                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     July 22, 2009 Session

 FEATHERFOOT POINT PROPERTY OWNERS ASSOCIATION, INC. v.
                    JIM ZWEIG, ET AL.

                 Direct Appeal from the Chancery Court for Decatur County
                          No. 3878    Ron E. Harmon, Chancellor



                    No. W2008-02494-COA-R3-CV - Filed August 25, 2009


This appeal arises from Appellant’s action to enforce a restrictive covenant in a residential
subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before
Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and
entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case
before Appellant completed its presentation of evidence, we reverse.


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

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and HOLL .Y M. KIRBY , J., joined.

Ralph D. Golden and Linda Jew Mathis, Memphis, Tennessee, for the Appellant, Featherfoot Point
Property Owners Association, Inc.

Carthel L. Smith, Jr., Lexington, Tennessee, for the Appellees, Jim Zwieg and Pauline Zwieg.

Magan N. White, Jackson, Tennessee, for the Appellee, Fred Reinhardt.

                                            OPINION

                                            Background

         Plaintiff/Appellant Featherfoot Point Property Owners Association, Inc. (“the Association”)
filed its complaint in Decatur County Chancery Court on February 15, 2007. The complaint named
Jim G. Zwieg and Pauline D. Zwieg, owners of residential lots in the Featherfoot Point Subdivision,
as defendants. The complaint alleged that defendants were in violation of Featherfoot Point
Subdivision Restrictive Covenants. Specifically, the Association alleged that the Zweigs violated
a provision in the by-laws which stated that “no more than one (1) detached structure or building
shall be erected on each lot.” The structure in question was a carport built on the Zwiegs’ lot on
February 16, 2006.

        The Zwiegs filed their answer to the complaint on March 16, 2007. They asserted that the
carport in question was not a second structure under the Association’s by-laws. In support, they
attached the minutes of a meeting conducted on January 14, 2006 by the Association’s Board of
Directors. The minutes indicate that, upon the recommendation of Director Fred Reinhardt,
“carports are not to be considered second buildings.” In their answer, the Zwiegs also alleged that
the Association “has randomly and without any basis in fact enforced some by-laws or restrictive
covenants of the Association and has failed to enforce others.”

         On November 20, 2007, the Association filed an amended complaint naming Fred Reinhardt
as an additional defendant. The Association alleged that Mr. Reinhardt, as a member of its Board
of Directors, approved the construction of the carport for the Zwiegs. It also alleged that Mr.
Reinhardt knew or should have known that this action violated “regulations, rules, covenants, and
restrictions of the Homeowners Association.” In support, the Association cited an email dated
February 10, 2006, in which Mr. Reinhardt informed the Zwiegs that construction of the carport was
permissible under the rules. The Association therefore alleged that Mr. Reinhardt “is guilty of
breach of his fiduciary duty, malfeasance, breach of duty of good faith, misrepresentation, negligent
misrepresentation, and fraud as a Director and Committee member for the Association.” The trial
court entered an order on December 11, 2007, allowing the amendment and adding Mr. Reinhardt
as a defendant to the action.

        Mr. Reinhardt did not file an answer to the amended complaint. On August 4, 2008,
however, he did file a motion for indemnification demanding that the Association be required to pay
his reasonable attorney’s fees. Among other things, Mr. Reinhardt alleged in his motion that the
Association’s lawsuit was barred by the statute of limitations pursuant to Tenn. Code Ann. § 48-58-
601.

         The matter was heard by the trial court, sitting without a jury, on August 12, 2008. The
Association presented the testimony of Charles Taylor and Wayne Buck, two residents and
homeowners in the Featherfoot Point subdivision. Before the Association called its next witness,
the trial court sua sponte stopped the proceedings, and announced its ruling as follows:

               Ladies and Gentlemen, I have heard a sufficient amount of proof in this case.

               From the plaintiff’s own witnesses, it appears that the lawsuit was brought to
       correct a situation where a property owner had built a garage or carport or building
       on an adjoining lot. There are–this is prohibited by the restrictive covenants.

              The court finds that this restriction has been freely and voluntarily violated
       by the homeowner’s association, and that to enforce the restriction against one



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       property owner and not against another would be unfair and equitable [sic] and
       forbidden by the law.
                                        *      *        *
               Now we have a homeowner here who built a garage on a separate lot. We
       have another homeowner who has recently as ‘07 was allowed to do that under some
       sort of guise of combining lots. I think that is not correct.
                                        *      *        *
               The association will be responsible for Mr. Hardee’s [Mr. Reinhardt’s
       attorney] fee. I see absolutely no reason for this board member to have been included
       as a defendant particularly after [the] statute date.... His expense will be adjudged
       against the homeowners association.

The trial court then dismissed the Association’s action.

       The trial court’s final judgment confirming its ruling from the bench was entered on October
28, 2008. The judgment confirmed that the trial court had sua sponte ended the trial and that the
Association was not permitted to present its remaining witnesses and exhibits. The trial court
awarded the attorneys’ fees of both the Zwiegs and Mr. Reinhardt.

       The Association appeals and raises four issues, as stated in its brief, for review:

1. Did the trial court err in sua sponte dismissing the Association’s cause of action prior to
completion of the Association’s case in chief and after only hearing testimony of two of the
Association’s witnesses?
2. Did the trial court err in failing to enforce certain restrictive covenants against the Zweigs by
finding that the Association had not enforced the covenants and had freely and voluntarily allowed
violation of the covenants?
3. Did the trial court err in awarding attorney’s fees to the Zwiegs?
4. Did the trial court err in dismissing the Associations claim against Mr. Reinhardt and awarding
his attorney’s fees?

