares, despite the fact that he only owned one lot, plus a partial lot. Mr. Ford paid the

full assessment for two years, but in 2012 brought the issue to the Association’s attention.

After 2012, the Association agreed to reduce the assessment to reflect a 1.6 Lot Share,

taking into account the Fords’ full ownership of Lot 1 and partial ownership of Lot 2; the

Fords contended, however, that they properly owed only a single Lot Share. The Fords

1

The Fords’ deed contains a specific reference to the CCRs, including a notation that the CCRs

were “further amended at FC 0899.” The 1995 Amendment at issue, however, is contained at “Instrument

No. FC 0889 in the Office of the Shelby County Register.” In his brief, Mr. Ford does not argue that the

1995 Amendment to the CCRs does not apply to his property because it was not included on his deed, but

that the 1995 Amendment is ambiguous. See Appellant’s Brief, at 11 (“The Amendment, however, does

not address partial lots or contiguous lot ownership, and is therefore ambiguous as it pertains to Mr.

Ford’s property, which consists of ‘Lot 1 and Part of Lot 2.’ . . . For this reason (despite the absence of

reference to the Amendment in Mr. Ford’s Deed, the CCRs, as amended at FC 0889), cannot be relied

upon by the Association in its assertion that Mr. Ford knew or should have known how the Association

would bill him for his property.”) (internal citations omitted). Accordingly, we assume for purposes of

this appeal that the 1995 Amendment is properly applied to Mr. Ford’s property.

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then unilaterally chose to remit only the assessment for a single Lot Share to the

Association.

The Association thereafter filed a general sessions civil warrant against the Fords

on March 25, 2013. The civil warrant requested $2,847.74 in unpaid assessments, as well

as costs and attorney’s fees for a total judgment of $25,000.00. The Association was

initially awarded a default judgment; however, the default judgment was set aside and a

trial was held. On June 26, 2013, the general sessions court awarded a judgment in favor

of the Association in the amount of $3,368.39, “plus costs.” Mr. Ford filed an appeal to

circuit court on July 3, 2013. Although no notice of appeal was signed in the name of Dr.

Ford, when the case was docketed in Division III of the Shelby County Circuit Court,

both Mr. Ford and Dr. Ford were named as defendants.

The parties subsequently entered into a period of discovery. On October 28, 2013,

the Association filed a petition for civil contempt against both Mr. Ford and Dr. Ford for

their failure to appear at scheduled depositions. The Fords filed a response to the

contempt petition on January 17, 2014, contending that they were in the process of

obtaining new counsel at the time the deposition was scheduled. The parties thereafter

agreed to strike the contempt petition and to reschedule the depositions.

On March 27, 2014, the Association filed an amended complaint. Therein, the

Association more specifically outlined its claim for unpaid assessments, noting that it

sought both a full assessment for Lot 1 and “at least sixty percent of a yearly assessment

for Lot 2,” reflecting the portion of Lot 2 owned by the Fords. The Association therefore

sought a judgment for the full amount of unpaid assessments due at the time of trial, as

well as pre-judgment interest, attorney’s fees, and costs.

At some point, the clerk of the circuit court pointed out to the parties that no notice

of appeal was filed on behalf of Dr. Ford. On June 13, 2014, Mr. Ford and Dr. Ford filed

a motion to “determine parties to appeal from general sessions[.]” In their motion and

accompanying memorandum, the Fords noted that both Mr. Ford and Dr. Ford had

participated in the circuit court case for over a year without any confusion. As such, the

Fords asked that the trial court enter an order clarifying that Dr. Ford was a proper party

to the case.

On June 17, 2014, the Fords filed an answer to the Association’s amended

complaint and a counter-complaint. Therein, the Fords denied that the Association was

entitled to any damages for unpaid assessments, as they alleged that the Association had

in fact been overcharging for the assessments due to ambiguities in the CCRs that should

be construed in the Fords’ favor. The Fords also asserted that “some or all of [the

Association’s] costs and expenses are unnecessary and are not reasonably related to the

collection of the assessments alleged due from the Fords.” In addition, the Fords raised

claims of negligent and intentional misrepresentation and breach of contract. Finally, the

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Fords asserted that the intentional misrepresentation by the Association “constitutes

outrageous conduct worthy of punishment through the assessment of exemplary

damages.” As such, the Ford sought an unspecified amount of damages due to the

Association’s allegedly tortious conduct.

The Association filed a response to the Fords’ motion to determine the proper

parties to the appeal on June 19, 2014. Therein, the Association noted that a notice of

appeal was filed only on behalf of Mr. Ford, not Dr. Ford. Accordingly, the Association

asked the trial court to enter an order finding that only Mr. Ford was a party to the appeal.

On June 27, 2014, the trial court entered an order finding that only Mr. Ford had

effectively appealed the general sessions judgment and therefore Dr. Ford was not a party

to the appeal. The caption of the case was thereafter changed to reflect Mr. Ford as the

sole defendant.2

The Association next filed an answer to Mr. Ford’s counter-complaint on July 16,

2014, denying the material allegations contained therein. The Association’s answer also

raised affirmative defenses of, inter alia, the expiration of the statute of limitations and

failure to plead certain claims with particularity. Shortly, thereafter, the Association filed

a motion for partial summary judgment against Mr. Ford, arguing that Mr. Ford’s

counter-claims were barred by the statute of limitations and that the claims for intentional

misrepresentation and outrageous conduct were not pled with particularity as required by

Rule 9.02 of the Tennessee Rules of Civil Procedure. Mr. Ford responded in opposition

to the motion for partial summary judgment on November 24, 2014.

