Anderson v. Bommer

• Decision Date: 22 November 1996
• Docket Number: No. 95-310,95-310
• Citation: 926 P.2d 959
• Parties: James G. ANDERSON, Jr., Appellant (Defendant), v. Timothy J. BOMMER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 959

926 P.2d 959

James G. ANDERSON, Jr., Appellant (Defendant), v. Timothy J. BOMMER, Appellee (Plaintiff).

No. 95-310.

Supreme Court of Wyoming.

Nov. 22, 1996.

Peter F. Moyer, Jackson, for Appellant.

R. Michael Mullikin of Mullikin, Larson & Swift, LLC, Jackson, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

LEHMAN, Justice.

Appellee Timothy Bommer sought to enjoin appellant James Anderson, Jr. from violating a restrictive covenant in the construction and use of a home located in Jackson. Pursuant to a motion for summary judgment hearing, the district court held that Bommer had standing to bring the action but denied summary judgment as to whether Anderson had violated the restrictive covenant. That issue was resolved by a trial without jury wherein the district court ruled that Anderson had violated the restrictive covenant and enjoined Anderson from further violation. Anderson appeals both rulings.

We affirm.

ISSUES

We are presented with the following issues for review:

I. Whether Bommer had standing to sue for injunctive relief.

II. Whether Anderson violated the "single family residence" restriction of the restrictive covenants of the subdivision.

FACTS

Anderson and Bommer own adjacent lots located in the Sage Subdivision (Subdivision) in the town of Jackson. The Subdivision was created by way of a plat recorded in 1964, which is subject to a "Declaration of Covenants and Restrictions." Bommer purchased lot 34 in 1972, and Anderson acquired lot 33 in February of 1992. Both parties were aware of the restrictive covenants prior to their purchases.

During construction of his home, Anderson showed Bommer the construction plans. Those plans provided for an integrated single-family dwelling as required by the restrictive covenants. During construction, however, Anderson changed the design to include two separate living units in addition to the main living area of the home. Anderson accomplished this by eliminating a door to what was called the "family suite" and finishing a separate living area immediately below, which was shown on the original construction plans as an unfinished basement. Each living unit is accessed solely by separate outside doors, and each consists of a bedroom, bathroom, closet, linen closet and furnishings. In addition, the "family suite" contains a wet bar.

Since 1993, Anderson has periodically resided in the area originally designated on the plans as the "family suite," which he describes as a "motel room," while leasing the main living unit to tenants. In 1995, Anderson's son and a friend stayed in the basement living unit. Anderson is not related to the tenants, and the portion of the home occupied by the tenants is inaccessible to Anderson. Likewise, the tenants have access only to their separate living unit.

DISCUSSION

Inasmuch as the facts are not in dispute and the issues present questions of law, this court conducts a de novo review of the district court's conclusions of law. Samuel v. Zwerin, 868 P.2d 265, 266 (Wyo.1994). In this regard, we treat restrictive covenants as contractual in nature, and they are to be interpreted in accordance with the principles of contract law. McHuron v. Grand Teton Lodge Co., 899 P.2d 38, 40 (Wyo.1995); Kindler v. Anderson, 433 P.2d 268, 270-71 (Wyo.1967). We seek to determine and effectuate the intention of the parties, especially the grantor(s), as it may appear or be implied from the instrument itself. See American Holidays, Inc. v. Foxtail Owners Ass'n, 821 P.2d 577, 579 (Wyo.1991); Bowers Welding & Hotshot, Inc. v. Bromley, 699 P.2d 299, 303 (Wyo.1985); Kindler, at 270-71. Intention of the parties is to be determined from the entire context of the instrument, and not from a single clause. American Holidays, at 579; Bowers Welding & Hotshot, at 303; Kindler, at 270-71. Where the language imposing the restriction(s) is clear and unambiguous, we construe it according to its plain and ordinary meaning without reference to attendant facts and circumstances or extrinsic evidence, and the rule of strict construction does not apply. McHuron, at 41; American Holidays, at 579; Kincheloe v. Milatzo, 678 P.2d 855, 859 (Wyo.1984); Kindler, at 271.

I. Standing to bring suit

Contending that Bommer lacks standing to bring this action, Anderson asserts that § 12 of the restrictive covenants requires that an action can be brought only by the original declarant of the restrictive covenants or by a majority of the current subdivision owners:

SECTION 12. That any violation of the covenants, conditions and restrictions contained herein may be enjoined in a court of laws [sic] or equity by the undersigned [the original declarant] or by a majority of the owners of said property, and any person violating said covenants, conditions and restrictions shall be liable for damages to the remaining owners.

Section 12, however, is just one section out of many contained within the restrictive covenants. Pursuant to our standard of interpreting covenants as a whole, we must look also to other significant clauses found therein. Such significant and key clauses are found in the recitals to the restrictive covenants, which state:

WHEREAS, The undersigned hereby certify and declare that they do hereby establish the following restrictions and covenants expressly for the beneficial development and improvement of said property; and

WHEREAS, The power to enforce the following restrictions and covenants is to reside in the undersigned and all future owners of record of said property;

NOW THEREFORE, The undersigned hereby declare that the property described and referred to above is and shall be held and conveyed upon and subject to the conditions, covenants, restrictions, reservations and charges hereinafter set forth, which are designed for the mutual benefits of the owners of said lots and shall inure to and pass with each and every lot therein, and which shall apply to and bind the Grantor and the Grantee, their heirs, executors, administrators, and assigns[.]

These recitals are contained at the beginning of the restrictive covenants and are, hence, an expression of the intent and purpose for which the covenants were formulated.

In resolving Anderson's contention that a majority of the owners must join in the suit, we are guided by our rule that contract provisions which apparently conflict must be reconciled if such can be done by any reasonable interpretation. Morris v. Kadrmas, 812 P.2d 549, 553 (Wyo.1991). As a general rule, a restrictive covenant may be enforced by one whose benefit it was made. 21 C.J.S. Covenants § 34 (1990). Here the recitals state that the...