Fannon v. Polo, 020819 AKSC, S-16724
|Opinion Judge:||WINFREE, JUSTICE.|
|Party Name:||LINK C. FANNON, Appellant, v. NOLA POLO, PERSONAL REPRESENTATIVE OF THE ESTATE OF JUNE SCHEELE, Appellee.|
|Attorney:||Wayne G. Dawson, Dawson Law Group, LLC, Anchorage, for Appellant. Danny W. Burton, Eagle River, for Appellee.|
|Judge Panel:||Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.|
|Case Date:||February 08, 2019|
|Court:||Supreme Court of Alaska|
Appeal from the Superior Court No. 3PA-14-01915 CI of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Wayne G. Dawson, Dawson Law Group, LLC, Anchorage, for Appellant.
Danny W. Burton, Eagle River, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
The primary issue in this appeal is whether the superior court correctly interpreted two property restrictions, one found in a subdivision declaration and the other in a deed's greenbelt covenant, to ultimately determine that the deed's greenbelt covenant is enforceable. We conclude that the superior court correctly applied interpretation rules by looking at the instrument language without regard to extrinsic evidence and correctly ruled that the subdivision declaration did not preclude the deed's greenbelt covenant. We therefore affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Between 1984 and 1986 August Scheele obtained requisite permitting to create Scheele Solid Subdivision in Wasilla. The subdivision consists of seven lots; one lot - Lot 1, Block 1 - has a water well historically supplying the other lots through a subdivision water system.
In 1990 August and the other owners of the Scheele Solid Subdivision lots entered into a covenant (the Declaration) prohibiting using the lots for: (1) residential housing; (2) the sale of alcoholic beverages; (3) junkyards, dumps, or rubbish disposal or storage; and (4) churches and places of worship. The Declaration also provided that all current and future owners could enforce the restrictions "through any proceedings, at law or in equity," specifically including injunctive relief.
In 1992 August conveyed the five lots he owned, including Lot 1, Block 1, to himself and his wife, June Scheele, as tenants by the entirety. August died a few years later. In 1998 June conveyed Lot 1, Block 1 to a new owner; they signed a separate agreement for the new owner to assume responsibility for the well and water system. The quitclaim deed for Lot 1, Block 1 was signed by the buyer; the deed was made subject to assumption of the water system obligations and the following restrictive greenbelt1 covenant (Greenbelt Covenant):
Allowed Uses. Lot 1, Block 1 Scheele Solid Subdivision may not be used for any purpose other than use as a greenbelt and use for continued maintenance and operation of the water system located thereon. For the purposes of this covenant, "greenbelt" means maintenance of trees and natural cover in those areas and of the kind, as presently exist. In interpreting this covenant, a court should resolve doubts in meaning against the free use of land, rather than in favor of the free use of land. (Emphasis in original.)
The Greenbelt Covenant provides for enforcement by the grantor, by any owner of land within Scheele Solid Subdivision, by any person owning land within one-half mile or any boundary of Lot 1, Block 1 ... or by any public agency, and which may be enforced through injunction or any other remedy available at law or in equity.
June passed away in November 2012 and her daughter, Nola Polo, was appointed as the personal representative of June's estate.
In April 2014 Link Fannon acquired Lot 1, Block 1, along with the well and water system, from an owner subsequent to June Scheele's 1998 transaction. The deed to Fannon made no mention of the Greenbelt Covenant. Fannon intended to increase the well's production to service at least another ten acres of neighboring commercial property and to "sell bulk water" to the Department of Transportation for a Parks Highway upgrade. Fannon then began clear-cutting trees on Lot 1, Block 1.
1. Preliminary injunction
In June 2014 June's estate brought suit against Fannon for violating the Greenbelt Covenant's terms; the estate sought damages, a preliminary injunction against further clear-cutting, and an affirmative injunction to restore trees. The estate requested expedited consideration of its request for a preliminary injunction. After hearings in July and August, the superior court entered a preliminary injunction barring further tree clearing but required the estate to post a $60, 000 bond before the injunction took effect.
Fannon answered the complaint, counterclaiming, among other things, that the Greenbelt Covenant conflicted with the Declaration. Fannon did not assert that either covenant was ambiguous.
The estate moved for partial summary judgment in March 2015, arguing that no genuine issues of material fact precluded the court from granting a permanent negative injunction. Fannon requested additional time to respond, which the court granted. By April the estate's attempts to post a bond to effectuate the preliminary injunction had failed. The court granted Fannon's...
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