                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                 ______________________________________________    FILED
HICKORY WOODS ESTATES
                                                                    August 17, 1999
HOMEOWNERS ASSOCIATION,
                                                                Cecil Crowson, Jr.
       Plaintiff-Appellee,
                                                               Appellate Court Clerk
                                                   C.A. No. 01A01-9901-CH-00034
Vs.                                                Davidson Chancery No. 97-4068-I

HARRY G. PARMAN,

      Defendant-Appellant.
____________________________________________________________________________

              FROM THE DAVIDSON COUNTY CHANCERY COURT
            THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



                                Jerry L. Vance of Nashville
                                       For Appellant

                                    Brigid T. Miller;
                    Baker, Donelson, Bearman & Caldwell of Nashville
                                      For Appellee




                             REVERSED AND REMANDED

                                      Opinion filed:




                                                           W. FRANK CRAWFORD,
                                                           PRESIDING JUDGE, W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE



       Defendant/Appellant, Harry G. Parman, appeals the order of the trial court denying his

motion for summary judgment and granting summary judgment to Plaintiff/Appellee, Hickory

Woods Estates Homeowners Association (Association).
       Hickory Woods Estates is a subdivision in Davidson County, Tennessee, governed by

“Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Hickory

Woods” (Declaration of Covenants), which is recorded in the Register’s Office of Davidson

County.1

       The Association is a nonprofit corporation created to administer, manage, and regulate

the affairs of the Hickory Woods subdivision and all property owners have a membership in the

Association. Pursuant to the Declaration of Covenants, the Association, through its Architectural

Review Committee (ARC) determines whether improvements to the property in Hickory Woods

are compatible with other improvements within the subdivision. Specifically, Article V of the

Declaration of Covenants provides, in pertinent part, as follows:

                No improvements shall be erected, constructed, placed,
                maintained or permitted to remain on any Lot until the Plans
                therefor shall have been submitted to and approved in writing by
                the ARC, which shall determine in its sole discretion whether or
                not the proposed improvements, and all features thereof, are
                acceptable to the ARC and are compatible with other
                improvements within the Project. The ARC shall be the sole
                judge and arbiter of such acceptability and compatibility. In
                carrying out the functions of the ARC, and in order to insure
                uniformity and quality of the improvements located within the
                Project, the ARC has prepared, and shall make available to all Lot
                Owners, a statement of Architectural Guidelines (“Guidelines”)
                which shall be observed in the construction of all improvements
                within the Project. . . .

       Mr. Parman owns a home in Hickory Woods, and his deed refers on its face to the

Declaration of Covenants. Without permission from the ARC, Mr. Parman began construction

on a twelve-by-forty foot detached accessory storage building behind his residence. Then, on

July 9, 1997, Mr. Parman, on advice of and through his attorney, wrote the ARC requesting


       1
           The Declaration of Covenants provides, in pertinent part, as follows:

                         NOW THEREFORE, Declarant hereby declares that all
                of the Property described in Exhibit A and any additional
                property as may by Subsequent Amendment be added to the
                Property and subjected to this Declaration shall be held, sold, and
                conveyed subject to the following easements, restrictions,
                covenants, and conditions. Such easements, restrictions,
                covenants and conditions are for the purpose of protecting the
                value and desirability of the Property, and shall run with the real
                property submitted to this Declaration. They shall be binding on
                all parties having any right, title, or interest in the described
                Property, or any part thereof, their heirs, successors, successors-
                in-title, and assigns, and shall inure to the benefit of each owner
                thereof.

                                                2
permission to erect the storage building. On August 12, 1997, the ARC, through counsel, denied

in writing Mr. Parman’s request for permission to erect the storage building. The letter also

stated that Mr. Parman had been previously advised that the erection of such a storage building

did not comply with subdivision regulations, that all construction must be stopped, and that any

improvements must be removed. Despite receipt of the foregoing letter, Mr. Parman proceeded

to erect the storage building.

