Cain v. Powers

• Court: New Mexico Supreme Court
• Writing for the Court: FEDERICI; DAN SOSA, Jr., Senior Justice, and STOWERS
• Citation: Cain v. Powers, 100 N.M. 184, 668 P.2d 300, 1983 NMSC 55 (N.M. 1983)
• Decision Date: 24 June 1983
• Docket Number: No. 14754,14754
• Parties: John D. CAIN, Norma J. Cain, Gene Holmes and Geraldine O. Holmes, Plaintiffs-Appellees, v. Joseph F. POWERS and Genovieve Eagle Powers, husband and wife, Defendants-Appellants.

Page 300

668 P.2d 300

100 N.M. 184

John D. CAIN, Norma J. Cain, Gene Holmes and Geraldine O Holmes, Plaintiffs-Appellees, v. Joseph F. POWERS and Genovieve Eagle Powers, husband and wife, Defendants-Appellants.

No. 14754.

Supreme Court of New Mexico.

June 24, 1983.

[100 NM 184] C. Clement Koogler, Aztec, for plaintiffs-appellees.

Andrew L. Cameron, Armijo, Baggett & Cameron, P.C., Farmington, for defendants-appellants.

OPINION

FEDERICI, Justice.

Plaintiffs-appellees (plaintiffs) John Cain, Norma Cain, Gene Holmes and Geraldine Holmes, brought suit to enforce a restrictive covenant in a real estate instrument which prohibited the placing of a trailer house on a parcel of realty they had sold to the defendants-appellants (defendants) Joseph Powers and Genovieve Powers. Defendants placed a mobile home on the realty in question but maintain that the mobile home was not specifically prohibited by the restrictive covenant. At the trial on November 9, 1982, plaintiffs' counsel and one of the plaintiffs were present, and defendants' counsel was present, although neither defendant appeared. Defendants' counsel was unable to explain the nonappearance of the defendants, or to locate them, and he subsequently made a motion for a continuance. The motion for a continuance, without explanation for the unavailability of the defendants, was denied. Judgment was entered for plaintiffs on November 29, 1982, enforcing the restrictive covenant. Defendants filed a timely appeal. We affirm.

The issues on appeal are:

I. Whether the trial court abused its discretion in denying the defendants' motion for a continuance.

II. Whether the restrictive covenant language prohibits the defendants from placing a mobile home on the subject property.

I. Continuance.

The record shows that a certificate of readiness was filed in this case, and that a notice of hearing was mailed to defendants' counsel sixty-two days prior to the hearing. Defendants' counsel received notice of trial sixty days before the date of trial. On the trial date, defendants' counsel was present but neither of the defendants was present. Defendants' counsel was unable to explain to the court the nonappearance of defendants nor, given additional time by the trial court to attempt to locate defendants, was defendants' counsel able to find the defendants or provide the court with an answer as to their whereabouts. At this point in the proceedings, defendants' counsel made a motion for a continuance based upon the nonappearance of his clients. Defendants maintain that the trial court erred in not granting the motion for a continuance. We disagree.

This Court has consistently held that the granting or denying of a continuance is a matter within the sound discretion of the trial court and it will not be reviewed on appeal except where plain abuse is demonstrated. New Mexico Feeding Co., Inc. v. Keck, 95 N.M. 615, 624 P.2d 1012 (1981); Schmider v. Sapir, 82 N.M. 355, 482 P.2d 58 (1971); Garrison v. Navajo Freight Lines, Inc., 74 N.M. 238, 392 P.2d 580 (1964). Under circumstances such as these, where defendants' counsel could not locate the defendants and had no explanation for their nonappearance, the trial court did not plainly abuse its discretion in denying the motion for a continuance. New Mexico Feeding Co., Inc. v. Keck.

Additionally, defendants now claim that they never received notice of the trial date, which accounts for their unavailability on the date of the trial, and that if the continuance had been granted, no prejudice would have been suffered by the plaintiffs by a delay in the proceedings. This issue was not raised below and it is well settled that issues raised for the first time on appeal will not be considered by this Court. NMSA 1978, Civ.App.R. 11. G.M. Shupe, Inc. v. Bureau of Revenue, 89 N.M. 265, 550 P.2d 277 (Ct.App.), cert. denied, 89 N.M. 321, 551 P.2d 1368 (1976); Neece v. Kantu, 84 N.M. 700, 507 P.2d 447 (Ct.App.), cert. denied, 84 N.M. 696, 507 P.2d 443 (1973).

II. Restrictive Covenant.

Defendants rely on Heath v. Parker, 93 N.M. 680, 604 P.2d 818 (1980), for the proposition that a mobile home is not prohibited by the language in the restrictive covenant covered in this case. We disagree.

Ostensibly, Heath is the controlling case regarding the narrow issue here. That is, whether a mobile home is a prohibited structure within the meaning of the drafted language of the restrictive covenant. In Heath, this Court was called upon to determine whether the word "trailer," without further definition or qualification, used in a restrictive covenant supported the contentions of lot owners who had sought to restrict a party from placing a double-wide mobile home in the subdivision. We reversed the trial court. We held that a double-wide mobile home was substantially the same as a conventional one-family dwelling and that the placing of a mobile home on the lots in that case did not violate the letter or spirit of the restrictive covenant. Heath, however, is necessarily limited to the facts present in that case. The restrictive covenant only spoke in general terms of prohibiting a "trailer" from being placed on the lots. The dedicating instrument did not seek to distinguish the difference between a "trailer," a house trailer, a mobile home or a horse trailer, a truck-trailer, or any other possible permutation of the word "trailer" that could have been contemplated. Absent some clarity in that case, we declined to enforce a blanket restrictive covenant against the defendants.

In the restrictive covenant in this case, however, specificity was used to control the use and appearance of the area in which the mobile home was placed and for a definite period of time. The relevant portions of the restrictive covenant provide:

1. No trailer houses or modular homes shall be allowed on the premises, except that grantees and they alone, may place a trailer house or modular home on the premises for a period not to exceed three (3) years from the date hereof.

2. The premises shall be used for residential and agricultural purposes only; no more than two residences shall be erected on the premises, and they shall be of substantial construction; no homes shall be moved upon the premises.

To determine whether a restrictive covenant in any given case will be enforced as it speaks, we are guided by certain general rules of construction. First, when the language of a restrictive covenant is unclear or is subject to ambiguity, then the covenant will be resolved in favor of the free enjoyment of the property and against the restriction. Heath v. Parker, supra. Second, restrictions on land use will not be read into covenants by implication lest the free alienability of property be frustrated. Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302 (1949). Third, restrictive covenants must be considered reasonably, though strictly, so that "illogical, unnatural or strained construction" will not be effected. Hyder v. Brenton, 93 N.M. 378, 381, 600 P.2d 830, 833 (1979). And, fourth, words in a restrictive covenant must be given their ordinary and intended meaning. Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974).

Here, the defendants attempt to create a meaningful difference between the term "mobile home," which they contend is not covered by the restrictive covenant, and the term "trailer houses," which appears in the restrictive covenant. We find this to be a...