                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       May 18, 2010 Session

    BERKELEY PARK HOMEOWNERS ASSOCIATION, INC., ET AL. v.
                    JOHN TABOR, ET AL.

                     Appeal from the Chancery Court for Knox County
                       No. 165056-1    John F. Weaver, Chancellor


                  No. E2009-01497-COA-R3-CV - FILED JULY 20, 2010


Berkeley Park Homeowners Association, Inc., and Southern Traditions Partners, LLC
(collectively referred to as “Berkeley Park”) filed a motion for contempt against John Tabor
and Tabor Construction, Inc. (collectively called “Tabor”),1 seeking to enforce a 2006
mediated settlement agreement governing the construction of a house being built by Tabor
in Southern Traditions’ development known as Berkeley Park Subdivision. Berkeley Park
alleged that Tabor was in violation of numerous provisions of the mediated agreement, while
Tabor contended that the parties had reached another agreement in 2007 that superseded the
earlier agreement. Following a bench trial, the court held that there was no superseding
agreement and that the evidence clearly and convincingly showed Tabor had violated the
provisions of the mediated agreement. The court entered judgment in favor of Berkeley
Park, awarding it damages of $34,042.11, including attorney’s fees. Tabor appeals. We
affirm.

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

C HARLES D. S USANO, J R., J, delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and J OHN W. M CC LARTY, J., joined.

Mark E. Brown, Knoxville, Tennessee, for the appellant, John Tabor and Tabor Construction,
Inc.

Julie Cochran Fuller, Knoxville, Tennessee, for the appellees, Berkeley Park Homeowners
Association, Inc., and Southern Traditions Partners, LLC.


        1
          American Trust Bank of East Tennessee was also named as a defendant, but it did not appear in the
trial court and is not a party to this appeal.
                                                 OPINION

                                                       I.

       In October 2004, Tabor purchased Lot 59 in the Berkeley Park Subdivision in West
Knoxville from Southern Traditions subject to the covenants and restrictions regulating the
subdivision. Litigation among the parties began the following year when Berkeley Park
sought injunctive relief and damages against Tabor, alleging, among other violations, that
Tabor failed to submit proposed construction plans to the subdivision’s architectural control
committee (“the ACC”) for approval.

        Initially, the trial court issued a temporary injunction pending Tabor’s submission, and
Berkeley Park’s approval, of the construction plans. On March 8, 2006, after the parties
failed to agree on the plans, they entered into court-ordered mediation. They subsequently
reached a mediated settlement, pursuant to which Tabor agreed to submit plans for the
construction of a “country cottage”style home selected during the mediation from the
“William Poole Classical House Plans” series and to submit to the ACC for approval the
proposed construction materials for the house. While the house plans, as submitted and
attached to the mediated agreement, were “approved,” the agreement expressly provided that
“both parties agree that any modifications made to these plans . . . must be reviewed and
approved by the ACC, including, but not limited to, the addition of square footage. . . .” The
agreement also required Tabor to post a construction bond, pay all current and past-due
homeowners’ fees on all the subdivision lots owned by it,2 hire a licensed architect to consult
with regarding the house’s construction and provide monthly progress reports to the ACC,
and use a landscape plan generated by a landscape architect to be appointed by Berkeley
Park. The mediated agreement was expressly incorporated into the court’s order entered May
5, 2006 (“the Agreed Order”). The Agreed Order resolved the entire case to that point. The
temporary injunction was lifted to permit Tabor to continue construction on Lot 59.

       On January 17, 2007, Berkeley Park filed a “motion for contempt,” the one now
before us on this appeal. Berkeley Park sought injunctive relief and an order requiring Tabor
to show cause why it should not be held in contempt of the Agreed Order. The motion
alleged violations of the Agreed Order, including that Tabor had recommenced construction
on Lot 59 without having the square footage and other modifications to the plans or the
proposed construction materials approved by the ACC and without the use of a consulting
architect as required. In response, Tabor claimed that the “true intent” behind the contempt



       2
           The record indicates that Tabor purchased at least two other lots in the Berkeley Park Subdivision.


                                                      -2-
motion and the previous actions by Berkeley Park was to prevent Tabor, as a competing
home builder, from constructing homes in the subdivision.

        The court held a bench trial on the contempt petition over five days beginning in
March 2007 and concluding in November 2008. In January 2008, Berkeley Park modified
its contempt petition to allege that Tabor was continuing to make “un-approved revisions”
to the plans in violation of the Agreed Order. In its amended response, Tabor claimed that
the parties had “reached an agreement” on April 4, 2007, that had resolved all existing issues
with respect to the construction of the house and that Tabor had constructed the house
pursuant to this new agreement.

       At trial, the proof centered on Berkeley Park’s charges that Tabor was in violation of
the Agreed Order and, following April 4, 2007, Tabor’s claim that the “new” agreement of
that date governed the construction. In particular, the court heard testimony regarding the
allegations that Tabor (1) had not hired a licensed architect, (2) had not had construction
materials approved by the ACC, and (3) had not had square footage or numerous other
modifications to the submitted construction plans approved by the ACC. Further, Berkeley
Park asserted that Tabor’s homeowner’s dues remained unpaid and that he had not used an
approved landscaping plan.

