                                                                                          08/29/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 April 17, 2018 Session

            GARY HAISER ET AL. v. MICHAEL MCCLUNG ET AL.

              Appeal from the Chancery Court for Cumberland County
                 No. 2011-CH-508    Ronald Thurman, Chancellor


                             No. E2017-00741-COA-R3-CV



This case involves two consolidated actions brought by opposing boards of directors of a
residential development community club, with each board claiming legitimacy. The
plaintiffs to the original action were owners of real property in the development who held
a special meeting in September 2011 in order to elect a new board of directors for the
community club. The previous board of directors and defendants to the original action
contested the validity of the election, claiming that none of the counted votes were cast
by members in good standing. The defendants subsequently met in November 2011 and
again in March 2012 to ratify their positions on the community club board of directors.
In December 2011, the “new” board of directors, purportedly elected in September 2011,
filed a declaratory judgment action against the original board of directors in the
Cumberland County Chancery Court, requesting that the court declare which board of
directors was legally in control. The complaint also requested that the court declare
whether the purported developer properly possessed developer’s rights and that the court
award damages to the new board for breach of fiduciary duties by the original board. In
April 2012, the original board filed a separate declaratory judgment action against the
new board in the Cumberland County Chancery Court, making similar allegations and
requesting a declaratory judgment, an injunction preventing the new board from acting on
behalf of the community club, and damages for conversion. The trial court consolidated
the two actions in July 2012 and conducted a bench trial on the matter over the course of
seven non-consecutive days in 2015 and 2016. At the conclusion of trial, the court
determined that the new board was prevented from challenging the developer’s status due
to a statute of limitations. The trial court further determined that neither board was
legitimately in control and appointed a special master to conduct an accounting of dues
and a supervised election. The trial court also directed each side to pay its own attorney’s
fees, ordering the boards to repay to the community club any funds used to pay attorney’s
fees. The original board was re-elected during the supervised election, and the special
master determined that both sides had paid attorney’s fees from their respective annual
assessments collected. The trial court conducted a hearing on the parties’ objections to
the special master’s report before adopting the master’s findings in total. The trial court
thereby affirmed the original directors as current directors; ordered those directors to
repay $54,157.41 to the community club funds; and ordered the plaintiffs to repay
$143,513.55 to the community club funds. The plaintiffs have appealed. Determining
that the trial court improperly relied upon a statute of limitations that is inapplicable to
the plaintiffs’ action, we reverse the trial court’s judgment and remand for further
proceedings consistent with this opinion. We further reverse the trial court’s alternative
rulings for lack of evidentiary basis.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

Melanie E. Davis, Maryville, Tennessee, for the appellants, Gary Haiser, Joel Matchak,
John Moore, Gerald Nugent, Tina Williams, and Judy Scales Patterson.

Gregory C. Logue and Lindy D. Harris, Knoxville, Tennessee, for the appellees, Michael
McClung; Phillip Guettler; Darren Guettler; and Moy Toy, LLC.

                                            OPINION

                            I. Factual and Procedural Background

       This appeal arises from litigation concerning a real estate community development
in Cumberland County now known as “Renegade Mountain” or “Renegade Resort.” In
1972, the Renegade Mountain Community Club (“RMCC”) was established as a non-
profit homeowners’ association for Renegade Mountain, and by-laws and restrictive
covenants were put in place to govern its operations. American Recreation Services, Inc.
(“American Recreation”), a development corporation located in Delaware, and
Recreation Unlimited, Inc. (“Recreation Unlimited”), a Tennessee development
corporation, were the original developers that adopted the Declaration of Covenants and
Restrictions in 1972 for Renegade Mountain, with the stated intention of developing “a
residential and commercial community with streets, water and sewer systems,
recreational facilities of various types, and other common facilities for the use and benefit
of the owners of the said properties described herein.”1 This document granted the
1
  American Recreation was named in this case in June 2015 as an interested party to the original
plaintiffs’ amended declaratory judgment action. American Recreation was not present at trial and has
not been otherwise involved in the case at bar.

                                                 2
developers the ability to plat and improve land and designate certain areas as “common
areas” for the use of RMCC members. The “developer’s rights” contained therein also
entitled the developers to ten votes for each lot or living unit owned by a developer, as
opposed to one vote of regular membership, without the obligation to pay yearly dues.
Pursuant to the Declarations, the developer’s rights were transferrable and not exclusive
to American Recreation or Recreation Unlimited.

       In 1987, RMCC adopted a set of by-laws and amended its restrictive covenants
with a new set of controlling documents. The developed and undeveloped real property
in Renegade Mountain owned by American Recreation also changed ownership several
times over the course of the years along with, purportedly, the developer’s rights. The
Renegade Mountain development included, over time, a sports complex, a pool, a golf
course, gated security, and a network of private roads.

        By January 2000, an entity named Cumberland Gardens Acquisitions Corporation
had acquired a large portion of real property in Renegade Mountain and allegedly the
developer’s rights as well. Cumberland Gardens Acquisitions Corporation began
negotiating with Renegade Resort, LLC, regarding a prospective sale. Renegade Resort,
LLC, ultimately purchased the real property at Renegade Mountain and interests therein
held by Cumberland Gardens Acquisitions Corporation. Joe Looney, an attorney
assisting Cumberland Gardens Acquisitions Corporation with the sale of its real property
in Renegade Mountain, testified that developer’s rights were not discussed during the
negotiations concerning this sale. In contrast, Phillip Guettler, a controlling partner of
Renegade Resort, LLC, testified that he entered into the transaction believing that the sale
included developer’s rights.

       In March 2000, RMCC held a members’ meeting announcing the sale of the
properties owned by Cumberland Gardens Acquisitions Corporation to Renegade Resort,
LLC. According to the minutes of RMCC taken at this meeting, Edward Curtis, Phillip
Guettler, and Michael Haines were elected as directors and officers of RMCC.2 In June
2000, a meeting of the members of RMCC was conducted. The record indicates that this
was the last members’ meeting that occurred until 2011.

      According to the deposition of Joseph Wucher, Renegade Resort, LLC, began
conveying improved and unimproved real property to different entities involved in the
development of Renegade Mountain shortly after its acquisition of the real property and
purported developer’s rights from Cumberland Gardens Acquisitions Corporation. J.L.
Wucher Company, owned by Mr. Wucher, was one such entity that purchased property in
2
  Phillip Guettler and his son, Darren Guettler, are both parties to this suit. For clarity, we will refer to
them by full name throughout this opinion.

                                                     3
Renegade Mountain. Another such entity was LKM Group, LLC, which executed a
contract to purchase the unimproved real property and developer’s rights of Renegade
Resort, LLC, in September 2005. Also in 2005, Mr. Wucher became a member of the
RMCC Board of Directors.

       On October 26, 2005, a document entitled, “Amended and Restated Declaration of
Amended Covenants and Restrictions for Renegade Mountain” (“First 2005
Amendments”), was recorded in the Cumberland County Register of Deeds office.
Among the other changes to the existing declarations and restrictive covenants of
Renegade Resort, the First 2005 Amendments granted developer’s rights specifically to
Renegade Resort, LLC. The First 2005 Amendments were dated October 20, 2005, and
signed by Mr. Curtis as president of RMCC and Mr. Wucher as a managing member of
Renegade Resort, LLC, a “Nevada Limited Liability Corporation.”

