Hershey v. Cathey

No. M2009-01887-COA-R3-CV, 2010 Tenn. App. LEXIS 475 (Ct. App. July 26, 2010)



The standard of review of a trial court's findings of fact is de novo, and the appellate court presumes that the findings of fact are correct unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Where the trial court does not make findings of fact, there is no presumption of correctness, and the appellate court must conduct its own independent review of the record to determine where the preponderance of the evidence lies. The appellate court also gives great weight to a trial court's determinations of credibility of witnesses. Issues of law are reviewed de novo with no presumption of correctness. 


Homeowners filed a petition to enjoin an adjacent homeowners from constructing a fence in violation of restrictive covenants without obtaining permission to do so.The defendants alleged that they advised the builder at the time that they purchased their two lots that they intended to build a fence across both lots and that strict compliance with the restrictive covenants had been waived. The builder testified that he did not approve the fence and would never have agreed with its location. The trial court held that the fence violated the subdivision's restrictive covenants and ordered its removal. The defendants appealed.


Was the order requiring removal of the fence proper?




The evidence supported the trial court's findings of fact that the defendants failed to obtain the necessary approval to construct the fence, that the fence violated the restrictive covenants that required the submission of plans and specifications to the Architectural Control Committee for its approval, that no plans or specifications were ever submitted, and that the defendants had not obtained the requisite approval to construct the fence. Based on these findings, the trial court properly granted a permanent injunction, which included an order that the defendants remove the fence, return the property to its previous condition, and required the submission of any future plans for a fence to the Architectural Control Committee. The Court, however, added a mandate that any future request for approval to construct a fence be submitted to a named individual.

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