                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 21, 2003 Session

   DALE AND MARY BRUNO v. HAROLD R. ROUNDS, III AND WIFE,
                   MICHELLE V. ROUNDS

                 Direct Appeal from the Chancery Court for Fayette County
                        No. 12878   Dewey C. Whitenton, Chancellor



                     No. W2002-00130-COA-R3-CV - Filed June 16, 2003


This appeal arises from a dispute regarding a restrictive covenant in a residential community. The
trial court held that the building at issue was not a barn or a storage building and thus was not in
violation of the restrictive covenant. The parties raise multiple issues on appeal. For the following
reasons, we affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

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

Richard L. Winchester, Jr., Memphis, TN, for Appellant

J. Payson Matthews, Somerville, TN, for Appellee
                                       MEMORANDUM OPINION1

                                       Facts and Procedural History

         Dale and Mary Bruno (“the Brunos”) and Harold and Michelle Rounds (“the Rounds”) own
lots in the Cole Farms subdivision in Fayette County, Tennessee. All the lots in this subdivision are
subject to certain restrictive covenants, including covenant seven (7), which provides that “[a]ll barns
and storage buildings shall be located to the rear of the main residence.”

        The Rounds constructed a building next to their primary residence, which they refer to as a
garage and workshop. This building is divided into two (2) sections. In one section, the Rounds
park three antique automobiles. The other section houses woodworking machines and tools that
were not installed at the time of the hearing, but are now installed and in use. The Rounds have
another building at the rear of their property which they refer to as a storage building. This storage
building houses their tractor and various garden implements. Part of the Rounds’ main residence
is a two-car garage in which they park their primary vehicles.

        On June 5, 2001, the Brunos filed suit, alleging that the Rounds were in violation of three
of the restrictive covenants applicable to all property owners in the Cole Farms subdivision. First,
the Brunos alleged that the Rounds violated covenants eight (8) and nine (9) by allowing dead trees
and piles of stone and brick to accumulate in their yard. Before trial, however, these materials had
been removed and thus were not an issue at the time of trial. Second, the Brunos alleged that the
Rounds were in violation of covenant twelve (12) by failing to complete the construction of the
primary residence within 270 days. The Rounds admitted this violation in their answer. The trial
court found that the Rounds were in violation of covenant twelve (12) and ordered the Rounds to
complete construction of their primary residence and obtain a certificate of occupancy on or before
March 1, 2002. At the time of this appeal, this had been accomplished and is not at issue.

        Finally, the Brunos alleged that the Rounds were in violation of covenant seven (7) by
constructing what they perceived to be “a storage structure of some nature” next to the primary
residence. In their answer, the Rounds denied that the building at issue was a “storage structure or
barn,” but instead was an automobile garage. The Rounds asserted that because the building was
a garage, it was not required to be located to the rear of the primary residence and as such did not
violate covenant seven (7).

        The hearing of the Brunos’ Application for Preliminary Injunction was set for September 24,
2001, but was continued until November 9, 2001. By order entered December 21, 2001, the trial
court found that the building at issue was “neither a barn nor a storage building and therefore is not

         1
            Rule 1 0 (Court of App eals). M emo randum O pinion. - This Court, with the concurrence of all judges
participating in the case, may a ffirm, reverse or modify the actions of the trial court by memorand um opinion when a
formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any re ason in any unrelated
case.

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in violation of the restrictive covenants.” In its amended order, filed October 18, 2002, the court
made clear that the Rounds were not required to move or remove the building at issue.

         The Brunos contend that the building referred to as the garage/workshop is in violation of
restrictive covenant number seven (7), which requires that all barns and storage buildings be placed
to the rear of the principal dwelling. The Brunos ask this Court to reverse the trial court and order
the Rounds to move or remove the building; or in the alternative that this Court remand the case to
the trial court. The Rounds maintain that the building is a garage and as such, does not violate the
restrictive covenants.