       Also on October 26, 2005, two additional documents, entitled, “By-laws of
Renegade Community Club” (“2005 By-laws”) and “Renegade Resort First Amendment
to Declaration of Covenants and Restrictions” (collectively, “Second 2005
Amendments”), were filed in the Cumberland County Register of Deeds office. The
Second 2005 Amendments are similar to the First 2005 Amendments, with one exception
being the specification of “Renegade Resort, LLC, a Tennessee limited partnership,” as
the developer (emphasis added).3 The Second 2005 Amendments were signed by the
same parties on the same day as the First 2005 Amendments.

        By 2008, Renegade Resort, LLC, became involved in a lawsuit with LKM Group,
LLC, (“LKM Group”) over the purchase contract executed in September 2005. The lots
owned by LKM Group were later sold to TIG Holdings, LLC, (“TIG Holdings”) in
March 2011 through a foreclosure sale. On September 28, 2010, Renegade Resort, LLC,
and J.L. Wucher Company conveyed the improved and unimproved real property they
respectively owned in Renegade Mountain to Moy Toy, LLC (“Moy Toy”), a company
owned in part by Michael McClung and, indirectly, Phillip Guettler. Renegade Resort,
LLC, and J.L. Wucher Company also separately conveyed any existing developer’s rights
they respectively claimed in Renegade Mountain to Moy Toy.

       After Moy Toy purchased the improved and unimproved real property and
purported developer’s rights, Phillip Guettler, acting as the vice president of RMCC,
reinstated RMCC as a non-profit corporation with the Tennessee Secretary of State.4 On

3
 We will, at times, collectively refer to the First and Second 2005 Amendments simply as the “2005
Amendments.”
4
 The record reflects that RMCC was administratively dissolved in 2007 based on the failure to file an
annual report.
                                                 4
June 23, 2011, Phillip Guettler purportedly appointed himself and Mr. McClung to the
RMCC Board of Directors.

       Subsequently, acting on behalf of RMCC, Mr. McClung and Phillip Guettler
ceased maintenance and upkeep of the roads, amenities, street lighting, and private
security at Renegade Mountain. By December 2010, the roads were no longer being
cleared of winter snow or being repaired, the street lights had been shut off, and the
private security had been removed. Throughout 2011, several homeowners of Renegade
Mountain attempted to contact the directors of RMCC, expressing their dissatisfaction
with the state of affairs within Renegade Mountain. These homeowners requested that a
special meeting be called and also requested access to the financial records and
membership lists of RMCC. Receiving no response, a number of dissatisfied
homeowners, believing themselves to be members in good standing, organized a special
meeting to elect a new RMCC Board of Directors to RMCC and to amend the RMCC by-
laws.

       On August 24, 2011, TIG Holdings, the holder of 325 of the LKM Group lots sold
at a foreclosure sale, executed a document granting Mr. McClung the proxy votes
associated with the lots. On September 2, 2011, the homeowners held the special
meeting, which Mr. McClung attended as president of RMCC. At the meeting, Mr.
McClung appeared and immediately attempted to adjourn, alleging that none of the
homeowners calling the special meeting were members in good standing. The gathered
homeowners refused to allow adjournment.

       During the September 2, 2011 meeting, the homeowners voted the existing Board
of Directors out of office with an ostensible majority vote. Mr. McClung challenged this
vote by claiming proxy votes for TIG Holdings, which outnumbered the collective votes
of the gathered homeowners. The homeowners rejected these proxy votes as invalid,
however, asserting that the TIG Holdings’ votes were not properly registered in advance
and that TIG Holdings was not a member in good standing, having never paid dues since
its purchase of real property in Renegade Mountain. The homeowners also rejected Mr.
McClung’s assertion that Moy Toy could claim ten votes for each of the lots it owned
through its purported developer’s rights. As a result, Mr. McClung was only able to cast
three votes.

       After voting the existing RMCC Board out of office, the homeowners voted in a
replacement Board (“Owner Board”) for RMCC with Joel Matchak, Gary Haiser, and
Judy Patterson elected as directors. The homeowners at the September 2, 2011 meeting
also approved a new set of amendments to the RMCC by-laws. Contesting the validity of
the September 2, 2011 meeting, Mr. McClung and Phillip Guettler executed a document
on September 22, 2011, appointing Phillip Guettler’s son, Darren Guettler, to the Board
                                           5
of Directors of RMCC. Mr. McClung, Phillip Guettler, and Darren Guettler later held a
“properly noticed Annual Meeting of Members” on March 1, 2012, and voted to ratify
their positions on the RMCC Board of Directors (“Moy Toy Board”).

       On December 22, 2011, Mr. Haiser and Mr. Matchak, identifying themselves as
acting members of the Owner Board, filed a complaint in the Cumberland County
Chancery Court (“trial court”) on behalf of RMCC against Mr. McClung, Mr. Haines,
Phillip Guettler, Mr. Wucher, and Moy Toy (“Owner Complaint”).5 Mr. Moore and Mr.
Nugent were also plaintiffs to this complaint as property owners and members of RMCC.
The complaint alleged, inter alia, that Renegade Mountain had fallen into a state of
disrepair due to the neglect of the defendants and that the Owner Board was properly
elected as the RMCC Board of Directors on September 2, 2011, despite the Moy Toy
Board’s continuing claims. The plaintiffs requested a declaratory judgment as to which
Board of Directors controlled RMCC and which set of restrictions and by-laws were in
legal effect, as well as damages for breach of fiduciary duty.

        Shortly after the Owner Complaint was filed in the trial court, Moy Toy purchased
the 325 lots in Renegade Mountain owned by TIG Holdings. On February 23, 2012, Mr.
McClung and Phillip Guettler filed a motion to dismiss, primarily alleging that the
plaintiffs had not pled with particularity as required by Tennessee Rule of Civil
Procedure 10.03 when filing a claim based upon a written instrument. Moy Toy and Mr.
Wucher subsequently joined in the motion to dismiss. On April 10, 2012, the Moy Toy
Board filed a separate action in the trial court, individually and on behalf of RMCC,
against the individuals on the Owner Board (“Moy Toy Complaint”). The Moy Toy
Complaint essentially mirrored the allegations of the Owner Complaint and sought a
declaratory judgment determining which Board of Directors was properly in place, an
injunction preventing the Owner Board from acting on behalf of RMCC, and damages for
allegedly converted funds that the Owner Board had collected as annual assessments.

       On April 19, 2012, the Owner Board filed a motion to amend its complaint in
response to the motion to dismiss filed concerning the Owner Complaint. Following a
hearing on the motions, the trial court entered an order on May 8, 2012, denying the
motion to dismiss and allowing the Owner Board to file the proposed amendment to its
Complaint.

       On May 14, 2012, Mr. McClung and Phillip Guettler filed a joint answer to the
amended Owner Complaint, denying all substantive allegations and alleging as an
affirmative defense that the declaratory judgment action challenging the by-laws was

5
 Mr. Haines, a previous president of the RMCC Board of Directors, did not file an answer to the Owner
Complaint, and the trial court entered a default judgment against him on February 26, 2013.
                                                 6
missing indispensable parties. According to the answer, “[i]n order to make such a
challenge, the Plaintiffs will be required to join each and every owner subject to the
Bylaws and Declarations of Renegade [Mountain].” On May 14, 2012, the Owner Board
also filed an answer to the Moy Toy Complaint, denying all substantive allegations and
the validity of the Second 2005 Amendments. On May 23, 2012, Moy Toy filed an
answer to the amended Owner Complaint, denying all substantive allegations and arguing
that it “should be dismissed from this case in that there are no factual allegations against
it and it specifically denies any wrongdoing of any kind.” On June 12, 2012, Mr. Wucher
filed an answer to the amended Owner Complaint, either denying the substantive
allegations or asserting a lack of knowledge.

