Anthony Walker v. Rivertrail Crossing Homeowner's Association, Inc.

03/23/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 9, 2021 Session

ANTHONY WALKER ET AL. v. RIVERTRAIL CROSSING

HOMEOWNER’S ASSOCIATION INC. ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-1718-19 Rhynette N. Hurd, Judge

___________________________________

No. W2020-01201-COA-R3-CV

___________________________________

This is a premises liability case arising from injuries sustained by Appellant Anthony

Walker when he attempted to mow a section of ground within the common area controlled

by Appellee, Rivertrail Crossing Homeowner’s Association. The trial court granted

Appellee’s motion for summary judgment. Discerning no error, we affirm

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Jefferson D. Gilder, Southaven, Mississippi, for the appellants, Anthony Walker and

Cynthia Walker.

Todd B. Murrah and Lewis W. Lyons, Memphis, Tennessee, for the appellee, Rivertrail

Crossing Homeowner’s Association, Inc.

Christopher L. Vescovo and Justin N. Joy, Memphis, Tennessee, for the appellee, State

Farm Fire & Casualty Company.

Dawn Davis Carson, Hal S. Spragins, Jr., and Dylan J. Gillespie, Memphis, Tennessee, for

the appellee, American National Property & Casualty Company.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

In 2000, Anthony Walker and his wife, Cynthia Walker (together, “Appellants”),

purchased a home in the Rivertrail Crossing Subdivision and became members of the

Rivertrail Crossing Homeowner’s Association (“Rivertrail”). The Walkers’ lot abutted a

common area, which contained a retaining wall marking the edge of the Rivertrail property.

On April 7, 2018, Mr. Walker complained to a member of the Rivertrail Board that

a section of ground ivy, which was located in the common area near the Walkers’ property

line, was “snaky” and an eyesore.1 The member advised Mr. Walker to submit his concerns

to the Rivertrail Board in writing because changing the ground cover was a landscaping

issue, which would require the Board’s approval. There is no evidence that Mr. Walker

submitted his concern to the Board. Furthermore, pursuant to Rivertrail’s Declaration of

Covenants, Conditions, and Restrictions (“CCR”), the common area was to “remain in its

natural state, except those areas which have been landscaped,” and “clearing, digging,

planting, or alteration of any kind” in the common area is prohibited absent written consent

of Rivertrail, see further discussion infra. There is no evidence that Mr. Walker obtained

such written consent.

As set out in Appellants’ complaint filed in the Shelby County Circuit Court (“trial

court”), on April 21, 2018, Mr. Walker undertook to cut the ground ivy located in the

common area adjacent to his lot and the railroad-crosstie, retaining wall. Appellants

averred that

[a]s [Mr. Walker] was cutting beside the railroad ties, his [riding] lawnmower

fell into a trough that was covered by the ivy, which could not be seen. The

lawnmower jolted over and threw [Mr. Walker] onto his driveway feet

below.

Appellants asserted that, “[a]s a result of this incident, [Mr. Walker] [suffered] a spiral

fracture of his left femur and a compression fracture of a vertebrae in his back.” Based on

the foregoing, the Walkers averred that Rivertrail negligently maintained the common area

causing Mr. Walker’s injuries. Mrs. Walker sought recovery for loss of consortium.2

On June 3, 2019, the Walkers filed a Tennessee Rule of Civil Procedure Rule 26.03

motion for protective order,3 wherein they sought an order

1

A landscape expert explained that the ivy was actually vinca, a domestic groundcover that was

planted and is not native to the Greater Memphis area. He testified that vinca is very invasive if not

maintained. In the Rivertrail Board President’s deposition, he testified that the ivy was “ground cover”

located in a natural area and should have been left alone. Mr. Nelius, the owner and operator of Rivertrail’s

landscaping company, explained that the ivy was present for erosion control, for areas one does not want

to maintain or for areas that lack sun.

2

The Walkers’ claims against two other defendants, Keith S. Collins Co, LLC, and Patrick Nelius

d/b/a Solo Landscape, were dismissed with prejudice.

