                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 OCTOBER 12, 2000 Session




     GENERAL BANCSHARES, INC. v. VOLUNTEER BANK & TRUST


                     Appeal from the Chancery Court for Marion County
                      No.6357    John W. Rollins, Judge by designation



                  No. M2000-00231-COA-R3-CV - Filed November 30, 2000



The Plaintiff, General Bancshares, Inc., filed a declaratory judgment action asking the Trial Court
to declare a restrictive covenant in its warranty deed unenforceable. Defendant Volunteer Bank &
Trust’s predecessor in title of the property at issue originally placed the restriction on the property
several years ago. Plaintiff contends, among other arguments, that the restrictive covenant does not
bind it as a remote grantee because the restrictive clause does not contain specific “successors and
assigns” language. Both parties filed Motions for Summary Judgment, and the Trial Court granted
Defendant’s Motion. Plaintiff appeals. We affirm.


      Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed; case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J. and
CHARLES D. SUSANO, JR., J. joined.

C. Dewees Berry, IV, and Susan W. Foxman, Nashville, Tennessee, for the appellant, General
Bancshares, Inc.

Tracy C. Wooden, Chattanooga, Tennessee, for the appellee, Volunteer Bank & Trust.



                                             OPINION


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                                             Background

                 This suit arises from a dispute regarding a restrictive covenant on a parcel of property
(hereafter "Property") located in the Town of Powell's Crossroads. Plaintiff, General Bancshares,
Inc., is the current owner of the Property. Plaintiff filed this declaratory judgment action, asking the
Trial Court to find that a restriction in its warranty deed (hereafter "Restrictive Covenant") was not
enforceable. Defendant, Volunteer Bank & Trust, is a successor to the previous owner of the
Property, Marion Trust & Banking Company. In 1989, Marion Trust & Banking sold the Property
to the Town of Powell's Crossroads, a municipality, with the Restrictive Covenant being contained
in that warranty deed.

                The relevant portions of the warranty deed for the 1989 conveyance are as follows:

                MARION TRUST & BANKING COMPANY, has this day bargained
                and sold, and does hereby sell, transfer and convey unto

                              TOWN OF POWELL'S CROSSROADS,

                its successors and assigns, the following described real estate situated
                in the Third Civil District of Marion County, Tennessee, and more
                particularly described as follows, to-wit:

                                            ********

                        RESTRICTION: This property may not be used by
                        any financial institution as a place of business for a
                        period of twenty-five (25) years from the date hereof.

The Restrictive Covenant immediately follows the description of the Property and a clause setting
forth an exception to the property description.

                  Thereafter, the Property was conveyed three more times before the conveyance to
Plaintiff in 1998. Throughout these conveyances, the Restrictive Covenant remained in the chain
of title, albeit with a few changes. After the initial conveyance in 1989, the Property was acquired
in 1996 by NPF X, Inc., by warranty deed which contained the verbatim language of the Restrictive
Covenant. Later that same year, the Property was sold to Star Health Services, Inc., and the property
description attached to the warranty deed contained a restriction which was identical to the
Restrictive Covenant except that it stated "a financial institution" instead of "any financial
institution." In 1997, Eddie and Pamela Mooneyham bought the Property by special warranty deed
which contained a restriction identical to the one found in Star Health's warranty deed, except that
it stated that the 25-year restriction began running on the date of the most recent transfer in
October,1996.


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                 In 1998, Plaintiff purchased the Property from the Mooneyhams who are not a party
to this litigation. Plaintiff's warranty deed, in pertinent part, states as follows:

               WE, EDDIE D. MOONEYHAM and wife, PAMELA J.
               MOONEYHAM, do hereby sell, transfer and convey unto

                       GENERAL BANCSHARES, INC., a Tennessee Corporation
               its successors and assigns, the following described real estate, situated
               in the Third Civil District of Marion County, Tennessee, and more
               particularly described as follows, to-wit:

                                           ********

                        RESTRICTIONS: This property may not be used by
                        a financial institution as a place of business for a
                        period of Twenty-five (25) years from the date of the
                        conveyance from Marion Trust & Banking Company
                        to the Town of Powell [sic] Crossroads dated April
                        12, 1989, and recorded on July 10, 1990, in Deed
                        Book 141, Pages 217, et seq., Register's Office of
                        Marion County, Tennessee.