        On June 29, 2012, the trial court entered an order allowing the Moy Toy Board to
join John Peters as a defendant to the Moy Toy Complaint. On July 18, 2012, the trial
court entered an order consolidating the Moy Toy Complaint and the Owner Complaint
into a single proceeding.

        On December 13, 2012, Mr. Wucher filed a motion for summary judgment in the
trial court, arguing that he had resigned from the RMCC Board of Directors on October
12, 2010, and was therefore not individually involved with either Board of Directors as
pertinent to the controversy. Additionally, Mr. Wucher argued that he was not liable for
a breach of fiduciary duty due to an expiration of Tennessee’s statute of limitations
governing the claim. See Tenn. Code Ann. § 48-58-601(a) (2012) (establishing a one-
year statute of limitations and a three-year statute of repose for a director’s breach of
fiduciary duty). On June 10, 2013, the trial court entered an agreed order granting Mr.
Wucher’s motion for summary judgment and dismissing him from the consolidated
action.

       On July 23, 2013, the Owner Board filed another motion to amend its complaint,
adding a request that the trial court order Moy Toy to convey real property classified as
“common areas” to RMCC and a request for class action certification in order to include
other property owners in Renegade Mountain as plaintiffs.6 The trial court entered an
order on September 11, 2013, allowing the Owner Board to amend their complaint but
setting the issue of class certification for hearing. Following a hearing, the trial court
entered an order denying class action certification on October 9, 2013, determining that
the Owner Board “failed to submit a prima facie case on all of the elements [of
Tennessee Rule of Civil Procedure 23] so that the request for class action certification

6
  Although the individuals constituting the Owner Board were not the only plaintiffs to the Owner
Complaint, for conciseness, we will refer to the collective parties associated with the Owner Complaint
simply as the “Owner Board” and the collective parties associated with the Moy Toy Complaint simply as
the “Moy Toy Board” when discussing the parties’ actions in court.

                                                  7
was denied without [the Moy Toy Board’s] having to place evidence in the record
rebutting [the Owner Board’s] evidence.” The trial court subsequently granted the
Owner Board ninety days to seek further amendment of its complaint.

       On April 11, 2014, the Moy Toy Board filed a motion to “unconsolidate” the
actions and renewed an earlier motion requesting that the trial court appoint a special
master to conduct a court-supervised election to determine the Board of Directors for
RMCC. The trial court denied the motion to separate the actions in an order entered May
16, 2014, and held the motion to conduct a special election in abeyance, stating that “this
Court will decide legal issues relating to the right to vote in [RMCC] elections. After
such decision is made by the Court, the Court will re-visit whether the appointment of a
Special Master would be appropriate to oversee an election of the RMCC.”

        On March 31, 2015, the Owner Board filed a motion for leave to amend the
Owner Complaint to reflect an alteration of its declaratory judgment action. The third
amended complaint challenged Moy Toy’s purported developer’s rights, requested that
the trial court order Moy Toy to convey title to all “Common Property” in Renegade
Mountain to RMCC, and requested that the court declare RMCC the controlling entity for
the private roads of Renegade Mountain. The third amended complaint did not
specifically challenge the validity of the First or Second 2005 Amendments. On June 4,
2015, the trial court entered an order allowing the proposed amendment on the condition
that the Owner Board join “the [previous] known developer entities in the chain of title as
additional necessary parties.” On June 17, 2015, the Owner Board filed the third
amended complaint.

       In the third amended Owner Complaint, the individual members of the Owner
Board, with the exception of Ms. Patterson, were listed as plaintiffs, along with Mr.
Peters, Thomas Bauer, and Wendell Blair. The complaint listed as defendants Mr.
McClung, Phillip Guettler, Darren Guettler, Moy Toy, and eighteen other entities that
were previous developers of Renegade Mountain.7 The Moy Toy Board filed an answer
to this amended complaint, again denying the substantive allegations. The Moy Toy
Board admitted the allegations concerning the roads and common areas of Renegade
Mountain, however, “to the extent that the same aver that Moy Toy claims to own the
roads in Renegade [Mountain] and, thus, has control over said roads and their use. For
further answer, Moy Toy does, in fact, own the roads.” Moy Toy also averred that the
developer’s rights belonged to Renegade Resort, LLC, based upon the First 2005

7
  The eighteen additional parties to this consolidated action were not present at trial, have not contested
the proceedings, and are not parties to this appeal. We have omitted the names of these additional parties
for conciseness.

                                                    8
Amendments and would pass to any successor in title, which Moy Toy was pursuant to
the bill of sale it received from Renegade Resort, LLC.

       On November 3, 2015, the Moy Toy Board filed a motion for partial summary
judgment on the issue of whether the TIG Holdings proxy votes were properly discounted
in the September 2, 2011 meeting. On November 11, 2015, the Owner Board filed a
motion for partial summary judgment on the issue of whether Moy Toy possessed
developer’s rights. On December 15, 2015, the trial court entered an order denying the
Moy Toy Board’s motion for partial summary judgment, having discerned the existence
of genuine issues of material fact. On December 17, 2015, the trial court similarly denied
the Owner Board’s motion for partial summary judgment due to existing issues of
material fact.

        The trial court conducted a bench trial over the course of seven non-consecutive
days between December 15, 2015, and April 14, 2016. The court heard testimony from
Mr. Nugent; Mr. Matchak; Phillip Guettler; Darren Guettler; Mr. McClung; Mr. Moore;
Norman Renaud, a homeowner in Renegade Mountain; Wendell Harkleroad, a property
owner and developer of approximately 100 acres in Renegade Mountain; Terry Stephens,
a certified public accountant for RMCC under the Moy Toy Board; and Joe Looney, the
attorney employed by Cumberland Gardens Limited Partnership prior to and during the
January 2000 acquisition by Renegade Resort, LLC.8 The trial court also accepted a
deposition from Mr. Wucher and heard testimony from two expert witnesses: Jack
Atkins, a Crossville attorney, and Ron Hill, a certified public accountant.

        On July 1, 2016, the trial court entered an order that contained several findings of
fact as well as primary rulings and “alternative rulings,” anticipating the possibility of
error in its conclusions of law. As pertinent to the issues on appeal, the trial court stated
the following:

        1.      Neither . . . the [Owner] Board of Directors . . . nor the [Moy Toy]
                Board of Directors . . . are the proper and correct Board of Directors
                for the RMCC. The Moy Toy Board, being Phillip Guettler,
                Michael McClung and Darren Guettler, was not elected by the
                membership. They appointed themselves and their family as Board
                members. This was not in compliance with State statutes or the
                relevant By-Laws. This Board existed in name only without
                complying with the By-Laws or State laws.

8
 Mr. Harkleroad was a general manager of Eagle’s Nest, LLC, which was in the process of developing its
holdings in Renegade Mountain by the time of trial. Any claimed developer’s rights of Eagle’s Nest,
LLC, are not challenged in the instant action and are not part of the issues on appeal before this Court.
                                                   9
2.    Further, the Owner Board was not validly elected because the
      September 2, 2011, special called meeting where they were elected
      was not valid. In order to have a special called meeting, 10% of the
      members in good standing had to call the meeting. The Court finds
      that the year in question for determining good standing status was
      2011. There were only eleven owners who paid their dues in 2011.
      None of these eleven people called the September 2, 2011 meeting.
      Accordingly, because the meeting was not properly called, the
      results of the meeting are not valid.

