                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 29, 2006 Session

                              LINDA BUSH
                                  v.
                    ADWORKS ADVERTISING OUTDOOR, LLC

                   An Appeal from the Chancery Court for Shelby County
                    No. CH-05-0109-3    D.J. Alissandratos, Chancellor


                     No. W2006-00763-COA-R3-CV - Filed April 30, 2007


This is a property case involving a restrictive covenant. The homeowners in a subdivision entered
into a restrictive covenant agreement with the original developer of a tract of land directly across the
highway from the residential subdivision. The restrictive covenant prohibits the use of the
developer’s property for “billboards . . . not in place on December 1, 1995.” On December 1, 1995,
three billboard structures existed on the burdened property. Years later, the defendant billboard
company purchased easements in the three billboard sites and the existing billboard structures were
removed. The defendant billboard company then erected three new billboard structures.
Subsequently, the plaintiff homeowner in the subdivision filed the instant lawsuit for injunctive and
declaratory relief, alleging that the defendant billboard company’s placement of new billboard
structures on the burdened property constituted a violation of the restrictive covenant. The parties
filed cross-motions for summary judgment. The trial court granted summary judgment in favor of
the defendant billboard company, and the plaintiff homeowner now appeals. We affirm, finding that
the language of the restrictive covenant is unambiguous, and that it restricts only the use of the
burdened property, limiting the use to the number of billboards on the property as of December 1,
1995.

                  Tenn. R. App. P. 3; Judgment of the Chancery is Affirmed.

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Robert A. McLean, Memphis, Tennessee, for Petitioner/Appellant Linda Bush.

Robert E. Craddock, Jr., and Kristen Mistretta Wilson, Memphis, Tennessee, for
Respondent/Appellee Adworks Advertising Outdoor, LLC.
                                                     OPINION

       The instant litigation involves the construction of a restrictive covenant which benefits the
homeowners in the Walnut Grove Woods Subdivision. Petitioner/Appellant Linda Bush (“Bush”)
is a current resident of Walnut Grove Woods Subdivision. Bush has owned a home in the
subdivision since 1989, and she has lived in that home since May 1998. In the four years preceding
the commencement of this action, Bush served as the president of the homeowner’s association for
Walnut Grove Woods Subdivision.

        Before Bush moved into the subdivision, Germantown Trinity Associates (“Germantown
Trinity”) purchased a 39.36-acre tract of land in the southwest quadrant of the intersection of Trinity
Road and North Germantown Parkway. The tract of land is directly across Germantown Parkway
from the Walnut Grove Woods Subdivision. On December 22, 1994, Germantown Trinity entered
into lease agreements (“billboard leases”) with Tanner Outdoor, a billboard advertising company,
which would permit the erection and maintenance of billboards on the subject property. Tanner
Outdoor subsequently erected four billboard structures on Germantown Trinity’s property.

       In addition to the billboard leases, Germantown Trinity planned to subdivide and develop the
property. The home and lot owners of Walnut Grove Woods Subdivision opposed certain uses of
the land by Germantown Trinity. To resolve the dispute with the subdivision homeowners,
Germantown Trinity entered into a restrictive covenants agreement with the home and lot owners
of Walnut Grove Woods Subdivision on December 15, 1995. The agreement stated that its purpose
was to compromise and resolve disputes between Germantown Trinity and the homeowners of the
subdivision by subjecting German Trinity’s property to “covenants, limitations, and restrictions to
run with the Property.” At issue here is the restrictive covenant found in section 2.a. of the
agreement, which states:

       2. The uses permitted shall be only those allowed by the Ordinances in Highway
       Commercial C-H District and in Planned Commercial C-P District less and excepting
       the following uses as designated in Chart 1 of the Zoning Ordinance and as defined
       and interpreted at this time by the Office of Planning and Development which shall
       not be permitted:
               a.     Off premises advertising signs, billboards, commercial outdoor
                      advertising not in place on December 1, 1995.1


       1
           Paragraph 2 also includes the following sections:

                  b.        Agricultural uses (listed in Chart 1 of the zoning ordinance).
                  c.        Automobile parking lot.
                  d.        Boat rental, storage, repair or service.
                  e.        Campground, travel trailer park.
                  f.        Cemetery or mausoleum.
                  g.        Drive-in theater.
                                                                                             (continued...)

                                                          -2-
        As of December 1, 1995, the date referenced in the restrictive covenant, Tanner Outdoor had
four billboard structures on Germantown Trinity’s property. Three of those billboard structures are
at issue in this appeal.