       The entity Southern Traditions included partners Robert Markli and Kent Sanderson.
Together, the two comprised the ACC. Markli testified that a plan Tabor had submitted from
the William Poole book of home designs had been approved the previous year during
mediation. He noted Tabor had submitted deviations to the plans noting “redline markings”
indicating that Tabor had planned to make significant changes. However, because the ACC
could not discern “what it was going to look like, what he was planning to do,” the modified
plans were rejected and Tabor was asked for more specific details. Markli said Tabor twice
submitted modified plans that were not accepted by the ACC because of lack of detail
regarding the revisions. According to Markli, had Tabor built the house as set out in the
original plans without the revisions, the plans “absolutely” were accepted. However, he
asserted that there were “massive, significant differences” in what Tabor had constructed
versus what was in the originally-approved plans. Markli said that, although some
“tweaking” of the plans was acceptable given that the foundation had already been laid when
the plans were chosen, Tabor, for no apparent reason, had made major variations that were
unacceptable to the ACC.

       Markli said Tabor had submitted “some” proposed materials that were accepted with
the exception of a standard, modular brick that Tabor had planned to substitute for the siding
depicted in the approved plans. Markli testified that he was unable to determine from
Tabor’s submissions what the total square footage of the home, as modified, would be.

                                             -3-
Markli acknowledged receipt of a letter in February 2007 advising that Tabor had hired an
architect, however, he did not believe the architect was licensed and he had had no contact
with or reports from her. Markli explained that the whole purpose of requiring Tabor to use
a consulting architect was to have a third party monitor and verify to the ACC that the house
was being built in accordance with the approved plans. Markli requested that the court
ensure that the house be constructed in compliance with the approved plans “in every
reasonable way” and he wanted construction halted pending approval by the ACC of a set
of finished plans.

        At the time of the hearing on April 4, 2007, the Lot 59 house had been framed and
drywall had been installed, but no exterior materials had been installed. During the hearing
on that date, the court requested that the parties generate, with precision, a list of the existing
issues with the house’s construction – with Berkeley Park to list the claimed “problems and
deficiencies” and Tabor to indicate “what it is he’s resisting.” In response to the court’s
request, the parties met and counsel for Berkeley Park generated a handwritten list of some
eleven “modifications which have not been approved” that were unacceptable to Berkeley
Park; the list included such items as “deepen front porch per plans,” resize garage windows
per plans, submit siding detail sample, submit window details for approval, “re-footer” back
corner of the house to align with the right corner and other specific construction details. This
list, with a few notations added by Tabor’s counsel, Mr. Norris, was submitted to the court.
In addition, Tabor submitted an accompanying set of the original house plans with markings
indicating Tabor’s intended modifications. Tabor advised that the plans showed “all [the
revisions] at this point . . . .”

        The parties agree that, during a recess of the April 4, 2007 hearing, the parties met in
the hallway. Using the list addressing unapproved modification that they had earlier prepared
for the court, the parties had a discussion focused on how Tabor could resolve the identified
construction issues and complete the house in a manner acceptable to Berkeley Park. No
writing evidencing any agreement between the parties was produced that day. However,
several weeks later, on May 18, 2007, Tabor’s counsel drafted an agreement based on his
understanding of the parties’ earlier discussions. He styled it as the “Parties’ Agreement
Regarding House to be Built on Lot 59 in Berkeley Park” (“the Proposed Agreement”).
Tabor testified that he signed the Proposed Agreement as drafted by his counsel and that he
was aware it was then sent to the ACC for review. Upon receipt, Markli, on behalf of
Berkeley Park and the ACC, reviewed it and found “numerous articles that weren’t exactly
as [he] understood the agreement.” On May 24, 2007, Markli made revisions and notes to
clarify his understanding of “what [Berkeley Park] expected to be done [with the house]” and
faxed it back to Tabor’s counsel. The cover sheet included a note from Markli to Mr. Norris
that stated:



                                                -4-
              We note that Mr. Tabor has recommenced construction of lot 59
              Berkeley Park even though he has not yet gotten plans approved.
              We note that he has made some of the agreed changes, thought
              the most important one, aligning the cornice on the garage and
              porch has been attempted but not achieved. I have noted some
              of the deficiencies on the submitted plan received in my office
              on May 18 . . . and reviewed today. I note that brick masons are
              on the job and no arch bucks for the garage doors have been
              installed and I called Mr. Tabor to notify him. He said he would
              handle it. Please have him call me if he has any questions.
              We’d hate to see him have to tear out any more work, but will
              not hesitate if he attempts to flaunt the agreement and build
              substandard, unapproved product.

