                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 21, 2012 Session

                ROGER D. ROACH, et al., v. DON BUNCH, et al.

                Appeal from the Chancery Court for Grainger County
                No. 07-095 Hon. Telford E. Forgety, Jr., Chancellor


                  No. E2011-00159-COA-R3-CV - Filed July 23, 2012




Plaintiffs who own homes in Mallard Baye subdivision, brought this action against
defendants who had constructed a septic system on several of the residential lots serving
other properties, alleging that defendants acted in violation of the restrictive covenants of
their subdivision. Following a bench trial, the Trial Court held that the defendants'
construction of the septic system violated the subdivision restrictive covenants, and the
defendants appealed. On appeal, we affirm the Judgment of the Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Douglas T. Jenkins, Rogersville, Tennessee, for the appellants, Leon Epling, Rhonda Epling,
and Jenny Epling.

Kevin C. Stevens, Knoxville, Tennessee, for the appellees, Roger D. Roach, et al.




                                        OPINION


       This action was brought by the plaintiffs for a Declaratory Judgment, Injunctive
Relief, and Damages against defendants, asserting that the plaintiffs were residents of the
subdivision, and alleging that restrictive covenants of their subdivision had been violated by
defendants and in violation of the restrictive covenants defendants had installed a septic
dumping ground for six lots in Lighthouse Point, a contiguous subdivision.

       The Complaint alleges that the original plan for Lighthouse Point that was submitted
to the Grainger County Planning Commission showed that the lots in question would use a
sand-filtered system that would be contained within Lighthouse Point. Further, that
defendant, Leon Epling, never furnished a final plat for Lighthouse Point to the planning
commission, so the commission had later voted to rescind their conditional approval of
Lighthouse Point.

       Following a bench trial in which several witnesses testified, the Trial Court entered
a Judgment, and incorporated its Memorandum Opinion. The Court found the septic system
violated the Mallard Baye restrictions and was never properly approved by the planning
commission. The Court permanently enjoined the use of the septic system and ordered that
it be removed within six months. The Court dismissed the claims against Bunch, and
assessed court costs to the Eplings.

        In the Court’s Memorandum Opinion, it states that the septic system violates the
restrictive covenants of Mallard Baye, and when Bunch developed the subdivision, he
retained a contiguous parcel of land with six acres and built a home there, but it was not part
of Mallard Baye. The Court found that Bunch later sold this parcel and home and it was
acquired by Epling, who attempted to subdivide it and create Lighthouse Point. The Court
found that Epling illegally sold at least two lots before ever getting preliminary approval of
the subdivision plat from the planning commission, which is in violation of Tenn. Code Ann.
§13-3-410. The Court found that Epling clearly did not intend to comply with the
requirements for getting proper approval for the subdivision.

       Further, the Court found the plat Epling presented to the planning commission for
preliminary approval did not show the connection to Mallard Baye or the septic system he
planned to build there. The Court found that after going to the Health Department and
getting approval for the septic system, Epling had a new plat map drawn that showed the
easement for pipelines into Mallard Baye for the system, but he never presented it to the
planning commission. He did, however, record it in the register of deeds office but without
proper dedication, and the Court questioned whether there was an element of concealment
on Epling’s part.

       Further, the Court found that while it was unfortunate for the property owners in
Lighthouse Point, they were charged with knowledge of the law, which said that the plat was
not appropriate. The Court found the system was a violation of the Mallard Baye restrictions

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because it was a structure built on the lots, but was not a single family residence which was
all the restrictions allowed. Further, that it violated the restriction about dumping waste on
the lots. The Court also found that the planning commission never approved the subdivision
as built.

       The Eplings appealed and raised one issue:

       Whether the septic system built by Epling amounts to a violation of the Mallard Baye
       restrictive covenants?

       In a non-jury case, we review de novo upon the record of the proceedings below, with
a presumption of correctness as to the trial court's factual determinations, unless the evidence
preponderates against those findings. Tenn. R. App. P. 13(d); Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995). The trial court's conclusions of law, however, are
accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996).

       The applicable restrictive covenants of Mallard Baye provide:

       4.     A maximum of one single-family residence shall be built on any lot, and no
              structure shall be erected, altered, placed or permitted to remain on any lot
              other than one detached single-family dwelling not to exceed three stories in
              height and, a private garage, except as may be permitted and approved by the
              Developer in accord with paragraphs 14 and 15 of these restrictions.