        On November 22, 2004, Respondent/Appellee Adworks Advertising Outdoor, LLC,
(“Adworks”) purchased easements in the three billboard sites from Germantown Trinity’s successor-
in-interest. At the time of the purchase, the billboard sites were leased to Clear Channel Outdoor,
Inc., (“Clear Channel”) and Clear Channel owned the three billboard structures on the property.2 The
same day that Adworks purchased the billboard easements, Adworks also applied to the Memphis
and Shelby County Office of Construction Code Enforcement for permits to “rebuild” billboard
structures on the sites. The requested building permits were issued on December 13, 2004. Two
days later, Adworks terminated Clear Channel’s leases and asked Clear Channel to remove its
billboard structures from the sites. Subsequently, on May 15, 2005, Clear Channel took down its
billboard structures and vacated the premises. Approximately six weeks later, Adworks erected three
billboard structures of its own on the billboard sites.

         On January 20, 2005, Bush, in her individual capacity as a homeowner in the Walnut Grove
Woods Subdivision, filed a complaint for injunctive relief against Adworks. Bush alleged that the
restrictive covenants agreement “specifically prohibit[s] the erection of any off premises advertising
signs, billboards and/or commercial outdoor advertising other than those in existence on or before
December 1, 1995.” The complaint was later amended to include a request for declaratory relief
pursuant to Tennessee Code Annotated § 29-14-101 et seq. In the amended complaint, Bush asked
the trial court to construe the terms of the restrictive covenant and declare the parties’ rights under
it.

       In response, Adworks filed an answer on February 22, 2005, setting forth numerous equitable
and affirmative defenses, such as laches, waiver, estoppel, unclean hands, and mutual mistake.
Adworks asserted as well that Bush’s interpretation of the restrictive covenants agreement was
incorrect. Adworks first noted that previous owners and/or tenants of the billboard sites, including


         1
             (...continued)
                      h.      Garage, commercial.
                      i.      Lumber yard.
                      j.      Mobile home sales.
                      k.      Retail sales, outdoor.
                      l.      Taxicab dispatch station.
                      m.      Sheet metal shop.
                      n.      Adult entertainment.
                      o.      Topless bars and/or clubs.
                      p.      Vehicle wash on Germantown Parkway.

         2
           Clear Channel obtained the billboard leases and structures through a succession of acquisitions and mergers.
In short, Tanner Outdoor, the original lessee of the billboard sites, was acquired by Universal Outdoor, Inc. Subsequent
to this acquisition, Universal Outdoor, Inc., merged into Eller Media Company. Eller Media Company was then acquired
by Clear Channel Outdoor, Inc.

                                                          -3-
Clear Channel, were permitted without objection to rebuild and/or substantially replace billboard
structures located on the burdened property. Adworks also alleged that the construction of the
restrictive covenants agreement proposed by Bush, if adopted, would be the result of a mutual
mistake in the execution of the agreement, thereby rendering the agreement unenforceable or, in the
alternative, subject to reformation. Finally, Adworks claimed that neither the language of the
restrictive covenants agreement nor the intention of the parties precluded it from removing,
replacing, or rebuilding billboard structures on the burdened property. In an amended answer,
Adworks added a defense based on the doctrine of maintenance.

        Meanwhile, on February 3, 2005, Bush filed a motion in limine asking the trial court to find,
as a threshold issue, that the language in paragraph 2.a. of the restrictive covenants agreement was
unambiguous. On March 11, 2005, the trial court held a hearing on Bush’s motion in limine. On
April 15, 2005, the trial court entered an order finding that the language of the restrictive covenant
was clear and unambiguous, thus precluding parol evidence pertaining to the formation of the
contract. The trial court stated, however, that its ruling did not “preclude the application of the
doctrine of practical construction, which is the right to try to show that by acts or declarations of the
parties subsequent to the entering into the contract, that the parties have interpreted the contract by
their conduct in a fashion that may deviate from the clear and unambiguous language of the
contract.”

        After the trial court ruled that the language of the restrictive covenants agreement was clear
and unambiguous, Bush filed a motion for summary judgment. In the motion, Bush argued that
Adworks violated the clear and unambiguous language of the restrictive covenants agreement by
erecting three new billboard structures on the burdened property which were not “in place” as of
December 1, 1995, the date referenced in the covenant. Bush contended that the restrictive
covenants agreement permitted only those original billboard structures which were erected, and thus
“in place,” as of December 1, 1995. Since the original billboard structures were removed by Clear
Channel on May 15, 2005, Bush asserted, Adworks violated the restrictive covenants agreement
when it erected new billboard structures on the burdened property.