Markli also faxed to Tabor directly Markli’s written responses and comments with respect
to the proposed modifications Tabor had made on the original set of approved plans. In July,
Markli notified his counsel that (1) Tabor had gone ahead with construction, (2) Tabor was
not in compliance with the “agreement” discussed in April and (3) outlined other problems.
Markli stated that he also personally spoke to Tabor and noted some continuing problems
with the construction such as the lack of an installed water table. In response, Ms. Chadwell,
counsel for Berkeley Park, wrote to Mr. Norris as follows:

              Please find attached the Order [“draft agreement”] from the last
              [April 4, 2007] hearing signed by my client. Also attached are
              updated plan specifications. Please also be advised that there
              are three issues remaining with lot 59 construction: I have been
              informed by Mr. Markli that there is no watertable as discussed,
              the arch over the garage is not as agreed, and Hardy shake was
              to be used instead of Hardy siding. Once these are corrected,
              this matter should be resolved.”

        At a hearing on February 28, 2008, Tabor noted that he had essentially completed
construction of the house on Lot 59. The court stated that, regardless, the issue before it was
still whether Tabor complied with the Agreed Order. Tabor indicated that the matter may not
be that simple if the parties had since agreed between themselves to “slightly different terms.
. . .” On questioning by the court regarding the April 4, 2007, discussions between the
parties, Berkeley Park denied that an agreement was ever reached, only that they “came to
terms.” As counsel put it, “We took a shot at it, and we never got there. So, yes, we are here
today because there’s a violation of the mediated agreement back from ‘06.”



                                              -5-
        The parties appeared for a final time on November 25, 2008, and the court heard
further proof regarding the alleged violations of the Agreed Order and, as described by the
trial court, “the whole crux of the case,” i.e., Tabor’s position that he constructed the home
under a new agreement reached in April 2007. The following day, the trial court announced
its ruling from the bench which was in favor of Berkeley Park as to 15 issues presented in
the parties’ joint “statement of issues” for disposition. At the outset, the court explained the
nature of the case:

              This is more of an action for breach of a settlement agreement
              or mediation agreement or an action to carry an agreed order
              into effect, but with [Berkeley Park] also having reserved their
              rights under the underlying Covenants and Restrictions.

In view of its characterization of the case as something other than a contempt case, the court
further noted that “where an issue calls for a finding of contempt, the Court is finding a
violation of the [Agreed Order] of May 5, 2006, but need not address whether the violation
constitutes contempt.”

        In summary, the court found that (1) Tabor had violated multiple provisions of the
Agreed Order; (2) there was no agreement in April 2007 that superseded the March 2006
mediated agreement; (3) Berkeley Park had not acted unreasonably in its dealings with
Tabor; and (4) Berkeley Park had the right to abate and remedy the deficiencies in the house
at issue, all at Tabor’s cost, pursuant to the applicable provision of the covenants and
restrictions. The court awarded Berkeley Park $17,584.47 – the homeowners’ association
dues owed by Tabor – and $16,523.98 in attorney’s fees and costs, for a total award of
$34,108.45. Tabor filed a timely notice of appeal.

                                              II.

       Tabor presents the following issues for our consideration:

              1. The trial court erred in concluding that there was no
              agreement between the parties on April 4, 2007 that superseded
              the prior mediated settlement agreement of March 5, 2006.

              2. The trial court erred in concluding by clear and convincing
              evidence that Tabor was in contempt of multiple provisions
              contained in the Agreed Order incorporating the mediated
              settlement agreement regarding its construction of the Lot 59
              home.

                                              -6-
              3. The trial court erred in concluding by clear and convincing
              evidence that Berkeley Park did not act unreasonably in their
              dealings with Tabor concerning the construction of the Lot 59
              home.

              4. The trial court erred in concluding that Berkeley Park is
              entitled to exercise their remedies under the governing
              covenants and restrictions and to an award of their costs and
              attorney’s fees.

                                              III.

        At the outset, we note that the trial court went beyond the “preponderance of the
evidence” standard and found “clear and convincing” evidence to support many of its
findings. In this non-jury case, our standard of review is de novo upon the record of the
proceedings below; however, the record comes to us with a presumption of correctness as
to the trial court’s factual determinations, a presumption we must honor unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d
177, 181 (Tenn. 1995). Our review of questions of law is de novo with no presumption of
correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel Corp.,
919 S.W.2d 26, 35 (Tenn. 1996).

                                              IV.

                                              A.

       Among the issues presented by the parties for the trial court’s disposition was “Issue
11”: “Does the [Proposed Agreement] made by the parties on April 4, 2007, and reduced to
writing and signed by [Berkeley Park] on May 24, 2007, supersede the prior agreement
between the parties of March 5, 2006?” In its bench ruling, the trial court answered that
question in the negative:

              The first question really with respect to Issue Number 11
              concerns whether there was an agreement reached on April 4,
              2007. The Court finds and concludes that the evidence does not
              establish any such agreement.