3

Rule 26.03 provides:

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[t]hat all records and the medical information contained in the records

produced regarding plaintiffs should remain confidential and only be

distributed, viewed or utilized by those persons, witnesses or entities

involved in this litigation on a need[-]to[-]know basis, who are to agree to

keep the records and the information contained in the records confidential.

They will sign a receipt and acknowledgement of this protective order prior

to receiving the record or the medical information contained in the record.

...

All material subject to this order, all reproductions thereof and any computer

storage or data containing that information shall be destroyed and/or returned

to counsel for plaintiffs or the provider at the conclusion of this litigation[,]

with no records retained.

In response to the motion for protective order, American National Property & Casualty Co.

(ANPAC) and State Farm Fire & Casualty Co. (“State Farm,” and together with Rivertrail

and ANPAC, “Appellees”) moved to intervene in the lawsuit for the limited purpose of

defending against the Walkers’ motion for protective order;4 the trial court granted State

Farm and ANPAC’s motion in July 2019. Thereafter, by order of October 1, 2019, the trial

court denied the Walkers’ motion for protective order, reasoning that the grant of the order

“would not provide any benefit to the [Walkers] that is not already provided by . . . the

Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Gramm-

Leach-Bliley Act.”

On April 30, 2020, Rivertrail filed a motion for summary judgment. Rivertrail

argued that: (1) it owed no duty to the Walkers because Mr. Walker was not permitted to

operate a lawnmower on Rivertrail’s common-area without first obtaining Rivertrail’s

Upon motion by a party or by the person from whom discovery is sought, and for good

cause shown, the court in which the action is pending may make any order which justice

requires to protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense, including one or more of the following:

(1) that the discovery not be had; (2) that the discovery may be had only on specified terms

and conditions. . . ; (3) that the discovery may be had only by a method of discovery other

than that selected by the party seeking discovery; (4) that certain matters not be inquired

into, or that the scope of the discovery be limited to certain matters; (5) that discovery be

conducted with no one present except persons designated by the court. . . .

Tenn. R. Civ. P. 26.03.

4

ANPAC is Mr. Nelius’ insurer. State Farm insures both Rivertrail and Keith S. Collins Co., LLC.

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consent; and (2) in the alternative, Rivertrail lacked actual or constructive knowledge of

the area of uneven ground. The Walkers filed a response in opposition to Rivertrail’s

motion for summary judgment, which was heard on June 26, 2020. By order of August

10, 2020, the trial court granted Rivertrail’s motion for summary judgment, finding that:

1. [Appellants] are required to establish that Rivertrail HOA had

knowledge of the area of uneven ground prior to Mr. Walker’s incident. It is

undisputed that no party had actual knowledge of the uneven ground, and

there is no evidence establishing when the ground first became uneven from

which Rivertrail HOA could be charged with constructive knowledge.

2. Rivertrail HOA has sufficiently demonstrated that Mr. Walker was

operating his lawnmower on common area property without the consent of

Rivertrail at the time of injury.

3. Therefore, Rivertrail HOA has affirmatively negated the issues of

duty and knowledge of an alleged dangerous condition, essential elements of

[Appellants’] claim, and is entitled to judgment as a matter of law.

The Walkers appeal.

II. ISSUES

All parties have presented issues for review. After reviewing the parties’ respective

arguments, we perceive that there are two dispositive issues, which we state as follows:

1. Whether the trial court erred in granting Rivertrail’s motion for summary judgment.

2. Whether the trial court abused its discretion in denying the Walkers’ motion for

protective order.

