Aldridge v. Morgan

• Decision Date: 23 May 1995
• Citation: 912 S.W.2d 151
• Parties: James Paul ALDRIDGE, et ux Margaret Aldridge, Peter Alliman, Curtis L. Morgan, Angelita J. Ezell, Claude Evans, Jr., and Betty Warhurst, Plaintiffs-Appellees, v. Henry MORGAN and wife, Sharon Morgan, Defendants-Appellants.
• Court: Tennessee Court of Appeals

Page 151

912 S.W.2d 151

James Paul ALDRIDGE, et ux Margaret Aldridge, Peter Alliman Curtis L. Morgan, Angelita J. Ezell, Claude Evans Jr., and Betty Warhurst, Plaintiffs-Appellees, v. Henry MORGAN and wife, Sharon Morgan, Defendants-Appellants.

Court of Appeals of Tennessee Eastern Section.

May 23, 1995.

Permission to Appeal Denied by the

Supreme Court Oct. 2, 1995.

Clifford E. Wilson, Madisonville, for appellants.

Sharon G. Lee, Lee & Alliman, Madisonville, for appellees.

OPINION

McMURRAY, Judge.

The appellees are property owners in Lake View Subdivision, a portion of Corntassel Estates, Vonore, Tennessee. The appellant is also the owner of two lots in the subdivision. The appellees instituted this action asserting that the appellants were in violation of the restrictive covenants on the subdivision. They further asserted that the use of the appellant's property was such as to create a nuisance. After a bench trial, the chancellor issued his memorandum opinion and findings of fact and resolved the issues in favor of the appellees. This appeal resulted. We affirm the judgment of the trial court.

For convenience, we will refer to the appellees hereinafter as the plaintiffs and the appellants as defendants.

The defendants present the following issues for our consideration:

1. Did the chancellor abuse his discretion in denying the defendants' motion that he recuse himself from the trial of the case?

2. Was the chancellor correct in overruling the defendants' motion to dismiss?

3. Was the trial court correct when it found that the residence of the defendants was not substantially complete in violation of the restrictive covenants and ordering "that there must be a substantial completion of the residence of the defendant's by September, 1994.

4. Was the trial court correct when it found that the materials located on the property of the defendants were trash, junk and debris and same constituted a nuisance and then ordering that same be removed from defendants' property.

We will first consider the defendants' motion for the trial judge to recuse himself. The grounds stated in the motion that the "attorney for the plaintiffs, Sharon Lee, along with the plaintiff, Peter Alliman are interested in the outcome of the action as landowners as they own lots which adjoin the defendants' lots in the Lake View Subdivision and since Sharon Lee and Peter Alliman have regularly appeared before ... the court for approximately 15 years that a reasonable defendant in this matter would conclude that [the trial judge] might have a tendency to lean in favor of the plaintiffs on account of that relationship, all else being equal."

From these naked allegations, alone, unclothed by affidavits or other evidence, we are asked to determine if the trial judge abused his discretion. We are unable to do so. Additionally, it would seem remiss on the part of the plaintiffs' attorney, Sharon Lee, if she were not, in fact, interested in the outcome of the lawsuit. Further, I think we can presume with some degree of certainty, that the plaintiffs are interested in the outcome, else they would never have instituted the action. Additionally, we suspect, that if proper affidavits had been filed, they would reveal that the defendant's attorney had practiced before the trial judge longer than either the plaintiff, Alliman, or his attorney, Sharon Lee. We find no merit in this issue.

As to the second issue, the defendants responded to the complaint with a motion to dismiss. The grounds stated for the motion to dismiss are (1) the complaint fails to state a cause of action; (2) that the restrictions referred to in the complaint are so vague and are so lacking with regard to any objective standards by which the court can determine whether or not a violation of the standards has occurred so as to render said restrictions unenforceable; and, (3) that the general allegations of nuisance are not supported by any factual allegations to which as a matter of law support a finding by the court that a nuisance exists.

We have examined the complaint carefully and respectfully disagree with the conclusions of the defendants. The complaint does state a cause of action both as to violation of the restrictive covenants and nuisance.

As to the restrictive covenants, they 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. See Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975) and other authorities too numerous to mention. Accordingly, we do not find the restrictive covenants to be so vague as to be unenforceable.

The complaint alleges that the defendants have allowed to accumulate on their real property, trash, junk and debris and that the same constitutes a nuisance. The complaint, therefore, puts the defendants upon notice as to what they will be called upon to answer. Since the adoption of the present Rule of Civil Procedure, the technical requirements of common law pleadings have been relaxed. See T.R.C.P. 8. We find the cause of action sounding in nuisance to be sufficiently stated. We find no merit in this issue. Accordingly, the chancellor was correct in overruling the motion to dismiss.

The next issues which we are called upon to address are basically factual issues. Our review is governed by Rule 13(d), Tennessee Rules of Appellate Procedure:

(d) Findings of Fact in Civil Actions.--Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.

The property at issue here is located in Monroe County. Monroe County has no zoning ordinances in place. The subdivision, however, has restrictions. They are: (1) No mobile homes shall be placed on these lots; (2) House construction to be completed in reasonable time after starting; (3) Check with Health Department for well-site location.

The Morgans purchased their first tract of land in this subdivision in 1980. ¹ They had a small cabin on the property which they eventually tore down apparently at the insistence of their neighbors. In 1989 or 1990, the Morgans began construction on their home. The Morgans were doing the work themselves and would work on the house as time and money allowed. They apparently moved into the structure sometime in 1992. For a while they used an outdoor toilet until the Health Department intervened. At the time of trial the interior had no walls and there was no electricity in the dwelling.

Mr. Morgan works for TVA at the Watts Bar facility. Because of this he is able to obtain materials for discount prices from TVA. Strewn about the yard were treated lumber, large pieces of glass, a refrigerator, a clothes locker, a wooden spool, an engine lift and many other items that Mr. Morgan had bought home for future use at some place and at some time.

Additionally, there is a large compost pile in the yard that ranges in height from over five feet to three or four feet.

This action was filed on August 24, 1993. Clearly, giving defendants the benefit of doubt, ² almost three years is far beyond a reasonable time to complete an average residence. The record reflects that there is nothing exceedingly unusual about the residence that would require such an inordinate amount of time to complete.

The chancellor made the following findings of fact:

The proof unequivocally shows, and the court finds, that the defendants began their construction five years ago in 1989. For some time the defendants utilized the facilities of an outdoor toilet. Finally, the Health Commissioner intervened and other facilities...