Buehrens v. Schave
| Decision Date | 07 October 2020 |
| Docket Number | Appeal No. 2019AP1649 |
| Citation | 951 N.W.2d 640,2020 WI App 75,394 Wis.2d 772 |
| Parties | Daniel BUEHRENS, Wendy Buehrens, John Lettau, Barbara Lettau, Nathan Heisler, Mark Ellingen, Debra Ellingen, Hopper Trust, Stephen Malin, Janice Malin, Walter Sinisi, Ann Marie Sinisi, Robert Binning, Mary Binning, Mary J. Wendels, Jeffrey Nelson, Thomas Tobin, Roberta Tobin, Alexander Ullenberg, Amy Ullenberg, Stephan Cloutier, Brigitte Cloutier, Justin Garrett, April Garrett, Nicholas Moore, Kathleen Moore and Betty Dunn, Plaintiffs-Appellants, All American Trust, Daniel Nett, Ambra Nett, Scott Gilgenbach, Jo Gilgenbach and Jean Rusch, Plaintiffs, v. Michael SCHAVE and Rochelle Schave, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Steven P. Sager of Sager Law Office, S.C., Fond du Lac.
On behalf of the defendants-respondents, the cause was submitted on the brief of Michael Lim and Emily Z. Dunham of Reff Baivier Lim Muza Sundet & Dunham, S.C., Oshkosh.
Before Neubauer, C.J., Reilly, P.J., and Davis, J.
¶1 The question presented is whether a large structure in a residential subdivision qualifies as a "garage" under the subdivision's restrictive covenant. The undefined "garage" is ambiguous, as it limits neither the size nor structure. Because purported restrictions in covenants must be in clear, unambiguous and peremptory terms in order to restrict the free and unencumbered use of property, we affirm the circuit court's rejection of the neighboring property owners’ challenge to the garage. The language and purpose of the covenant and Wisconsin's public policy disfavoring constraints on the free use of property guide our decision. We affirm.
¶2 The footprint of Michael and Rochelle Schaves’ building with an electric garage door is thirty-six feet by eighty feet, reaching sixteen feet high. During construction, neighbors contacted the Schaves contending that their "pole barn" violated the subdivision's covenant as its size rendered it something other than a "garage." The Schaves continued construction, and the plaintiffs, neighboring property owners (Neighbors), commenced this action.
¶3 The Neighbors moved for summary judgment, seeking to enforce the restrictive covenant and an order requiring removal of the building. They offered several exhibits and affidavits seeking to show that the Schaves’ building is a "pole barn," "pole shed," or a "post framed building," which the Neighbors contend is not a "garage." The Schaves also moved for summary judgment, asserting that any restriction on free use of property under the covenants must be clear and unambiguous. The Schaves submitted affidavits stating that they planned to use the building as a garage, specifying the vehicles and trailers they planned to store. The court granted the Schaves’ motion, reasoning that, because the term "garage" was not qualified, the garage was permissible.1 The Neighbors appeal.
¶4 We independently review a grant of summary judgment using the same methodology as the circuit court.
Pertzsch v. Upper Oconomowoc Lake Ass'n , 2001 WI App 232, ¶7, 248 Wis. 2d 219, 635 N.W.2d 829. Summary judgment is appropriate if there is no genuine issue of a material fact, and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2017-18).2 The interpretation of a restrictive covenant is an issue of law, which we review de novo. Zinda v. Krause , 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995). "Whether the language of a restrictive covenant is ambiguous is also a question of law," requiring our independent review. Id.
¶5 Wisconsin's public policy favors the free and unrestricted use of property. Crowley v. Knapp , 94 Wis. 2d 421, 434, 288 N.W.2d 815 (1980). "Accordingly, restrictions contained in deeds and in zoning ordinances must be strictly construed to favor unencumbered and free use of property." Id. To be enforceable, restrictive covenants which limit "the free use of property must be expressed in clear, unambiguous, and peremptory terms." Id. at 435, 288 N.W.2d 815.
¶6 When construing the meaning of a restrictive covenant, we do not look for amorphous general intent or the subjective intent of the drafters, but rather, we determine the meaning of the restriction by the words actually used. Id. at 438 & n.3, 288 N.W.2d 815. "[I]f the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced." Zinda , 191 Wis. 2d at 166, 528 N.W.2d 55. We derive intent from the "scope and purpose of the covenant as manifest by the language used." Id. ; see also Voyager Vill. Prop. Owners Ass'n v. Johnson , 97 Wis. 2d 747, 749, 295 N.W.2d 14 (Ct. App. 1980) (). "The language in a restrictive covenant is ambiguous if it is susceptible to more than one reasonable interpretation." Zinda , 191 Wis. 2d at 165-66, 528 N.W.2d 55.
