Cochran v. Bentley

Decision Date01 March 2007
Docket NumberNo. 06-743.,06-743.
Citation251 S.W.3d 253,369 Ark. 159
CourtArkansas Supreme Court
PartiesElmer COCHRAN and Debbie Cochran, Appellants, v. Marshall BENTLEY and Cheryl Bentley, Appellees.

Gregg and Farris, by: John C. Gregg, Batesville, AR, for appellants.

Blair & Stroud, by: Robert D. Stroud; Murphy, Thompson, Arnold, Skinner & Castleberry, by: Tom Thompson and Casey Castleberry, Batesville, AR, for appellees.

PAUL DANIELSON, Justice.

Appellants Debbie and Elmer Cochran appeal from the order of the circuit court granting appellees Cheryl and Marshall Bentley a mandatory injunction against the Cochrans, which directs the Cochrans to remove their recently constructed shop building within 120 days from the date of entry of the order. The Cochrans assert four points on appeal: (1) that the circuit court erred in finding that the Cochrans' building violated the 1940 restrictive covenants and in ordering it removed; (2) that the circuit court erred in enforcing the covenants and in finding that they had failed to adduce facts sufficient to sustain the defense that conditions surrounding the properties had changed since the filing of the restrictive covenants, that the covenants had not been abrogated and ignored by other landowners in the subdivision, and that they had failed to adduce facts sufficient to sustain the defenses of waiver, estoppel, or laches; (3) that the circuit court erred in finding that the restrictive covenants were clear and unambiguous and in applying the rigid and strict application and construction outlined in Clifford Family Ltd. Liability Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998); and (4) that the circuit court erred in denying their posttrial motion to allow them the option, within a specified time, to renovate the structure to conform to the circuit court's interpretation of the protective covenants. We affirm the circuit court.

On February 3, 2004, the Bentleys filed a petition for mandatory injunction with the circuit court. In it, they claimed that they were the owners of Lots 25 and 26 and that the Cochrans were the owners of Lots 27 and 28 of the Denison Heights subdivision located in Independence County.1 Count I of the petition stated, in part:

2. That in the spring and summer of 2003, defendants, Cochran[s], constructed a separate garage, which exceeds thirty (30) feet in height, immediately adjacent to plaintiffs' east property line, completely obstructing the sun and view that they had previously enjoyed.

Count II of the petition, which is most relevant to the instant appeal, alleged that the lots were subject to a protective covenant and that the Cochrans' garage violated the covenant. The Bentleys then prayed that the circuit court enjoin the Cochrans from maintaining the garage; that the circuit court order the garage removed at the Cochrans' cost; and for costs, attorney's fees, and all other relief to which they might be entitled. The Cochrans answered the petition, generally denying its allegations and pleading the affirmative defenses of waiver, estoppel, laches, and any and all other such defenses available under Ark. R. Civ. P. 8. In an amended answer, the Cochrans urged the circuit court to cancel any and all restrictive covenants applicable to their property, as the conditions surrounding their property and the Bentleys' property had substantially changed since the filing of the restrictive covenants and as the covenants or certain portions thereof had been abrogated and ignored by other landowners in the subdivision.

While both parties filed motions for summary judgment, the circuit court denied those motions in a letter opinion filed June 10, 2005. The circuit court then held a bench trial on the matter on March 8, 2006. After hearing the testimony and the arguments of counsel, the circuit court ruled orally:

My understanding is that thereafter on occasion [Mr. Cochran] would refer to it as a shop. Whatever it is, I find as a fact that it is not a family dwelling.... The cases of the Clifford Family Limited Liability Company against Cox, 334 Arkansas 64, 971 Southwest Second, 769, a 1998 case, [334 Ark. 64, 971 S.W.2d 769] and Hays against Watson, 250 Ark. 589, 466 Southwest Second, 272, a 1971 case, [250 Ark. 589, 466 S.W.2d 272] necessarily control my decision in the present case. Applying the law in these two cited cases to the facts presented here today in the present case, it is my decision that the Plaintiffs must prevail. Therefore, it is my decision that the structure placed by Mr. Cochran must be removed....