III. STANDARD OF REVIEW

Summary judgment “is appropriate when no genuine issues of material fact exist,

and the movant meets its burden of proving that it is entitled to a judgment as a matter of

law.” Tenn. R. Civ. P. 56.04; Bryant v. Bryant, 522 S.W.3d 392, 399 (Tenn. 2017). To

prevail on a motion for summary judgment, the moving party must either “(1) [s]ubmit[]

affirmative evidence that negates an essential element of the nonmoving party’s claim or

(2) [d]emonstrate[] to the court that the nonmoving party’s evidence is insufficient to

establish an essential element of the nonmoving party’s claim.” Tenn. Code Ann. § 20-16-

101. If the moving party meets this burden, the burden of production then shifts to the

nonmoving party, who must, if he or she is to survive summary judgment, “demonstrate

the existence of specific facts in the record which could lead a rational trier of fact to find

in favor of the nonmoving party.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477

S.W.3d 235, 265 (Tenn. 2015). Because the decision to grant a summary judgment motion

is question of law, summary judgments enjoy no presumption of correctness on appeal.

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TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019). Accordingly,

we must make a fresh determination that the requirements of Rule 56 of the Tennessee

Rules of Civil Procedure have been satisfied. Rye, 477 S.W.3d at 250. We must consider

the evidence in the light most favorable to the non-moving party, and we must resolve all

inferences in the non-moving party’s favor. Perkins v. Metro. Gov’t of Nashville, 380

S.W.3d 73, 80 (Tenn. 2012).

IV. ANALYSIS

In a cause of action for negligence, a plaintiff must establish five elements: (1) a

duty of care owed by the defendant to the plaintiff; (2) breach by the defendant of that duty

of care; (3) injury or loss; (4) cause in fact; and (5) proximate or legal cause. King v.

Anderson Cty., 419 S.W.3d 232, 246 (Tenn. 2013). Here, the Walkers’ lawsuit sounds in

premises liability. A landowner’s duty “includes the responsibility to remove or warn

against latent or hidden dangerous conditions on the premises of which one was aware or

should have been aware through the exercise of reasonable diligence.” Rice v. Sabir, 979

S.W.2d 305, 308 (Tenn. 1998). Therefore, in addition to the ordinary elements of

negligence, a plaintiff in a premises liability action must also prove that the dangerous

condition that caused the plaintiff’s injury was either “caused or created by the [property]

owner, operator, or his agent” or that “the owner or operator had actual or constructive

notice that the condition existed prior to the accident.” Parker v. Holiday Hosp.

Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (quotation omitted). As set out

above, the trial court granted Rivertrail’s motion for summary judgment on its finding that

Rivertrail negated the prima facie elements of notice and duty.

A. Notice / Actual or Constructive Knowledge

In its motion for summary judgment, Rivertrail argues that: (1) it did not create the

condition complained of by Appellants; (2) it lacked actual knowledge of the defective

condition; and (3) “[t]here is no evidence concerning the date of the erosion along the

retaining wall from which to charge Rivertrail with constructive knowledge of the

condition.” Thus, Rivertrail asserts that “there is no evidence that it had actual or

constructive knowledge of the alleged dangerous condition prior to [Mr. Walker’s injury

on] April 21, 2018.” Appellants, on the other hand, argue that “[t]here are multiple

questions of fact precluding summary judgment on the basis of insufficient notice since

there are questions about whether Rivertrail caused the trough and for it to be hidden and

as to whether Rivertrail had actual knowledge and constructive knowledge.”

Despite Appellants’ assertion that there are questions regarding whether Rivertrail

had actual knowledge of the uneven condition of the ground where Mr. Walker was injured,

our review of the record reveals that this fact was not disputed. In number 18 of Rivertrail’s

Statement of Undisputed Material Facts, which accompanied its Motion for Summary

Judgment, Rivertrail stated: “Rivertrail HOA was unaware that the ground was not level in

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the common area alongside the retaining wall adjacent to [the Walkers’] property.”

(Citations to the record omitted). Appellants’ complete response to number 18 was:

“Disputed.” Rule 56.03 of the Tennessee Rules of Civil Procedure requires that “[e]ach

disputed fact . . . be supported by specific citation to the record,” Tenn. R. Civ. P. 56.03,

yet Appellants cited no facts in the record to support their response. A party “may not rest

upon the mere allegations or denials of the adverse party’s pleading, but his or her response,

by affidavits or as otherwise provided in this rule, must set forth specific facts showing that

there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06. As this Court has explained:

Merely informing the trial court that the record demonstrates disputed facts,

without specifically addressing those facts in the response and specifically

citing to portions of the record evidencing dispute, does not satisfy Rule 56.

