                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               December 16, 2015 Session


            BRENTWOOD CHASE COMMUNITY ASSOCIATION
                    v. TRIET TRUONG, ET AL.

                Appeal from the Chancery Court for Davidson County
                     No. 131518III Ellen H. Lyle, Chancellor

                          ________________________________

         No. M2015-00192-COA-R3-CV – Filed June 23, 2016
                     _________________________________

       Suit to enforce restrictive covenants in a residential subdivision. The homeowners
association filed suit alleging that a resident was conducting commercial activity in violation
of the restrictive covenants. The trial court granted the association’s motion for summary
judgment in part, enjoining the resident from conducting the activity and awarding the
association attorneys fees. On appeal, the resident seeks a reversal of the determination that
the activity in which she was engaged violated the covenant; the association appeals the
denial of summary judgment on the additional ground on which the motion was based.
Finding no error, we affirm the trial court in all respects.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Andy Maloney, Nashville, Tennessee, for the appellant, Tiffany Curtiss.

Alvin L. Harris, Nashville, Tennessee, for the appellee, Brentwood Chase Community
Association.
                                   MEMORANDUM OPINION1

                             I. FACTUAL AND PROCEDURAL HISTORY

        This case comes before us for the second time. The history and pertinent facts are
set forth in the first opinion:

       The appellant, Tiffany Curtiss, is the occupant of a home in the Brentwood
       Chase Community. The Brentwood Chase Community Association filed this
       lawsuit against Ms. Curtiss asserting she violated sections 14.02(e), (h) and
       (m) of the Declaration of Brentwood Chase Community by conducting
       commercial activity at the home and parking a commercial trailer on the
       property. On June 6, 2014, the trial court entered a partial summary judgment
       holding that Ms. Curtiss had violated section 14.02(h) of the declaration but
       had not violated section 14.02(m). The trial court did not rule on the
       association’s claim regarding violation of section 14.02(e). On June 20, 2014,
       the association filed a motion for entry of an injunction and for attorney’s fees
       and expenses. Ms. Curtiss filed her notice of appeal on July 3, 2014. On
       August 25, 2014, the trial court entered a permanent injunction and awarded
       the association attorney’s fees in the amount of $12,271.51. The order also
       provided:

                 [P]ursuant to Tennessee Rule of Civil Procedure 54.02, this is a
                 final order on the plaintiff’s claims for relief pursuant to
                 sections 14.02(h) and (m) of the Declaration. By making this
                 portion of the case final, Defendant now has a final order from
                 which to take an appeal ...

                 Lastly, for clarification, Plaintiff’s claims for redress of
                 Defendant Curtiss’s violation of section 14.02(e) remain
                 pending, and it is ordered that to avoid dismissal of that claim
                 for failure to prosecute Plaintiff must dispose of the claim by
                 entry of a ruling on a dispositive motion, or completion of a

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           Tenn. R. Ct. App. 10 states:

       This court, with the concurrence of all judges participating in the case, may affirm, reverse or
       modify the actions of the trial court by memorandum opinion when a formal opinion would
       have no precedential value. When 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 reason in any unrelated case.
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              bench trial on or before February 11, 2015.

Brentwood Chase Cmty. Assn v. Truong, No. M2014-01294-COA-R3-CV, 2014 WL
5502393, at *1 (Tenn. Ct. App. Oct. 30, 2014) (footnote omitted). Holding that the order
was not final for purposes of appeal, we reversed that portion of the order which directed the
entry of a final judgment, dismissed the appeal without prejudice, and remanded the case for
further proceedings. On remand the Association voluntarily dismissed the claim under
section 14.02(e), and Ms. Curtiss timely filed her notice of appeal.

                                     II. STANDARD OF REVIEW

        A motion for summary judgment should be granted if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party seeking summary judgment
“bears the burden of demonstrating that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law.” Armoneit v. Elliot Crane Service, Inc., 65 S.W.3d
623, 627 (Tenn. Ct. App. 2001). We view the evidence in favor of the non-moving party by
resolving all reasonable inferences in its favor and discarding all countervailing evidence.
Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz, 90 S.W.3d 692, 695
(Tenn. 2002). “Because the grant or denial of a motion for summary judgment is purely a
matter of law, our standard of review is de novo with no presumption of correctness.”
Roberts v. Bailey, 470 S.W.3d 32, 37 (Tenn. 2015) (citing Kinsler v. Berkline, LLC, 320
S.W.3d 796, 799 (Tenn. 2010)). Thus, our task is to review the record in order to determine
whether the requirements set forth in Tenn. R. Civ. P. 56 have been met. Roberts, 470
S.W.3d at 37.

