                    IN THE COURT OF APPEALS
                          AT KNOXVILLE                    FILED
                                                          March 31, 2000

                                                        Cecil Crowson, Jr.
                                                       Appellate Court Clerk

                                      E1999-02096-COA-R3-CV
                                  )   SEVIER COUNTY
ROBERT BOWMAN, ET AL.,            )   03A01-9904-CH-00126
                                  )
     Plaintiffs/Appellees,        )
                                  )
     v.                           )
                                  )   HON. TELFORD E. FORGETY, JR.
GATLINBURG CONDO MANAGEMENT,      )   JUDGE
     INC., ET AL.,                )
                                  )
      Defendants/Appellants.      )
                                  )
                                  )
                                  )   AFFIRMED AND REMANDED
                                  )




C. DAN SCOTT and BARRY W. EUBANKS, Sevierville, for Appellants

ERIC J. MORRISON, Knoxville, for Appellees




                             O P I N I O N




                                                       Goddard, P.J.
            This suit involves a determination of whether specific

areas within a condominium complex are units for occupancy or are

“common areas” available for use by all condominium owners.

Robert Bowman, et al., the Plaintiffs/Appellees,1 initiated an

action in the Sevier County Chancery Court against The Gatlinburg

Condo Management, Inc., et al., the Defendants/Appellants.              The

Sevier County Chancery Court granted summary judgment in favor of

the Appellees.




            The Appellants present for our consideration the sole

issue, which we restate, of whether the Trial Court erred in

granting summary judgment for the Appellees.           Pursuant to Rule

13(a) of the Tennessee Rules of Appellate Procedure, the

Appellees raise the following additional issue, which we restate,

of whether the Trial Court erred in denying the Appellees’ Motion

to Strike the affidavits of James Jett and Charlie R. Johnson.




      1
       Approximately twenty-four owners of condominiums joined in this cause
of action.

                                      2
            The Appellees are owners of condominium units in the

Gatlinburg Chateau Condominiums, a multi-unit condominium project

located in Sevier County.       Gatlinburg Chateau was created and

established by a master deed dated July 2, 1990.2           Gatlinburg

Chateau Development Company, Inc. was the developer of the

Gatlinburg Chateau condominium project.          Around October 25, 1990,

the “C-Units” were conveyed by Gatlinburg Chateau Development

Company, Inc. to CC Café, Inc., which later conveyed them to

James Jett and Yvonne Jett, who have used them for commercial

purposes since their purchase.        James Jett has paid monthly

homeowner’s dues and assessments on the C-units since becoming

the owner of those units.       The office, which is designated as

area C-1, has been assessed separately for tax purposes, with

James Jett paying taxes on that parcel from 1992 through 1997.




      2
        The master deed had accompanying Exhibits A through F: A--the By-Laws
of the Gatlinburg Chateau Homeowner’s Association, Inc.; B--the Schedule of
Percentage Ownership in Common Elements; C--the Estimated Operating Budget
(Initial); D--is the Unit Owner’s Vote Assignment; E--the Articles of
Incorporation of Gatlinburg Chateau Homeowner’s Association Incorporated; and
F--the Legal Description of Submitted Property.

                                      3
           Area C-1, which is enclosed and located in a separate

building in the condominium project, has been used as a rental

office.   Areas C-2 and C-3 are small storage areas.   Area C-2,

which is located on the second floor, is in an enclosed area with

a door that opens onto the walkways which are common areas in the

condominium project.   Area C-3, which is located on the third

floor, is also in an enclosed area with a door that opens onto

the walkways which are common areas in the condominium project.




           The Appellants argue that the Trial Court erred in

granting summary judgment in favor of the Appellees.   The Trial

Court based its finding on several provisions from the

condominium documents.   The Court noted that the condominium

documents did not specifically mention commercial units as a

separate class of property, and no where did the documents

designate areas C-1, C-2, and C-3 as commercial units.




                                4
          The Trial Court noted that Article 3, Section 6

entitled Property Rights provides

     that the condominium project consists of 54 residential
     units in common areas. No other class of property is
     created in the court’s view except the 54. Just what
     the master deed says. There are 54 residential units
     and there are common elements. Nothing else was
     created.
          In that connection, the Court notes that there are
     specifically shown in the master deed, condominium
     plat, and the condominium plans, in fact, 54
     residential units or apartments and that these do not
     include the areas “C1, C2, and C3.” Court can only
     conclude that the only thing those areas can be, if
     they are not residential units, if they are not one of
     the 54 residential units, that the only thing they can
     be is common elements because that is the only class of
     property that was created.”




          The Appellants argue that from the Master Deed and the

accompanying Exhibits, it is obvious that the C-Units were

designated separately from other units and from the common

elements in order to create separate commercial units.   The

Appellants further contend that the language in the Master Deed

and the designations contained in the Exhibits to the Master

Deed indicate that the C-Units would be “units,” as defined in


                               5
the Master Deed, and that the C-Units would be used for

commercial purposes.   The Appellants maintain that the Master

Deed recognized that some of the units would be used for

something other than residential purposes, which units C-1, C-2,

and C-3 are.