Any fact not specifically disputed with citations to the record to support the

alleged dispute may be deemed admitted.

Duncan v. Lloyd, No. M2004-01054-COA-R3-CV, 2005 WL 1996624, at *5 (Tenn. Ct.

App. Aug. 18, 2005); Kidd v. Dickerson, No. M2018-01133-COA-R3-CV, 2020 WL

5912808, at *11 (Tenn. Ct. App. Oct. 5, 2020), perm. app. denied (Tenn. Feb. 4, 2021).

By merely replying that fact 18 was disputed, Appellants failed to comply with Rules 56.03

and 56.06. In other words, Appellants’ bare assertion that fact 18 was “disputed” is

insufficient to create a dispute of material fact. Accordingly, Rivertrail’s statement that it

“was unaware that the ground was not level in the common area” is admitted, see White v.

Bradley Cty. Gov’t, ––S.W.3d—, No. E2020-00798-COA-R3-CV, 2021 WL 2430814, at

*6 (Tenn. Ct. App. June 15, 2021), perm. app. denied (Tenn. Oct. 13, 2021), and Rivertrail

cannot be charged with actual notice.

Concerning whether Rivertrail may be charged with constructive knowledge of the

defective condition, we first note that constructive knowledge is “information or

knowledge of a fact imputed by law to a person (although he may not actually have it)

because he could have discovered the fact by proper diligence, and his situation was such

as to cast upon him the duty of inquiring into it.” Parker, 446 S.W.3d at 351 (quotation

omitted). In a premises liability action, “[c]onstructive notice may be established by

showing that a dangerous or defective condition existed for such a length of time that a

property owner, in the exercise of reasonable care, should have become aware of it.” Id.

Rivertrail argues:

The record contains no evidence from which to determine the length of time

that the ground was uneven alongside the retaining wall. Likewise, there is

no evidence suggesting that the ground was level at any time prior to April

21, 2018. Appellants did not inspect the area, and [Rivertrail’s landscaping

company] did not perform work in the area near the retaining wall.

...

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[T]here is no evidence from which a jury could reasonably conclude

the length of time that the ground was uneven.

In response, Appellants offered the affidavit of Carman Scruggs, who has been a landscape

contractor for more than 40 years.5 Although Mr. Scruggs opined that the erosion likely

would have been apparent to any person maintaining the ivy in the common area, he did

not offer any estimate concerning how long the uneven ground may have existed. Indeed,

Appellants have not identified any facts in the record that would aid a jury in determining

how long the ground along the retaining wall was uneven. Consequently, there is no factual

basis on which to conclude that Rivertrail had sufficient opportunity to discover and correct

the uneven ground. “When there is a complete absence of proof as to when and how the

dangerous condition came about, it would be improper to permit the jury to speculate on

these vital elements.” Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273 (Tenn. Ct. App.

1987). Therefore, we conclude that Rivertrail effectively negated the element of

constructive notice.

B. Duty

The trial court held that Rivertrail negated the prima facie element of duty because

it “sufficiently demonstrated that Mr. Walker was operating his riding lawnmower on

common area property without the consent of Rivertrail HOA at the time of injury.”

“Owners and occupiers of business premises have a duty to maintain their premises in a

safe manner only in areas where customers or the public will foreseeably be present.”

Plunk v. Nat’l Health Inv’rs, Inc., 92 S.W.3d 409, 414 (Tenn. Ct. App. 2002) (collecting

cases) (emphasis added). “Conversely, the law will not impose a duty on property owners

and businesses to use care to maintain places where it is not reasonably foreseeable that

customers or the public will be present.” Id. Here, Rivertrail argues that Mr. Walker was

injured when he “engaged in forbidden conduct on real property owned by Rivertrail”; as

such, Rivertrail asserts that it had no duty to Mr. Walker because his injuries were not

foreseeable. Appellants counter that “there are multiple questions of fact precluding

summary judgment on the basis of whether Mr. Walker was acting outside the covenants

by being on his mower on the common area when he was thrown from it while backing up

with the blades not engaged.”