                                       III. DISCUSSION

A. Section 14.02(h)

       Section 14.02(h) states the following:

       No commercial, industrial, recreational or professional activity as defined in
       any applicable Zoning Ordinance shall be pursued on any Unit at any time.

Ms. Curtiss does not contend that there are material facts in dispute. In reliance on Roberts v.
Bridges, No. M2010-01356-COA-R3-CV, 2011 WL 1884614 (Tenn. Ct. App. May 17,
2011), she argues that the trial court erred in holding that her activities constituted
commercial activity.
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      The pertinent paragraphs of Brentwood Chase’s Statement of Undisputed Facts and
Ms. Curtiss’ responses thereto relative to this issue are the following:

      3. Defendant Curtiss owns a large commercial trailer which she uses in her
      catering business called “Morsel.” Deposition of Tiffany Curtiss (hereinafter
      “Curtiss Depo.”) p. 10, lines 19-21; p. 21, lines 8-18 (excerpts and exhibits
      from Ms. Curtiss’ deposition are attached as Exhibit B to the Association’s
      Memorandum of Law in Support of Motion for Summary Judgment).

      Answer:
      Admitted.
      ***
      6. Section 14.02 h. of the Declaration states in part: “No commercial,
      industrial, recreational or professional activity as defined in any applicable
      Zoning Ordinance shall be pursued on any Unit at any time.” See excerpts of
      Declaration attached as Exhibit A to Association's Memorandum of Law in
      Support of Motion for Summary Judgment.

      Answer:
      Defendant Curtiss admits that the Declaration has the cited paragraph.
      However, the Defendant Curtiss does not agree with Plaintiff’s interpretation
      of the stated paragraph.

      7. When defendant Curtiss brings the trailer to Brentwood Chase, she transfers
      food and other items from the house to the trailer. Curtiss Depo. p. 27, line 1 -
      p. 28, line 3 (excerpts and exhibits from Ms. Curtiss’ deposition are attached as
      Exhibit B to the Association's Memorandum of Law in Support of Motion for
      Summary Judgment).

      Answer:
      Defendant Curtiss admits to these actions, but these actions do not constitute
      the engagement of “commercial, industrial, recreational or professional
      activity.”

      8. Defendant Curtiss and others also clean the trailer within Brentwood Chase
      so that it will meet health department inspections for her catering jobs. Curtiss
      Depo. p. 23, line 1 - p. 24, line 14 (excerpts and exhibits from Ms. Curtiss’
      deposition are attached as Exhibit B to the Association's Memorandum of Law
      in Support of Motion for Summary Judgment).
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        Answer:
        Defendant Curtiss admits to these actions, but these actions do not constitute
        the engagement of “commercial, industrial, recreational or professional
        activity.”

        9. Defendant Curtiss also organizes items within her catering trailer while it is
        parked in Brentwood Chase. Curtiss Depo. p. 51, line 19 p. 52, line 10
        (excerpts and exhibits from Ms. Curtiss’ deposition are attached as Exhibit B
        to the Association’s Memorandum of Law in Support of Motion for Summary
        Judgment).

        Answer:
        Defendant Curtiss admits to these actions, but these actions do not constitute
        the engagement of “commercial, industrial, recreational or professional
        activity.”

Brentwood Chase relied on the deposition testimony of Ms. Curtiss in which she admits to
conducting the following activities while the trailer was at her residence: cleaning out the
trailer to meet health code inspections; transferring specialty food items, platters, and
cleaning materials from the residence to the trailer; and organizing items in the trailer.