3.    Nevertheless, the Court finds that the Plaintiffs in the [Owner
      Complaint] acted in good faith in attempting to call the September 2,
      2011 meeting. The Court finds that the residents in Renegade
      [Mountain] made repeated requests to the Moy Toy Board to see the
      books and minutes of the RMCC. These requests were ignored by
      the Moy Toy Board.

4.    Applying a reasonableness standard, the Court finds that any
      resident in Renegade [Mountain] would have been upset by services
      being terminated in Renegade [Mountain] in 2010-2011.

***

6.    As an alternative ruling; in the event the September 2nd, 2011
      meeting is determined by the Court of Appeals to have been legally
      called, the proxy of TIG Holdings, LLC, which was attempted to be
      voted at the September [2], 2011 meeting, was properly not counted
      or considered valid at this meeting. The Court relies on Sections
      2.05 to 2.08 of the By-Laws and the fact that the transfer of these
      lots at the foreclosure sale to TIG Holdings, LLC terminated
      membership of the lots’ owner(s) and there was no application made
      for membership as required for voting rights to attach to the new
      owners of these lots.

7.    The Court finds that the 2005 Restrictions of record in [the First
      2005 Amendments] and the 2005 By-Laws of record in [the Second
      2005 Amendments] are valid because the statute of limitations of six
      (6) years has run on challenging them. After this issue was decided
      on directed verdict, the [Moy Toy Board’s] evidence on the issue
      was pretermitted. If the issue is appealed, [the Moy Toy Board] will

                                   10
      have an opportunity to make an offer of proof on the issue of the
      validity of the 2005 Bylaws and Restrictions.

8.    As to the issue of notice of the recordation of the Restrictive
      Covenants and By-Laws from 2005, the notice the Court relies on is
      the notice to all the world when the documents were recorded in the
      Register of Deeds Office.

9.    As an alternative ruling, if the Court of Appeals determines that the
      statute of limitations issue does not bar the challenge of the prior
      recorded Restrictions and By-Laws, the Court finds that based on the
      evidence that the By-Laws and Amendments recorded in 2005 are
      invalid because they were not enacted in accordance with their
      terms. In such event, the By-Laws and Restrictions in 1987 . . .
      would be the valid By-Laws and Restrictions for Renegade
      [Mountain]. The 2005 Restrictions and By-Laws were never
      approved by the members of the RMCC which were required for the
      amendment to be valid.

***

11.   The Plaintiffs in [both cases] will bear their own attorney’s fees.
      The Special Master appointed herein will make a determination as to
      the amount of attorney’s fees and costs paid from money from
      RMCC annual assessments paid to either Board and require
      disgorgement of the same.

12.   In this case, the Court under its equity jurisdiction, orders a special
      meeting of the members of the RMCC to be held under the terms
      and conditions below.

13.   Further this Court orders an accounting from the Moy Toy Board
      and from the Owner Board as to monies paid to and distributed from
      each Board since January 1, 2010. Payments from owners will be
      individually set forth. . . .

14.   After the accounting is presented, the Court orders that all members
      in the RMCC and/or owners in Renegade [Mountain] will be given
      thirty (30) days to have their dues paid so they can be in good
      standing for the special called meeting. Notice to such owners will
      be done by the Special Master appointed below.
                                    11
***

18.   Other than day to day maintenance or emergencies, the funds on
      each side that have been collected in dues are hereby frozen and an
      accounting will take place as set forth above. Any emergency
      expenditures must be documented.

***

21.   The Developer is entitled to ten votes per lot and is exempt from the
      payment of RMCC dues as set out in [the 2005 Amendments]. The
      Court finds, as discussed supra, that [the Owner Board] cannot
      affirmatively challenge Moy Toy’s developer rights because the
      statute of limitations had run out before [the Owner Board] filed [the
      Owner Complaint] in this Court[.] In so ruling, however, the Court
      has not ruled or determined that Moy Toy is the developer under the
      2005 Restrictions which are [the First 2005 Amendments], where
      Renegade Resorts, LLC named itself as developer. The court has
      only determined that the [Owner Board] cannot obtain an affirmative
      ruling from this court that Moy Toy is not the developer because the
      statute of limitations has run out on that claim for declaratory relief
      before the [Owner Complaint] was filed. As an alternate ruling in
      the event the Court is incorrect on the statute of limitations issue, the
      Court finds that the evidence in this case is that Moy Toy, LLC
      received no developer rights when it purchased what is now
      Renegade [Mountain], then Renegade Resorts, LLC and or any other
      entity. The Court bases its ruling on the testimony of Joe Looney
      and Jack Atkins, who the Court finds credible. There is no evidence
      by deed or contract of the legitimate transfer of developer rights to
      Moy Toy, LLC. The Court finds that though [the First 2005
      Amendments] states developer rights existed, they did not exist
      because there was a breach in title that occurred and these rights
      were not properly conveyed in the chain of title or possession of
      such rights to Moy Toy, LLC or its predecessor in title except
      through what is stated in the 2005 Amended Restrictions.

***

23.   Regarding common areas, this Court has previously ruled by
      directed verdict that the legal title in such common areas remains
                                     12
             with the Developer under both the 1987 and the 2005 Restrictions on
             file. The amenities that are unplatted such as the sports park belong
             to Moy Toy, LLC and it is up to Moy Toy, LLC to transfer title if it
             so chooses. If the Court is incorrect on the statute of limitations
             ruling then the Developer doesn’t exist.

      24.    The Court finds that under [the 2005 Amendments], the RMCC has
             the power to maintain and control the platted roads in Renegade
             [Mountain.] Subject to legal, existing easements, Moy Toy, LLC
             has the power to maintain and control the unplatted roads owned by
             it with the exception of the entrance road, Renegade Mountain
             Parkway, and the bridge located at the entrance to Renegade
             Mountain, which shall be maintained and controlled by the RMCC.

      ***

      32.    Moy Toy, LLC, Michael McClung and Phillip Guettler had unclean
             hands in its action towards the residents in this matter, and the
             [Owner Board] acted in good faith.

      33.    The Court finds that there were credibility concerns with Phillip
             Guettler, Michael McClung and Darren Guettler. There were some
             credibility concerns as well with John Moore in some of his
             testimony. The other residents in Renegade [Mountain] who
             testified were credible, and the Court accepted their testimony as
             truth.

        Following the trial court’s ruling, the special master proceeded to collect dues,
determine members in good standing, and subsequently conducted the court-ordered
election of the RMCC Board of Directors on August 25, 2016. During this special
election, Moy Toy was allowed to cast 3,363 votes due to the increased voting ratio per
lot allowed by its status as developer. As a result, Mr. McClung, Phillip Guettler, and
Darren Guettler were elected to the RMCC Board of Directors with 3,373 votes each.

       On October 3, 2016, the special master conducted a second hearing to address the
accounting of each Board’s attorney’s fees and maintenance funds. During the
proceedings, Mr. Stephens, a licensed certified public accountant, verified the accounting
records of the Moy Toy Board. Although the Owner Board allegedly kept detailed
records separating annual dues assessments and maintenance costs from legal fund
donations and expenses, it is undisputed that the transactions had been commingled in
one banking account. The Owner Board depended on the testimony of Mr. Moore, the
                                           13
assistant treasurer at the relevant times, to verify the separation of funds. The special
master, however, found credibility issues in Mr. Moore’s testimony and determined much
of the evidence presented by the Owner Board to be inadmissible as hearsay.