The parties’ arguments concern the interpretation of the CCR and specifically

“whether Mr. Walker was acting outside the covenants.” The interpretation of the CCR is

a question of law. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 465 (Tenn. 2012).

Furthermore, in interpreting covenants, conditions, and restrictions, we apply the rules of

construction that are applicable to contracts generally. Maples Homeowners Ass’n, Inc.

v. T & R Nashville Ltd. P’ship, 993 S.W.2d 36, 38–39 (Tenn. Ct. App. 1998). Thus, “[o]ur

5

Rivertrail notes that although Appellants characterized Mr. Scruggs as an expert, he “has not been

tendered as an expert witness in this matter.”

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central task . . . is to ascertain and to give effect to the intent of the contracting parties.”

Hughes, 387 S.W.3d at 465. To accomplish this, “[w]e give the terms used in restrictions

their fair and reasonable meaning, . . . decline to extend them beyond their clearly

expressed scope[, and] . . . construe [them] in light of the context in which they appear.”

Maples Homeowners Ass’n., 993 S.W.2d at 39 (citations omitted). “All doubts concerning

a covenant’s applicability should be resolved against the covenant.” Richards v.

Abbottsford Homeowners Ass’n, 809 S.W.2d 193, 195 (Tenn. Ct. App. 1990). Because

contract interpretation is a question of law, our review is de novo. Hughes, 387 S.W.3d at

465.

As noted above, the CCR provides that the common area shall “remain in its natural

state, except those areas which have been landscaped,” and “clearing, digging, planting, or

alteration of any kind” in the common area is prohibited absent written consent of

Rivertrail. The CCR further provides:

Owners’ Easements of Enjoyment. Every Owner shall have a right and

easement of enjoyment in and to the Common Area, and such easement shall

be appurtenant to and shall pass with the title to every assessed Lot, subject

to the following provisions:

...

Common Area. The Association shall provide all maintenance, upkeep and

landscaping control for the Common Area.

...

Within Common Area. The Common Area shall be landscaped by berms,

fences, plantings and the like and no Owner of any Lot in the Property shall

at any time disturb same without first obtaining the approval of the

Architectural Committee subject to the provision of the following paragraph.

The Association shall be responsible for maintaining all landscaping and

fencing installed by the Association or the Declarant within the Common

Area in a neat, attractive and safe condition and appearance.

In their response to Rivertrail’s Statement of Undisputed Material Facts, Appellants

outline their interpretation of the relevant CCR provisions, to-wit:

[W]ritten consent deals with areas that have not been landscaped, which

would not include this area since it involves landscape plantings. Article VII

(1.) of the Rivertrail Covenants states as follows:

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The common areas shall remain in their natural state, except

those areas which have been landscaped. No clearing, digging,

planting or alteration of any kind shall be done without written

consent from the association.

...

[T]here is no requirement for written approval in Article X, the architectural

committee no longer exists and there is no provision for the approval in the

following paragraph. Article X Non-Disturbance and Maintenance of Trees

and Landscaping Section 2. Provides:

Within Common Area. The Common Area shall be landscaped

by berms, fences, plantings and the like and no Owner of any

Lot in the Property shall at any time disturb same without first

obtaining the approval of the Architectural Committee subject

to the provision of the following paragraph. The Association

shall be responsible for maintaining all landscaping and

fencing installed by the Association or the Declarant within the

Common Area in a neat, attractive and safe condition and

appearance.

Based on the foregoing responses, Appellants make two arguments to support their

contention that Mr. Walker was not, in fact, outside the CCR covenants when he operated

his riding mower in the common area. First, Appellants contend that the CCR requires

prior approval only for interference with portions of the common area that remain in a

natural state. Appellants next contend that the CCR provisions regarding alterations to

landscaped portions of the common area are ambiguous insofar as these provisions fail to

specify the process by which a homeowner may procure Rivertrail’s approval.