        The gist of Tabor’s position is that “taken in full context the words and actions of the
parties demonstrate that there was an agreement reached on April 4, 2007.” Tabor concludes

                                              -7-
that it acted reasonably in constructing the house based on that agreement and therefore, the
trial court erroneously found him in violation of the mediated agreement.

        We begin mindful that the mediated agreement is part of a valid court order, i.e., the
Agreed Order entered in May 2006, that governed the construction of the Lot 59 house and
related issues. As the trial court observed, “that’s the benchmark – compliance with the order
[or] no[] compliance with the order.” There is no dispute that the parties met outside of court
on April 4 and, using the list of problematic modifications that Tabor had undertaken,
discussed how those modifications could be corrected or resolved. It is also undisputed that
no written agreement was generated on April 4. Questioned by the court whether a written
agreement existed on April 4, Tabor’s counsel, Mr. Norris responded, “Well – no, none of
it did. It was in our heads that day I’m afraid.” Moreover, the evidence reflects that the only
draft agreement containing both parties’ signatures is one returned with revisions by Berkeley
Park. At trial, Markli testified regarding his understanding of the Proposed Agreement as
follows:

              Q: Mr. Markli, will you identify that document for me; what is
              that document?

              A: This looks like the agreement that we reached in the hall
              outside the courtroom in April of last year.

              Q: Okay. Do you remember when we received a copy of that
              [P]roposed [A]greement?

                                          *   *     *

              Q: Okay. If I represent to you it was May 18th of ‘07, would
              you - -

              A: That’s correct, yes.

              Q: Now as a result of you receiving that document, what, if
              anything, did you do?

              A: I review[ed] it; looked at it; found numerous articles that
              weren’t exactly as I understood the agreement. So . . . on the
              24th of May, I faxed back to you a revised copy of this with
              notes on it describing what our understanding of the agreement
              was.

                                              -8-
              Q: Okay. Now, you - - you were here the last hearing, and I
              believe Mr. Tabor’s attorney had represented to the Court we
              did not respond back to him until July of ‘07.

              A: Yes, I remember that.

              Q: Okay. What if you know, were the reasons for that?

              A: I can’t understand that because I faxed you back a copy of it
              immediately, and then I faxed to Mr. Norris, individually, a copy
              of the drawing that they had sent accompanying that discussion
              . . . – which we have here with my notes on it stating what we
              expected to be done.

              Q: Okay.

              A: And that was on May the 24th.

              Q: What, if anything, happened on July 16th of ‘07 regarding
              this [Proposed Agreement]?

              A: Well, July 16th of ‘07, I sent you a note. I had spoken to Mr.
              Tabor. He had gone ahead with construction, and I had noted a
              number of things that they were doing that was not in
              compliance with that [Proposed Agreement], and I had
              contacted Mr. Tabor by telephone specifically to inform him that
              there were some issues, and I drafted you a letter at that time
              also outlining what those issues were.

At a later point in his testimony, Markli reiterated that upon reviewing the Proposed
Agreement prepared by Mr. Norris, he “added [his own] notes to clarify bringing it into
compliance to what we agreed to.” On the trial court’s questioning of counsel for Berkeley
Park regarding the status of an April 4, 2007, agreement, the following exchange took place:

              The Court: You don’t concede there was an agreement.

              Ms. Chadwell: What our position is, is that the parties discussed
              the terms outside the courtroom. When we left here, we
              believed there was an agreement, the terms never announced to
              the court.

                                             -9-
                                           * * *

              The [Proposed Agreement] when it was sent over to me and then
              looked at by Mr. Markli, we did not have a meeting of the
              minds. There was no - - apparently no meeting of minds
              between the parties as to what was actually agreed that Mr.
              Tabor was going to do.

              So, no, we do not have an agreed order in this case from April
              of ‘07. We had an attempt at it. We took a shot at it, and we
              never got there.

        The record further reflects that in July 2007, Markli notified his counsel of additional
issues with the ongoing construction on Lot 59. At trial, Markli explained: “So on July 16th
I called [Ms. Chadwell] up and said: Hey they’re out here doing this stuff; we still don’t have
an agreement; and not only that, but here’s three more things . . . they’re not putting the brick
arches on there; they . . . haven’t put [the] water table on. So in addition to the agreement
we’re trying to work out these 13 items, we have these three issues that need to be resolved.”

       Perhaps most significantly, the record contains a September 13, 2007, letter from Mr.
Norris to Ms. Chadwell in which Mr. Norris wrote:

              I don’t see that an Order has been entered pursuant to the last
              [April 4, 2007] court hearing. My file reflects that I drew up an
              agreement, had Mr. Tabor sign it and sent it to you. Some time
              later you faxed a copy of that same agreement with several
              changes in it back to me. I don’t know that we had a meeting of
              the minds on the agreement, and I don’t know that an Order was
              ever prepared.

