Hawk's Landing Homeowners Ass'n INC. V. Cox

• Decision Date: 24 June 2010
• Docket Number: No. 2009AP701,2009AP701
• Parties: Hawk's Landing Homeowners Association, Inc. and Richard S. Williams, Plaintiffs-Respondents, v. Kathleen S. Cox and Kimberly C. Whalen, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Hawk's Landing Homeowners Association, Inc. and Richard S. Williams, Plaintiffs-Respondents,

v.Kathleen S. Cox and Kimberly C. Whalen, Defendants-Appellants.

No. 2009AP701

Court Of Appeals District Iv

June 24, 2010

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.

APPEAL from a judgment and an order of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge. Affirmed.

Before Dykman, P.J., Vergeront and Higginbotham, JJ.

¶l VERGERONT, J. This appeal concerns a dispute between the owners of a home in a subdivision and the Homeowners Association over a floodlight on a pole on the backyard sports court. The circuit court granted apartial summary judgment against the homeowners, and, after a trial to the court, the court entered judgment ordering the homeowners to remove the light. The issues on appeal are: (1) Did the circuit court err in construing the Declaration of Covenants, Restrictions, and Conditions to require approval of the light by the architectural control committee of the Association? (2) Did the circuit court apply an incorrect legal standard or erroneously exercise its discretion in granting in part the motion in limine? (3) Did the circuit court apply an incorrect legal standard and make clearly erroneous factual findings in determining that the committee's denial of approval of the light was consistent with the Declaration and reasonable? (4) Did the circuit court correctly award attorney fees to the prevailing lot owner under the Declaration? (5) Should we exercise our discretionary power of reversal on the ground the real controversy has not been fully tried?

¶2 We resolve the first four issues by concluding that the circuit court did not err or erroneously exercise its discretion on any of these points. We decline to exercise our discretionary power of reversal because the real controversy has been fully tried. Accordingly, we affirm.

BACKGROUND

¶3 The Hawk's Landing Golf Club subdivision consists of 372 single family lots. It also contains one mixed-use site, a golf course, clubhouse, pool, and tennis courts, and these are segregated from the single family lots. The lots in the subdivision are subject to a Declaration of Covenants, Restrictions and Conditions ("Declaration"), which provides for the creation of a Hawk's Landing Homeowners Association made up of every lot owner. The Declaration also establishes an architectural control committee made up of three persons elected by a majority of persons holding title to any lot. After the developer ceases to havetitle in any lot, this committee is charged with reviewing all building plans, specifications, site plans and landscape plans.

¶4 Kathleen Cox and Kimberly Whalen ("the homeowners") purchased a lot in the Hawk's Landing Golf Club subdivision, and on April 28, 2006, prior to completion of their house, they submitted a landscaping plan to the committee. The plan included, among other things, a 30-by-60-foot backyard sports court illuminated by a floodlight. The homeowners faxed additional information about the proposed light, indicating that it would be a sixteen-inch square box, with a 400-watt lamp, mounted on a seventeen-and-one-half-foot pole. On May l6, 2006, the committee approved the plans with some exceptions, one of which was that "[t]he lighting for the sports court will not be approved." The homeowners proceeded with the construction of the sports court without the floodlight.

¶5 In September 2007, the homeowners installed a three-light fixture, mounted on top of a freestanding seventeen-foot pole that was in the same location as that shown on the original landscape plan. The Association demanded that the homeowners immediately cease using the light at night and have the light and pole removed. When the homeowners did not do that, the Association and Richard Williams, president of the Association and owner of a lot, brought this action alleging that the homeowners had violated the Declaration by installing the floodlight on a freestanding pole without the committee's approval. The complaint sought an injunction preventing the homeowners from using the light, an order requiring that the light be removed, and attorney fees and costs under the Declaration.