The case was continued several times, nearly all of which occurred at Mr. Ford’s

request. One such continuance occurred when Mr. Ford’s second attorney withdrew and

Mr. Ford retained substitute counsel. During this time, the case was transferred to

Division IV of Shelby County Circuit Court. On February 19, 2016, the trial court

entered an order granting Mr. Ford “one (1) final continuance,” setting trial for April 26,

2016, and ordering the parties to participate in mediation.

On April 4, 2016, Mr. Ford filed a motion regarding the proper interpretation of

the CCRs as applied to Mr. Ford’s property. The Association responded in opposition on

April 19, 2016, asserting that the specific question presented by the motion “has no

bearing upon the case.” Both parties thereafter filed pre-trial briefs.

A trial occurred as scheduled on April 26, 2016. Robert Cox, the vice-president of

the Association, first testified about the dispute between the Association and the Fords.

2

The Fords asked the trial court to grant permission to seek an interlocutory appeal of its order

excluding Dr. Ford as a party. See Tenn. R. App. P. 9 (involving interlocutory appeals by permission from

the trial court and this Court). The trial court denied the motion by order of November 12, 2014. This

dispute has not been raised as an issue on appeal. Consequently, we will not question the trial court’s

ruling that only Mr. Ford is a proper party to this case.

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Mr. Cox acknowledged that Mr. Ford approached him in 2012 concerning what Mr. Ford

considered an overcharge of assessments as to his property. Ultimately the parties were

unable to amicably resolve the dispute, leading to this litigation. According to Mr. Cox,

the litigation expenses in this case stemmed from the Association’s need to respond to

Mr. Ford’s motions, the multiple continuances granted to Mr. Ford, and “Mr. Ford’s lack

of cooperation [throughout the litigation, which] has driven up the attorney’s fees in this

case[.]” Mr. Cox denied that he ever gave any assurances to the Fords that their property

would be assessed as a single lot; according to Mr. Cox, he lacked the authority to make

such an assurance. Mr. Cox admitted, however, that he could not know whether another

Association board member or employee made such an assurance to the Fords. Mr. Cox

further admitted that Mr. Ford had made some payments since 2012 on the assessment,

but not the entirety of what the Association contended was owed.

Tamela Moss, an employee of the Association’s management company testified

regarding both the assessment allegedly owed by Mr. Ford and the costs associated with

the litigation. According to Ms. Moss, the Fords were initially assessed for two lots, but it

was later determined that he should be assessed on only 1.6 lots. At that time, Ms. Moss

testified that the Association “went back and calculated, verified everything, and . . . did

all the adjustments.” Ms. Moss testified that Mr. Ford paid the assessment in full the first

two years after the purchase of the property, but even after the assessment was reduced to

reflect only a 1.6 Lot Share, Mr. Ford failed to make a full payment to the assessment

after 2012. Instead, Mr. Ford only paid for one Lot Share. According to Ms. Moss, using

the 1.6 Lot Share to calculate Mr. Ford’s assessment, Mr. Ford owed unpaid assessments

on Lot 1 in the amounts of $3,401.74 and $4,939.32. Ms. Moss admitted, however, that

Mr. Ford made a payment of $1,175.00 on the Lot 1 assessment for which he had yet to

be credited.

Ms. Moss also testified that the Association incurred costs of $2,500.00 from her

management company relative to the litigation, which had apparently been included in

Ms. Moss’s prior $4,939.32 figure concerning the unpaid assessment on Lot 2. Ms. Moss

explained that she “put in considerable over-time which [her] boss had to pay [her] for,”

as the dispute between the Association and the Fords “hijacked [her] work life.” Ms.

Moss testified that the Association was required to reimburse the management company

for these costs, as the costs were related to the Association’s effort to collect outstanding

assessments. Ms. Moss admitted, however, that this was not a typical cost assessed to a

homeowner, but was merely a result of the extensive litigation.

Ms. Moss next testified that the Association incurred legal fees of $68,018.75,

which had been paid by the Association at the time of trial. Through Ms. Moss, counsel

for the Association presented billed and paid invoices for legal fees totaling $68,018.75

and asked that the invoices be admitted into evidence. Counsel for Mr. Ford initially

objected to the admission of the invoices on the basis that he had not been given the bills

in discovery. The trial court thereafter granted Mr. Ford a short recess to allow his

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counsel time to review the bills. At the resumption of trial, Mr. Ford’s counsel stated that

he had been able to superficially review the invoices. Mr. Ford’s counsel did not renew

his objection to the bills or offer any additional objections as to their admissibility. The

invoices were therefore admitted as exhibits.

In contrast to the testimony of Mr. Cox and Ms. Moss, Mr. Ford testified that he

should be assessed only a single Lot Share for his property. Specifically, Mr. Ford

testified that although he was initially aware that his property “would be assessed two lot

fees,” Ms. Moss informed him prior to the closing on the property that he could easily

obtain permission from the Association to only pay a single lot fee. Mr. Ford testified that

based upon this assurance, he and Dr. Ford decided to purchase the property and address

the proper calculation of the assessment “down the road.” According to Mr. Ford, he and

Dr. Ford paid fees on “two full lots” at the time of closing on the property and for a

period of two years thereafter. Mr. Ford testified that he later sent a letter to the

Association formally asking that he only be charged an assessment for a single lot. Mr.

Ford testified that the Association admitted that it had made a mistake in assessing the

Fords for two full lots, but refused to reduce the assessment to a single lot. Instead, the

Association indicated that the Fords pay a full assessment on Lot 1 and a pro-rated

assessment for Lot 2, reflecting the amount of Lot 2 actually owned by the Fords. Mr.

