Cieri v. Gorton
| Decision Date | 16 November 1978 |
| Docket Number | No. 14073,14073 |
| Citation | 179 Mont. 167,587 P.2d 14 |
| Parties | Carlo M. and Elsie J. CIERI et al., Plaintiffs and Respondents, v. Edward L. and Virginia R. GORTON and John J. and Phyllis L. O'Rourke, Defendants and Appellants. |
| Court | Montana Supreme Court |
Bolinger & Wellcome, Bozeman, Roy Andes (argued), Bozeman, Swandal & Douglass, Livingston, for defendants and appellants.
Byron L. Robb (argued), Livingston, for plaintiffs and respondents.
Green Acres Subdivision, east of Livingston, was platted on June 4, 1959 and contained 110 lots. The subdivision was subject to various restrictive covenants, one of which stated:
"These covenants may be changed in whole or in part at any time by an instrument in writing signed by a majority of the then owners of the lots affected thereby . . ."
On November 24, 1976, appellants purchased 69 of the 110 lots. Appellants have made no improvements on these lots nor do they live in the subdivision. Respondents, however, have constructed 15 homes on their lots. On March 28, 1977, appellants filed with the Park County clerk and recorder a document entitled Amendments to Restrictive Covenants which proposed to remove all restrictive covenants. This document was signed by appellants Gorton, who owned a majority of the lots (69 of 110), but who obviously did not constitute a majority of the owners of the lots (2 of 41).
On April 14, 1977, respondents filed a complaint in the District Court of the Sixth Judicial District, Park County, seeking to enjoin appellants from any action which would violate the original restrictive covenants. After the parties stipulated to agreed facts, submitted written briefs and oral argument on the first count of the two count complaint, the District Court found the original restrictive covenants required the consent of a majority of the owners of the lots rather than the owners of a majority of the lots to amend the covenants. Because appellants did not constitute "a majority of the then owners", the Court issued respondents their requested permanent injunction. The District Court preserved respondents' right to trial on count 2 of the complaint should its judgment be overturned on appeal. It is from this judgment and permanent injunction that appellants appeal.
The only issue in this appeal is whether the District Court properly construed the language "a majority of the then owners of the lots affected thereby" to mean a majority of owners rather than owners of a majority of lots. We hold the District Court's construction of the language in question to be correct.
The issue presented is one of first impression in Montana. Appellants have therefore urged this Court to accept as dispositive of the issue a California case, Diamond Bar Development Corporation v. Superior Court, County of Los Angeles (Cal.App.1976), 60 Cal.App.2d 330, 131 Cal.Rptr. 458. Although the facts of Diamond Bar are similar to those in the present appeal, there are important factual distinctions, and we decline to consider the case as binding precedent. In Diamond Bar members of an association who owned lots in a subdivision subject to restrictive covenants sought to amend a portion of those covenants. 131 Cal.Rptr. at 459. The section of the covenants relating to modification stated that "modification . . . may be effected . . . by written instrument duly executed by not less than 70 percent of the then owners . . . of property covered by this Declaration." Diamond Bar, supra. The members who filed the proposed amendment owned more than 70 percent of the lots, but did not constitute more than 70 percent of the property owners (though they did constitute 62 percent of the property owners). 131 Cal.Rptr. at 460. The California court however, adopted the construction contended for by the members, namely, that an amendment to the covenants would be approved when adopted by owners of seventy percent of the lots. 131 Cal.Rptr. at 461.
Appellants argue this Court should follow the decision of the California court. We decline to do so because as mentioned Diamond Bar can be distinguished factually in several important areas. First, unlike the covenants in this appeal, the covenants in Diamond Bar defined "owner" as the record owner of a fee simple title to any lot which was a part of the subdivision, a fact the California court considered important. 131 Cal.Rptr. at 459, 461. Thus, one individual could be several "owners" depending on how many lots he or she owned. Second, although less than 70 percent of the owners consented to the proposed amendment, a clear majority (62 percent) Did consent to the change. 131 Cal.Rptr. at 460. In this appeal only 2 out of 41 owners consent to the amendment. Finally, the object of the proposed amendment in Diamond Bar was the required perimeter fencing around each lot. 131 Cal.Rptr. at 459. Here the proposed amendment would completely abolish the restrictive covenants.
Although the precise issue involved in this appeal is new to this Court, we are not without Montana authority to serve as guidelines in making our determination. Section 13-710, R.C.M.1947, states:
"The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them in usage, in which case the latter must be followed."
Furthermore, this Court has stated in construing the language of restrictive covenants:
". . . that where the words are plain, unambiguous, direct and certain and admit of but one meaning, then it is the duty of this Court to declare (only) what the terms of the covenants contain . . ." Higdem v. Whitham (1975), 167 Mont. 201, 536 P.2d 1185, 1189; Kelly v. Lovejoy (1977), Mont., 565 P.2d 321, 323, 34 St.Rep. 532 (citing Higdem ).
Therefore, unless the phrase in question in this appeal, "a majority of the then owners of the lots affected...
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Cecala v. Thorley, 4
...majority of the then owners of lots" means "a majority of property owners" rather than "owners of a majority of lots"); Cieri v. Gorton, 179 Mont. 167, 587 P.2d 14 (1978) ("a majority of the then owners of the lots affected thereby"); French v. Diamond Hill-Jarvis Civic League, 724 S.W.2d 9......
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Duffy v. Sunburst Farms East Mut. Water & Agr. Co., Inc.
...to specify the procedure by which such restrictive covenants affecting certain lots could be changed, was at issue in Cieri v. Gorton, 587 P.2d 14 (Mont.1978). Speaking to that issue, the Supreme Court of Montana "As to whether the phrase has a special meaning in common usage or whether it ......
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French v. Diamond Hill-Jarvis Civic League
...but we are in agreement with the courts of other states which have construed the same or similar language. See Cieri v. Gorton, 179 Mont. 167, 587 P.2d 14, 16-17 (1978); Beck v. Council of the City of St. Paul, 235 Minn. 56, 50 N.W.2d 81, 83 (1951). A previous case before this court, Bryant......
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Rice v. Coholan, COA09-326.
...majority of the owners of the property” refer to voting strength measured by number of owners, not by area owned. Cieri v. Gorton, 179 Mont. 167, 587 P.2d 14, 17 (1978); Beck v. Council of the City of St. Paul, 235 Minn. 56, 50 N.W.2d 81, 82 (1951). In Cieri, the court rejected on equitable......