        In response, Adworks filed a cross-motion for summary judgment. In its cross-motion,
Adworks first asserted that the language of the restrictive covenants agreement referred to particular
uses of the burdened property, and not to the presence of particular billboard structures. Adworks
based this argument on the language of the introductory paragraph directly preceding the restrictive
covenant in paragraph 2.a. of the agreement, which refers to “uses permitted” and “uses as
designated.” Adworks advocated construing the restrictive covenant so as to limit the number of
billboard structures allowed on the burdened property, but to permit the continued use of the property
for billboard structures, including new billboard structures, so long as the total number did not
exceed the number “in place” as of December 1, 1995.

       In the alternative, Adworks argued that if the trial court did not find that the clear and
unambiguous language of the covenant restricted uses rather than particular structures, then the
doctrine of practical construction demonstrated that the parties interpreted the contract as such. To


                                                  -4-
support this argument, Adworks asserted that, since the execution of the restrictive covenants
agreement, one of Clear Channel’s three billboard structures was relocated approximately 210 feet
south of its original location, that another billboard structure was enlarged up to 240 square feet and
enhanced with neon lighting fixtures, that all three billboard structures underwent “massive repairs”
following a windstorm in the summer of 2003, and that various documents relating to the burdened
property—i.e., a billboard lease agreement, a certificate of tenant, and a declaration of reservation
of easements—included terms consistent with the rebuilding and relocation of the billboard
structures both before and after the parties entered into the restrictive covenants agreement. From
all of this, Adworks argued that conduct subsequent to the execution of the restrictive covenants
agreement indicated that the parties interpreted the contract in a manner that allowed the rebuilding
and relocation of billboard structures on the burdened property.

        The trial court heard the parties’ motions on March 3, 2006. At the hearing, arguments from
counsel focused primarily on whether the parties agreed that one of Clear Channel’s billboard
structures was relocated after the restrictive covenants agreement was executed and, if not, whether
such a factual dispute made the case inappropriate for summary judgment. At the conclusion of the
hearing, the trial court rendered its ruling from the bench, stating:

        I do think that this case is just this simple. And I’m sorry that so much time, energy
        and money has been spent on it. I don’t quite understand it. It is this simple. There
        is a use. That’s what those signs are there for, to be used. That’s what everybody
        understood and bargained for is we’re going to have three big signs with big poles.
                 And that’s what they bargained that they wanted to allow to be used to permit
        it. And if one of them blew over, they should put it back up. It is not relevant
        because it has been deemed not relevant by both sides now about whether or not
        [one] sign was moved. You all have agreed on that. The losing side agreed on that.
                 Why the winning side has consistently wanted to pursue that, I don’t know.
        . . . But anyway, I am going to rule in favor of [Adworks] on this. I do think the
        language is straightforward and simple and those three signs get to remain.

Thus, the trial court found that the restrictive covenant referred to the general use of the property for
billboard structures and not to the particular billboard structures themselves. This oral ruling was
incorporated into a final judgment, entered on March 10, 2006, in which the trial court denied Bush’s
motion for summary judgment and granted summary judgment in favor of Adworks.

        On appeal, Bush raises a plethora of issues. Save one, all of the issues presented arise out
of the following: whether the trial court erred in not finding that the clear and unambiguous
language of the restrictive covenant prohibited Adworks from erecting new billboard structures on
the burdened property. In the alternative, if the restrictive covenant does not prohibit the erection
of new billboard structures, Bush raises the issue of whether the restrictive covenant prohibits the
construction of a billboard structure at a location on the burdened property different from the original
location. In its cross-appeal, Adworks asks this Court to determine whether consideration of the
doctrine of practical construction was permissible and, if this Court finds that the language of the


                                                  -5-
covenant is ambiguous, whether the trial court erred in holding that parol evidence was not
admissible.

        The trial court’s decision on a motion for summary judgment presents a pure question of law.
Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). Accordingly, our review of the decision is de
novo upon the record and no presumption of correctness is afforded to the trial court’s conclusions.
Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Summary judgment is appropriate when there
is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter
of law on the undisputed facts. Tenn. R. Civ. P. 56.04; BellSouth Adver. & Publ’g Co. v. Johnson,
100 S.W.3d 202, 205 (Tenn. 2003).