Ford testified that even after the Association conceded that the Fords only owed an

assessment on 1.6 lots, they received a letter from the Association requesting payment for

two full Lot Shares.

Mr. Ford admitted that he and Dr. Ford own 1.6 lots. Mr. Ford asserted, however,

that consideration of the lots was improper and that the assessment should instead be

calculated by tract, of which the Fords only own one. After paying two full Lot Shares in

2010 and 2011, Mr. Ford testified that he asked that his 2012 assessment be calculated

using only one Lot Share and also that he be credited in the amount of his prior

overpayment. As a result, Mr. Ford testified that in 2012 and 2013 he only paid the

amount owed for a single Lot Share after deducting the purported credit. Thereafter, in

2014, 2015, and 2016, Mr. Ford testified that he paid the assessment on one full Lot

Share.

With regard to his counter-claim for breach of contract, Mr. Ford testified that he

and Dr. Ford were initially informed that they were not required to mow the lawn on a

portion of their property because it was wooded and shielded from view. After several

years, however, Mr. Ford testified that the Association objected to the condition of the

property and required the Fords to mow the area, leading to instances of trespass by

children. In addition, Mr. Ford testified that after this dispute arose, the magnetic stickers

that allowed the Fords to reach their property through The Estates’ back gate were

deactivated. Instead of using the back gate like other homeowners, the Fords were

thereafter required to go through the front gate of The Estates. Mr. Ford further admitted

that the underlying matter was not the only litigation in which he and the Association

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were involved. First, Mr. Ford testified that the Association had filed another complaint

against Mr. Ford in circuit court involving Mr. Ford’s failure to maintain his property. It

appears from the testimony at trial that this matter was resolved. Mr. Ford also testified

that he had filed a complaint in chancery court against the Association alleging that the

Association had racially discriminated against him. The record is unclear of the

resolution of this lawsuit.

At the conclusion of Mr. Ford’s testimony, Ms. Moss was recalled. Ms. Moss

unequivocally denied that she had ever informed Mr. Ford that his property could be

assessed as a single lot. According to Ms. Moss, that is not the Association’s typical

practice, having never allowed such a consolidation in the past, and she has no authority

to determine the property assessment for a parcel of property. Ms. Moss also testified that

the Fords’ property was “consistently overgrown,” which required the Association to file

a separate lawsuit to force Mr. Ford to mow the lawn. Ms. Moss explained that the

Association has a written delinquency policy indicating that the Association may suspend

privileges to owners who have failed to pay their assessments. According to Ms. Moss,

the suspension of privileges occurs frequently throughout the neighborhood and the

Association has previously gone to great lengths to collect unpaid assessments from other

owners.

The trial court issued an oral ruling at the conclusion of the proof, which ruling

was incorporated into the trial court’s May 9, 2016 final judgment. Therein, the trial court

noted that the case had “a very lengthy history” and that there was no dispute that the

Fords own one lot and sixty percent of a second contiguous lot or that all property in the

Southwind neighborhood is subject to the CCRs including Annual Assessments. The trial

court found that the CCRS provide that Annual Assessments were to “be assessed by

lot,” as defined by the “recorded subdivision plat.” Because the trial court concluded that

Mr. Ford owned 1.6 lots based upon the recorded subdivision plat, the trial court

determined that Mr. Ford was responsible for Annual Assessments on 1.6 Lot Shares. As

such, the trial court entered a total judgment against Mr. Ford for $7,166.06 for unpaid

assessments. In reaching this award, the trial court deducted Mr. Ford’s uncredited

payment of $1,175.00 from the unpaid assessment on Lot 1, resulting in a net unpaid

assessment on Lot 1 of $2,226.74 In addition, the trial court ruled that Mr. Ford owed

$4,939.32 in unpaid assessments for Lot 2, which award included expenses charged by

the Association’s management company “for overtime hours associated with this case, a

cost of collection to the Association[.]”

The trial court also dismissed Mr. Ford’s counter-claims, finding that he failed to

meet his burden of proof. In the trial court’s ruling, it noted that the parties were “fairly

sophisticated and knowledgeable” and that the parties had “full knowledge of what was

being purchased.” In addition, the trial court noted that the property purchased was

“fairly expensive” leading the trial court to believe that Mr. Ford “had the wherewithal to

get counsel . . . if he had wanted to [] spell out what he felt his rights were and what his

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obligations would be.” The trial court also mentioned the long-standing nature of the

dispute and the fact that the dispute could have been resolved on multiple occasions as

early as 2010 at the property closing. Finally, the trial court awarded the Association

$66,892.25 in attorney’s fees, which represented the Association’s entire fee request less

the fees accrued when the Association filed an objection to a discovery request. The trial

court held that an award of attorney’s fees was specifically authorized by the CCRs and

that the large award was justified in this case in spite of the small amount of damages.

Mr. Ford filed a timely notice of appeal.

ISSUES PRESENTED

Mr. Ford raises four issues, which are taken and slightly restated from his brief:

1. Whether the trial court erred by finding that Mr. Ford failed to fully pay

association assessments to the Association.

2. Whether the trial court erred in dismissing Mr. Ford’s counter-claims.

3. Whether the trial court erred in its interpretation and application of

Articles III and IV of the CCRs by awarding attorney’s fees and costs

related to instances not specified in the CCRs.

4. Whether the trial court abused its discretion in awarding attorney’s fees

to the Association.

STANDARD OF REVIEW

In this appeal from a bench trial, we review the trial court’s findings of fact de

novo with a presumption of correctness, unless the evidence preponderates otherwise.

Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial

court’s conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d

681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). For

the evidence to preponderate against a trial court’s finding of fact, it must support another

finding of fact with greater convincing effect. 4215 Harding Road Homeowners Ass’n.

v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney Gilreath &

Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

DISCUSSION

I.

Mr. Ford first argues that the trial court erred in finding that Mr. Ford failed to pay

the full assessment owed by him. Mr. Ford does not suggest that he is not bound by the

assessment requirements of the CCRs or that he is not required to pay any assessment on

his property. Instead, he argues that the trial court erred in its calculation of the

assessment owed on Mr. Ford’s property. This issue requires that we interpret the CCRs

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and apply the calculation contained therein to Mr. Ford’s property. “It is well settled that

restrictive covenants are to be strictly construed, and, like other contracts, they will be

enforced according to the clearly expressed intention of the parties.” Baird v. Smith, No.

01-A-01-9003-CH00094, 1990 WL 192713, at *1 (Tenn. Ct. App. Dec. 5, 1990) (quoting

Benton v. Bush, 644 S.W.2d 690 (Tenn. Ct. App. 1982)). The construction of restrictive

covenants is therefore a question of law not entitled to a presumption of correctness on

appeal. Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 481 (Tenn. 2012). As

explained by this Court:

Because the instant case involves the interpretation of restrictive covenants,

we apply well-established rules of construction and law in order to construe

the terms of the covenants. Parks v. Richardson, 567 S.W.2d 465, 467

(Tenn. Ct. App. 1977). . . . Thus, if the “meaning of the covenant is

reasonable and unambiguous, there is no need to seek further clarification

outside its language.” Shea v. Sargent, 499 S.W.2d 871, 874 (Tenn. 1973).

If the language of the restrictive covenant is unambiguous, and its plain

meaning is fair and reasonable, then its terms may not be altered or varied

by parol evidence. Hicks, 978 S.W.2d at 547–48 (citations omitted).

However, if [parol evidence is] needed, then we would also interpret [the

covenants] in compliance with the well-established rules governing

interpretation of other written contracts, where the primary goal is to

ascertain the intention of the parties as expressed by the language of the

document itself. See Hicks v. Cox, 978 S.W.2d 544, 547 (Tenn. Ct. App.

1998). The words of a contract must be given their usual and ordinary

meaning. Hicks, 978 S.W.2d at 547 (citing Aldridge v. Morgan, 912

S.W.2d 151, 153 (Tenn. Ct. App. 1995); Rainey v. Stansell, 836 S.W.2d

117, 119 (Tenn. Ct. App. 1992)).

Grand Valley Lakes Prop. Owners Ass’n, Inc. v. Burrow, 376 S.W.3d 66, 78 (Tenn. Ct.

App. 2011). Because restrictive covenants “are in derogation of the right to free use and

enjoyment of property[,]” Tennessee Courts will resolve “[a]ny doubt concerning the

applicability of a restrictive covenant . . . against the restriction.” Hughes, 387 S.W.3d at

481 (Tenn. 2012) (citing Williams v. Fox, 219 S.W.3d 319, 324 (Tenn. 2007); Massey v.

R.W. Graf, Inc., 277 S.W.3d 902, 908 (Tenn. Ct. App. 2008)). “When the terms of a

covenant may be construed in more than one way, courts must resolve any ambiguity

against the party seeking to enforce the restriction and in a manner which advances the

unrestricted use of the property.” Id. (citing Williams, 219 S.W.3d at 324).

Accordingly, we first consider the language of the CCRs. According to Article

IV, Section 4.3 of the CCRs: “Each Member by acceptance of a deed or other

conveyance to Member’s Property, whether or not it shall be so expressed in any such

deed or other conveyance, shall be deemed to covenant and agree to pay [the

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Association] the Annual Charges.” In turn, Article III, Section 3.2 of the 1995

Amendment to the CCRs provides:

For the purpose of providing funds for use as specified in Article V hereof,

the Board shall, in each calendar year commencing with the year 1995,

assess against the Assessable Property the Annual Charges (as hereinafter

defined) to meet its annual expenses which shall be estimated by the Board

(Estimated Annual Expenses) in order to bill the Members in a timely

fashion.

The Board shall separately assess each Parcel as provided herein, and each

such Parcel shall be charged with and subject to a lien for the amount of

such separate assessment which shall be deemed the “Annual Charge” with

respect to such Parcel.

Section 3.2 of the 1995 Amendment goes on to detail the specific calculation used in

computing an owner’s “annual charge” by taking into account the numbers of homes and

lots in the neighborhood and the estimated expenses of the Association to determine each

owner’s “Lot Share.” The calculation provides differing assessment calculations for

homes and lots and indicates that that each non-excluded lot pays a Lot Share “until

assessed as home.” Finally, the term “lot” is defined as “a lot in a recorded subdivision

plat (i.e., recorded prior to the recording of this Amendment) in the Southwind

Property[.]”

Thus, the CCRs make clear that assessments should be charged separately for

“each [p]arcel.” The term “parcel” however, is defined by the CCRs only as including

“Residential Parcel[s]” and offers no express clarification of whether contiguous tracts

made up of more than one originally platted lot should be assessed as a single parcel or as

multiple parcels.3 Mr. Ford argues that his property should be assessed as a single parcel

because it constitutes only a single “tract.” Indeed, there is no dispute that Mr. Ford’s

property constitutes a single tract as defined by the CCRs, which define a tract as “[a]

contiguous piece of property under one ownership.” The Association argues, however,

that the fact that Mr. Ford owns only a single tract is irrelevant because “the Amended

CCRs do not consider tracts when assessing property.”

