Eric Kerney, et al. v. Gary Endres, et al.

This case is before us for the second time on appeal. In our first Opinion, Kerney v. Endres, No. E2008-01476-COA-R3-CV, 2009 Tenn. App. LEXIS 408 (Tenn. Ct. App. June 30, 2009), no appl. perm. appeal filed (“Kerney I”), we found and held that defendants’ beauty salon violated the restrictive covenants of residential use only, vacated the Trial Court’s order to the contrary, and remanded the case for a determination of whether the restrictive covenants had been waived. On remand, the Trial Court entered its order finding and holding, inter alia, that the restrictive covenants of residential use only had been waived and were unenforceable. Plaintiffs appeal the finding of waiver to this Court. We find that the evidence preponderates against the Trial Court’s finding that the restrictive covenants had been waived. We, therefore, reverse the Trial Court’s May 3, 2010 order.