       “It is well settled that a binding contract must result from a meeting of the minds, be
based upon sufficient consideration and be sufficiently definite to be enforced.” Roberts v.
National Safety Associates, Inc., No. 02A01-9506-CH-00134, 1996 WL 497395 at *4
(Tenn. Ct. App. W.S., filed Sept. 4, 1996) (citing Peoples Bank v. ConAgra Poultry Co., 832
S.W.2d 550, 553 (Tenn. App. 1991)); Roy McAmis Disposal Service, Inc. v. Hiwassee Sys.,
Inc., 613 S.W.2d 226, 229 (Tenn. Ct. App. 1979). “In addition, a modification of an existing
contract cannot be accomplished by the unilateral actions of one of the parties. There must
be the same mutuality of assent and meeting of the minds as required to make a contract.
New negotiations cannot affect a completed contract unless they result in a new agreement.”

                                              -10-
Id. (citing Balderacchi v. Ruth, 36 Tenn. App. 421, 256 S.W.2d 390, 392 (Tenn. Ct. App.
1952)).

       While Tabor urges that the Proposed Agreement was at times referred to by both
parties and counsel as an “agreement,” and therefore should be so enforced, we reject this
argument, as did the trial court. In our view, the document at best represents the parties’
continuing negotiations in one area – modifications to the approved plans. In other words,
the mediated settlement governing the construction expressly required Tabor to submit to the
ACC for approval any modifications to the original plans approved during the mediation.
The parties were in court again because Tabor was alleged to have violated this provision by
making unapproved modifications to the plans. We see the April 4, 2007, discussions and
the Proposed Agreement that followed as an effort by the parties to do that which was already
required under the mediated agreement – address any modifications to the original plans so
that the house could be completed as approved. On our review of the evidence, nothing
suggests that the Proposed Agreement based on the April 4 discussions was ever intended
to resolve any issue other than the existing, unapproved modifications to the plans.
Certainly, nothing remotely suggests that the Proposed Agreement would replace the
mediated agreement. In his testimony, Tabor admitted as much when he was forced to
concede that the provisions of the mediated agreement and Agreed Order remained in force
following the April 4 discussions. Tabor testified as follows:

              The Court: [D]id somebody say, Mr. Tabor, you no longer have
              to have any modifications to the plans approved? Did anybody
              say that?

              Tabor: The house was already built.

              The Court: Okay. Did anybody say that to you? You no longer
              have to have any modifications to the plans approved.

              Tabor: No. I wouldn’t say that.

                                          *    *     *

              The Court: Okay. Did anybody say you no longer have to post
              a construction bond?

              Tabor: I got a bond posted.




                                              -11-
The Court: Did anyone say you no longer had to have a
construction bond?

Tabor: No.

The Court: Okay. Did anyone say you no longer have to submit
the materials for the construction of the residence on lot 59?

Tabor: I submitted materials.

The Court: Did anybody say you no longer had to do that?

Tabor: I didn’t take them back, so - - but no.

The Court: No. Okay. Did anyone say, Mr. Tabor, you no
longer have to have a licensed architect?

                           *     *     *

Tabor: Bob Markli - - well, Bob Markli agreed.

                           *     *     *

The Court: Okay. So it wasn’t outside?

Tabor: No.

                           *     *     *

The Court: All right. So there is a record of that then.

                           *     *     *

The Court: Did anyone as part of your agreement on April the
4th say, Mr. Tabor, neither you nor your company no longer
have to ensure that the Homeowners Association dues are kept
current on lot 59?

Tabor: No.



                                -12-
              The Court: Did anyone on April 4 say we’re no longer going to
              go by the settlement agreement or the order . . . we’re no longer
              going to go by the [Agreed Order] entered May 5, 2006, or the
              agreement signed by all of us on March 8, 2006 with [the
              mediator]?

              Mr. Tabor: Well, I mean, to me, it’s a yes, because we came to
              an agreement I thought on April 4th.

              The Court: Okay. Did anyone say that?

                                          *    *     *

              Mr. Tabor: Jennifer.

              The Court: Jennifer Chadwell said it.

              Mr. Tabor: Yes.

              The Court: Where did she say that?

              Mr. Tabor: Well, she said we had a[n] agreement right out in the
              hallway - -

              The Court: Okay.

              Mr. Tabor: - - before we came in.

              The Court: Where did she say that we no longer have to go by
              the agreement of [the mediator]?

              Mr. Tabor: Well, she didn’t say that; you’re right.

        Where parties continue to negotiate regarding the material terms of a contract, there
has been no mutual assent. Peoples Bank v. ConAgra Poultry Co., 832 S.W.2d at 553.
Moreover, “proof of an ambiguous course of dealing between the parties from which
differing inferences might be drawn regarding additions to or modifications of what was a
limited and incomplete agreement is not sufficient to establish the required mutual assent.”
Lay v. Fairfield Dev., 929 S.W.2d 352, 353-56 (Tenn. Ct. App. 1996).