Mr. Ford agrees that the Amended CCRs make no mention of tracts in the

calculation of the assessment. According to Mr. Ford, however, because the Amended

CCRs also provide no specific rules for the calculation of assessments on partial lots, the

Amended CCRs are rendered ambiguous and consideration of other sources to determine

this issue is necessary. Specifically, Mr. Ford asks this Court to consider the CCRs prior

3

“Residential Parcel” is defined as “[a]ny unit, lot, part, or parcel of Southwind Property

designed for a single family residence . . . regardless of whether a dwelling has or has not been

constructed on such lot.”

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to the 1995 Amendment, which provided that the annual charge was to be determined

based upon each parcel’s “Market Valuation.” In turn, “Market Valuation” was defined

as “the highest appraised or market value placed on a particular Parcel or Tract of

Southwind Property, including land and improvements.” (Emphasis added). Thus, Mr.

Ford argues that the original CCRs contemplated that Annual Assessments were to be

calculated based upon the number of tracts owned. Because there is no dispute that Mr.

Ford owns only a single “tract,” as that term is defined in the CCRs, Mr. Ford contends

he owes an Annual Assessment for only a single parcel or Lot Share.

Respectfully, we cannot agree with Mr. Ford’s interpretation of the Amended

CCRs. Here, as previously discussed, there is no dispute that the CCRs as amended in

1995 are applicable in this case. Accordingly, we apply the plain language of the

Amended CCRs unless an ambiguity requires that we consider parole evidence, such as

the CCRs as they existed prior to the 1995 Amendment. See Grand Valley Lakes, 376

S.W.3d at 78. In making this determination, we keep the following principles in mind:

All clauses and provisions of the contract should, if possible, be so

construed as to harmonize with one another, and all the language of a

contract should be construed so as to subserve, and not subvert, the general

intention of the parties. The whole agreement should, if possible, be

construed so as to conform to an evident consistent purpose.

State ex rel. Neff v. Cotton Belt Ins. Co., No. 87-101-II, 1987 WL 28386, at *6 (Tenn.

Ct. App. Dec. 23, 1987).

We agree with Mr. Ford that the calculation of Annual Assessments under the

Amended CCRs is not a model of clarity. From our review, however, the plain language

of the Amended CCRs as a whole clearly evinces an intention to utilize lots, rather than

tracts, in determining a property owner’s parcel for purposes of the Annual Assessment.

First, we note that the term “Residential Parcel,” as defined by the CCRs, expressly

includes “lot[s],” rather than tracts. Indeed, a clear intention to utilize lots rather than

tracts in the calculation of Annual Assessments is manifest throughout the Amended

CCRs. As previously discussed, the calculation provided by the 1995 Amendment

specifically determines a homeowner’s “Lot Share.” The Amended CCRs later explain

that the “Annual Charge for each Lot shall be a Lot Share.” (Emphasis added).

Moreover, when discussing the timeline for payment of the Annual Assessment, the

Amended CCRs specifically state that “[t]he Annual charge for each Lot shall first

become due upon the earlier of” several contingencies. (Emphasis added). Additionally,

the 1995 Amendment includes a specific definition of the term “lot,” mandating that a lot

be determined by a previously recorded subdivision plat. In contrast, the term “tract” is

simply not mentioned in the discussion of the Annual Assessment in the Amended CCRs.

Clearly, then, the CCRs contemplate that the Annual Assessment will be calculated based

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upon the lot or lots owned by the property owner, rather than the number of contiguous

tracts.

Given this clear intention, we cannot agree with Mr. Ford’s contention that we

must instead utilize specifically superseded language from the original CCRs simply

because the Amended CCRs do not expressly address partial lots. As this Court has

stated, both “common sense and [the] probable intention of the parties are the guides to

the construction of a written instrument[.]” Taylor v. Universal Tire, Inc., 672 S.W.2d

775, 779 (Tenn. Ct. App. 1984) (citing Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 200

N.E.2d 248 (Mass. 1964)); see also Dattel Family Ltd. P’ship v. Wintz, 250 S.W.3d 883,

892 (Tenn. Ct. App. 2007) (holding that the court “is not required to check common

sense at the courthouse door”). Here, the Amended CCRs clearly state that Annual

Assessments are to be calculated based upon lots. Thus, common sense dictates that,

where a property owner’s “tract” includes land from more than one of the original lots as

defined by the recorded subdivision plat, the property owner’s Annual Assessment will

also be calculated based upon more than a single lot or Lot Share. Indeed, Mr. Ford

admits in his brief to this Court that the original CCRs prior to the 1995 Amendment

likewise fail to “define partial lots or provide a calculation for a ‘Partial Lot Share.’” As

such, Mr. Ford’s contention that we should look to the original CCRs to resolve this

dispute and hold that he should pay only the Annual Assessment for a single “tract” is

unavailing.

Based on the foregoing, we conclude that the trial court did not err in interpreting

the Amended CCRs as requiring that Mr. Ford’s Annual Assessment be determined based

upon the number of lots he owns. Mr. Ford admitted at trial that based on the previously

recorded subdivision plat applicable to this matter, he owns 100% of one lot, as well as

60% of a second lot. The trial court’s calculation of Mr. Ford’s assessment based upon

his ownership of 1.6 lots is, therefore, affirmed.

II.

