Ceynar v. Barth
| Decision Date | 07 December 2017 |
| Docket Number | No. 20170135,20170135 |
| Citation | 904 N.W.2d 469 |
| Parties | David and Virginia CEYNAR, Plaintiffs and Appellants v. Lonnie BARTH and The Ridge at Hawktree Homeowners' Association, Defendants and Appellees |
| Court | North Dakota Supreme Court |
Joshua A. Swanson, Fargo, N.D., for plaintiffs and appellants.
Steven J. Leibel, Bismarck, N.D., for defendant and appellee Lonnie Barth.
David J. Smith (argued) and Tyler J. Malm (on brief), Bismarck, N.D., for defendant and appellee The Ridge at Hawktree Homeowners' Association.
[¶ 1] David and Virginia Ceynar appeal from a summary judgment dismissing their breach of contract/covenant and nuisance action against Lonnie Barth and The Ridge at Hawktree Homeowners' Association. Because the district court did not err in ruling that the Association's restrictive covenants were not violated, and because Barth's actions as a matter of law did not unreasonably interfere with the Ceynars' use and enjoyment of their property, we affirm.
[¶ 2] The Ceynars and Barth are neighbors at The Ridge at Hawktree, a Bismarck subdivision near a golf course, and are members of the Association. Before the Ceynars purchased their home, Barth approached the Association with plans to build what the parties refer to as a "pool house" on his property. Based on the Association's restrictive covenants, the Association's Architectural Committee informed Barth that detached buildings were not permitted. Barth then proposed construction of a breezeway connecting the pool house to Barth's home. The Committee approved the final plans in January 2014. The plans for the addition were then submitted to the City of Bismarck, which approved the plans and issued a building permit.
[¶ 3] The Ceynars bought the house next door to Barth's property from their daughter in June 2014. Actual construction of the pool house began in February 2015, and the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club. Members of the Association came to the Ceynars' home to observe how the pool house affected their property, but the Association took no action to stop construction.
[¶ 4] In July 2015, the Ceynars brought this action against Barth and the Association alleging breach of contract/covenant and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. After Barth remedied a setback violation, he and the Association moved for summary judgment dismissing the action. In October 2016, the district court denied the motion, concluding there were "a number of genuine issues of material fact" precluding summary judgment. The court also informed the parties that he would recuse himself from the case if any of the parties objected because he knew the Association's secretary. Barth moved for reconsideration, and Barth and the Association requested the judge recuse himself. A different judge was assigned to the case.
[¶ 5] In December 2016, Barth and the Association filed another summary judgment motion seeking dismissal of the action. The district court granted the motion, concluding the pool house did not violate any of the Association's restrictive covenants. The court also dismissed the nuisance claim because under N.D.C.C. § 42–01–01"[a] nuisance consists in unlawfully doing an act or omitting to perform a duty," and the "Ceynars have provided nothing to the Court to suggest Barth's construction of the pool house was unlawful."
[¶ 6] The Ceynars argue the district court erred in granting the second motion for summary judgment because it was an impermissible collateral attack on the first judge's order denying summary judgment. The Ceynars argue the second motion for summary judgment should have been treated as a N.D.R.Civ.P. 60(b) motion because it asked the district court to reconsider the same question.
[¶ 7] Ceynar's reliance on N.D.R.Civ.P. 60(b) is misplaced. Rule 60(b) does not apply to interlocutory judgments and orders. Thompson v. Goetz, 455 N.W.2d 580, 585 (N.D. 1990). "Interlocutory orders of any kind are ordinarily subject to reconsideration and change without the restrictions applicable to reconsideration and changes in ‘final’ judgments." Cumber v. Cumber, 326 N.W.2d 194, 195 (N.D. 1982). The denial of a motion for summary judgment is an interlocutory order leaving a case pending for trial and decides nothing, except that the parties may proceed with the case. Herzog v. Yuill, 399 N.W.2d 287, 293 (N.D. 1987). An interlocutory order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." N.D.R.Civ.P. 54(b). "When a district court is convinced that it incorrectly decided a legal question in an interlocutory ruling, the district court may correct the decision to avoid later reversal." Strom–Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, ¶ 12, 597 N.W.2d 414 (internal citation omitted).
[¶ 8] The district court's consideration of the second motion for summary judgment was not the result of an improper collateral attack.
[¶ 9] The Ceynars argue the district court erred in granting summary judgment dismissing their breach of contract/covenant and nuisance claims.
[¶ 10] In Hokanson v. Zeigler, 2017 ND 197, 900 N.W.2d 48, we explained:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Id. at ¶ 14 (quoting Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, ¶ 8, 816 N.W.2d 31 ).
[¶ 11] The Ceynars argue the district court erred in granting summary judgment because there are genuine issues of material fact whether the Association's restrictive covenants prohibited Barth's construction of the pool house and whether the Association breached its duty to enforce those covenants.
[¶ 12] In Hill v. Lindner, 2009 ND 132, ¶ 8, 769 N.W.2d 427, we explained:
This Court has said a landowner may sell land subject to restrictive covenants, provided the covenants are not contrary to public policy. Allen v. Minot Amusement Corp., 312 N.W.2d 698, 702 (N.D. 1981). Restrictive covenants are not favored, but "they will be given ... [full] effect when clearly established." Id. The interpretation of a restrictive covenant is generally governed by rules for interpretation of a contract. See Jackson v. Canyon Place Homeowner's Ass'n, Inc., 2007 SD 37, ¶ 9, 731 N.W.2d 210 ; Milltown Addition Homeowner's Ass'n v. Geery, 2000 MT 341, ¶ 11 , 15 P.3d 458 ; Stevens v. Elk Run Homeowners'Ass'n, Inc., 2004 WY 63, ¶ 13, 90 P.3d 1162 (Wyo. 2004). See generally 3 Richard R. Powell, Powell on Real Property, ch. 24 (2008); 9 Richard R. Powell, Powell on Real Property§ 60.05 (2008); 20 Am. Jur. 2d Covenants, Conditions, and Restrictions§§ 12 – 17, 168 (2005). Although restrictive covenants are strictly construed in favor of free use of land and against those who seek enforcement, the rule of strict construction will not be employed to defeat the obvious purpose of a restrictive covenant. See 20 Am. Jur. 2d, supra §§ 12 – 17, 168. A restrictive covenant must be construed as a whole to ascertain the parties' intent in light of the surrounding circumstances and words must be given their plain and ordinary meaning. 9 Powell on Real Property, at § 60.05. See N.D.C.C. §§ 9–07–02 ; 9–07–04; 9–07–06; 9–07–09; and 9–07–12.
See also Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, ¶ 8, 821 N.W.2d 746 ().
[¶ 13] The Ceynars argue Barth's pool house violated Article VIII, Section 4 of the Association's restrictive covenants, which provides:
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