                                              -13-
        It is also well established that the “contemplated mutual assent and meeting of the
minds cannot be accomplished by the unilateral action of one party, nor can it be
accomplished by an ambiguous course of dealing between the two parties from which
differing inferences regarding continuation or modification of the original contract might
reasonably be drawn.” Jamestowne on Signal, Inc. v. First Fed. Sav. & Loan Ass’n, 807
S.W.2d 559, 564 (Tenn. Ct. App. 1990). In the present case, unapproved modifications were
the only subject addressed in the Proposed Agreement and there is no evidence to indicate
that the parties finally came to terms on the modifications issues. Certainly, there is no
evidence that the mediated agreement and Agreed Order were superseded.

       In summary, the evidence does not preponderate against the trial court’s finding that
the parties never entered into an agreement that superseded the previously-entered mediated
agreement. It appears, as Berkeley Park concedes, that the parties met on April 4, 2007, and
may have even left the hearing believing they had an understanding regarding the
unapproved modifications and the completion of the house in a manner acceptable to both
parties. Once an attempt was made to reduce the discussions to writing, however, the lack
of agreement became obvious.

                                             B.

        In a related argument, Tabor contends that by its actions on April 4, 2007, Berkeley
Park is estopped to deny the existence of an April 4 Agreement and, as a result, waived its
right to enforce the March 5, 2006, mediated agreement. In particular, Tabor contends that
Berkeley Park failed to object “when [Tabor] resumed construction based on the April 4,
2007 agreement, until July 16, 2007, when the house was essentially completed.” Further,
Tabor asserts that Berkeley Park could have sought another injunction to halt the ongoing
construction, but “[i]nstead . . . sat idly by while construction continued and then returned
to Court only when the home was substantially completed.”

       In the present case, the trial court noted, but implicitly rejected, Tabor’s claim that
principles of estoppel or waiver were applicable, so as to prevent Berkeley Park from
exercising its right to enforce the Agreed Order. The trial court stated:

              In closing argument [Tabor] argued that even if there was no
              meeting of the minds on April 7, 2007, [Tabor] nonetheless
              relied upon what they understood to be an agreement in
              completing the house. But at page 210 of the transcript of the
              hearing of February 25, 2008, [Tabor] testified that the house
              was already built on April 4, 2007. That is just one aspect of the
              matter which the Court finds to be noteworthy, but the Court

                                             -14-
              finds, though, that there was no agreement reached on April 4,
              2007.

For one to be equitably estopped, one must have taken actions “calculated to convey the
impression that the facts are otherwise than, and inconsistent with, those which the party
subsequently attempts to assert.” McClure v. Wade, 34 Tenn. App. 154, 171, 235 S.W.2d
835, 842 (1950). Waiver, on the other hand, is a voluntary relinquishment or renunciation
of a known right. Reed v. Washington County Bd. of Educ., 756 S.W.2d 250, 255 (Tenn.
1988). We conclude that neither estoppel nor waiver apply here.

       In short, the evidence does not show that Berkeley Park somehow misled Tabor into
believing that the provisions of the mediated agreement no longer applied. On the contrary,
Berkeley Park disagreed that the Proposed Agreement accurately reflected the parties’
discussions on April 4, 2007, and responded by revising both the draft and the accompanying
house plans and returning them to Tabor. Tabor acknowledged receipt of the plans on May
24, 2007, and the revised “agreement” at least by July. In September 2007, Tabor’s counsel
admitted doubt that there had been any meeting of the minds concerning the Proposed
Agreement and noted that no order evidencing any final agreement had been prepared.
Further, Tabor did not dispute Berkeley Park’s assertions at trial that, in addition to its
revisions to the Proposed Agreement and the revised plans submitted by Tabor, Markli had
personally spoken with Tabor about the ongoing unapproved modifications in the
construction of the Lot 59 house.

       With regard to Tabor’s waiver argument, we similarly find it to be without merit. All
of the actions complained of occurred in the context of the pending contempt proceeding
brought by Berkeley Park to enforce the Agreed Order and the specific provisions of the
mediated agreement. Certainly, Berkeley Park did not waive its right to do so, as suggested
by Tabor, by failing to “seek an additional injunction to stop construction pending resolution
of any additional issues that developed on or after April 4, 2007 . . . .”

                                             V.

                                             A.

       Again, the primary thrust of Tabor’s appeal is that the mediated agreement
incorporated into the Agreed Order was superseded. Tabor concludes that the disposition of
the remaining issues based on his alleged violations of the mediated agreement are thus moot.
In the alternative, however, Tabor challenges the trial court’s findings that he violated
specific provisions of the mediated agreement; to wit: (1) failure to obtain approval of his
construction materials from the ACC; (2) failure to pay his homeowners’ association dues;

                                             -15-
(3) failure to hire a licensed architect for Lot 59 construction; (4) failure to obtain approval
of plan modifications for Lot 59; and (5) failure to use a landscape plan generated by the
approved Berkeley Park landscape architect.