Mr. Ford next argues that the trial court erred in dismissing his counter-claims. As

previously discussed, in his counter-complaint, Mr. Ford asserted claims of intentional

and negligent misrepresentation, as well as breach of contract. As an initial matter,

however, we must discuss the deficiencies in Mr. Ford’s brief. Pursuant to Rule 27 of the

Tennessee Rules of Appellate Procedure, all briefs filed by appellants must include:

An argument, which may be preceded by a summary of argument, setting

forth:

(A) the contentions of the appellant with respect to the issues presented,

and the reasons therefor, including the reasons why the contentions require

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appellate relief, with citations to the authorities and appropriate

references to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of review

(which may appear in the discussion of the issue or under a separate

heading placed before the discussion of the issues); . . . .

Tenn. R. App. P. 27(a)(7) (emphasis added). Based upon this rule, this Court has

repeatedly held that the failure to cite authority in support of arguments or “to construct

an argument regarding [a] position on appeal” constitutes a waiver of the issue on appeal.

Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006); see, e.g., Forbess

v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011); Hawkins v. Hart, 86 S.W.3d

522, 531 (Tenn. Ct. App. 2001); Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App.

2000). In addition, “where a party . . . merely constructs a skeletal argument, the issue is

waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615

(Tenn. 2010).

This section of Mr. Ford’s brief contains the required statement regarding the

purported standard of review applicable here, citing Konvalinka v. Chattanooga-

Hamilton County Hospital Authority, 249 S.W.3d 346 (Tenn. 2008). The cited portion

of Konvalinka concerns the abuse of discretion standard applicable in reviewing findings

of civil contempt. Id. at 358. Fortunately for Mr. Ford, the stringent abuse of discretion

standard is simply not applicable to the trial court’s finding that Mr. Ford failed to meet

his burden on his various counter-claims. Instead, as previously discussed, the trial

court’s ruling is reviewed de novo with a presumption of correctness for the trial court’s

findings of fact. See Tenn. R. App. P. 13(d).

Unfortunately for Mr. Ford, however, this inapplicable standard of review is the

only authority cited in this portion of his appellate brief. Although Mr. Ford raised claims

in his counter-complaint regarding misrepresentation, breach of contract, and outrageous

conduct and asserts that the trial court erred in dismissing these claims, absolutely no

authority is cited in any form to support Mr. Ford’s argument that these claims were

improperly dismissed. Without citation to legal authority, these arguments are waived.

See Sneed, 301 S.W.3d at 615; Newcomb, 222 S.W.3d at 401.

Even assuming, arguendo, that these claims are not waived by Mr. Ford’s

complete failure to cite legal authority in support of his argument, we conclude that Mr.

Ford has not shown that the trial court erred in dismissing these claims as unsupported by

the evidence. For example, Mr. Ford’s misrepresentation claims rest on his assertion that

Ms. Moss informed him that after his purchase of the subject property, he would be able

to obtain permission for it to be assessed as a single lot. See Walker v. Sunrise Pontiac-

GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008) (requiring as an element of

intentional misrepresentation that the defendant made a false representation of existing or

past fact); Homestead Grp., LLC v. Bank of Tenn., 307 S.W.3d 746, 751 (Tenn. Ct.

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App. 2009) (requiring as an element of negligent misrepresentation that the defendant

supplied false information to the plaintiff). Ms. Moss, however, unequivocally denied

ever having made that assertion to Mr. Ford. Because of the starkly contradicting

testimony on this issue, the trial court was required to resolve the dispute based, at least

in part, on the relative credibility of the witnesses. This Court, however, “will not re-

evaluate a trial judge’s assessment of witness credibility absent clear and convincing

evidence to the contrary.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.

1999). Mr. Ford has simply not shown that the trial court erred in assessing the parties’

relative credibility on this issue or in dismissing his misrepresentation claims.

The same is true of Mr. Ford’s breach of contract claim. In his counter-complaint

and at trial, Mr. Ford asserted that the Association breached its contract with Mr. Ford by

denying him the benefits of membership allowed to other members, such as access to the

property through The Estates’ back gate. Again, no law is cited to support Mr. Ford’s

assertion that this restriction constituted a material breach of the parties’ contract.

Furthermore, Mr. Ford admitted at trial that the Association Bylaws allow the

Association to suspend the membership rights of any owners who have unpaid

assessments.4 Indeed, Ms. Moss testified that the membership rights of multiple owners

were restricted due to unpaid assessments and that Mr. Ford, while restricted in the

manner in which he could reach his property, was never denied access to his property.

Moreover, although Mr. Ford asserted at trial that a breach of contract occurred when the

Association required Mr. Ford to mow his unimproved lot, there can be no dispute that

the CCRs clearly provide that parcels and their improvements be kept in good repair,

including “mowing of all lawns,” without exception for unimproved parcels. Under these

circumstances, and given the lack of legal authority cited on this issue, we likewise

conclude that the trial court did not err in dismissing Mr. Ford’s breach of contract claim.

Finally, we note that although they were not designated as counter-claims in his

counter-complaint, Mr. Ford argues that the trial court erred in dismissing his claim that

the Association was guilty of unclean hands and that he had paid his debt through accord

and satisfaction. Instead, both arguments were presented by Mr. Ford as defenses to the

Association’s collection efforts. Again, no law is cited in Mr. Ford’s brief to support

either argument. Given the fact that Mr. Ford confined his issue on appeal to the

dismissal of his counter-claims and no legal authority is cited to support Mr. Ford’s

arguments on these defenses, we will not address these arguments in this appeal.

III.

4

Mr. Ford’s testimony indicated that he did not believe that the 2009 Association Bylaws were

applicable to him, despite having been adopted prior to his purchase of the subject property. Mr. Ford

does not raise this argument on appeal; in fact, Mr. Ford does not mention the Association Bylaws in this

portion of his appellate brief.