          The Appellants further assert that the Master Deed

allows for unit designations by letter and number, such as C-1

or P8601 or 406.   Article 3, paragraph 1 of the Master Deed

provides that “[f]or the purposes of unit designation, Each Unit

in the Condominium is identified by number, number and letter,

or letter and is delineated in the Exhibits hereto which are

made a part of this Declaration.”   The Appellants argue that the

C-Units are the only areas of Gatlinburg Chateau that are

designated with a letter and number, as provided for in the

Master Deed in Article 1, paragraph 12 and in Article 3,

paragraph 1.   They also contend that no provision in the Master

Deed provides for the designation of common elements by letter


                                6
and number, and no areas of the common elements are designated

by letter and number.     Thus, the Appellants maintain that the

Master Deed provides that the C-Units are “Units,” which means a

condominium unit in the context of the Master Deed.




          Finally, the Appellants contend that the Trial Court

erred in its judgment:

     In reaching its conclusion that the C-Units are common
     elements of Gatlinburg Chateau, the Trial Court
     completely ignored the fact that Article 3, paragraph 1
     of the Master Deed provides that each condominium unit
     is identified by number, number and letter, or letter,
     and that the C-Units are designated by a letter and
     number. Based on the definitions contained in the
     Master Deed for common elements and units, and based on
     the fact that the C-Units are assigned a letter and a
     number, a reasonable person would not conclude that the
     C-Units are part of the common elements of Gatlinburg
     Chateau. [emphasis in Appellants’ brief]



          The Appellees, however, argue that the Trial Court

correctly held that the C-units are common elements of the

Gatlinburg Chateau.     The Appellees agree with the Appellants’

assertion that the term “Unit” means a condominium unit.

                                  7
However, the Appellees contend that the Appellants leap to the

conclusion that “such a designation automatically renders the C-

units a defined ‘Condominium Unit, Unit, or Apartment’ as

contemplated in the Master Deed.’”    The Appellees dispute the

Appellants’ contention that the C-units are the only areas of

Gatlinburg Chateau that are specifically designated with a letter

and number, noting that four penthouse condominium units at

Gatlinburg Chateau are referenced in Exhibits B and D of the

Master Deed by letter and number.




          The Appellees maintain that the Appellants’ “reference

to the C-units in the Exhibits to the Master Deed by letter and

number inescapably renders the C-units to be defined a

‘Condominium Unit, Unit or Apartment’ under the Master Deed is

pure sophistry because it fails to consider the qualities and

characteristics that make up a defined ‘Condominiums Unit, Unit,

or Apartment.’”   They note that “the Master Deed is noticeably

silent [with] respect to any direct reference to any kind of C-


                                8
unit or the existence of such a type unit.   The C-units are

listed in some of the Exhibits of the Master Deed.”     Moreover,

the Appellees argue that the Appellants cannot show any provision

in the Master Deed or the Exhibits that show the C-units as being

equated with the residential units.




           A Trial Court’s decision to grant a motion for summary

judgment is not entitled to a presumption of correctness on

appeal.   Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

This Court determines whether the requirements of Rule 56 of the

Tennessee Rules of Civil Procedure have been met.     Mason v.

Seaton, 942 S.W.2d 470, 472 (Tenn. 1997).




          An evaluation of a summary judgment motion must address

these questions: “(1) whether a factual dispute exists; (2)

whether the disputed fact is material to the outcome of the case;

and (3) whether the disputed fact creates a genuine issue for


                                9
trial.”   Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993) (emphasis

in original).   When considering a motion for summary judgment,

the evidence must be viewed in a light most favorable to the

nonmoving party, and all reasonable inferences must be made in

the nonmoving party’s favor.   Byrd, 847 S.W.2d at 210.




          In reviewing the master deed and all the accompanying

exhibits, we are of the opinion that the Trial Court properly

concluded that the areas in question are common elements.   As the

Trial Court discussed in its memorandum opinion, the Master Deed

provides for condominium units as residences and for common

elements, nothing more.   Also, the condominium unit vote

assignment does not include any assignment for votes to the areas

of C-1, C-2, or C-3.   Furthermore, the Master Deed does not

provide for any “commercial units” as the Appellants argued.

Finally, Exhibit F, which contains the architectural drawing for

the condominium complex, shows that the areas designated as C-2

and C-3 were originally designated as a “mechanical room” and an


                                10
“electrical room,” respectively.      Thus, such designations would

lead a reasonable person to conclude that areas C-2 and C-3 were

never intended to be considered for occupancy.




            In light of the foregoing, we believe that there are no

genuine issues of material fact which must be determined by

trial.    The judgment of the Trial Court is affirmed, and the

cause is remanded for such further proceedings, if any as may be

necessary, consistent with this opinion.     Having affirmed the

judgment of the Trial Court, we need not address the Appellees’

issue on appeal.    Costs of appeal are adjudged against Gatlinburg

Condo Management, Inc.




                                       ________________________
                                       Houston M. Goddard, P.J.


CONCUR:


                                 11
__________________________
Charles D. Susano, Jr., J.


__________________________
D. Michael Swiney, J.




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