        On October 6, 2016, the special master filed a report on the proceedings, which
stated the following findings as pertinent to this appeal:

      1.     I hereby find the amount of attorney fees and costs paid from money
             which originated out of annual assessments paid to either board is as
             follows:

      2.     The [Moy Toy Board] expended attorney fees paid from annual
             assessments which should be repaid to the newly elected board in the
             amount of Fifty-Four Thousand One Hundred Fifty-Seven Dollars
             and 41/100 ($54,157.41). Such funds were expended over a three
             year period as set out herein. . . .

      3.     The [Owner Board] expended attorney fees in the amount of One
             Hundred Forty-Three Thousand Five Hundred Thirteen Dollars and
             55/100 ($143,513.55) over a six year period as set out below. Per
             Mr. Moore’s testimony these legal funds were co-mingled in one
             bank account with annual assessment funds. Mr. Moore testified to
             the fact that a separate legal fund was accounted for as a line item
             within this co-mingled account. He further testified that he
             personally prepared the accountings which were submitted to the
             Court and to the Special Master to review. I found Mr. Moore’s
             testimony to be self-serving and to lack credibility. Mr. Moore
             contradicted himself when questioned about expenditures and
             admitted to paying himself, his wife, his daughter, and his company,
             Americas Best Corp., from funds collected from annual assessments.
             He further testified that he made payments to himself after which
             time that the Court had frozen the bank accounts. At the hearing, no
             proof was presented related to the source of the deposits of legal
             funds from private contributors other than Mr. Moore’s testimony.
             Therefore, I find that the [Owner Board] expended attorney fees paid
             from annual assessments which should be disgorged and paid to the
             newly elected board in the amount of One Hundred Forty-Three
             Thousand Five Hundred Thirteen Dollars and 55/100 ($143,513.55).

      On October 17, 2016, the Moy Toy Board filed a limited objection to the special
master’s report, requesting that if the trial court altered the amount of disgorgement
                                           14
applied to the Owner Board, the same standard of alteration should be applied to the Moy
Toy Board as well. On November 2, 2016, the Owner Board filed a motion for
consideration of the special master’s report and objection thereto, challenging the
findings as “improper, unjust and unfair.” The Owner Board argued that the special
master instituted an inconsistent standard of evidence because the master had stated at the
conclusion of the August 25, 2016 hearing that he would consider the accounting reports
as true “unless at [the] hearing . . . somebody can prove otherwise that the money was not
spent for a road or was spent inappropriately.” The Owner Board argued that although
the legal funds were commingled with the assessment funds, the monies were separately
accounted. The Owner Board attached as additional proposed evidence for the trial
court’s consideration several exhibits consisting of financial statements and affidavits
from residents of Renegade Mountain stating that their legal fund donations were
voluntary and not paid as annual assessments.

         Following a hearing, the trial court overruled both objections and adopted the
special master’s report in its entirety through an order entered on January 23, 2017. In a
separate order entered on the same day, the trial court incorporated its previous rulings
from the June 29, 2016 hearing; affirmed the August 25, 2016 election of the RMCC
Board of Directors; ordered the Moy Toy Board to repay $54,157.41 to RMCC; and
ordered the Owner Board to repay $143,513.55 to RMCC. The trial court also ordered
the Owner Board “to deliver all bank accounts, funds, accountings, books, records, e-mail
lists, intellectual property, and any and all personal property of [RMCC] to the Board of
Directors of [RMCC].”

       On February 17, 2017, the Moy Toy Board filed a proof of payment of $54,157.41
to the RMCC. On February 22, 2017, the Owner Board filed a motion to revise the
orders entered on January 23, 2017, requesting, inter alia, that the trial court find “that
money paid to the attorney’s fees fund is subject to refund as dues overpayment, to the
extent it constitutes payment in excess of actual dues owed.” The trial court incorporated
its January 23, 2017 orders into a final order and judgment entered on March 10, 2017,
and denied the Owner Board’s motion to revise orders in an order entered March 30,
2017. The Owner Board timely appealed.

                                   II. Issues Presented

      The Owner Board presents eight issues on appeal, which we have restated as
follows:

       1.     Whether the trial court erred by applying a six-year statute of
              limitations to bar the Owner Board’s challenge to Moy Toy’s
              purported developer’s rights.
                                            15
      2.     Whether the trial court erred by declining to find that the statute of
             limitations had been tolled.

      3.     Whether the trial court erred by recognizing the First 2005
             Amendments instead of the Second 2005 Amendments with respect
             to the named developer of Renegade Mountain.

      4.     Whether the trial court erred by determining that the owners calling
             the special meeting on September 2, 2011, were not members of
             RMCC in good standing.

      5.     Whether the trial court erred by determining that Moy Toy owned a
             fee simple interest in the “common areas” of Renegade Mountain
             and was under no obligation to convey the common areas to RMCC
             or allow RMCC members to use them.

      6.     Whether the trial court erred by determining that Moy Toy had a
             right to control the unplatted roadways of Renegade Mountain.

      7.     Whether the trial court erred by adopting the special master’s report
             concerning legal expenses paid by both sides from annual
             assessments.

      8.     Whether the trial court erred by determining that Moy Toy
             maintained developer’s rights in RMCC and was able to vote as the
             developer of RMCC in the special election held on August 25, 2017,
             with extra votes and without paying dues for its owned lots.

The Moy Toy Board presents two additional issues, which we have similarly restated as
follows:

      9.     Whether the trial court erred by making an alternative finding that
             the proxy votes allegedly granted to Moy Toy for the September 2,
             2011 meeting were properly discounted at the meeting.

      10.    Whether the trial court erred by making alternative findings with
             respect to the developer’s rights of Moy Toy and the validity of the
             2005 Amendments when the trial court had pretermitted the Moy
             Toy Board’s evidence on these issues.

                                           16
                                 III. Standard of Review

        We review a non-jury case de novo upon the record with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). “In order for the evidence to preponderate against the trial court’s findings of fact,
the evidence must support another finding of fact with greater convincing effect.” Wood
v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002). We review the trial court’s conclusions of law, including
its interpretation of a written agreement, de novo with no presumption of correctness. See
Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn. 2013); Ray
Bell Constr. Co., Inc. v. State, Tenn. Dep’t of Transp., 356 S.W.3d 384, 386 (Tenn.
2011).

        In this matter, the trial court made certain alternative rulings in an attempt to
prevent further protracted litigation. With regard to alternative rulings, we have
previously noted that this Court may exercise its discretion to address alternative rulings
made by the trial court. See Tenn. R. App. P. 13(b); see also Am. Heritage Apartments,
Inc. v. Hamilton Cty. Water & Wastewater Treatment Auth., 494 S.W.3d 31, 51 (Tenn.
2016) (explaining that “there are many cases in which this approach [of addressing an
alternative ruling] is appropriate, serving judicial efficiency and avoiding unnecessary
litigations of the parties” while holding that affirming an alternative ruling for “a pivotal
threshold issue such as certification of a class” was not appropriate); Stovall v. UHS
Lakeside, LLC, No. W2013-01504-COA-R9-CV, 2014 WL 2155345, at *8 n.8 (Tenn. Ct.
App. Apr. 22, 2014), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465
S.W.3d 570 (Tenn. 2015) (“[W]e have found several cases that have considered
alternative rulings by the trial court, or even encouraged such rulings.”).

