Fassler v. Okemo Mountain, Inc., 87-120

• Decision Date: 30 October 1987
• Docket Number: No. 87-120,87-120
• Citation: 536 A.2d 930,148 Vt. 538
• Court: Vermont Supreme Court
• Parties: Michael FASSLER and Robert Rossini v. OKEMO MOUNTAIN, INC.

Page 930

536 A.2d 930

148 Vt. 538

Michael FASSLER and Robert Rossini v. OKEMO MOUNTAIN, INC.

No. 87-120.

Supreme Court of Vermont.

Oct. 30, 1987.

Frederick M. Glover, Ludlow, for plaintiffs-appellants.

Lawrence G. Slason and Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for defendant-appellee.

Before ALLEN, C.J., and PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

This appeal concerns the interpretation of restrictive covenants in a residential development on Okemo Mountain. The trial court granted summary judgment that certain covenants were not violated by the defendant's construction of a roadway across a lot in the development. The plaintiffs take issue with that determination. We affirm.

Defendant, Okemo Mountain, Inc., is the original owner and developer of several residential "cluster villages" constructed alongside ski trails that make up Okemo Mountain ski area. Plaintiffs, Fassler and Rossini, are the record owners of lots 38 and 41, respectively, in what is known as the West Village Area (West Village) of the Okemo Mountain development. All the lots in the West Village are subject to restrictive covenants governing their use.

The covenants prescribe, inter alia, the procedures for the sale of property within the development; the location and design of structures, water supply, and sewerage disposals; the number of buildings per lot; the minimum value of buildings and dwellings; and restrictions as to parking and storage. Certain prohibited (i.e., commercial) activities are also enumerated.

Defendant is the record owner of lot 39 in the West Village and began construction of a roadway across lot 39 in order to provide ingress and egress to another residential subdivision being built by the defendant on the northerly side of the West Village. Plaintiffs objected to such construction and sought injunctive relief, contending that the West Village is restricted exclusively to residential use with each lot containing no structure other than a single residence. The plaintiffs argued below, and again before this Court, that the roadway violates the covenants as a whole and most particularly violates covenants four and five, which state:

4. No more than one residence shall be built or erected on any lot in the tract without special permission in writing from the Corporation and all adjacent landowners.

5. No store, business or manufacturing of any kind shall be conducted on the real property or any part thereof.

Defendant denied the violation and counterclaimed that the plaintiffs had violated certain of the covenants governing the location and design of the residences on their respective lots.

Both parties filed motions for summary judgment on the issue of whether the road violated the covenants. The trial court concluded that the roadway was not proscribed by the covenants and granted defendant's motion. Plaintiffs appealed from that decision. The cause was heard by this Court, and it was determined that there was no final judgment below because the defendant's counterclaims were still pending. This jurisdictional defect was cured by a partial entry of judgment pursuant to V.R.C.P. 54(b). Thus, we may now consider whether summary judgment was properly granted.

Rule 56 of the Vermont Rules of Civil Procedure provides the mechanism for the summary disposition of cases or particular issues within cases. See V.R.C.P. 56; Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). To prevail on a motion for summary judgment, the moving party must demonstrate that (1) there are no material issues of fact between the parties, and (2) the moving party is entitled to judgment as a matter of law. Gore, 140 Vt. at 264, 438 A.2d at 374 (citations omitted).

In this case, the parties are in agreement that summary judgment is appropriate. Plaintiffs, however, condition their acceptance of summary judgment on a reading of the covenants as they would have them read. They argue that if the covenants are read as the defendant suggests, and as the trial court found, then summary judgment is inappropriate because there remains an issue of fact as to whether the roadway constitutes a business in violation of covenant number five. This position is untenable.

In determining the propriety of a summary judgment the Court must look to the language of the covenants. Braun v. Humiston, 140 Vt. 302, 306, 437 A.2d 1388, 1389 (1981). It is well established in this jurisdiction that if the language of a deed or of covenants within a deed is clear and unambiguous, judgment may be granted as a matter of law. Addison County Automotive, Inc. v. Church, 144 Vt. 553, 557, 481 A.2d 402, 405 (1984); Braun, 140 Vt. at 306, 437 A.2d at 1389; Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702 (1966); Davidson v. Vaughn, 114 Vt. 243, 246-47, 44 A.2d 144, 146 (1945). In such cases, a jury determination is not necessary to give meaning to the words used. Addison County Automotive, 144 Vt. at 557, 481 A.2d at 405. The meaning of the covenants in the present case can be discerned from the instrument itself. Therefore, the Court faces a question of law, not fact, and "extrinsic evidence of the parties' actions and intentions" is not required. Id. Thus, summary judgment was appropriate under either reading of the covenants, and resolution of the dispute over the meaning of the restrictions determines which party is entitled to prevail as a matter of law.

We are presented with two theories for determining the meaning of the covenants. Defendant argues that the covenants should be given effect according to the express and literal meaning of the words used. By contrast, the plaintiffs argue that the Court must go further than the plain language of the instrument in order to give effect to the "purpose" of the agreement.

If we follow the defendant's reasoning, its activities do not violate the covenants. The language is clear and unambiguous. Applying the plain meaning of the words used, as we must, Roy's Orthopedic, Inc. v. Lavigne, 145 Vt. 324, 326, 487 A.2d 173, 175 (1985), the defendant's roadway does not violate the covenants, and in particular, it is not offensive to covenants four and five. The roadway will not result in there being more than one residence situated on lot 39, and cannot be construed to be a "store, business or manufacturing concern." In this respect, this case is strikingly similar to Latchis v. John, 117 Vt. 110, 85 A.2d 575 (1952). In Latchis, the defendant owned land under a deed which required that a dwelling house be built on the parcel and specifically prohibited construction of a filling station or public garage. When the defendant began the operation of a fruit stand, the plaintiff, who had acquired title to land from the same grantor, sought to enjoin that activity. This Court held that as the deed was clear and unambiguous as to the proscribed activities (i.e., a filling station and a public garage were expressly prohibited), the limitations could not be extended by implication to prohibit the operation of a fruit stand. Id. at 112-13, 85 A.2d at 576-77.

Plaintiffs, here, urge this Court to engage in a liberal interpretation of the covenants. They argue that strict construction defeats the clear intent of the parties, and that when considered as a whole, the covenants disclose the purpose of restricting the West Village exclusively to residential use with each lot containing no structure other than a single residence and its appurtenances. Plainti...