                                               Issues

       The parties raise the following issues for our review:
       1.     Whether the trial court erred in finding that the restrictive covenant had not been
              violated in regard to the location of the building at issue.
       2.     Whether the trial court erred in its interpretation of the restrictive covenant.
       3.     Whether the trial court erred in failing to enforce the restrictive covenant in a manner
              consistent with the intention of the parties.
       4.     Whether the trial court erred in failing to order the Defendants to remove or relocate
              the building at issue.

                                       Standard of Review

         The standard of review for a non-jury case is de novo upon the record. See Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R.
APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of
correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).




                                        Law and Analysis

        The Brunos raise four issues on appeal. We find that these issues are interrelated and as such
can be consolidated into one primary issue: whether the trial court erred in construing the covenant
at issue. This Court has previously held that:

       Restrictive covenants are valid in Tennessee but, as limitations on the unrestricted
       enjoyment of land, they are not favored, Waller v. Thomas, 545 S.W.2d 745, 747


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        (Tenn. App. 1976). Restrictive covenants should be strictly construed, with any
        ambiguities resolved against the restriction. Id. Restrictive covenants “are to be
        interpreted as any other writing, i.e., in construing documents words must be given
        their ordinary and customary meaning and not a strained or unnatural interpretation.”
        Aldridge v. Morgan, 912 S.W.2d 151, 153 (Tenn. App. 1995). Finally, “once the
        intention of the parties is ascertained, the covenant will be enforced, provided it
        serves a legitimate purpose ad does not constitute a nuisance per se.” Waller, 545
        S.W.2d at 747.

Burnett v. Hamby, No. 01A01-9610-CH-00452, 1997 Tenn. App. LEXIS 846, *9-10 (Tenn. Ct. App.
Nov. 19, 1997). This Court has also held that restrictive covenants will be enforced “according to
the clearly expressed intention of the parties. . . and will not be extended by implication to anything
not clearly and expressly prohibited by their plain terms.” Beacon Hills Homeowners Assoc. v.
Palmer Properties, Inc., 911 S.W.2d 736, 739 (Tenn. Ct. App. 1995) (citing Turnley v. Garfinkel,
362 S.W.2d 921 (1962); see also Albert v. Orwige, 731 S.W.2d 63 (Tenn. Ct. App. 1987) (Crawford,
J., dissenting)).

        The Brunos argue that covenant seven (7) addresses the location of ancillary buildings. We
disagree. The covenant, by its terms, clearly applies only to “barns and storage buildings” and not
to all outbuildings. Restrictive covenants should be enforced in accordance with the clearly
expressed intentions of the parties, but “should not be extended to cover circumstances not plainly
included within their terms.” Richards v. Abbottsford Homeowners Assoc., 809 S.W.2d 193, 195
(Tenn. Ct. App. 1990). Had the drafters intended for the covenant to cover all outbuildings or all
ancillary buildings, they could have easily inserted this into the covenant. This was not done and as
such, this Court will not extend the plain language of the covenant to apply to all ancillary buildings.

         As to whether the building at issue can be classified as either a barn or storage building, the
trial court specifically found that the building in question was neither a “barn nor a storage building.”
We agree. Mr. Rounds testified that the building is used as a garage and a workshop. He elaborated
that his hobbies are working on antique cars and woodworking. Mr. Rounds further testified that the
building has a bathroom, “plumbing, lighting everything to support [his] workshop.” Carl DeFoor,
a general contractor, testified that the building is “an exterior workshop with garage doors.” After
a thorough review of the record, we find that the evidence does not preponderate against the findings
of the trial court that the building at issue is not a barn or a storage building.

                                              Conclusion

        Accordingly, we affirm the trial court’s finding that the building at issue was not a barn or
a storage building and thus was not in violation of the restrictive covenant. Costs on appeal taxed
to the Appellants, Dale and Mary Bruno, and their surety, for which execution may issue if
necessary.




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      ___________________________________
      ALAN E. HIGHERS, JUDGE




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