The circuit court then memorialized its ruling in its order granting the mandatory injunction, which was entered on March 23, 2006. In it, the circuit court found that the "structure erected on Lot 27, Denison Heights Subdivision is not a dwelling of any type and contains no kitchen, no bathing facilities and no bedrooms." It further cited to the protective covenant and case law and found that the structure did not comply with the clear and unambiguous language of the covenant. The circuit court further found that the Cochrans had failed to adduce facts sufficient to sustain the defenses of waiver, estoppel, and laches, as well as the defenses that conditions surrounding the parties' properties had substantially changed since the filing of the restrictive covenants, that the covenants and certain portions thereof had been abrogated and ignored by other landowners in the subdivision, and that the applicable restrictions were ambiguous and uncertain at best and therefore unenforceable. The circuit court then directed the Cochrans to remove the structure from their lot within 120 days from the date of the order.

On March 28, 2006, the Cochrans moved to modify or amend the mandatory injunction, primarily requesting that the circuit court allow them to modify their structure to conform to the protective covenants. On April 13, 2006, the circuit court issued an order amending its order for mandatory injunction, permitting the Cochrans to postpone removal, should they appeal, until 120 days from the date of the filing of the mandate on appeal. The Cochrans then filed their notice of appeal, posted a supersedeas bond, and moved the circuit court for a stay of the order. The circuit court entered an order staying the mandatory injunction pending appeal and permitting them 120 days from the date of the filing of the mandate on appeal to comply with the orders of the court. The appeal is now before us.

I. Violation of the Restrictive Covenants

The Cochrans argue that the covenants at issue are too vague, ambiguous, and antiquated to be enforceable. As a result, they submit, the building in question must be permitted for any of the following reasons: it is not specifically excluded by size or other restrictions, it is an outbuilding related to residential use, or it is a detached garage permitted by the covenants. The Bentleys respond that the structure at issue is not a detached, single-family dwelling and, thus, pursuant to the plain language of the protective covenant, the structure should not be permitted to remain.

With respect to bench trials, this court has established the following standard of review:

In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge's findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a) (2002); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).2

Farm Credit Midsouth, PCA v. Reece Contracting, Inc., 359 Ark. 267, 271, 196 S.W.3d 488, 490 (2004) (quoting Chavers v. Epsco, Inc., 352 Ark. 65, 69-70, 98 S.W.3d 421, 423 (2003)).

A review of the record reveals that on December 16, 1940, the protective covenant for the subdivision, known as Denison Heights, was recorded. The covenant provided that all of the covenants were to remain

with the land and are binding on all parties and persons claiming under them until January 1, 1960, at which time said Covenant shall be automatically extended for successive periods of ten years unless by a vote of the majority of the then owners of the lands it is agreed to change the said covenant in whole or in part.

It further provided:

2. No structure shall be erected, placed, or permitted to remain on any residential building lot other than one detached single family dwelling, not to exceed two and one-half stories high, and a private garage for not more than two cars, and other out buildings incidental to residential use of the lot. No residential structure shall be erected or placed on any building plot, which plot has an area of less than 14150 sq. ft. or a width of less than 93 feet at the front building set-back line, except that a residence may be erected or placed on lots No. 1-2 and 30-A as shown on the recorded plat.

At issue in the instant case is the interpretation of the protective or restrictive covenant and whether the covenant precluded the Cochrans' construction of the structure at issue. We hold that the covenant precluded the Cochrans' structure.

We have observed that restrictions upon the use of land are not favored in the law. See White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006). Further, a restrictive covenant will be strictly construed against limitations on the free use of land. See id. Thus, all doubts are resolved in favor of the unfettered use of land. See id.

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