       11.    No lot shall be used or maintained as a dumping ground for rubbish trash or
              other waste [sic] shall not be kept except in sanitary containers. All
              incinerators or other equipment for the storage or disposal of garbage shall be
              kept in a clean and sanitary condition.

        Defendants argue that the Court’s ruling is error, because to hold these restrictive
covenants were violated by the septic system is to place a strained construction on the
restrictions. The Trial Court, however, ruled the restrictions were clear and unambiguous,
and that just looking at the four corners of the restrictions, they prohibited the septic system
at issue.

      Restrictive covenants are strictly construed in Tennessee, and their interpretation shall
be made with consideration of well-established rules of law and construction, the most
important of which is that the words used themselves are the “primary evidence of meaning”.
See Shea v. Sargent, 499 S.W.2d 871 (Tenn. 1973); Parks v. Richardson, 567 S.W.2d 465

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(Tenn. Ct. App. 1977). The words of the restriction should be given their usual and ordinary
meaning, and if the meaning is reasonable and unambiguous, “there is no need to seek further
clarification outside its language”. Hicks v. Cox, 978 S.W.2d 544 (Tenn. Ct. App. 1998);
Shea. If the language of the restriction is unambiguous, and its plain meaning is fair and
reasonable, the court is not to resort to the use of parol evidence. Hicks.

        The Court found that Restriction 4 was unambiguous, which states that no “structure”
could be erected or placed on any lot aside from one single-family dwelling. The Court held
that the septic system constructed clearly constituted a “structure”. In a somewhat factually-
similar case, this Court defined the term “structure” in a like restrictive covenant, and ruled
consistently with the Trial Court’s holding in this case.

        In Wilson et al. v. Woodland Presbyterian School, 2002 WL 1417064 (Tenn. Ct. App.
June 25, 2002), the defendant was a school adjacent to a residential subdivision, and the
school purchased two lots within the subdivision and began building a playground.
Plaintiffs, who were homeowners in the subdivision, objected to the use of the lots as a
playground, arguing that it violated the subdivision’s restrictive covenant which stated that
each lot could only have a one or two family dwelling built thereon. The restriction in that
case was very similar to the one in this case, stating:

       No structure shall be erected, altered, placed, or permitted to remain on any residential
       building plot other than a one or two family dwelling, not to exceed two stories in
       height, and a private garage for not more than two cars, and any outbuildings
       incidental to the residential use of the lot.

In that case, the Trial Court held that the playground equipment, which was immovable and
permanently embedded in concrete, constituted a structure and thus violated the restriction.
Id.

       We agreed, and looked at the definition of “structure” contained in Black’s Law
Dictionary, which is as follows:

       Any construction, or any production or piece of work artificially built up or composed
       of parts joined together in some definite matter. That which is built or constructed;
       an edifice or building of any kind. A combination of materials to form a construction
       for occupancy, use or ornamentation whether installed on, above, or below the
       surface of a parcel of land.

Black’s Law Dictionary (6th Ed. 1990)(emphasis added).



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      This Court accepted that definition of “structure” and held that the immovable,
permanent playground equipment in question constituted a structure. Id.

       Likewise, in this case, the septic system which was unquestionably permanently
constructed on the lots, was built and installed to remain there, even though the majority of
it was below the surface of the land, but would still constitute a “structure”. The plain and
unambiguous construction of the restriction mandates that this permanently constructed
system which was built to remain on the lots is an unauthorized structure as it was not a
single-family dwelling, regardless of whether it was above or below the surface of the land.1

        Moreover, with regard to restriction number 11, the Trial Court correctly found that
the lots were being used improperly for the dumping of waste. Restriction 11 clearly and
unambiguously states that “No lot shall be used or maintained as a dumping ground for . . .
waste”. In this case the septic system, which defendants admitted placed wastewater into
field lines on the lots, would constitute using the lot as a waste dumping ground. As the Trial
Court stated, the lots are “not intended for a place to dump waste of another subdivision on
lots within this subdivision.” As such, the use of the system violated the clear and
unambiguous restrictive covenants of Mallard Baye, and we affirm the Trial Court's
Judgment.

       The cause is remanded, with the cost of the appeal assessed to Leon, and Rhonda
Epling.




                                                        _________________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




       1
           Any contrary testimony by Bunch that he would not consider the system a “structure” is
inadmissible parol evidence which is unnecessary to interpret these unambiguous restrictions. See Hicks.

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