Heinsohn v. William Clairmont, Inc., 10767

• Decision Date: 13 March 1985
• Docket Number: No. 10767,10767
• Citation: 364 N.W.2d 511
• Parties: Harlan HEINSOHN, Plaintiff and Appellant, v. WILLIAM CLAIRMONT, INC., a North Dakota corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 511

364 N.W.2d 511

Harlan HEINSOHN, Plaintiff and Appellant, v. WILLIAM CLAIRMONT, INC., a North Dakota corporation Defendant and Appellee.

Civ. No. 10767.

Supreme Court of North Dakota.

March 13, 1985.

Kelsch, Kelsch, Bennett, Ruff & Austin, Mandan, for plaintiff and appellant; argued by William C. Kelsch, Mandan.

Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, and Rausch & Rausch, Bismarck, for defendant and appellee; argued by Patrick A. Conmy, Bismarck.

GIERKE, Justice.

Harlan Heinsohn appeals from a judgment dismissing his alternative claims against William Clairmont, Inc. [Clairmont] for permanent injunctive relief and rescission of his purchase of lots in a residential subdivision. We affirm.

The circumstances giving rise to this action are set forth in Heinsohn v. William Clairmont, Inc., 333 N.W.2d 697 (N.D.1983), and need not be repeated here. Briefly stated, Heinsohn claimed that Clairmont, as owner and developer of the lots, constructed a townhouse "over two stories in height" in violation of a restrictive covenant. At the time of the previous proceeding, the townhouse technically qualified as a three-story rather than a two-story structure by either 0.73 or 0.59 feet under two conflicting city ordinance definitions of the term "story." The trial court determined that the excess in either case was "de minimis" and granted summary judgment in favor of Clairmont. Concluding that the doctrine of de minimis non curat lex would not be applicable in this situation if "the violation of the restrictive covenant was intentional, knowing, or willful in nature" [Heinsohn, supra, 333 N.W.2d at 701], we reversed and remanded for trial of that issue.

After the remand but before trial, Clairmont, as it had done before the trial court ruled on the summary judgment motion in the prior proceeding, piled soil around the structure in another effort to raise the surrounding ground level to qualify the building as a two-story rather than a three-story structure.

Following a bench trial, the trial court made the following findings of fact:

"The construction of the building at its original height and original measurements was not intentionally, knowingly or willfully done in conscious disregard of a present awareness of the covenant nor was the construction done for the purpose of ignoring or violating the restrictive covenant.

"Enbankment work done before the trial but after the remand brings the building within all pertinent building codes and in conformity with the restrictive covenant."

The trial court denied Heinsohn's request for permanent injunctive relief requiring that Clairmont remove the "third story" of the townhouse and also denied his alternative request for rescission of his purchase of the lots. On appeal, Heinsohn claims that the trial court erred as a matter of law in determining that Clairmont did not intentionally, knowingly or willfully violate the restrictive covenant; that Clairmont's piling of earth around the outside of the structure is a "pure and simple sham" and does not constitute an effective cure of the covenant violation; and that the trial court erred in refusing to grant his alternative request for rescission. ¹

Heinsohn asserts that the trial court used an incorrect legal standard in ascertaining intent. He argues that the trial court should not have directed its inquiry to whether Clairmont intentionally, knowingly or willfully violated the restrictive covenant, but to "whether it intended to build the structure which it did, which structure is one that is over two stories in height." We disagree.

In Sandstrom v. Larsen, 59 Hawaii 491, 583 P.2d 971, 978 (1978), which this court cited in the previous decision in this case, the court stated:

"We are convinced that where a property owner 'deliberately and intentionally violates a valid express restriction running with the land or intentionally "takes a chance", the appropriate remedy is a mandatory injunction to eradicate the violation.' (Emphasis added.) Peters v. Davis, 426 Pa. 231, 238, 231 A.2d 748, 752 (1967)."

Cf. Eakman v. Robb, 237 N.W.2d 423 (N.D.1975).

Heinsohn's circuitous argument rules out the possibility of an innocent mistake. In analogous situations, this court has held that injunctive relief may be properly denied, and the plaintiff relegated to his damages at law, where the defendant encroaches upon the plaintiff's property as the result of an "innocent mistake," and the cost of removal of the encroachment would be disproportionate to any damage caused to the plaintiff's property. See Graven v. Backus, 163 N.W.2d 320 (N.D.1968); Owenson v. Bradley, 50 N.D. 741, 197 N.W. 885 (1924). The trial court did not misinterpret our remand directions.

The record contains testimony to the effect that the building designer, as well as Clairmont, originally conceived of the structure as a "two-story building with a drive-out basement." The "Building Covenants and Restrictions" did not contain a definition of the term "story." An officer and director of Clairmont testified that there was no intention on anyone's part to violate the restrictive covenant. While we might have reached a different result had we been the trier of fact, we cannot say that the trial court's finding that Clairmont did not intentionally, knowingly, or willfully violate the restrictive covenant is clearly erroneous. Rule 52(a),...