                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    May 13, 2003 Session

     NEW COVENANT BAPTIST CHURCH v. PANTHER SARK, ET AL.

                      Appeal from the Chancery Court for Knox County
                     No. 140440-3   Thomas R. Frierson, II, Chancellor

                                     FILED JULY 8, 2003

                                No. E2002-02693-COA-R3-CV


The origin of this appeal was a suit for declaratory judgment filed by New Covenant Baptist Church
against Panther Sark, Carter Rome Eddleman Real Estate, LLC, Vincon, LLC, Subland, LLC, Rufus
H. Smith & Co., John T. Hart, and Koontz, Loy & Taylor, LLC, owners of property in the
Technology Park West Subdivision in Knox County. The suit sought a declaration that the
restrictive covenants applicable to the subdivision did not preclude the church from using it as an
entrance driveway to a new church the membership proposed to build on adjacent property. The
Trial Court found that such use would not be a violation of any restrictive covenant. This
determination was appealed and, by an opinion of this Court filed in Knoxville on February 28,
2002, we reversed the Trial Court’s determination and held the lot owned by New Covenant could
not be used in such a manner. Upon remand the Defendants moved to recover their attorney fees
pursuant to a restrictive covenant as to lots in the subdivision. The Trial Court found in favor of
New Covenant, resulting in this appeal. We affirm.


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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
joined. CHARLES D SUSANO, JR., J., filed a dissenting opinion.

Thomas M. Hale, Knoxville, Tennessee, for the Appellants, Panther Sark, Carter Rome Eddleman
Real Estate, LLC, Subland, LLC, and Koontz, Loy & Taylor, LLC

George W. Morton, Knoxville, Tennessee, for the Appellee, New Covenant Baptist Church

                                           OPINION

       The covenant in question provides the following:
            In any proceedings at law or equity to enforce these restrictions or for violation
            thereof, the losing party shall pay the attorney’s fees of the prevailing party in
            such amount as may be fixed by the court in such proceedings.

       The Trial Judge, however, held that T.C.A.29-14-111,1 relative to declaratory judgment acts
accorded him the discretion of adjudging costs in an equitable manner. He concluded it would not
be equitable to require New Covenant to pay attorney fees.

       The Defendants appeal, contending the Court has misconstrued the statute in that “cost” as
used in the statute is inapplicable to attorney fees. They further argue that even if the statute was
applicable it would have been equitable to adjudge costs against New Covenant.

       We note that the provisions of the restrictions authorizing attorney fees applies only to suits
to enforce the restrictions or for violation thereof. The case sub judice is neither, but rather a suit
seeking a declaration of the rights of the parties under the restrictions. We are persuaded that the
covenant as to attorney fees does not encompass the case filed by New Covenant rendering it
unnecessary that we determine whether attorney fees are embraced in the word “cost” as used in
T.C.A. 29-14-111.

        For the foregoing reasons the judgment of the Trial Court is affirmed on a ground other than
that found by the Chancellor and the cause remanded for collection of costs below. Costs of appeal
are adjudged against Panther Sark, Carter Rome Eddleman Real Estate, LLC, Subland, LLC, and
Koontz, Loy & Taylor, LLC.



                                                     _________________________________________
                                                     HOUSTON M. GODDARD, PRESIDING JUDGE




        1
                 29-14-111. Costs. – In any proceeding under this chapter, the court may make such award of cost as
may seem equitab le and just.

                                                       -2-