       On December 9, 1997, the Association filed suit against Mr. Parman seeking a

declaratory judgment that Mr. Parman violated the Declaration of Covenants and an order

requiring Mr. Parman to remove the storage building at his own expense. Mr. Parman filed an

Answer and a Counter-Complaint. The answer denies that he violated the restrictions as alleged.

In his Counter-Complaint, Mr. Parman alleged that he purchased the property without actual

knowledge of the restrictive covenants despite the reference in his deed to the Declaration of

Covenants, that he received actual notice of the restrictions only after he commenced

construction of the storage building, that he was informed that there were no Architectural

Guidelines in existence for Hickory Woods, and that he was not given notice of the meeting of

the ARC so that he could determine in what respect his storage building failed to meet the

standards of the ARC. He seeks a declaration that the plaintiff’s actions were “arbitrary,

capricious, and an unreasonable infringement of Harry G. Parman’s free and untrammeled use

of his property.”

       On September 24, 1998, the Association filed motions for summary judgment as to its

claim and Mr. Parman’s counter-claim on grounds that there are no genuine issues of material

fact that Mr. Parman had actual and/or constructive knowledge of the restrictive covenants on

his property, that he failed to abide by such, and that the ARC’s actions were reasonable and

within its authority. Mr. Parman filed a motion for summary judgment on grounds that there is

no genuine issue for trial as to the material facts regarding the unreasonableness of the

enforcement of the restrictive covenants.

       After a hearing, the trial court, on November 20, 1998, entered an order granting the

Association’s motions for summary judgment and denying Mr. Parman’s motion. The trial court

found that there is no genuine issue of material fact regarding Mr. Parman’s notice of the

Declaration of Covenants by virtue of reference of the same in his property deed, and that there


                                               3
is no genuine issue of material fact regarding Mr. Parman’s violation of the Declaration of

Covenants. The trial court also found that Mr. Parman’s affidavit filed the day of the hearing

was untimely and not in proper form to be considered by the court.2

       This appeal ensued, and Mr. Parman presents the following issue, as stated in his brief,

for our review:

                  Did the trial court err in granting plaintiff’s motion for summary
                  judgment and denying defendant’s motion for summary
                  judgment?

       A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

                  Once it is shown by the moving party that there is no genuine
                  issue of material fact, the nonmoving party must then
                  demonstrate, by affidavits or discovery materials, that there is a
                  genuine, material fact dispute to warrant a trial. In this regard,
                  Rule 56.05 [now Rule 56.06] provides that the nonmoving party
                  cannot simply rely upon his pleadings but must set forth specific
                  facts showing that there is a genuine issue of material fact for
                  trial.

Id. at 211 (citations omitted) (emphasis in original).

       Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       Restrictive covenants conditioning the right of property owners to make improvements

on the approval of a homeowners association or architectural committee are generally valid and


       2
           No issue regarding this ruling is presented in this appeal.

                                                  4
enforceable. See Association of Owners of Regency Park Condominiums, Inc. v. Thomasson,

878 S.W.2d 560, 563-565 (Tenn. App. 1994). Restrictive covenants are enforceable even though

the covenants vest discretionary powers with the architectural committee.           Villages of

Brentwood Homeowners Ass’n, Inc. v. Westermann, No. 01A01-9708-CH-00388, 1998 WL

289342, at *3 (Tenn. App. June 5, 1998). The prevailing view in this jurisdiction is that these

sorts of restrictive covenants will be enforced as long as the entity administering the covenants

acts reasonably and in good faith. Id. Indian Hills Club Homeowner’s Ass’n, Inc. v. Cooper,

No. 01A01-9507-CH-00319, 1995 WL 763823, at *3 (Tenn. App. Dec. 29, 1995). When the

restrictive covenants establish a review committee but do not contain specific criteria for the

committee to follow, the validity of the criteria and the committee’s interpretation of such will

be judged by a standard of reasonableness. Westermann, 1998 WL 289342, at *3.

               “The majority view with respect to covenants requiring
               submission of plans and consent prior to construction is that such
               clauses, even if vesting the approving authority with broad
               discretionary powers, are valid and enforceable so long as the
               authority to consent is exercised reasonably and in good faith.”