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Mr. Ford finally argues that the trial court erred in awarding the Association

attorney’s fees and costs, arguing both that the award of attorney’s fees and costs was not

authorized by the CCRs and that the award was excessive. We begin first by addressing

whether the attorney’s fees and costs awarded in this case were authorized by the CCRs,

which provide in relevant part: “Each such assessment, together with interest and costs of

collection, including reasonable attorney’s fees, shall be a personal obligation of the

person who was the owner of such Member’s Property at the time when the assessment

fell due.” “Though normally review of an award of attorney’s fees is subject to an abuse

of discretion standard,” where the parties dispute the trial court’s “interpretation and

application of a contractual provision allowing for attorney’s fees[,]” our review is de

novo. Clark v. Rhea, No. M2002-02717-COA-R3-CV, 2004 WL 63476, at *2 (Tenn. Ct.

App. Jan. 13, 2004).

Mr. Ford argues that the attorney’s fees incurred in this case are not properly

categorized as “costs of collection,” because the fees awarded by the trial court include

fees incurred in the defense of two separate lawsuits, “[n]either [of which] involves the

collections of assessments, nor [are] reasonably related to the collection of assessments in

the present action.” Typically, we would agree with Mr. Ford that costs incurred in

separate litigation not related to this collection action cannot be categorized as costs of

collection for purposes of the CCRs. Here, however, Mr. Ford failed to preserve any

objection to specific charges included in the attorney’s fee award.

As previously discussed, during trial, counsel for the Association attempted to

introduce invoices showing the Association’s $68,018.75 legal bill into evidence.

Counsel for Mr. Ford properly objected, noting that he had not been given sufficient time

to review the invoices. The trial court appropriately allowed Mr. Ford’s counsel an

opportunity to review the bills. Although Mr. Ford asserts that the bills were later entered

“[o]ver the continued objections” of Mr. Ford, we respectfully cannot agree with this

characterization. First, we note that Mr. Ford’s assertion that there was a continuing

objection to the invoices in his appellate brief is not supported by any citation to the

record. Rule 6 of the Rules of the Court of Appeals of Tennessee specifically provides

that:

Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action of the trial

court which raises the issue and a statement by the appellee of any action of

the trial court which is relied upon to correct the alleged error, with citation

to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to

the attention of the trial judge with citation to that part of the record where

appellant’s challenge of the alleged error is recorded.

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(3) A statement reciting wherein appellant was prejudiced by such alleged

error, with citations to the record showing where the resultant prejudice is

recorded.

(4) A statement of each determinative fact relied upon with citation to the

record where evidence of each such fact may be found.

R. Tenn. Ct. App. 6(a). Clearly, Mr. Ford failed to comply with Rule 6 in asserting that a

continuing objection was made without providing this Court “with citation to the record

where the erroneous or corrective action is recorded.” Id.

Our review of the record reveals that no such continuing objection was ever made

to the invoices. It appears from the record that counsel for Mr. Ford indeed objected to

the invoices when they were first introduced. After the recess to allow counsel time to

review the documents, however, the following exchange took place:

THE COURT: . . . First of all, have you had a chance to look at that

[Counsel], not as thoroughly as you’d like to, but did you have a chance to

review it?

[Mr. Ford’s Counsel]: I think Your Honor stated it exactly correct. For the

record, I have not had a chance to review it like I would have normally

reviewed it in the file, but I have reviewed it.

When the witness was subsequently asked about the total amount of attorney’s fees

incurred by the Association, counsel for Mr. Ford did not object to the $68,018.75 figure

reflected in the invoices, despite his argument now that that amount was inflated by fees

associated with other lawsuits. Indeed, at no point during the trial did Mr. Ford or his

counsel assert that certain of the invoices were not properly included in the costs

associated with this action. Where this issue was never called to the trial court’s attention

through a proper contemporaneous objection, we will generally not find error in the trial

court’s failure to separate the charges. See Watson v. City of Jackson, No. W2013-

01364-COA-R3-CV, 2014 WL 4202466, at *5 (Tenn. Ct. App. Aug. 26, 2014) (“It is

well-settled that the failure to raise a contemporaneous objection to the admission of

evidence at the time the evidence is introduced at trial results in waiver of the particular

issue on appeal.”) (quoting McGarity v. Jerrolds, 429 S.W.3d 562, 567 (Tenn. Ct. App.

2013)). Rather, “[a] party . . . who fails to take reasonable steps to cure an error[] is not

entitled to relief on appeal.” Watson, 2014 WL 4202466, at *5 (quoting State Dept. of

Children’s Servs. v. V.N., 279 S.W.3d 306, 319 (Tenn. Ct. App. 2008)).

Because of Mr. Ford’s lack of objection to specific invoices, even he admits in his

brief to this Court that “[i]t may be that this Court does not have an adequate record

before it to find one way or the other” whether the attorney’s fees awarded include work

done on separate matters. Indeed, even if Mr. Ford’s failure to make specific objections at

trial was excused by the fact that the invoices were not provided to Mr. Ford in a timely

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manner, there is simply no justification for Mr. Ford’s failure once again to point out the

specific charges that are not attributable to the underlying litigation. Instead, Mr. Ford

points to only a single invoice as likely unrelated to the subject litigation. Respectfully,

“‘judges are not like pigs, hunting for truffles’ that may be buried in the record, . . . or,

for that matter, in the parties’ briefs on appeal.” Cartwright v. Jackson Capital Partners,

Ltd. P’ship, 478 S.W.3d 596, 616 (Tenn. Ct. App. 2015), perm. app. denied (Tenn. Oct.

