Holmesley v. Walk

• Decision Date: 14 February 2001
• Docket Number: 00-518
• Citation: 39 S.W.3d 463
• Parties: DENNIS HOLMESLEY, APPELLANT V. CHRIS WALK and SPOUSE, INDIVIDUALLY AND AS TRUSTEE OF THE 1997 WALK FAMILY TRUST DATED
• Court: Arkansas Court of Appeals

DENNIS HOLMESLEY, APPELLANT

V.

CHRIS WALK and SPOUSE, INDIVIDUALLY AND AS TRUSTEE OF THE 1997 WALK FAMILY TRUST DATED 11/19/1997, APPELLEES

CA 00-518

Arkansas Court of Appeals

14 February 2001

APPEAL FROM THE JOHNSON COUNTY CHANCERY COURT: [NO. E-99-203], HONORABLE RICHARD ELLIS GARDNER, JR., CHANCERY JUDGE

REVERSED AND REMANDED

John B. Robbins, Judge.

Appellant Dennis Holmesley appeals an order of the Johnson County Chancery Court that denied his request for a permanent injunction against appellees Chris Walk and his spouse in the construction of a lake home in the Piney Bay Development of Knoxville, Arkansas. Appellant is the owner of Lot 32, and appellees are the owners of Lot 9. Lot 9 is a lakefront lot, and Lot 32 is an interior land lot situated directly across the street from Lot 9. A bill of assurance with protective covenants pertaining to the Piney Bay Development was filed of record in 1989, and it states in pertinent part that:

No two (2) story dwelling shall be constructed on

Lots 1-15 or on Lots 28 and 29 unless prior written approval as to the design, location and type structure of such two-story dwelling is granted bythe existing lot owners or Grantor-Developer located on each side and the two (2) most closely located lots behind each of these proposed lots.

Appellees began construction of their residence on Lot 9 without obtaining any such consents, and appellant instituted this action on July 7, 1999, to halt construction of what appeared to appellant to be a two-story house. A temporary injunction was granted, but after a final hearing, a permanent injunction was denied by order entered on October 11, 1999. This appeal followed, and we reverse.

The standard of review in chancery cases is well settled. Though we review chancery cases de novo, we will not reverse unless the chancery decision is clearly against the preponderance of the evidence or clearly erroneous, giving due deference to the superior position of the chancellor to judge the credibility of the witnesses. Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993); Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). A decision is clearly erroneous when, although there is evidence in the record to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Courts do not favor restrictions upon the use of land, and if there is a restriction on the use of land, it must be clearly apparent. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). But, one taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). The general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. McGuire v. Bell, supra. Where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from that restraint should be decreed; but when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, and it is improper to inquire into the surrounding circumstances of the objects and purposes of the restriction to aid in its construction. Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971). However, such strict rules of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction. Id.

The question on appeal can be distilled to this: Is appellees' dwelling under construction on Lot 9 a two-story structure or not? The chancellor determined that appellees' house did not qualify as a two-story building; consequently permission from those listed in the protective covenant was not required. Therefore, the chancellor denied the petition for a permanent injunction. Although there is evidence in the record to support this decision, we are left with a definite and firm conviction that a mistake has been committed. Therefore, we reverse.

The evidence adduced before the chancery court at the preliminary hearing was as follows. Appellant submitted color photographs of the Lot 9 construction, including Exhibit 4 appended to this opinion, demonstrating wood framing on the foundation and a staircase leading upward indicating two levels of living space. Also framed up at the top of the staircase were two bedrooms, a bathroom, and closet space. Appellant testified that neither Mr.aWalk nor his wife obtained consent from him to construct a two-story house. Appellees' builder, Jimmy E. Oliver, testified that in his opinion, a two-story home has as much floor space on the second floor as the first floor, which this house did not. Oliver admitted knowledge of the subdivision restrictions but decided that this building did not violate them. Oliver stated that the roof line of this house sits on the first floor, and he was simply utilizing the attic...