As in the 1989 warranty deed, the Restrictive Covenant immediately follows the description of the
Property.

              Plaintiff and Defendant each filed a Motion for Summary Judgment. The Trial Court
granted Defendant's Motion for Summary Judgment. Plaintiff appeals.

                                             Discussion

               On appeal, Plaintiff argues that the Restrictive Covenant is not enforceable for the
following reasons: 1) the Restrictive Covenant itself does not contain the "successors, and assigns"
language; 2) the restriction does not run with the land because it does not confer a corresponding
benefit on another particular parcel of land; 3) the restriction is not enforceable as an equitable
servitude because the Property is not part of a common development plan; and 4) Defendant is not
a third party beneficiary to the Restrictive Covenant because the Mooneyhams did not intend to
benefit Defendant with the restriction contained in the 1998 warranty deed.

                 Defendant does not dispute the Trial Court's decision. Defendant contends that the
plain language of the Restrictive Covenant and the format of the 1989 warranty deed is proof of the
intent of the original grantor and grantee to bind remote grantees such as Plaintiff. Defendant also
argues that the Restrictive Covenant is enforceable against Plaintiff because Plaintiff had actual
notice of the restriction and because the Restrictive Covenant was in the chain of title. Alternatively,


                                                   3
Defendant argues that the Restrictive Covenant is enforceable as an equitable servitude.

              Our Supreme Court outlined the standard of review of a motion for summary
judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000), as follows:

               The standards governing an appellate court's review of a motion for
               summary judgment are well settled. Since our inquiry involves
               purely a question of law, no presumption of correctness attaches to
               the lower court's judgment, and our task is confined to reviewing the
               record to determine whether the requirements of Tenn. R. Civ. P. 56
               have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51
               (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d
               741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
               provides that summary judgment is appropriate where: (1) there is no
               genuine issue with regard to the material facts relevant to the claim
               or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d 208,
               210 (Tenn.1993); and (2) the moving party is entitled to a judgment
               as a matter of law on the undisputed facts. See Anderson v. Standard
               Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party
               has the burden of proving that its motion satisfies these requirements.
               See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991).
               When the party seeking summary judgment makes a properly
               supported motion, the burden shifts to the nonmoving party to set
               forth specific facts establishing the existence of disputed, material
               facts which must be resolved by the trier of fact. See Byrd, 847
               S.W.2d at 215.

               To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party's
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party's burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the
               non-moving party may not simply rest upon the pleadings, but must
               offer proof to establish the existence of the essential elements of the
               claim.

               The standards governing the assessment of evidence in the summary


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               judgment context are also well established. Courts must view the
               evidence in the light most favorable to the nonmoving party and must
               also draw all reasonable inferences in the nonmoving party's favor.
               See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d
               at 210-11. Courts should grant a summary judgment only when both
               the facts and the inferences to be drawn from the facts permit a
               reasonable person to reach only one conclusion. See McCall v.
               Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900
               S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89.

               The record before us contains no genuine issues of material fact. The parties do not
dispute that the Restrictive Covenant is found in the 1989 warranty deed and again in the 1998
warranty deed. The parties do not dispute the language or format of the warranty deeds.

                 The Restrictive Covenant at issue is a "property [interest] that run[s] with the land."
Maples Homeowners Ass'n v. T&R Nashville Ltd. P'ship, 993 S.W.2d 36, 38 (Tenn. Ct. App. 1998).
It is true that Tennessee law does not favor restrictions on the free use of real property by private
owners. Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn. Ct. App. 1998); Hillis v. Powers, 875 S.W.2d
273, 275 (Tenn. Ct. App. 1993). However, this Court has held that restrictive covenants will be
enforced under certain circumstances, holding that:

                the courts will uphold covenants running with the land where the
                intent of the parties to bind their remote successors can be determined
                by the language of the covenant and the circumstances of its making.