                                         Law and Analysis

       We first address whether the trial court was authorized to order sua sponte the involuntary
dismissal of the Association’s action. The applicable rule is Tenn. R. Civ. P. 41.02(2), which
governs involuntary dismissals at trial:

       After the plaintiff, in an action tried by the court without a jury, has completed the
       presentation of plaintiff's evidence, the defendant, without waiving the right to offer
       evidence in the event the motion is not granted, may move for dismissal on the
       ground that upon the facts and the law the plaintiff has shown no right to relief. The
       court shall reserve ruling until all parties alleging fault against any other party have
       presented their respective proof-in-chief. The court as trier of the facts may then


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        determine them and render judgment against the plaintiff or may decline to render
        any judgment until the close of all the evidence; in the event judgment is rendered at
        the close of plaintiff's evidence, the court shall make findings of fact if requested in
        writing within three (3) days after the announcement of the court's decision.

Tenn. R. Civ. P. 41.02(2). Because the trial court’s final order in this case did not specify otherwise,
it operates as an adjudication on the merits. See Tenn. R. Civ. P. 41.02(3).

        Rule 41.02(2) provides for involuntary dismissals at the close of the plaintiff’s proof and
upon the defendant’s motion. The trial court’s sua sponte dismissal of the Association’s action
before it had presented its entire case is not explicitly contemplated by Rule 41.02(2). In Harris v.
Baptist Memorial Hospital, 574 S.W.2d 730 (Tenn. 1978), however, the Tennessee Supreme Court
addressed a similar situation and concluded as follows:

        Although Rule 41.02 does not expressly so provide, we are of the opinion that a trial
        court may under certain circumstances and upon adequate grounds therefor, Sua
        sponte order the involuntary dismissal of an action. However, this power must be
        exercised most sparingly and with great care that the right of the respective parties
        to a hearing shall not be denied or impaired. … In short, the occasions for the proper
        exercise of this power are considered by this Court to be few indeed.

Id. at 731. The Court concluded that trial courts “are not authorized to order the involuntary
dismissal of an action at trial upon the sole basis of the opening statements of counsel.” Id.; see also,
Burrow v. Barr, No. 01A01-9806-CV-00311, 1999 WL 722633, at *5 (Tenn. Ct. App. Sept. 17,
1999).
 Furthermore, the Court noted that Rule 41.02(2) “contemplates that the plaintiff's evidence shall
be heard and evaluated by the court prior to an involuntary dismissal order at trial.” Id. at 732.
Here, the trial court did not order the involuntary dismissal solely upon the opening statements of
counsel, but it did not allow the Association to present its entire case.

        In Ruff v. Raleigh Assembly of God Church, Inc., No. 02A01-9410-CV-00226, 1996 WL
9730 (Tenn. Ct. App. Jan. 9, 1996), the trial court sua sponte ordered an involuntary dismissal of
plaintiff’s case prior to the close of plaintiff’s proof. After the plaintiff had presented several
witnesses, the trial court asked plaintiff what additional witnesses he expected to call. The trial court
stated that the additional witnesses were unnecessary and entered an order of involuntary dismissal.
On appeal, the Court examined the holding in Harris and found that the trial court erred in
dismissing the matter prior to the close of the plaintiff’s proof. Ruff, 1996 WL 9730, at *4.
Likewise, in In re G.T.B., No. M2008-00731-COA-R3-PT, 2008 WL 4998399 (Tenn. Ct. App. Nov.
24, 2008), the trial court entered an order of involuntary dismissal prior to the completion of DCS’s
proof. On appeal, the Court considered the holdings in Harris and Ruff and concluded that “once
a case has proceeded to trial, the trial court should allow DCS to present all of its proof, subject to
the rules of evidence, before deciding whether the case should be dismissed, either sua sponte or
upon the defendant's motion.” G.T.B., 2008 WL 4998399, at *4.

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        Having examined this trial court’s action in light of Harris, Ruff, and G.T.B., we find that
the trial court erred in dismissing the case before the Association completed its proof. Harris
provides that a trial court may sua sponte order the involuntary dismissal of an action only in rare
circumstances. Ruff and G.T.B. further indicate that a trial court is not authorized to dismiss an
action under Rule 41.02(2) prior to the close of the plaintiff’s proof. Here, the trial court did not
allow the Association to present its entire case, and furthermore, it did not offer a justification for
taking such a drastic action.

       On appeal, Mr. Reinhardt argues that we should affirm the trial court's judgment because the
Association's claim against him is barred by the statute of limitations. Mr. Reinhardt, however, did
not make a properly supported motion asserting the statute of limitations as an affirmative defense.
Furthermore, the trial court did not have a factual basis in the record for finding that the
Association's claim against Mr. Reinhardt was barred by the statute of limitations. Consequently,
we reverse the trial court's judgment with respect to Mr. Reinhardt because it erred in granting the
involuntary dismissal.

        The trial court also ordered the Association to pay the attorneys’ fees of the Zwiegs and Mr.
Reinhardt. The trial court’s finding on attorneys’ fees was a direct consequence of its order of
involuntary dismissal. Because the trial court erred in ordering the involuntary dismissal, we also
reverse the award of attorneys’ fees. Mr. Reinhardt’s request for attorney’s fees on appeal is also
denied.

        For the foregoing reasons, the trial court’s award of attorney’s fees and its order of dismissal
are reversed. The matter is remanded to the trial court for the completion of the Association’s case.
Costs of this appeal are assessed one-half to Appellees Jim and Pauline Zwieg and one-half to
Appellee Fred Reinhardt.




                                                        ___________________________________
                                                        J. STEVEN STAFFORD, J.




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