                           IV. Developer’s Rights of Moy Toy

       The Owner Board’s primary issues on appeal directly relate to Moy Toy’s
purported status as developer of RMCC, resulting in Moy Toy’s possession of the
associated “developer’s rights” as outlined in the declarations and by-laws of Renegade
Resort and RMCC. The Owner Board’s third amended complaint alleged that “through
discovery, it appears that such developer rights were never conveyed to Moy Toy, LLC’s
predecessors in title. As such, such ‘developer rights’ do not exist for Moy Toy, LLC
because the parties that purportedly gave Moy Toy, LLC such rights did not have them to



                                             17
begin with.”9 The Moy Toy Board, as an affirmative defense in its answer to the third
amended complaint, averred, inter alia, that “[p]ursuant to the [First 2005 Amendments],
which Declaration is not being challenged, the developer rights belonged to Renegade
Resort, LLC at the time the Declaration was drafted and would pass to any successor in
title through an instrument specifically conveying such developer rights.” The trial court
ruled in favor of the Moy Toy Board regarding this affirmative defense via a directed
verdict during trial and through its July 1, 2016 order by stating that the First 2005
Amendments “are valid because the statute of limitations of six (6) years has run on
challenging them.”

        The Owner Board has appealed the trial court’s application of the six-year statute
of limitations on two alternate theories. First, the Owner Board contends that the six-year
statute of limitations preventing “[a]ctions on contracts not otherwise expressly provided
for” was not applicable to their claim because the claim did not sound in contract law.
See Tenn. Code Ann. § 28-3-109(a)(3) (2017); Benz-Elliott v. Barrett Enters., LP, 456
S.W.3d 140, 147-48 (Tenn. 2015) (explaining that “to determine the governing statute of
limitations, a court must ascertain the ‘gravamen of the complaint.’”). Alternatively, the
Owner Board contends that, if the six-year statute of limitations is applicable to the case
at bar, the cause of action should be found to have accrued from the time of actual notice
to the RMCC members and not from the time of recordation of the First 2005
Amendments. Upon a thorough examination of the record and applicable law, we
determine that the gravamen of the Owner Board’s complaint was not a challenge to the
validity of the 2005 Amendments. We further determine that a statute of limitations is
only applicable to actions commenced in court after a set period of time, as more fully
explained below.

                                    A. Statute of Limitations

        Statutes of limitations in Tennessee operate to bar actions commenced after a
specified time. See Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn. 1978) (explaining
that a statute of limitation does not eliminate a remedy for a civil wrong but rather
provides that a claim cannot be brought after a certain amount of time has passed). We
note at the outset that statutes of limitations “are shields, not swords” and that “they
reflect ‘a societal choice that actions must be brought within a certain time period.’”
Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 456 (Tenn. 2012)
(internal citations omitted). As our Supreme Court has explained:


9
 The Owner Board’s third amended complaint was the final amended complaint filed and, therefore, the
operative complaint with respect to a review of these proceedings. See Bowers v. Estate of Mounger, 542
S.W.3d 470, 481-82 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov. 16, 2017).
                                                  18
               We have frequently pointed out that statutes of limitations (1)
       promote stability in personal and business relationships, (2) give notice to
       defendants of potential lawsuits, (3) prevent undue delay in filing lawsuits,
       (4) “avoid the uncertainties and burdens inherent in pursuing and defending
       stale claims,” and (5) “ensure that evidence is preserved and facts are not
       obscured by the lapse of time or the defective memory or death of a
       witness.” Accordingly, the courts construe exceptions to statutes of
       limitations carefully to assure that they are not extended beyond their plain
       meaning.

Id. (internal citations omitted).

       When interpreting any statutory language, “‘[o]ur primary objective . . . is to carry
out the intent of the legislature without unduly broadening or restricting the statute.’”
Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 400 (Tenn. Ct.
App. 2013) (quoting Nichols v. Jack Cooper Transp. Co., 318 S.W.3d 354, 359-60 (Tenn.
2010)). “When a statute is clear, we apply the plain meaning without complicating the
task, and simply enforce the written language.” Id. (citing Abels ex rel. Hunt v. Genie
Indus., Inc., 202 S.W.3d 99, 101-02 (Tenn. 2006)).

       The six-year statute of limitations that the trial court applied to the Owner Board’s
third amended complaint provides in pertinent part:

       (a)    The following actions shall be commenced within six (6) years after
              the cause of action accrued:

              ***

              (3)     Actions on contracts not otherwise expressly provided for.

Tenn. Code Ann. § 28-3-109(a) (emphasis added). “‘Action’ in this title includes
motions, garnishments, petitions, and other legal proceedings in judicial tribunals for the
redress of civil injuries.” Tenn. Code Ann. § 28-3-101 (2017) (emphasis added).
Tennessee courts have generally examined restrictive covenants as contracts, meaning
that the application of § 28-3-109(a)(3) to an action challenging the validity of restrictive
covenants would be appropriate under certain circumstances. See Hughes v. New Life
Dev. Corp., 387 S.W.3d 453, 475 (Tenn. 2012) (“The restrictive covenants in the
Declaration in this case are property interests that run with the land, but they arise from a
series of overlapping contractual transactions. . . . Accordingly, they should be viewed as
contracts and examined as such.”); Hannewald v. Fairfield Cmtys., Inc., 651 S.W.2d 222,
227 (Tenn. Ct. App. 1983) (applying the six-year statute of limitations contained in § 28-
                                             19
3-109(a)(3) to an action seeking to collect dues based on covenants and restrictions). As
pertinent to this matter, however, we discern no language in Tennessee Code Annotated §
28-3-109(a)(3) prohibiting courts from examining the validity of a contract or other
document proffered as evidence but not specifically challenged in an action as defined by
§ 28-3-101.

       The pleadings indicate that the Owner Board did not in its third amended
complaint bring an action challenging the validity of the 2005 Amendments, which might
have been potentially barred by a statute of limitations. Instead, the Owner Board simply
challenged whether Moy Toy possessed developer’s rights. In response, the Moy Toy
Board relied upon the First 2005 Amendments as evidence of Moy Toy’s alleged
developer’s rights in order to prove its affirmative defense that Moy Toy received the
developer’s rights pursuant to its agreement with Renegade Resort, LLC, which allegedly
received such rights as a result of the First 2005 Amendments. As such, the Moy Toy
Board bears the burden of proving the validity of the First 2005 Amendments. See
Winford v. Hawissee Apartment Complex, 812 S.W.2d 293, 295 (Tenn. Ct. App. 1991),
perm. app. denied (Tenn. June 10, 1991) (“The burden of proof is on the party having the
affirmative of the issue, and the burden of proof never shifts.”).

       Despite the fact that the third amended complaint did not challenge the validity of
the First 2005 Amendments, the trial court found that the validity of the First 2005
Amendments could not be challenged based on the six-year statute of limitations.
However, the Moy Toy Board’s reliance on the First 2005 Amendments in its answer
does not constitute an “action” as defined by Tennessee Code Annotated § 28-1-101.
The statute of limitations contained in Tennessee Code Annotated § 28-3-109(a)(3) does
not operate to bar the litigation of an issue introduced as a defense rather than a claim.
See generally Beach v. Ocwen Fed. Bank, 523 U.S. 410, 416 (1998) (explaining that
“limitation statutes ‘are aimed at lawsuits, not at the consideration of particular issues in
lawsuits.’”).