       As set out earlier in this opinion, the trial court found that each of these alleged
violations of the 2006 Agreed Order was established by clear and convincing evidence at
trial. On our review of the record, we conclude that the evidence does not preponderate
against these findings of the trial court. We briefly address each finding in turn.

                                              B.

        The mediated agreement provided that “[Tabor] shall . . . submit the materials for
approval to be used in the construction on Lot 59 to the ACC. No construction shall
commence on Lot 59 until such materials are reviewed and approved by the ACC.” Tabor
asserts that the construction materials were in fact approved by the ACC as required. He
relies on testimony by Mr. Markli to the effect that initially, “some materials” were submitted
and approved. Markli added, however, that “all” materials were required to be submitted
and approved and further, that after some materials, such as the proposed siding, were
accepted, “then [Tabor] used something else.” Tabor points to no other evidence to support
his assertion that he complied with the Agreed Order in this regard, and we find none.

                                              C.

       The mediated agreement provided that Tabor would pay the outstanding homeowners’
dues in satisfaction of the lien on Lot 59, plus all homeowners’ dues current and outstanding
on Lot 59 and all lots owned by him. At trial, at several points in his testimony, Tabor
conceded he had not paid the required dues. He first attempted to establish that he was not
obligated to pay the dues because he was erroneously informed by a Berkeley Park board
member that he was a builder and not a member of the homeowners’ association. Second,
Tabor noted that one check he sent in payment of his dues was returned by Berkeley Park’s
treasurer. On the latter point, the proof established that Tabor’s check, which he had
submitted as “payment in full,” was returned because it was less than the amount of the dues
then owed. In any event, the trial court found that the dues were owed under the mediated
agreement and, as admitted by Tabor, had not been paid. The evidence clearly establishes
Tabor’s violation of the Agreed Order, regardless of the reason.

                                              D.

       The mediated agreement required Tabor to hire a licensed architect to monitor and
consult on the construction of the Lot 59 home and to make monthly progress reports to the

                                              -16-
ACC. At trial, the architect eventually hired by Tabor testified that she was not licensed, but
that state law did not require a license for residential architectural design. Moreover, the
architect testified, as supported by documents in the record, that the monthly reports she
prepared were sent directly to Tabor. The ACC testified that there was no contact with the
architect and no receipt of any progress reports for the Lot 59 construction. The evidence
clearly and beyond dispute established Tabor’s violation of this provision.

                                             E.

      The mediated agreement provided that Tabor was to have any modifications to the
approved plans to be approved by the ACC. Specifically, the agreement provides, in relevant
part:

              Both Lots 59 and 39 shall comply with square footage
              requirements of the Covenants and Restrictions. Plans for Lot
              39 and Lot 59 are approved and attached. However, both
              parties agree that any modifications made to these plans
              (attached) must be reviewed and approved by the ACC,
              including but not limited to the addition of square footage to the
              plans to comply with the Covenants and Restrictions.

(Emphasis added). At trial, Tabor’s testimony regarding whether any modifications he made
to the plans were later approved was less than clear. Tabor admitted that he took the
approved original plans, submitted changes to them and “got them sent back.” He agreed
that he received a letter from the ACC advising him that the revised plans were “not
approved.” The record reflects that in September 2006, Berkeley Park wrote to Tabor
informing him that the second set of revised plans “as submitted are not approved.” Mr.
Markli testified that while some modifications to the original plan were later approved, Tabor
did not carry out those approved modifications: “[Tabor] went and did other things, and we
have photographs here to . . . show that.” In short, the evidence does not preponderate
against the trial court’s finding that Tabor failed to obtain ACC approval of modifications
to the original plans.

                                             F.

       The mediated agreement provided that landscaping on Lot 59 must be in compliance
with the covenants and restrictions and that the landscaping plan “must be generated by the
Berkeley Park landscape architect.” In his brief, Tabor asserts that he “cannot be in violation
of the March 5, 2006 mediated settlement agreement when he could not comply [with] the
requirement as he was prevented from doing so.” Tabor refers to an October 1, 2007, letter

                                             -17-
sent to him by Berkeley Park’s counsel in response to Tabor’s written request that he be
provided “the name of this landscape designer.” In response, Berkeley Park advised Tabor’s
counsel as follows: “In order for your client to have any landscaping approved, a landscape
architect appointed by the ACC must be used. At this point, the ACC is not willing to
proceed with any landscaping approval until such time that ALL other issues with the house
are resolved.” At trial, Tabor agreed that he “went ahead and landscaped,” using a
landscaper he hired himself, after receiving the October 1 letter. The evidence does not
preponderate against the trial court’s finding of a violation on this point.

                                             VI.

        Next, the trial court rejected Tabor’s claim that Berkeley Park acted unreasonably in
its dealings with him regarding the construction of the Lot 59 house – the court found “clear
and convincing evidence that the demands by [Berkeley Park] were reasonable and necessary
under the [Agreed Order].” Tabor contends that the trial court’s finding is erroneous
because, as Tabor sees it, Berkeley Park went out of its way to target his efforts to complete
the project by continuously changing its demands and raising new complaints about his work.
Berkeley Park responds that Tabor was the “architect” of his own problems because he
continued to build in violation of the provisions of the mediated agreement. As he did so,
more problems were created.