16, 2015) (quoting Flowers v. Bd. of Professional Responsibility, 314 S.W.3d 882, 899

n.35 (Tenn. 2010)) (citation omitted). The incubus therefore does not rest on this Court to

comb through the seventy pages of invoices to delineate between charges that were

properly included in this matter and those that were not. Given Mr. Ford’s failure to

timely and properly raise this issue at trial, as well as his failure to delineate which of the

“numerous entries . . . address matters outside the purview of this collections case,” we

conclude that Mr. Ford cannot now argue that improper charges were included in the trial

court’s award.

Mr. Ford also argues that the trial court erred in awarding the Association

$2,500.00 in overtime and other expenses that the Association asserted it was required to

incur to prosecute this action. As previously discussed, Ms. Moss testified at trial that the

Association incurred considerable expenses beyond the Association’s normal operating

costs because of the time Ms. Moss and her employer were required to expend on this

case. Again, Mr. Ford did not object to either the testimony from Ms. Moss on this

subject or the invoices presented as evidence of the charges. Moreover, Mr. Ford cites no

law suggesting that costs incurred by a management company in the prosecution of a

homeowner’s association’s lawsuit for homeowner’s dues do not constitute costs of

collection. Under the particular circumstances of this case, we decline to rule that the trial

court erred in awarding the Association $2,500.00 in costs incurred in prosecuting this

action.

Mr. Ford next argues that the trial court erred in awarding the Association

$66,892.25 in attorney’s fees because this amount is unreasonable under the

circumstances. Where a contract provides for attorney’s fees, “the amount of the fee must

be reasonable, even if the contract does not so require.” First Peoples Bank of Tenn. v.

Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010) (citing Jerry T. Beech Concrete

Contractor, Inc. v. Larry Powell Builders, Inc., No. M2001-02709-COA-R3-CV, 2003

WL 726955 at *3 (Tenn. Ct. App. Mar. 4, 2003)). The trial court is therefore entitled to

exercise its discretion in determining the amount of attorney’s fees to award. Shamblin v.

Sylvester, 304 S.W.3d 320, 331 (Tenn. Ct. App. 2009); Chaffin v. Ellis, 211 S.W.3d 264,

291 (Tenn. Ct. App. 2006); Killingsworth v. Ted Russell Ford, Inc., 104 S.W.3d 530

(Tenn. Ct. App. 2002); Fell v. Rambo, 36 S.W.3d 837 (Tenn. Ct. App. 2000).

Rule 1.5 of the Rules of Professional Conduct outlines the appropriate

considerations for determining the reasonableness of an attorney fee award. These

considerations include:

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(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services;

(8) whether the fee is fixed or contingent;

(9) prior advertisements or statements by the lawyer with respect to the fees

the lawyer charges; and

(10) whether the fee agreement is in writing.

Tenn. Sup. Ct. R. 8, RPC 1.5.

Mr. Ford argues on appeal that the trial court erred in failing to consider the above

factors in awarding the Association more than $60,000.00 in attorney’s fees. Here, the

trial court did make some findings that are relevant to the attorney’s fees award,

including the long duration of the dispute between the parties and the parties’ relative

sophistication. The Association argues that these findings, coupled with Mr. Ford’s

contumacious conduct throughout the proceedings, justify the award in this case.

Respectfully, we cannot agree.

From our review, the trial court’s ruling makes no mention of many of the factors

outlined under Rule 1.5. While the trial court’s order states that the trial court “is aware”

of the “amount involved” in this case, the trial court provides no specific explanation for

the large attorney’s fee award relative to the small recovery by the Association in this

case. Tenn. Sup. Ct. R. 8, RPC 1.5(4). Additionally, although the invoices contained in

the record on appeal reflect charges up to $300.00 per hour, the trial court made no

finding as to “the fee customarily charged in the locality for similar legal services[.]”

Tenn. Sup. Ct. R. 8, RPC 1.5(3). Most importantly, neither the trial court’s oral ruling,

nor its written order, contains any finding that the award is reasonable under the

circumstances. As we have explained:

When the trial court has exercised its discretion in light of the appropriate

factors and found the fee to be reasonable, we simply review for abuse of

discretion. . . . Where, however, there is no finding that the fee is

reasonable, and no way to ascertain whether the court made the award in

light of the appropriate factors, there is no way for us to accord the normal

deference to the trial court.

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First Peoples Bank, 340 S.W.3d at 410. Where this Court is unable to discern whether

the trial court actually evaluated the amount of the fee to see if it is reasonable in light of

the appropriate factors, the correct approach is to vacate the award and “remand [the]

case to the trial court for a new determination of an attorney’s fee award under [Supreme

Court Rule 8, RPC 1.8] and the applicable case law.” Ferguson Harbour Inc. v. Flash

Market, Inc., 124 S.W.3d 541, 553 (Tenn. Ct. App. 2003). Because the trial court’s oral

and written rulings provide this Court with no illumination as to whether it considered the

reasonableness of the requested fee in light of the factors outlined in Rule 1.5, we must

likewise vacate and remand this case with instructions to consider the reasonableness of

the fee awarded under the circumstances of this case and the applicable factors.

CONCLUSION

The judgment of the Circuit Court of Shelby County is affirmed in part, vacated in

part, and remanded to the trial court solely to determine whether the $66,892.25

attorney’s fee award is reasonable in light of the appropriate factors. Costs of this appeal

are taxed one-half to Appellant Kelvin Ford, and his surety, and one-half to Appellee

Southwind Residential Properties Association, Inc., for all of which execution may issue

if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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