       The transcript of the proceedings during trial indicates that the trial court granted a
directed verdict on the issue of the six-year statute of limitations based on this Court’s
ruling in Grand Valley Lakes Prop. Owners Ass’n, Inc. v. Burrow, 376 S.W.3d 66 (Tenn.
Ct. App. 2011), perm. app. denied (Tenn. May 18, 2012). In Grand Valley Lakes, Grand
Valley, a homeowner’s association to a platted subdivision in Tennessee, filed a
complaint against one homeowner, seeking to recover unpaid assessments on the
homeowner’s real property in the subdivision. Id. at 71. Grand Valley initiated the
lawsuit in 2002 and was seeking payment of dues based on a rate that had been increased
in 1998 as the result of an amendment to the subdivision’s restrictive covenants. Id.
After some discovery and subsequent amendments to Grand Valley’s complaint, the
homeowner filed an answer in 2007, denying the validity of the 1998 amendments. Id. at
                                             20
72. The homeowner concomitantly filed a counter-complaint seeking, inter alia, a
declaration from the court that the 1998 amendments were invalid. Id. The case came to
this Court on appeal after the lower court granted summary judgment to Grand Valley,
holding in pertinent part that the 1998 amendments were properly adopted and that the
homeowner’s counter-claims were time-barred by the statute of limitations. Id. at 73.

       Reviewing in depth the issue of whether the Grand Valley Lakes 1998
amendments were properly adopted in accordance with the terms of the restrictive
covenants already in place, this Court examined the restrictive covenants and the
undisputed facts regarding the amendments’ adoption, determining that Grand Valley
properly adopted the 1998 amendments and that “the grant of summary judgment in favor
of Grand Valley on the question of the validity of the [1998 amendments] was correct
unless any of [the homeowner’s] counter-claims survive.” Id. at 82-83. When
subsequently reviewing the counter-claims presented by the homeowner and the issue
regarding the applicable statute of limitations, this Court first noted that the lower court
had not stated which statute of limitations was applicable to the homeowner’s counter-
complaint, determining that “[b]ecause [the homeowner’s] counter-claims were filed over
nine years after the amendments were approved, it is obvious that all applicable statutes
of limitation had expired by this time.” Id. at 83. This determination was based in part
on the six-year statute of limitations applicable to contract claims. Id.

        The Grand Valley Lakes Court’s application of a statute of limitations to the
homeowner’s counter-claim actually challenging the validity of amendments to
restrictive covenants in Grand Valley Lakes is distinguishable from the circumstances in
the case at bar. In Grand Valley Lakes, the homeowner made two distinct assertions that
the 1998 amendments were invalid. The first assertion of invalidity was through the
homeowner’s answer to Grand Valley’s complaint, which asserted invalidity of the
amendments as a defense to Grand Valley’s claim for dues. Id. at 72. The second
assertion of invalidity was through the homeowner’s counter-claim also asserting
invalidity of the amendments. Id. This Court reviewed the applicability of a statute of
limitations specifically with respect to the homeowner’s counter-claim only, which was
an action challenging the validity of the amendments. Id. at 83; see Tenn. Code Ann. §
28-1-101. Prior to this, however, the Grand Valley Lakes Court had independently
reviewed the validity of the 1998 amendments with respect to Grand Valley’s complaint
and the homeowner’s answer, which raised invalidity of the amendments as a defense.
Id. at 79-82. We note that neither this Court nor the trial court in Grand Valley Lakes
considered the statute of limitations with respect to the homeowner’s answer denying the
validity of the 1998 amendments and that neither court presumed the validity of the 1998
amendments due to the potentially expired statute of limitations.



                                            21
        We determine that the validity of the 2005 Amendments has not been challenged
as part of an action in the case at bar. The Moy Toy Board relied upon the validity of the
2005 Amendments in the Moy Toy Complaint in order to affirmatively prove its claim,
and the Moy Toy Board introduced the 2005 Amendments in its answer to the third
amended Owner Complaint in order to prove its affirmative defense. We do not discern
either pleading as an action challenging the validity of the 2005 Amendments. Rather,
the Moy Toy Board relied upon the validity of the 2005 Amendments in order to support
its claim of possessing developer’s rights, which resulted in the Moy Toy Board’s
assuming the burden of proof regarding the amendments’ validity. See Winford, 812
S.W.2d at 295. Having determined that the statute of limitations set out in Tennessee
Code Annotated § 28-3-109(a)(3) applies only to actions and that no action challenging
the 2005 Amendments has been filed herein, we further determine that § 28-3-109(a)(3)
is inapplicable to the case at bar. We therefore reverse the trial court’s ruling that the
2005 Amendments were valid due to expiration of the six-year statute of limitations.
Having so determined, the Owner Board’s issue regarding the tolling of the statute of
limitations is pretermitted as moot.

                                  B. Alternative Rulings

        Having concluded that the six-year statute of limitations codified at Tennessee
Code Annotated § 28-3-109(a)(3) does not bar the Owner Board’s challenge to Moy
Toy’s possession of developer’s rights, we will now address the trial court’s alternative
ruling anticipating this determination. See Am. Heritage Apartments, Inc., 494 S.W.3d at
51. Pertinent to this issue, the trial court found that “based on the evidence[,] the By-
Laws and Amendments recorded in 2005 are invalid because they were not enacted in
accordance with their terms.” The court found that the 2005 Amendments had never
been “approved by the members of the RMCC[,] which [was] required for the
amendment[s] to be valid.” The Moy Toy Board contends that the trial court erred by
making this alternative ruling because the court excluded the Moy Toy Board’s evidence
concerning the adoption of the 2005 Amendments, which the Moy Toy Board asserts
may have materially affected the court’s determinations. Upon a thorough review of the
Moy Toy Board’s offer of proof, we determine that the trial court’s alternative ruling
regarding the validity of the 2005 Amendments and Moy Toy’s claim to developer’s
rights thereunder, without consideration of the Moy Toy Board’s evidence concerning
this issue, substantially affected the rights of the Moy Toy Board and thereby constituted
reversible error. See Tenn. R. Evid. 103(a)(2).

       As our Supreme Court has explained, “[i]n order for an appellate court to review a
record of excluded evidence, it is fundamental that such evidence be placed in the record
in some manner.” State v. Goad, 707 S.W.2d 846, 852 (Tenn. 1986). “When, however,
it consists of oral testimony, it is essential that a proper offer of proof be made in order
                                            22
that the appellate court can determine whether or not exclusion was reversible.” Id. at
853. “Additionally, a trial court’s decision regarding the exclusion of evidence, even if
erroneous, will not be the basis for reversal unless it affected a substantial right of a party
and ‘more probably than not affected the judgment or would result in prejudice to the
judicial process.’” In re Estate of Darken, No. M2016-00711-COA-R3-CV, 2016 WL
7378806, at *12 (Tenn. Ct. App. Dec. 20, 2016) (quoting Tenn. R. App. P 36(b)).
Therefore, “[a]n erroneous exclusion of evidence requires reversal only if the evidence
would have affected the outcome of the trial had it been admitted.” Bean v. Wilson Cty.
School System, 488 S.W.3d 782, 793 (Tenn. Ct. App. 2015) (quoting Thompson v. City of
LaVergne, No. M2003-02924-COA-R3-CV, 2005 WL 3076887, at *9 (Tenn. Ct. App.
Nov. 16, 2005)).

       As a prelude to our review of the Moy Toy Board’s offer of proof, we note that
there are two issues that the trial court alternatively ruled on as pertinent to Moy Toy’s
purported developer’s rights in Renegade Mountain. First, the trial court determined that
the developer’s rights, consisting of personal property and not related to interests in real
property, did not pass to Moy Toy by reason of an unbroken series of conveyances.
Second, the trial court determined that the 2005 Amendments were not properly enacted
and, therefore, were invalid.