¶6 The Association and Williams (the plaintiffs) moved for summary judgment, which the homeowners opposed on the ground that they had notviolated the Declaration. In addition, the homeowners moved for partial summary judgment on two grounds: (1) the Declaration did not give the authority to the committee to disapprove of the light on a pole; and (2) even if the committee had that authority, there had been approval by default under the terms of the Declaration because the committee did not follow the required procedure and its decision was untimely. That default approval, they contended, included the light they installed in 2007.

¶7 The circuit court rejected the homeowners' contention that the Declaration did not give the committee the authority to disapprove of a floodlight on a freestanding pole on a sports court. It also concluded that, based on the undisputed facts, there was no default approval of the light proposed in the initial plan but that was irrelevant because the undisputed evidence was that the light installed in 2007 was not the same light for which the homeowners requested approval in 2006. The court therefore granted summary judgment against the homeowners on these defenses. However, the court concluded there were material factual disputes on whether the committee acted reasonably in denying approval, post-installation, of the light installed in September 2007. Specifically, the court pointed to evidence submitted by the homeowners that other lights in the subdivision had been approved on poles that are as tall or are as obtrusive as the light they installed and that their light does not significantly impact their next-door neighbor. The court therefore denied the plaintiffs' motion for summary judgment and held a trial to the court on the issue of the reasonableness of that denial.

¶8 Before trial, the plaintiffs filed a motion in limine asking that the homeowners be precluded from introducing evidence either on the timeliness or the reasonableness of the 2006 decision. The circuit court granted the motion in part. The court reasoned that, because the installed light was not the same light asthe one proposed in 2006, any evidence about the procedural deficiencies and possible resulting approval by default in 2006 was irrelevant to the denial of approval of the light actually installed. However, the court decided, evidence on the reasonableness of the 2006 denial might be relevant to the reasonableness of the 2007 denial and it declined to grant that portion of the motion.

¶9 After a trial to the court, the court determined that the committee's decision was based on the evidence and consistent with the Declaration and that the committee acted reasonably and not arbitrarily. The court determined that the pole could remain on the sports court but it enjoined the homeowners from using the light and ordered that the light be removed within sixty days. The court also ordered the homeowners to pay the Association $48,551.21 in attorney fees and costs under the terms of the Declaration. The court denied the homeowners' motion for a new trial, and ordered the homeowners to pay Williams an additional $4,593.75 for attorney fees and costs for this motion.

DISCUSSION

¶10 On appeal the homeowners contend: (1) the Declaration does not authorize regulation of the floodlight; (2) the court erroneously exercised its discretion in partially granting the motion in limine; (3) the court's determination after trial in favor of the plaintiffs was based on an incorrect legal standard and clearly erroneous factual findings; (4) the court erred in awarding attorney fees under the terms of the Declaration; and (5) the real controversy was not fully tried.

I. Committee's Authority to Regulate the Floodlight

¶11 The first issue we address is whether the Declaration requires that the homeowners obtain approval from the committee for a floodlight on aseventeen-foot pole on the sports court. Although our analysis differs somewhat from that of the circuit court, we agree with the court's conclusion that the Declaration requires committee approval.

¶12 The interpretation of a restrictive covenant is a question of law that we review independently of the trial court. Zinda v. Krause, 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995). We construe restrictive covenants strictly in favor of the free use of property, meaning that, in order to be enforced, a restriction must be unambiguous. Crowley v. Knapp, 94 Wis. 2d 421, 434-35, 288 N.W.2d 815 (1980) (citations omitted). "If the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced. By intent we do not mean the subjective intent of the drafter, but the scope and purpose of the covenant as manifest by the language used." Zinda, 191 Wis. 2d at 166 (citations omitted).

¶13 Applying these principles, we conclude the Declaration plainly requires approval by the developer or the committee for a light on the sports court on a freestanding seventeen-foot pole.

¶14 Section 1.02 of the Declaration plainly states that "no building or other improvement shall be erected, placed or altered on any Lot until its construction plans and specifications shall have been approved in writing by the... Committee." The following portion of section 3.03 reinforces the statement in section 1.02 that no building or improvement may be either erected in the first instance or altered without committee approval:

If such plans and specifications are not rejected,

...