Hillis, 875 S.W.2d at 275 (citations omitted). In explaining the analysis that courts must make when
asked to enforce a restrictive covenant, this Court held that:

                [t]he court is required to give a fair and reasonable meaning to
                restrictive covenants in order to determine the parties' intention and
                once the intention of the parties is ascertained, the covenant will be
                enforced, provided it serves a legitimate purpose and does not
                constitute a nuisance per se.

Jones v. Englund, 870 S.W.2d 525, 529 (Tenn. Ct. App. 1993) (quoting Waller v. Thomas, 545
S.W.2d 745, 747 (Tenn. Ct. App. 1976)).

              As a general rule, courts will strictly construe restrictive covenants. Hicks, 978
S.W.2d at 548. When interpreting unambiguous restrictive covenants, courts are to give the words
of the covenant their "usual and ordinary meaning." Id. at 547. This Court has held that:

                [Restrictions on land] arise . . . from a series of overlapping

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                contractual transactions . . . . Accordingly, they should be viewed as
                contracts, . . . and they should be construed using the rules of
                construction generally applicable to the construction of other
                contracts.

Maples Homeowners Ass'n, 993 S.W.2d at 39 (citations omitted). If the restrictive covenant is
"'reasonable and unambiguous, there is no need to seek further clarification outside its language.'"
Hicks, 978 S.W. 2d at 548 (quoting Shea v. Sargent, 499 S.W.2d 871, 874 (Tenn. 1973)). However,
if the language in a restriction is ambiguous, the courts will construe that provision against the
drafter of the restriction. Hillis, 875 S.W.2d at 275-76 (citation omitted).

                We reject Plaintiff's contention that the Restrictive Covenant does not apply to remote
grantees because the clause itself does not contain "successors and assigns" language. We hold that
the plain language of the Restrictive Covenant is unambiguous and clearly indicates the intent of the
original parties to bind successors and assigns like Plaintiff. See Hicks, 978 S.W.2d at 548 (holding
that "the overriding factor is the intent of the parties”). The "successors and assigns" language in
the 1989 warranty deed is found in the sentence immediately preceding a large, fully-indented
portion of the warranty deed which is set off by a colon. Contained in this fully-indented section is:
1) a description of the Property; 2) an exception to the property description; 3) the Restrictive
Covenant; and 4) a reference to a previously-recorded deed regarding the same Property. The
placement of the Restrictive Covenant within the umbrella of the colon clearly shows that the
original parties intended for the "successors and assigns" language to be a part of the Restrictive
Covenant.

                 The plain language of the Restrictive Covenant indicates that the original grantor and
grantee intended for it to apply to remote grantees. The Restrictive Covenant prohibits "any
financial institution" from using the Property as a place of business "for a period of twenty-five (25)
years from the date hereof." When coupled with the format of the warranty deed, the "clear and
ordinary meaning" of this language clearly indicates that the intent of the original parties was to bind
remote grantees such as Plaintiff to the Restrictive Covenant. See Hicks, 978 S.W.2d at 548.

                Moreover, the language of the restriction in the 1998 warranty deed is proof that
Plaintiff understood that the Restrictive Covenant applied to it as a remote grantee. Plaintiff's deed
clarified the date of the beginning of the twenty-five year term, stating, in pertinent part, as follows:
"for a period of twenty-five (25) years from the date of the conveyance from Marion Trust &
Banking Company to the Town of Powell Crossroads dated April 12, 1989 . . . ." As discussed, the
deeds between the 1989 and 1998 conveyances did not make this point clear. Although this
clarifying language cannot be used to show the intention of the original parties, it is proof that
Plaintiff understood the plain language of the Restrictive Covenant to bind the successors and
assigns of the original grantee.