        In assessing the evidence in the record, we “view the evidence in the light most favorable to
the nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor.”
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). We do not weigh the evidence;
rather, our task is to determine if a genuine dispute exists as to any material fact. Byrd v. Hall, 847
S.W.2d 208, 211, 215 (Tenn. 1993). If the facts and the legal conclusions drawn from the facts
reasonably permit only one conclusion, then summary judgment is proper. Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn. 1995). If, however, the “mind of the court entertains any doubt whether or not
a genuine issue exists as to any material fact, it is its duty to overrule the motion.” Poore v.
Magnavox Co., 666 S.W.2d 48, 49 (Tenn. 1984).

         Because the instant case involves the interpretation of a restrictive covenant, we consider
well-established rules of construction and law in order to construe the terms of the covenant. Parks
v. Richardson, 567 S.W.2d 465, 467 (Tenn. Ct. App. 1977). As with other written contracts, the
primary goal is to ascertain the intention of the parties as expressed by the language of the restrictive
covenant itself. See Hicks v. Cox, 978 S.W.2d 544, 547 (Tenn. Ct. App. 1998). The words of a
restrictive covenant 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)). 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). Thus, 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).

         It is also well-settled that restrictions on the free use and enjoyment of real property are not
favored in Tennessee. See, e.g., Waller v. Thomas, 545 S.W.2d 745, 747 (Tenn. Ct. App. 1976).
As such, “a restrictive covenant, being in derogation of the free use and enjoyment of property, will
be strictly construed against the restriction and in favor of the reasonable use of the property, so that
only uses clearly prohibited will be held precluded by such a covenant.” Parks, 567 S.W.2d at 468
(citing Shea, 499 S.W.2d at 872-73; Lowe v. Wilson, 250 S.W.2d 366, 367 (Tenn. 1952)). Any
doubt concerning the applicability of a restrictive covenant will be resolved against the restriction.
Richards v. Abbottsford Homeowners Ass'n, 809 S.W.2d 193, 195 (Tenn. Ct. App. 1990).
Likewise, any ambiguity in the terms of the restrictive covenant will be resolved against the


                                                  -6-
restriction. Parks, 567 S.W.2d at 468; see also Waller, 545 S.W.2d at 747. Restrictive covenants
“will not be extended by implication to anything not clearly and expressly prohibited by their plain
terms.” Turnley v. Garfinkel, 362 S.W.2d 921, 923 (Tenn. 1962); see also Maples Homeowners
Ass'n, Inc. v. T & R Nashville Ltd. P'ship, 993 S.W.2d 36, 39 (Tenn. Ct. App. 1998). Nevertheless,
courts are required to give a fair and reasonable meaning to the restrictive covenant, Jones v.
England, 870 S.W.2d 525, 529 (Tenn. Ct. App. 1993), and “such restrictions, like other contracts,
will be enforced according to the clearly expressed intention of the parties.” Benton v. Bush, 644
S.W.2d 690, 691 (Tenn. Ct. App. 1982).

         In this appeal, Bush first contends that the clear and unambiguous language in section 2.a.
of the restrictive covenants agreement applies to the specific items of personalty constructed and
placed on the burdened property before a defined point in time. In support of this interpretation,
Bush distinguishes the language found in section 2.a. of the agreement from the language in sections
2.b. through 2.p. Section 2.a., she asserts, refers to specific personalty, i.e., the billboard structures
erected on or before a certain date, while sections 2.b. through 2.p. prohibit general uses, e.g., mobile
home sales, lumber yards, and agricultural uses. Parsing the language of the covenant, Bush argues
that the usual and ordinary meaning of the word “billboard” denotes specific, moveable personalty.
The specific, moveable property is then defined further by the phrase “not in place on December 1,
1995.” Employing this analysis, Bush concludes that Adworks violated the plain language of the
restrictive covenant when it removed and replaced the original three billboard structures that were
placed on the burdened property on or before December 1, 1995.

         As indicated above, in examining the meaning of a restrictive covenant, we look at the entire
restrictive covenant to determine if the intent of the parties can be ascertained. The restrictive
covenant at issue here is found in paragraph 2 of the restrictive covenants agreement, which states
in full:

        2. The uses permitted shall be only those allowed by the Ordinances in Highway
        Commercial C-H District and in Planned Commercial C-P District less and excepting
        the following uses as designated in Chart 1 of the Zoning Ordinance and as defined
        and interpreted at this time by the Office of Planning and Development which shall
        not be permitted:
                a.     Off premises advertising signs, billboards, commercial outdoor
                       advertising not in place on December 1, 1995.
                b.     Agricultural uses (listed in Chart 1 of the zoning ordinance).
                c.     Automobile parking lot.
                d.     Boat rental, storage, repair and service.
                e.     Campground, travel trailer park.
                f.     Cemetery or mausoleum.
                g.     Drive-in theater.
                h.     Garage, commercial.
                i.     Lumber yard.
                j.     Mobile home sales.