       We conclude that the evidence does not preponderate against the trial court’s finding
that Berkeley Park acted reasonably in its attempts to enforce the provisions of the Agreed
Order. Upon our review of the entire record, we must agree that Tabor was responsible for
the seemingly endless problems he faced in completing construction. As discussed, Tabor
purchased Lot 59 in October 2004. Some five months later, at the earliest stages of
construction, the ACC first wrote Tabor to inform him that the lot “can not be altered in any
way” without first submitting plans and receiving approval for the planned structure from the
ACC. In a May 2005 letter, the ACC, through counsel, notified Tabor that he was
proceeding to construct the Lot 59 house at his own risk:

              On lot 59, you have taken the initial steps to start construction
              of a house without attaining approval of the [ACC] of the plans
              . . . or posting the $3,000.00 construction bond required by the
              covenants and restrictions. No work should be done on said lot
              until the plans are approved and the bond is posted. If
              construction proceeds, the covenants and restrictions provide
              that an injunction can be sought to stop any construction . . . .




                                             -18-
In August 2005, Berkeley Park notified Tabor that he was no longer an approved builder in
the subdivision and that it would take immediate action to stop any unauthorized construction
by Tabor. The following month, Berkeley Park proceeded to court to obtain an injunction
against the continued construction of the house in violation of the covenants and restrictions.

       While this history obviously predates the mediated agreement and the Agreed Order,
we think it is instructive regarding the manner in which Berkeley Park dealt with Tabor
throughout this case. Certainly, Berkeley Park repeatedly informed Tabor that he was
required to proceed in compliance with the governing covenants and restrictions. Later, it
blocked any efforts to proceed with unapproved modifications to the approved plans,
including through court actions. In January 2007, Berkeley Park filed the instant contempt
motion after Tabor recommenced construction of the house without complying with express
provisions of the Agreed Order. Even then, however, Berkeley Park made efforts to address
the deficiencies it observed as Tabor continued construction of the house without having
modifications approved as required.

        As Tabor describes it, Berkeley Park harassed him from start to finish of the project;
while Berkeley Park insists that it acted to counter Tabor’s “reckless and haphazard disregard
for restrictive covenants, mediated agreements, and court orders.” The trial court heard the
testimony and decided this issue in favor of Berkeley Park. “With respect to a trial court’s
findings of credibility and the weight given to oral testimony, we accord considerable
deference in those circumstances on review because the trial court has the opportunity to
observe the witnesses’ demeanor and hear the in-court testimony.” Interstate Mech.
Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 678 (Tenn. 2007)(citing Tobitt v.
Bridgestone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn. 2001); McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn. Workers’ Comp. Panel 1995)). “The trial court’s findings on
credibility and weight of the evidence may be inferred from the manner in which the court
resolves the conflicts in the testimony and decides the case.” Id. (citing Rhodes v. Capital
City Ins. Co., 154 S.W.3d 43, 46 (Tenn. 2004)).

       Again, our review of non-jury cases is de novo upon the record, accompanied by a
presumption of correctness, unless the evidence preponderates against the trial court’s factual
findings. See Tenn. R. App. P. 13(d). In the present case, the evidence does not preponderate
against the trial court’s finding that Berkeley Park made reasonable and necessary demands
on Tabor to enforce the provisions governing the construction of the Lot 59 house.

                                             VII.

      Finally, Tabor submits that the trial court erroneously concluded that Berkeley Park
was entitled to exercise its remedies under the covenants and restrictions to receive an award

                                             -19-
of its attorney’s fees and costs in this action. In this regard, Tabor simply reasserts his
position that the parties reached a new agreement governing construction of the home in
April 2007; therefore, according to Tabor, there is no basis for an award of fees and costs for
violations of the prior mediated agreement.

        Tabor’s argument is to no avail. Earlier in this opinion, we upheld the trial court’s
finding that there was no superseding agreement established. Pursuant to Article XII of the
covenants and restrictions, Berkeley Park is expressly provided the right to enforce its
remedies to abate any violations or breaches of its restrictions. Further, Article XII, Section
1 (c) provides as follows:

              If [Berkeley Park], the [ACC], the Board or any other person .
              . . owning a Lot shall successfully prosecute in law or equity
              any action pursuant to this or any other enforcement section of
              these covenants or restrictions, then that party shall be entitled
              to receive its reasonable attorney’s fees and the costs reasonably
              necessary to prosecute the case against the party violating the
              covenants and restrictions herein.

The trial court did not err in awarding attorney’s fees and costs to Berkeley Park in this case
pursuant to the covenants and restrictions. This issue is without merit.

                                             VIII.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, John Tabor and Tabor Construction, Inc. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of that court’s judgment and the collection of
costs assessed below.




                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                             -20-