Cooper, 1995 WL 763823, at *4 (quoting Davis v. Huey, 620 S.W.2d 561, 566 (Tex. 1981)).

        The Cooper Court continued:

                        Whether the exercise of approval of construction plans is
               reasonable is a factual question to be determined in light of the
               circumstances. Trieweiller, 838 P.2d at 385. See also, LaVielle,
               412 S.W.2d at 593; Snowmass American Corp. v. Schoenheit,
               524 P.2d 645, 648 (Colo. Ct. App. 1974). There are several
               criteria that courts have established to employ when evaluating
               the reasonableness of the exercise of power to consent. The most
               important of these criteria, which indicate that disapproval of
               plans is reasonable, are lack of compliance with the specific
               restrictions of the subdivision and construction that is not
               consistent or harmonious with the overall plan of development or
               with neighboring property. LeBlanc v. Webster, 483 S.W.2d
               647; LaVielle v. Seay, 412 S.W.2d 587; Validity, Construction
               and Effect of Restrictive Covenant Requiring Consent of Third
               Person to Construction on Lot, 19 A.L.R.2d 1274, at p. 1294.

Id. at *4.

        The first question is whether Mr. Parman had actual and/or constructive notice of the

restrictive covenants on his property. While there is not a copy of his deed in the record, Mr.

Parman admits that his deed made reference to the Declaration of Covenants. Therefore, Mr.

Parman is chargeable with notice of all matters in his deed affecting his property. See Gordon

v. Hirsch, 1990 WL 19702, at *3 (Tenn. App. March 6, 1990) (citing Teague v. Sowder, 121


                                               5
Tenn. 132, 114 S.W. 484 (1908); Savings, Bldg. & Loan Ass’n v. McClain, 18 Tenn. App. 292,

76 S.W.2d 650 (1934)). In addition, Mr. Parman’s actions in 1996 in submitting applications

to the Association for variances pursuant to the Declaration of Covenants is indicative that he

may have had actual notice of the restrictive covenants. Nevertheless, Mr. Parman is charged

with notice of the Declaration of Covenants affecting his property because of the reference of

such in his deed.

       The next question is whether the ARC’s actions in denying Mr. Parman permission to

construct the storage building were reasonable and in good faith. Mr. Parman’s pleadings aver

that the Association’s actions were unreasonable, arbitrary, and capricious. The Association

asserts that there is no genuine issue of material fact regarding Mr. Parman’s violation of the

restrictions and that it acted reasonably and within its authority in denying Mr. Parman’s request.

The parties’ pleadings join issue on whether plaintiff acted reasonably under the circumstances.

Whether the exercise of approval of construction plans is reasonable is a factual question to be

determined in light of the circumstances. Cooper, 1995 WL 763823, at *4.

       Plaintiff’s motion for summary judgment was not supported by any sworn testimony or

affidavit that negates Mr. Parman’s allegation that the plaintiff acted unreasonably in denying

his request.

       In McCarley v. West Quality Food Service, 948 S.W.2d 477 (Tenn. 1997), our Supreme

Court noted that it is not sufficient for a party seeking summary judgment to make mere

conclusory allegations that the nonmoving party has no evidence. The Court said:

               The movant must either affirmatively negate an essential element
               of the non-movant’s claim or conclusively establish an
               affirmative defense. If the movant does not negate a claimed
               basis for the suit, the non-movant’s burden to produce either
               supporting affidavits or discovery materials is not triggered and
               the motion for summary judgment fails.

Id. at 478-79 (citations omitted).

       In the instant case, the Association did not negate the affirmative allegations in Mr.

Parman’s pleadings, and thus, the Association’s motion must fail. By the same token, Mr.

Parman had no sworn proof or affidavit to negate the Association’s allegation that it acted

reasonably. Thus, his motion must fail. Under the state of the pleadings in this case, there is a

genuine issue of material fact as to whether the action of the Association was reasonable under



                                                6
the circumstances.

       Accordingly, the order of the trial court granting summary judgment is reversed. This

case is remanded to the trial court for such further proceedings as necessary. Costs of appeal are

assessed one-half to appellant and one-half to appellee.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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