                                                   -7-
               k.      Retail sales, outdoor.
               l.      Taxicab dispatch station.
               m.      Sheet metal shop.
               n.      Adult entertainment.
               o.      Topless bars and/or clubs.
               p.      Vehicle wash on Germantown Parkway.

(emphasis added). We note that the first phrase in the introductory sentence of paragraph 2 sets forth
the “uses permitted,” namely, those “allowed by the Ordinances in Highway Commercial C-H
District and in Planned Commercial C-P District.” The second phrase in this prefatory language then
enumerates the “following uses” which “shall not be permitted.” Thus, the plain language of the
introductory sentence sets forth “uses” that are permitted and “uses” that are not permitted.

         Following the introductory sentence, then, is a list of “uses” that are not permitted. The item
at issue here is in section 2.a. of the restrictive covenants agreement, “billboards.” Thus, the plain
language of the restrictive covenant categorizes billboards as a “use” which is not permitted. This
prohibited use is then modified by the phrase “not in place on December 1, 1995,” thus limiting the
scope of the restriction. Therefore, the covenant, by its plain terms, restricts the use of the property
to the extent that such use was “not in place on December 1, 1995.” It is undisputed that, as of this
date, at least three billboard structures had been erected on the property. Under the plain language
of the agreement, then, the continued use of the property for three billboard structures constitutes a
“use” that is permitted. Therefore, after examining the language of the restrictive covenant,
including the prefatory language expressly referring to “uses” that are permitted and prohibited, we
must decline Bush’s interpretation of the covenant and agree with the trial court’s view, finding that
the language of section 2.a. is unambiguous and clearly evidences an intent to restrict the “use” of
the burdened property only to the extent that it was not being used for billboard structures on
December 1, 1995.

       Next, it must be determined whether the restrictive covenant in section 2.a. of the agreement
nonetheless prohibits Adworks from maintaining a billboard structure on a site on the burdened
property different from the location of a billboard structure erected prior to December 1, 1995. It
is undisputed on appeal that one of Clear Channel’s billboard structures was relocated on the
burdened property after the restrictive covenants agreement was executed, and that one of Adworks’
new billboard structures is currently being maintained on the relocated billboard site.

        Regarding this issue, Bush first contends that the trial court’s construction of the restrictive
covenant permits the erection of new billboard structures, but prohibits the relocation of billboard
structures after December 1, 1995. After reviewing the record, which includes a transcript of the
hearing on the parties’ motions for summary judgment as well as the final judgment, we must
disagree. The trial court stated only that the “language [of the covenant] is straightforward and
simple and those three signs get to remain.” Regarding the relocation issue, the trial court deemed
that fact immaterial for purposes of its interpretation of the covenant based solely on the language
of the instrument. Following its oral ruling, the trial court simply entered a final judgment,


                                                  -8-
incorporating its oral findings and granting summary judgment in favor of Adworks. Therefore,
nothing in the appellate record indicates that the trial court construed the covenant as Bush proposes.

         In the alternative, Bush contends that the language of the restrictive covenants agreement
clearly prohibits the relocation of a billboard structure on the burdened property. In section 2.a. of
the agreement, the restricted use is qualified, in part, by the idiom “in place.” The word “place,”
standing alone, could indeed be seen as referring to “a particular . . . location.” Merriam Webster’s
Collegiate Dictionary 887 (10th ed. 1995). We must, however, consider the context in which it is
placed. Again, reading the restrictive covenant as a whole, we consider the prefatory language
expressly referring to permitted and prohibited “uses.” The phrase “in place,” coupled with the
language directly following it, “on December 1, 1995,” clearly defines the scope of the permitted use.
Therefore, we decline to adopt Bush’s construction of the restrictive covenant, and hold that the
restrictive covenant in section 2.a. of the agreement does not restrict the three permitted billboard
structures to particular locations on the burdened property.

        Therefore, there are no remaining genuine issues of material fact and the trial court did not
err in holding that Adworks is entitled to a judgment as a matter of law. All other issues raised on
appeal are pretermitted.

        The decision of the trial court is affirmed, and the costs of this appeal are assessed against
Petitioner/Appellant Linda Bush, and her surety, for which execution may issue, if necessary.




                                       ________________________________________________
                                       HOLLY M. KIRBY, JUDGE




                                                 -9-