               In support of its argument that to run with the land and bind remote grantees, the
Restrictive Covenant itself must contain the “successors and assigns” language, Plaintiff relies
heavily upon two decisions, Lowe v. Wilson, 250 S.W.2d 366 (Tenn. 1952), and Essary v. Cox, 844

                                                   6
S.W.2d 169 (Tenn. Ct. App. 1992). Plaintiff’s argument fails because the restrictive covenants in
those cases are readily distinguishable from the one at issue. Our Supreme Court in Lowe found that
a covenant which forbade the sale of intoxicating beverages was not enforceable against remote
grantees because it “did not specifically bind the heirs and assignees of the grantees.” Lowe, 250
S.W.2d at 368. The restrictive clause in Lowe is as follows:

               It is hereby agreed and understood between the parties hereto that no
               beer, beverages, or intoxicants of any kind or character shall ever be
               sold upon the lot or parcel of land herein conveyed, and this
               agreement is a part of the consideration for this sale.

Id. (emphasis added). The Lowe court held that the language of the restriction showed that this
clause was merely a personal agreement between the original parties. Id. at 368. Similarly, this
Court in Essary v. Cox found that a restriction which forbade the sale of oil and gas supplies was not
enforceable against remote grantees because the language showed that it was a personal agreement
between the original grantors and grantees. Essary, 844 S.W.2d at 172. The restriction in Essary
states as follows:

               It is expressly understood and agreed that the above-described
               premises shall not be used for the purpose of any sales of oil and gas
               supplies or products.

Id. at 170 (emphasis added). Unlike the restrictions found in Lowe and Essary, the plain language
of the Restrictive Covenant in this matter does not indicate solely a personal agreement between the
original parties. In contrast, the Restrictive Covenant contains broader language such as “any
financial institution . . . .” Additionally, the Restrictive Covenant binds remote grantees since, as
discussed, it is part of the sentence that contains the "successors and assigns" language.

                 We also reject Plaintiff’s argument that under the facts of this case, the Restrictive
Covenant, to be binding, must benefit another specific tract of land. Plaintiff concedes that there is
no Tennessee case law which directly supports this argument, and we do not find the authority cited
by the Plaintiff to be persuasive. But see Ridley v. Haiman, 47 S.W.2d 750, 755 (Tenn. 1932)
(citation omitted) (discussing the rule that restrictive covenants are enforceable where the common
vendor intended that the restriction would benefit all of the parcels of land of a subdivision); Leach
v. Larkin, No. 919193, 1993 WL 377629, at * 3 (Tenn. Ct. App. Sept. 24, 1993) (citations omitted)
(holding that a property owner who subdivides and sells parts of a tract of land may include
restrictive covenants which benefit both the property owner and the purchasers of the subdivided
portions of the tract). While disagreeing with Plaintiff’s assertion that the Restrictive Covenant must
benefit another particular tract of land to be enforceable, Defendant argues that the Restrictive
Covenant does benefit other tracts of land owned by Defendant and its predecessor. Affidavits
submitted by Plaintiff in support of its Motion for Summary Judgment show that Defendant and its
predecessor own other land used for banking purposes. The intention of the original parties is clear
from the language of the 1989 Warranty Deed, and that intention was to prohibit any financial
institution from using the property as a place of business. Although Defendant’s properties owned

                                                  7
at the time of the 1989 deed and at the time of the lawsuit are not adjacent to the Property, the
intention of the parties to protect those properties from any financial institution being operated on
the Property is clear.

                 Accordingly, we hold that the Restrictive Covenant is enforceable against Plaintiff
and that the Trial Court did not err in granting summary judgment to the Defendant. Additionally,
in light of our holding, we find Plaintiff's argument concerning whether Defendant is a third-party
beneficiary to the Restrictive Covenant to be moot. Likewise, our holding renders it unnecessary
to address Plaintiff’s argument that the restriction is not enforceable as an equitable servitude
because the property is not part of a common development plan.

                                            Conclusion

               The judgment of the Trial Court is affirmed, and this matter remanded for further
proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs
below. Costs of this appeal are taxed to the Appellant, General Bancshares, Inc., and its surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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