OF JUDGMENT: 06/23/2015
COUNTY CHANCERY COURT TRIAL JUDGE: HON. CYNTHIA L. BREWER
ATTORNEYS FOR APPELLANTS: DONALD W. BOYKIN V. DOUGLAS GUNTER
ATTORNEYS FOR APPELLEE: JAMES L. MARTIN DAVID GLYN PORTER
GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ.
Paul and Janice Berlin are residents of Livingston, a
covenant-restricted community in Madison County. Their
3.56-acre lakefront lot is subject to a maintenance easement
that extends twenty feet onto their property from the
lake's highwater mark. Their lot is also subject to a
covenant requiring them to obtain approval from the
Architectural Review Committee (ARC) of the Livingston
Property Owners Association (LPOA) prior to beginning
construction of fences and other improvements on their
property. The Berlins asked the ARC to approve a planned
fence that would not be enclosed on the lakeside boundary of
their property but would instead extend across the
maintenance easement and three feet out into the lake along
their east and west property lines. The ARC declined to
approve the proposed fence on the ground that it would
interfere with the maintenance easement. The Berlins built
the fence anyway.
LPOA sued the Berlins in the Madison County Chancery Court.
Following a two-day trial, the chancellor entered a final
judgment and opinion finding that the Berlins were in
violation of the restrictive covenants applicable to their
property. She ordered them to remove the portions of their
fence that extend across the easement and into the lake. She
also awarded LPOA attorneys' fees. The Berlins appealed.
They argue that the chancellor's decision is erroneous
for multiple reasons, that she erred in awarding
attorneys' fees without holding a hearing on the
reasonableness of the fees requested by LPOA, and that she
abused her discretion by excluding one document as
irrelevant. For the reasons that follow, we find no error and
AND PROCEDURAL HISTORY
Livingston is a residential community consisting of
fifty-nine lots and four lakes on sixteenth-section school
trust land near the intersection of Highway 463 and Highway
22 in Madison County. All lots in Livingston are subject to a
declaration of covenants, conditions, and restrictions that
was duly filed with the Madison County Chancery Clerk in
2001. The declaration established LPOA, which is responsible
for enforcing the covenants and maintaining all common areas
and lakes. ¶4. In 2005, the Berlins entered into a
long-term residential lease for Lot 21 at Livingston, a
3.56-acre lot on one of the subdivision's lakes. The
Berlins' lease states that their lot is subject to the
Section 11.02 of Livingston's covenants reserves to LPOA
a twenty-foot easement from the lake's edge at its
highwater level for lake "maintenance and control
purposes only." The declaration clearly states, in
multiple places, that any interest in any of the lakefront
properties in the subdivision is subject to the easement.
The covenants also establish the ARC to exercise
"architectural control" over the subdivision.
Section 10.02 of the covenants provides, as relevant in this
case, that "no . . . fences . . . shall be commenced,
erected, constructed[, ] . . . or permitted to remain on . .
. any Lot, until after compliance with the review process of
this Article X and approval . . . by the [ARC]." The
review process requires the submission of detailed building
and landscaping plans to the ARC. Section 10.03 provides that
the ARC must review and approve or disapprove submissions
within thirty business days of receipt of all plans. Section
10.03 also states that the ARC shall provide "[w]ritten
notice of [its] decision, " which "shall specify
the reasons for any disapproval." Decisions of the ARC
may be appealed to the subdivision's board of directors,
and residents are entitled to a hearing before the board.
On or about February 6, 2010, Paul Berlin delivered a
handwritten plan for the construction of a fence on his lot
to Jerry Ward, the chair of the ARC. The plan proposed the
construction of iron fences commencing on both sides of the
Berlins' home, running to and then continuing down the
property lines on the east and west sides of the property,
and then finally crossing the twenty-foot maintenance
easement and extending three feet out into the lake. The plan
also showed a three-foot-wide "walk gate" on one
side of the maintenance easement and an eight-foot-wide
"access gate" on the opposite side of the easement.
The ARC met within a few days and voted unanimously to
disapprove the proposed fence. Ward then met with Paul and
explained that the ARC had disapproved the fence because it
crossed the maintenance easement and extended into the lake.