       Following the trial court’s grant of a directed verdict, the Moy Toy Board made an
offer of proof containing information relevant to both of the above alternative rulings.
With respect to the 2005 Amendments, the Moy Toy Board filed correspondence
demonstrating that it had intended to call two attorneys to testify regarding the adoption
of the amendments, who would presumably have expressed opinions regarding the
validity of the adoption process. The Moy Toy Board’s offer of proof further indicated
that it intended to present evidence that could potentially impeach Mr. Looney’s
testimony regarding the adoption of the 2005 Amendments. Had this evidence been
admitted, clearly it could have affected the trial court’s alternative ruling regarding the
issue of the 2005 Amendments’ validity.

       Accordingly, we determine that the issue of the validity of the 2005 Amendments
must be remanded to the trial court for further hearing and determination. On remand,
the trial court should allow both sides to present evidence concerning the process of
adoption of the 2005 Amendments and whether the requirements for such adoption were
properly followed. The validity and applicability of the 2005 Amendments not only
affects the issue of Moy Toy’s possession of developer’s rights but also the remaining
issues raised on appeal.

      Although we acknowledge that the Moy Toy Board also claimed possession of
developer’s rights via chain of title, Moy Toy was precluded from presenting its evidence
                                              23
concerning this claim due to the grant of directed verdict. With respect to the
conveyances of developer’s rights as they may have passed to Moy Toy, we note that the
Owner Board presented evidence supporting the existence of two potential gaps in the
chain of title through the testimony of Mr. Looney. According to Mr. Looney,
Cumberland Gardens Acquisitions Corporation, which conveyed title to a large portion of
the undeveloped real property in Renegade Mountain to Renegade Resort, LLC, did not
discuss a conveyance of developer’s rights to Renegade Resort, LLC, during the
negotiations over the sale. Additionally, a question existed as to whether Cumberland
Gardens Acquisitions Corporation gained developer’s rights in Renegade Mountain when
it gained title to its interests in Renegade Mountain through a foreclosure sale of the
previous known developer, Cumberland Gardens Limited Partnership.

        Moy Toy’s offer of proof concerning this issue included an affidavit from attorney
Joe Huie, who stated that he had researched the issue of developer’s rights and opined
that Moy Toy possessed such rights through a proper chain of title. Again, this evidence
was not considered by the trial court due to the grant of a directed verdict based on the
statute of limitations. Had this evidence been considered, clearly it could have affected
the trial court’s alternative ruling regarding whether Moy Toy possessed developer’s
rights through an unbroken chain of title. This being the case, we must reverse the trial
court’s alternative ruling and remand this issue to the trial court for further hearing and
determination as well. The trial court should allow both sides to present evidence
concerning the chain of title of developer’s rights in Renegade Mountain.

                              C. Moy Toy’s Voting Rights

        Having determined that the six-year statute of limitations is inapplicable to the
Moy Toy Board’s reliance on the 2005 Amendments as valid instruments and that the
issue of whether Moy Toy possessed developer’s rights must be remanded to the trial
court, we are unable to determine whether Moy Toy was properly allowed to vote at a
ten-to-one ratio for each of its owned lots without the payment of dues during the court-
ordered special election. Accordingly, we are unable to determine whether the special
master properly counted 3,363 votes for Moy Toy during such election. For this reason,
the August 25, 2017 special election results are vacated. The trial court must first make a
determination concerning the issue of whether Moy Toy validly possessed developer’s
rights before another special election can be held.

                         V. Members in Good Standing in 2011

       The Owner Board contends that the special meeting held on September 2, 2011,
was valid because the members calling and attending the meeting were in good standing.
In support of this contention, the Owner Board argues that the RMCC annual assessment
                                            24
for 2011 was not due prior to the meeting, meaning that all owners who were current in
their dues payments through 2010 were in good standing as members of RMCC. The
Moy Toy Board contends that, pursuant to the 2005 By-laws, annual assessments were
due on the first of February of each year regardless of whether RMCC sent an invoice.

       We note that resolution of this issue turns on the applicability and resultant
interpretation of the 2005 Amendments. Without a determination by the trial court
regarding the validity of the 2005 Amendments, after hearing all of the evidence from
both sides, this Court cannot properly rely upon the provisions contained within those
Amendments to determine which members were in good standing at the time of the
September 2, 2011 special election. This Court also cannot consider whether any prior
versions of the Restrictions and/or By-Laws would or should be applied to such
determination. Accordingly, we reverse the trial court’s ruling on this issue and remand
the issue for further determination.

               VI. Common Areas and Roadways of Renegade Mountain

       The Owner Board contends that the trial court erred by determining that Moy Toy,
as the developer of Renegade Mountain, was able to retain title to the common areas in
Renegade Mountain without being obligated to convey title to the common areas to
RMCC. The Owner Board further contends that the trial court erred by determining that
Moy Toy had the power to control the unplatted roads of Renegade Mountain with the
exception of the entrance road and bridge to Renegade Mountain.

        These issues are largely impacted by two determining factors: (1) whether the
trial court properly determined that Moy Toy maintained developer’s rights and (2) which
version of the Restrictions and By-laws were to be applied. Therefore, the rulings on
these issues are reversed and must be addressed by the trial court on remand as well.

                              VII. Special Master’s Report

       The Owner Board contends that the trial court erred by approving the special
master’s report in total, arguing that the special master erroneously considered voluntary
donations to a legal fund as annual assessments. According to the special master’s report,
the Owner Board had a commingled account for RMCC from which it paid $143,513.55
in legal fees. The special master further determined that the Owner Board had not
presented sufficient evidence to demonstrate that funds in the RMCC account were
voluntary deposits of legal funds from private contributions. The special master therefore
determined that the entire amount should be repaid to RMCC.



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       In its June 29, 2016 order, the trial court determined that both sides would be
responsible for their own attorney’s fees and that “these funds are not to be charged back
against the RMCC and/or the owner but such costs should be borne by Moy Toy, LLC
and/or the Plaintiffs in the 527 Case and the Defendants in the 508 Case.” The court
further stated that “Plaintiffs in the 508 Case and Defendants in the 527 Case will bear
their own attorney’s fees,” and ordered the special master to “make a determination as to
the amount of attorney’s fees and costs paid from money from RMCC annual
assessments paid to either Board and require disgorgement of the same.”

       This Court’s concern with this issue is that the trial court’s order failed to state a
legal basis for its ruling requiring repayment of attorney’s fees expended. Lacking
sufficient findings of fact and conclusions of law, this Court is unable to discern whether
the trial court based its ruling, in whole or in part, on an interpretation of the 2005
Amendments. We therefore reverse the trial court’s ruling with regard to repayment of
attorney’s fees and remand this issue for further findings and/or conclusions regarding the
basis of the ruling.

                                     VIII. Conclusion

       We reverse the trial court’s rulings with respect to the issue of developer’s rights
and the statute of limitations; the validity of the September 2, 2011 election; control over
platted and unplatted areas of Renegade Mountain; and the results of the August 25, 2017
special election. We further reverse the trial court’s ruling requiring repayment of legal
fees to RMCC. We remand this matter to the trial court for further proceedings
consistent with this opinion. The costs on appeal are taxed one-half to the appellants,
Gary Haiser, Joel Matchak, John Moore, Gerald Nugent, Tina Williams, and Judy Scales
Patterson, and one-half to the appellees, Michael McClung; Phillip Guettler; Darren
Guettler; and Moy Toy, LLC.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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