We begin with Appellant’s first argument, i.e., “written consent deals with areas

that have not been landscaped, which would not include [the common] area since it

involves landscape plantings.” As set out in context above, the corresponding portion of

the CCR contains two sentences: (1) “The common areas shall remain in their natural state,

except those areas which have been landscaped”; and (2) “No clearing, digging, planting

or alteration of any kind shall be done without written consent from the association.”

Contrary to Appellants’ reading, the second sentence is absolute—i.e., no alterations “of

any kind” shall be done without the written consent of Rivertrail. The prohibition against

any kind of alteration to the common area makes no distinction between landscaped and

natural portions of same. Sentence one of this provision, which Appellants read to limit

the requirement of written consent to natural portions of the common area, is merely

declarative, i.e., the common area will remain in its natural state unless landscaped. The

CCR, however, clearly states that Rivertrail “shall provide . . . all landscaping . . . for the

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Common Area” (emphasis added). Thus, giving full force and effect to both sentences in

the disputed CCR provision and to the provision granting sole landscaping authority over

the common area to Rivertrail, it is clear that the intent of the CCR is to limit alteration of

the common area to changes approved by Rivertrail either on its own motion or by written

consent to a homeowner. Maples Homeowners Ass’n, 993 S.W.2d at 39 (Covenants must

be “construe[d] in light of the context in which they appear.”); Buettner v. Buettner, 183

S.W.3d 354, 358 (Tenn. Ct. App. 2005) (citation omitted) (“The court must construe the

various provisions of a contract together, giving effect to each provision and seeking to

ascertain the intention of the parties based upon the usual, natural, and ordinary meaning

of the language they employed.”). Without such written consent, which Mr. Walker

undisputedly did not obtain, the CCR precluded him from making any alteration to any

portion of common area, whether such portion was landscaped or natural.

In Appellants’ second response, supra, they argue that because there is currently no

“Architectural Committee,” there is no mechanism for a homeowner to obtain the required

approval. This provision of the CCR again places sole landscaping authority with the

“association,” i.e., “The Association shall be responsible for maintaining all landscaping

. . . .” The provision also reiterates the requirement of pre-approval for any alteration to

the common area by a homeowner, to-wit: “no Owner of any Lot in the Property shall at

any time disturb [the common area] without first obtaining the approval of the Architectural

Committee.” While we concede that one may not obtain the consent of a committee that

does not exist, the overarching purpose of the disputed CCR provisions is to ensure that no

homeowner alters the common area without the consent and approval of Rivertrail. To this

end, and aside from the “Architectural Committee,” the CCR provides that a homeowner

may seek approval directly from the association, i.e., “No . . . alteration of any kind shall

be done without written consent from the association” (emphasis added). It is

disingenuous for Appellants to argue that the absence of an “Architectural Committee”

relieves a homeowner from obtaining approval for alterations to the common area when

the CCR clearly requires approval from the association. See generally Powell v. Clark,

487 S.W.3d 528, 536 (Tenn. Ct. App. 2015) (“[U]nder well-settled contract interpretation

principles, we must read this [contractual provision] in pari materia with the entire

agreement.”); accord Maples Homeowners Ass’n., 993 S.W.2d at 39; Buettner, 183

S.W.3d at 358. It was, therefore, incumbent on Mr. Walker to procure written approval

from Rivertrail before undertaking to alter the common area. In the absence of such

approval, it was not foreseeable that Mr. Walker would be in the area where his injuries

occurred. In the absence of foreseeability, Rivertrail owed no duty of care. See Plunk, 92

S.W.3d at 414.

C. Protective Order

Having affirmed the grant of summary judgment, no further discovery will ensue.

From the record, to date, the Walkers have neither produced any medical records nor signed

any HIPAA release. As such, we pretermit Appellants’ issue concerning the trial court’s

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denial of their motion for a protective order.

IV. CONCLUSION

We affirm the trial court’s grant of summary judgment in favor of Appellee. The

case is remanded for such further proceedings as may be necessary and are consistent with

this opinion. Costs of this appeal are assessed to the Appellants, Anthony and Cynthia

Walker, for all of which execution may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

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