        Ms. Curtiss’ reliance on Roberts is misplaced. In Roberts, the issue before the court
was whether the parking of commercial vehicles on a residential property violated a covenant
providing that all lots in the subdivision be used for “residential purposes only” where
commerce was not actually occurring on the premises. The court recognized “a distinction
between prohibited commercial uses and permissible incidental uses” and concluded that the
activity at issue was a commercial use incidental to the principal use of the property as a
residence, and the extent and nature of the use violated the covenant. Roberts, 2011 WL
1884614 at *8-9. In the present case, however, the covenant at issue is a specific prohibition
against any commercial activity. The activities that Ms. Curtiss acknowledges in her
response to the statement of material facts and in her deposition are a part of her conduct in
managing her catering business. The question before the court is not, as in Roberts, whether
the activities are incidental to the use of the property as a residence but, rather, whether they
are commercial in nature. Upon the record presented, the trial court correctly concluded that
Brentwood Chase was entitled to summary judgment on the Section 14.02 (h) claim.2


2
 In its brief on appeal Brentwood Chase cites Metropolitan Code § 17.16.250D as the zoning ordinance which
Ms. Curtiss’ activities violated.
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B. Section 14.02(m)

       The trial court stated the following in the order denying summary judgment as to
Section 14.02(m):

       2. The Association’s motion for summary judgment is denied with respect to
       its claim that defendant Curtiss has violated Section 14.02 m. of the
       Declaration which provides:

       No Owner or occupant shall leave any non-operating vehicle, trailer, boat,
       camper, commercial vehicle, any vehicle not currently registered and licensed
       or any vehicle having invalid and expired state motor vehicle inspection
       sticker on or about the Property except if entirely enclosed in a garage.

       The Court adopts the argument of defendant Curtiss on this issue and holds
       that the term “non-operating” within Section 14.02 m. applies to all vehicles
       listed in that restriction. Because defendant Curtiss’ vehicles have at all times
       been operable, the court finds that she has not violated this restriction.

       Brentwood Chase contends that the court erred in adopting Ms. Curtiss’ interpretation
of Section 14.02(m).

       Courts construe restrictive covenants strictly against interfering with the landowner’s
use of the property and will resolve any doubts in favor of the unrestricted use of the
property. Arthur v. Lake Tansi Village, Inc., 590 S.W.2d 923, 927 (Tenn. 1979); General
Bancshares, Inc. v. Volunteer Bank & Trust, 44 S.W.3d 536, 540 (Tenn. Ct. App. 2000).
Courts will “refrain from extending a restrictive covenant to any activity not clearly and
expressly prohibited by its plain terms.” Roberts v. Bridges, No. M2010-01356-COA-R3-
CV, 2011 WL 1884614, at *6 (Tenn. Ct. App. May 17, 2011) (citing Turnley v.
Garfinkel, 211 Tenn. 125, 130, 362 S.W.2d 921, 923 (1962); Beacon Hills Homeowners
Ass’n, Inc., v. Palmer Props., Inc., 911 S.W.2d 736, 739 (Tenn. Ct. App. 1995)).

       Courts will also construe a restrictive covenant’s terms in light of the context
       in which they appear. When they can reasonably be construed more than one
       way, the courts will adopt the construction that advances the unrestricted use
       of the property. The courts will also resolve ambiguities against the party
       seeking to enforce the restriction, and finally they will resolve all doubts
       concerning a covenant’s applicability against applying the covenant.


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Barnett v. Behringer, No. M1999-01421-COA-R3-CV, 2003 WL 21212671, at *4 (Tenn.
Ct. App. May 27, 2003) (internal citations omitted).

        Section 14.02(m) is subject to two interpretations. The word “non-operating” is a
modifier which, in context, can be read to apply to only the first item listed in the restriction
or to each of them. The trial court adopted the latter interpretation and held that, since the
trailer was not a “non-operating commercial vehicle,” Ms. Curtiss was not in violation of
Section 14.02(m). The interpretation adopted by the trial court advances the unrestricted use
of the property in question by only prohibiting vehicles which are not operating from the
property. Adopting the interpretation that advances the least restrictive use of the property,
the trial court did not err in denying summary judgment on this ground.

                                      IV. CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed in all respects.
The case will be remanded for such further proceedings as may be necessary to implement
the orders of the trial court.




                                                    RICHARD H. DINKINS, JUDGE




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