Ward suggested that Paul could revise and resubmit his plan
or meet with the ARC. The ARC would have approved a fence
with the same design and materials if it had been enclosed on
the lakeside of the property and stopped short of the
maintenance easement. Ward told Paul that he could also
appeal and meet with LPOA's board of directors. Paul
responded that enclosing the fence, rather than extending it
into the lake, would cost an additional $5, 400. Paul then
told Ward that he was not going to meet with the board or the
ARC and that he intended to build the fence as proposed,
without revisions and without ARC approval.
Ward notified LPOA's board of directors of Paul's
statement that he intended to build the fence without ARC
approval, and the board contacted LPOA's attorney, Don
McGraw. On February 26, 2010, McGraw sent a letter to the
Berlins confirming that the ARC had disapproved their
proposed fence. McGraw's letter also stated that he
understood that the Berlins had stated that they intended to
disregard the ARC's decision and build the fence anyway.
McGraw warned that LPOA would seek injunctive relief and an
award of attorneys' fees and expenses if the Berlins
proceeded in disregard of the ARC's decision.
The Berlins began construction on their fence at some point
in March 2010. Although they never submitted modified plans
to the ARC, they ultimately constructed the fence with three
eight-foot-wide gates. Otherwise, the fence was constructed
as originally planned. On March 31, 2010, their attorney sent
McGraw a letter informing him that the Berlins intended to
proceed with construction of the fence. The letter asserted
that the Berlins were entitled to proceed with construction
because LPOA failed to give them a written statement of the
reasons that the fence was disapproved.
LPOA filed suit in the Madison County Chancery Court on May
20, 2010. LPOA's complaint asked the court to enforce the
subdivision's covenants, enjoin the Berlins from
maintaining their fence without ARC approval, and order the
Berlins to remove the portion of the fence that encroached on
LPOA's maintenance easement. LPOA also requested an award
of attorneys' fees and other costs. The Berlins filed an
answer and counterclaim accusing LPOA of arbitrary and
selective enforcement of the covenants. The counterclaim
demanded attorneys' fees, costs, and punitive damages.
The parties engaged in discovery, and the case eventually
proceeded to trial in January and September 2014.
Paul, Ward, and Steve Horn were the only witnesses at trial.
Horn is a resident of Livingston and the president of its
developer, Livingston Development Corporation. Ward and Horn
testified that LPOA and its contractors regularly use the
maintenance easements that surround the lakes to spray for
weed control and to monitor the lakes for beavers and nutria,
among other things. They testified that aquatic weeds,
beavers, and nutria can cause serious harm to the lakes,
which are one of the neighborhood's essential amenities.
Horn testified that a contractor regularly rides along the
easements, often on a four-wheeler, looking for any issues
that need attention. Ward and Horn testified that weed
control is conducted with a Kubota or Polaris utility vehicle
equipped with a twenty-five gallon tank and a sprayer. Ward
and Horn insisted that it was not practical for LPOA and its
contractors to work through fences that cross the easement,
even if the fences had gates. They noted that the Berlins
have three dogs (two bulldogs and a schnauzer), and LPOA did
not want to be responsible for keeping dogs inside a fence.
In addition, the plans submitted by the Berlins had only one
eight-foot-wide "access gate, " which would prevent
a utility vehicle or four-wheeler from entering on one side
of the property and continuing out the other.
Horn also testified that a neighbor three houses down from
the Berlins requested permission to build a fence that was
similar but was enclosed and stopped short of the maintenance
easement. The ARC approved the plans, and a photograph of the
fence was admitted into evidence at trial.
Paul claimed that he had not witnessed anyone performing any
type of maintenance or monitoring within the easement in
years. He did not believe that his gated fence would cause
any problems for anyone. He testified that he would be happy
to put up his dogs if given a little advance notice. Paul
also complained that the ARC had authorized another resident,
Darryl Gibbs, to plant shrubs across the maintenance easement
on Gibbs's property. Paul felt that the ARC had been
inconsistent in its enforcement of the covenants.
On June 24, 2015, the chancellor entered an opinion and final
judgment finding that the Berlins had violated the covenants
and that LPOA was entitled to injunctive relief. The
chancellor ordered the Berlins, within sixty days of the
judgment, to remove the portions of their fences that
encroached on the twenty-foot maintenance easement. The
chancellor also awarded LPOA $17, 485.58 for attorneys'
fees and expenses, said amount to be paid in full by the
Berlins within one year. The chancellor denied all relief