Roberts v. Lee

Decision Date22 February 2008
Docket NumberNo. A07A1965.,A07A1965.
Citation658 S.E.2d 258,289 Ga. App. 714
PartiesROBERTS v. LEE et al.
CourtGeorgia Court of Appeals

Daniel Bruce Greenfield, for Appellant.

Gary D. Lee, pro se.

Sheryl D. Lee, pro se.

MILLER, Judge.

Gary D. Lee and Sheryl D. Lee sued their neighbor Frederick L. Roberts to enjoin Roberts from using his residence for commercial purposes in violation of the restrictive covenants applicable to their residential subdivision. Following an evidentiary hearing, the trial court issued a permanent injunction against Roberts. Roberts appeals, and we affirm.

"The construction, interpretation and legal effect of [a restrictive covenant] is an issue of law to which the appellate court applies the plain legal error standard of review." (Punctuation and footnote omitted.) Crawford v. Dammann, 277 Ga.App. 442, 444(1), 626 S.E.2d 632 (2006). Whether Roberts violated the restrictions on the use of his property as contained in the restrictive covenants "involved both questions of law and fact and can only be overturned in the event of manifest abuse of discretion." (citation omitted.) White v. Legodais, 249 Ga. 849, 850(2), 295 S.E.2d 99 (1982). See Sissel v. Smith, 242 Ga. 595, 597(3), 250 S.E.2d 463 (1978) ("whether ... restrictive covenant prevents the incidental use of a portion of a residence for business or trade purposes is a question of fact depending upon the facts and circumstances of a given case").

The evidence before the trial court showed that the Lees and Roberts were homeowners in the Mallard Lake Subdivision in Carroll County. The subdivision property is subject to the Declaration of Protective Covenants Applicable to Mallard Lake (the "Covenants"). The Covenants provide, among other things, that the subject property "is intended and shall be used for residential purposes only. All commercial and business activities are prohibited." In addition, "[n]o lot shall be used except for residential purposes."

Roberts is in the business of transporting asphalt and other building materials to road resurfacing sites. For this purpose, he owns a 2006 Mack Granite dump truck. Roberts parks the dump truck in the circular driveway in front of his home. Roberts conceded that it was a "big, big truck" and that it was so wide that no car could get past it if it was parked on the street.

Mrs. Lee testified that Roberts cranked the dump truck between 4:00 and 5:00 each morning and allowed it to run for 15 to 20 minutes before driving it to work. Although Roberts claimed that he never backed the dump truck out of the driveway, Mrs. Lee testified that as Roberts would back the dump truck out of the driveway, the backup alarm would emit a loud beeping sound. According to Roberts, he parked the car in his driveway because he was concerned that it might be stolen if it was parked elsewhere. Roberts also claimed that having the dump truck parked at his home enabled him to comply with government regulations that limit the amount of time he is able to use the truck each day. Before the hearing on the Lees' complaint, Roberts leased a nonresidential site for parking the dump truck, but testified that he intended to continue to park it in his driveway overnight on consecutive work days.

In addition to the dump truck, Roberts also owned a box van that he used to carry cones and barrels that might be needed on a job site and a pickup truck with a water tank attached to the bed of the truck. Roberts parked these vehicles in his driveway and on the street in front of his home. Roberts' son, who worked with his father but did not reside at the home, also parked work-related vehicles in Roberts' driveway and on the street in front of Roberts' home. Mrs. Lee testified that there were generally five to six vehicles parked in front of the Roberts' home each night. In addition, Roberts and his son washed and changed the oil on the dump truck and other work vehicles from time to time while they were parked at the residence.

The trial court concluded that Roberts was using or permitting his property to be used for business purposes contrary to the Covenants' prohibition against nonresidential use, and that the Lees had no adequate remedy at law. The trial court ordered that Roberts be permanently enjoined from (i) parking his business vehicles on or near his subdivision property; (ii) performing maintenance or repair activities on his business vehicles on or near his subdivision property; and (iii) permitting a third party to do any of the acts prohibited by the order.

1. Roberts claims that the trial court erred in construing the Covenants to prohibit him from parking or maintaining commercial vehicles in his driveway. The Covenants do not specifically prohibit parking of commercial vehicles within the subdivision, and Roberts argues that the trial court did not properly apply the rules of contract construction to infer such a restriction, especially in light of the rule that "any doubt concerning restrictions on use of land will be construed in favor of the grantee." (Citations and punctuation omitted.) Licker v. Harkleroad, 252 Ga. App. 872, 874(2)(a), 558 S.E.2d 31 (2001). We disagree.

Here, the trial court concluded that Roberts was using or permitting his property to be used for business purposes contrary to the unambiguous provisions of the Covenants, which provided that the property shall be used for residential purposes only. In making this determination, the trial court properly considered the intent underlying the Covenants, as reflected by the instrument as a whole. "It is the duty of the trial court to construe a covenant to carry into effect the intention of the parties, which is to be discerned from the whole instrument." (Citation omitted.) Garland v. Carnes, 259 Ga. 263, 379 S.E.2d 782 (1989); see Licker, supra, 252 Ga.App. at 874(2), 558 S.E.2d 31 (rule of strict construction "does not override the rule that the entire document must be considered when determining the intention of the parties"). The express intent of the Covenants is to improve the status of the lots, protect the value of the real estate, insure uniformity of use and stability of character, and to preserve the residential characteristics of the property.

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7 cases
  • Abel v. Johnson
    • United States
    • Supreme Court of Connecticut
    • August 20, 2021
    ......Cf. Roberts v. Lee , 289 Ga. App. 714, 716, 658 S.E.2d 258 (2008) ("[The defendant] was using his residential property to advance his business interests by consistently parking a dump truck and other [commercial use] vehicles in his driveway. This finding was supported by photographic evidence demonstrating ......
  • Roberts v. Russell
    • United States
    • Court of Appeals of Tennessee
    • May 17, 2011
    ...solely in the furtherance of Mr. Bridges's music business constituted use of the property for commercial purposes. C.f. Roberts v. Lee, 658 S.E.2d 258, 260-61 (Ga. Ct. App. 2008) (holding the constant parking of a dump truck and other commercial-use vehicles violated a restrictive covenant ......
  • Abel v. Johnson
    • United States
    • Supreme Court of Connecticut
    • August 20, 2021
    ...... vehicles at home for purposes of convenience, along with. avoiding the difficult question of whether simply parking a. commercial vehicle on a property is an activity that is. consistent with a residential use. Cf. Roberts v. Lee , 289 Ga.App. 714, 716, 658 S.E.2d 258 (2008). (‘‘[The defendant] was using his residential. property to advance his business interests by consistently. parking a dump truck and other [commercial use] vehicles in. his driveway. This finding was supported by ......
  • Jones v. Morris
    • United States
    • United States Court of Appeals (Georgia)
    • November 20, 2013
    ......Bland, 208 Ga. 709, 710–11(2), 69 S.E.2d 258 (1952).        5.Licker v. Harkleroad, 252 Ga.App. 872, 874(2)(a), 558 S.E.2d 31 (2001) (citations omitted).        6.Charter Club, etc., supra at 900, 689 S.E.2d 344 (punctuation omitted); see Roberts v. Lee, 289 Ga.App. 714, 716(1), 658 S.E.2d 258 (2008); Licker, supra at 875(2)(a), 558 S.E.2d 31 (a trial court erred by strictly construing restrictive covenants without considering the entire document, recognizing that effect is to be given to the intention of the parties as shown by the ......
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