¶7 Where words are not defined within a restrictive covenant, they are given their ordinary meaning. See Crowley , 94 Wis. 2d at 436-37, 288 N.W.2d 815. To discern the ordinary meaning, we often turn to dictionary definitions. See, e.g. , Diamondback Funding, LLC v. Chili's of Wis., Inc. , 2004 WI App 161, ¶16, 276 Wis. 2d 81, 687 N.W.2d 89. If the meaning of the language remains doubtful, "all doubt, under the general rule, should be resolved in favor of the free use" of the property. Zinda , 191 Wis. 2d at 165-66, 528 N.W.2d 55 (quoting Crowley , 94 Wis. 2d at 438 n.3, 288 N.W.2d 815 ).
¶8 The Schaves point to the instructive application of these principles to the word "family" in Crowley . The court found that nothing in the restrictive covenant clearly and unambiguously limited the term "family" to a discrete family unit comprised only of individuals related by blood or by law. Crowley , 94 Wis. 2d at 436-38, 288 N.W.2d 815. The court noted that a family may mean a group of people who live, sleep, cook, and eat upon a premises as a single housekeeping unit, such as a group of priests. Id. Resolving the ambiguous word "family" to favor the free use of property, the eight residents with cognitive impairments did not violate the restrictive covenant. Id.
¶9 We must determine if the undefined term "garage" in the restrictive covenant clearly and unambiguously precludes a building of the size and structure at issue. The covenant states, "In addition to the residence, the only other building to be allowed on said premises shall be a garage."
¶10 As "garage" is undefined, we look to a common dictionary definition, while considering the overall intent of the restrictive covenants, to identify the ordinary meaning of the word "garage." See Xcel Energy Servs., Inc. v. LIRC , 2013 WI 64, ¶30, 349 Wis. 2d 234, 833 N.W.2d 665 ; Siler v. Read Inv. Co. , 273 Wis. 255, 261, 77 N.W.2d. 504 (1956) (). A reputable dictionary defines "garage" as "a building or compartment of a building used for housing an automotive vehicle." Garage , WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993). Another definition is: "a building or shed for housing a motor vehicle or vehicles." Garage , NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010). The common and ordinary meaning of the term "garage" is not limited to a certain size or material. The only requirement is that the building be used to store vehicles. The Neighbors offer no competing definition.
¶11 Our case law instructs that we must look to the document as a whole to discern the overall purpose of the restrictive covenants, again, to determine whether the covenant clearly and unambiguously prohibits the large structure. Zinda , 191 Wis. 2d at 166, 170, 528 N.W.2d 55.
¶12 Several provisions provide helpful guidance as to the scope of the restriction. The other restrictive covenants provide: "[n]o truck larger than a three-quarter ton truck shall be parked or garaged anywhere in said subdivision." "No trailer or any farm vehicle or farm equipment shall be parked outside." "Only one boat may be parked outside," and it may not exceed twenty feet.
¶13 These provisions permit pickup trucks and boats to be parked inside the garage, and it commands that trailers, farm vehicles, farm equipment, and a second boat or larger boats be parked inside the garage. It follows that large garages must be allowed for inside storage of these items.
¶14 While the Neighbors contend that these provisions do not necessarily mean that these items can be parked inside the garage, we note that the provision precluding large trucks addresses both parked and garaged. The drafters knew how to preclude inside use. Moreover, the failure to restrict explicitly and unambiguously favors the free and unencumbered use.
¶15 Another covenant specifies the permitted dimensions for the homes: single story homes must be 1600 square feet, all others must be no less than 2000 square feet. This restrictive language, compared to the absence of any size limitations for the garage, speaks volumes as it demonstrates that the drafters were capable of adding limiting language. If the purpose of the covenant were to limit the size of the garage, it could and should have been expressly stated.
¶16 The Neighbors ask us to conduct an external size, construction, and character analysis of the structure, arguing that the Schaves’ "post framed" building is not a typical "garage." We decline to do so, as it would add restrictions that are not unambiguously required. Rather, we return to the dictionary definition of the word "garage" to aid our construction. This definition and ordinary meaning of the term "garage" do not contain size or construction restrictions but instead focus on the...
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