Arizona Biltmore Estates Ass'n v. Tezak

Decision Date18 November 1993
Docket NumberCA-CV,No. 1,1
Citation177 Ariz. 447,868 P.2d 1030
PartiesARIZONA BILTMORE ESTATES ASSOCIATION, a non-profit Arizona corporation, Plaintiff-Appellant, v. Robert and Nancy TEZAK, husband and wife, Defendants-Appellees. 92-0188.
CourtArizona Court of Appeals
OPINION

CONTRERAS, Judge.

Plaintiff-Appellant Arizona Biltmore Estates Association ("Association") appeals from a cross-motion for summary judgment granted in favor of Defendants-Appellees Robert and Nancy Tezak ("Tezak"), denying the Association's request for an injunction prohibiting the Tezaks from parking a large customized bus on their residential property. The dispositive issue presented is whether this customized bus was subject to deed restrictions and violated a provision therein prohibiting the parking of a "trailer, camper, boat, or similar equipment" on the property without prior approval of the Association. We conclude that the cited portion of the deed restrictions do prohibit parking the customized bus on the premises and therefore reverse the trial court's judgment.

FACTS

The Tezaks own a home situated on a lot in the Arizona Biltmore Estates subdivision. The property is subject to restrictive covenants which were recorded on February 5, 1976. The Tezaks admit that their real property is subject to the restrictive covenants.

In approximately September of 1989, the Tezaks began parking a large vehicle weighing more than 29,000 pounds at the back of their residential property. The vehicle's outward appearance resembles that of a commercial bus. The Tezaks refer to the vehicle as their "motor coach" or "customized bus." We will refer to it as a "bus." The bus is registered to "UNO Products, Inc., Robert J. Tezak" and is described on its vehicle registration form as a "recreational vehicle" with a "motor home" body style. The bus is a self-propelled vehicle. It has no sleeping accommodations and is not equipped to serve as a mobile dwelling.

The Tezaks use the bus to travel to some of their businesses such as their radio station in Yuma, Arizona. They also use it to transport friends and clients to restaurants and sporting events. The bus is equipped with a fax machine and telephones with which Mr. Tezak stays in contact with his businesses. Mr. Tezak denies conducting a commercial enterprise out of the bus and avows that it serves no business or commercial function while parked on the residential property.

When the Association learned that the bus was being kept on the property, it sought the Tezaks' cooperation in having it removed. Because the Association and the Tezaks were unsuccessful in resolving the problem, the Association filed this civil action, requesting an injunction from the Maricopa County Superior Court requiring the Tezaks to remove the vehicle from the property. On motion and cross-motion for summary judgment, the trial court refused to grant the Association's requested injunction and granted the Tezaks cross-motion for summary judgment. The Association appealed.

DISCUSSION

We first consider whether the trial court erred in concluding that the provision which restricts the parking of certain enumerated mobile recreational and utility conveyances 1 ("conveyances") on the property does not apply to the Tezaks' bus. The deed restrictions in this case constitute a covenant running with the land and form a contract between the subdivision's property owners as a whole and the individual lot owners. See Divizio v. Kewin Enterprises, Inc., 136 Ariz. 476, 481, 666 P.2d 1085, 1090 (App.1983). The interpretation of a contract is a matter of law and not a question of fact. Id. at 480, 666 P.2d at 1089. As a result, the Court of Appeals is not bound by conclusions of law reached by the trial court. City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (App.1988).

Article XI, Section 6, of the deed restrictions provides in relevant part:

No trailer, camper, boat or similar equipment shall hereafter be permitted to remain upon any part of the Covered Property, unless placed or maintained in a manner approved by the Architectural Committee pursuant to Article VI hereof entitled "Architectural and Landscaping Control," nor permitted to be parked other than temporarily, on any street, alley, or common area within the Covered Property....

(Emphasis added.) We note that the provision does not necessarily ban the placement of all enumerated conveyances on the property; it only bans from the property the enumerated conveyances which have not been approved by the Architectural Committee for placement in a particular manner. No such approval for the Tezaks' bus has been given in this case. The only argument the Tezaks presented to the trial court on this issue in opposition to the Association's request for injunction, though, was that their bus did not fall within the types of conveyances restricted by this provision. Therefore, we confine ourselves to that argument.

The Association makes no contention that the Tezaks' vehicle falls within the definition of any of the conveyances specifically enumerated in this provision of the deed restrictions. It acknowledges that the customized bus is not a "trailer" or a "camper" and is certainly not a "boat." It urges us to find, though, that this self-propelled recreational vehicle falls within the general phrase "or similar equipment." It argues that the trial court wrongfully applied strict construction in interpreting this phrase which subordinated the intent of the parties who drafted the deed restrictions.

Under the rule of ejusdem generis, general language must be confined in its meaning by the specific enumeration which precedes it unless an intention to the contrary is clearly shown. Smith v. Second Church of Christ, Scientist, 87 Ariz. 400, 406, 351 P.2d 1104, 1107 (1960). The Tezaks point out that both "trailer" and "camper" usually have temporary living arrangements. Because their bus has no temporary living arrangements, they contend that it is not within the group of enumerated conveyances. Alternatively, they argue that it is unclear from the language used what other types of conveyances fall within the phrase "or other similar equipment" and therefore that strict construction should be applied. As the Arizona Supreme Court has said:

"Restrictive covenants are to be strictly construed against persons seeking to enforce them and any ambiguities or doubts as to their effect should be resolved in favor of the free use and enjoyment of the property and against restrictions."

Duffy v. Sunburst Farms East Mutual Water & Agricultural Co., Inc., 124 Ariz. 413, 417, 604 P.2d 1124, 1128 (1980) (quoting Grossman v. Hatley, 21 Ariz.App. 581, 583, 522 P.2d 46, 48 (1974)) (citations omitted).

It is clear to us that conveyances, including vehicles falling within the phrase "or other similar equipment," would not necessarily have to have temporary living arrangements. If that were a requirement, we would be forced to falsely conclude that boats, more often than not, contain temporary living quarters. Under the proposition advanced by the Tezaks, "boats" should never have been placed within the enumerated conveyances. We refuse to follow this line of reasoning because it would lead us to an implausible result. We now turn to the more difficult question of whether it was proper for the trial court to apply strict construction in this instance.

Although strict construction is required in some circumstances, we also are aware that the cardinal principle in construing restrictive covenants is that the intention of the parties to the instrument is paramount. See Riley v. Stoves, 22 Ariz.App. 223, 225-26, 526 P.2d 747, 749-50 (1974) (citing 20 Am.Jur.2d, Covenants, § 5, p. 579). To determine this intent, we construe the document as a whole. Newmont Exploration Ltd. v. Siskon Corp., 125 Ariz. 267, 609 P.2d 82 (App.1980). While it is true that courts should not give a covenant a broader than intended application, see Riverchase Homeowners' Protective Association, Inc. v. City of Hoover, 531 So.2d 645 (Ala.1988), it is well settled that a covenant should not be read in such a way...

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