Holmquist v. D-V, Inc.

• Decision Date: 29 April 1977
• Docket Number: D-,INC,No. 48376,48376
• Citation: 1 Kan.App.2d 291,563 P.2d 1112
• Parties: A. J. HOLMQUIST et al., Appellees, v., a corporation, Appellant.
• Court: Kansas Court of Appeals

Page 1112

563 P.2d 1112

1 Kan.App.2d 291

A. J. HOLMQUIST et al., Appellees, v. D-V, INC., a corporation, Appellant.

No. 48376.

Court of Appeals of Kansas.

April 29, 1977.

Syllabus by the Court

1. In the absence of a specific exclusion or a definition of garage that is clearly exclusionary in restrictive covenants, a carport or sunshade over a driveway and attached to a single-family residence is held to be a garage and permitted by the restrictive covenants.

2. A ruling on the relevancy of evidence, based upon remoteness, ordinarily rests in the discretion of the trial court and will not be reversed on appeal unless it clearly appears the ruling constituted an abuse of sound judicial discretion.

3. Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, the appellate court will not interfere.

4. A person who takes land with notice of restrictions upon it will not in equity and good conscience be permitted to act in violation thereof.

5. In an injunction action directed against the violation of restrictive covenants against multifamily housing where the trial court enjoined the appellant from violating any of the provisions of the restrictive covenants, it is held that: Under all the circumstances, the trial court did not abuse its discretion in granting said injunction.

Kenneth W. Wasserman, of Norton, Shaffer & Wasserman, of Salina, for appellant.

John M. Simpson, of Kennedy, Berkley, Simpson & Yarnevich, Chartered, Salina, for appellees.

Before HARMAN, C. J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge.

This is an appeal from an order of the district court of Saline County granting an injunction enjoining the defendant-appellant from violating restrictive covenants in the eastern section of Shalimar Plaza Addition to Salina, Kansas.

The case was submitted to the district court on a written stipulation of facts. No other evidence was taken or considered by the district court.

Shalimar Plaza Addition was platted as one unit consisting of fourteen blocks. It is comprised of a western section consisting of blocks one through six and an eastern section consisting of blocks seven through fourteen. The two sections are divided by a four-lane traffic artery (Ohio Street) running north and south. Restrictive covenants were imposed on the western section in 1959 and on the eastern section in 1962. Both sections have land allocated for commercial, business, and residential use. The majority of each section is reserved for single-family dwellings. All of the lots involved in this litigation are in the eastern portion of Shalimar Plaza Addition and are numbered lots one through six in block nine, and lots one and two in block thirteen. The lots involved are located adjacent to each other. Lot one is the northeast corner of the subdivision. The remainder of the lots lie south of lot one along the east side of the subdivision.

All of the parties to this action acquired title to their respective properties after the restrictive covenants were filed of record.

Appellant-defendant was desirous of constructing multifamily housing on the lots. On June 27, 1973, appellant filed an amendment to the 1962 restrictions which specifically permitted construction of multifamily housing on the lots. It was necessary to obtain the written consent of persons holding record title to over one half the land area to amend the restrictive covenants. The attempted amendment to the 1962 restrictions did not have the consent of over half the total land area owners in the eastern portion of Shalimar Plaza Addition. The amendment did have over half the total area owners of the combined eastern and western sections. The trial court held the amendment to be invalid. Prior to the trial court's decision, the appellant requested the Salina City Commission to rezone the lots. The Salina City Commission rezoned the lots, over the objection of residents in the area, from zone 'A second dwelling house district' to zone 'C apartment house district.'

Before construction began, counsel for appellees notified appellant in writing that the restrictive covenants permitted only single-family homes. Appellant started construction, this action was commenced, and a pretrial conference was held. The parties stipulated to the facts and specified the following issues of law to be resolved by the court:

'1. Is the real estate described in Exhibit 'A' two additions, one of which is comprised of Lots 1-6 and the other of which is comprised of Blocks 7-14 as shown on the said exhibit or is the said real estate one addition comprised of the said Blocks 1-14?

'2. Are the facts set forth in paragraphs 16 and 19 of the above stipulation of facts relevant and admissible evidence?

'3. Are the facts set forth in subparagraphs (c), (g) and (h), of paragraph 18 of the stipulation of facts violations of the restrictions set forth in Exhibit 'C' '4. Have the violations of the restrictions set forth in Exhibit 'B' or Exhibit 'C' been so extensive so as to cause the said restrictions to be null and void, thereby permitting the construction of apartments, duplexes, and other buildings by the defendant in Shalimar Plaza Addition in contravention of the terms of the said exhibits?'

Paragraphs 16, 19, and 18(c), (g) and (h) of the stipulation of facts read:

'16. The plaintiffs A. J. Holmquist and Martha J. Holmquist own a residence and operate and conduct a commercial business immediately adjacent to that property on which defendant plans to construct duplexes and use the road ways of Shalimar Plaza Addition for such commercial business purposes. Such commercial business is in the nature of a sand mining operation and the roadways are used for hauling gravel and dirt and other material and machines used in such business.

'19. Multi-family condominiums, town houses, and apartment buildings have been built and are being constructed on the real estate immediately north of and adjacent to the defendant's proposed construction site.

'18. The following is a listing of other or possible minor violations of the restrictions set forth in Exhibit 'C':

(c) Block 11, Lot 4. The owner conducts a sign business in the residence.

(g) Block 14, Lot 2, and Lot 6. Each residence has a carport attached.

(h) Block 14, Lot 3. The residence has a flat sunshade over the driveway and is attached to the residence.'

The trial judge found for the plaintiffs and against defendant on all issues of law and issued the injunction from which defendant appeals. Defendant did not appeal from that part of the judgment holding the restrictive covenants filed in 1962 applied only to the eastern portion of Shalimar Plaza Addition.

This court is not bound by the trial court's findings since all of the evidence was presented by a written stipulation of facts and documentary in nature. The trial court had no better opportunity to weigh the evidence than this court. What the facts establish may be decided substantially as it would if the case were originally in this court. (In re Estate of Miller, 186 Kan. 87, 348 P.2d 1033; Goldberg v. Central Surety & Ins. Corp., 145 Kan. 412, 65 P.2d 302.)

All parties concede, and the court found, that an owner could not conduct a sign business from lot four, block eleven, of Shalimar Plaza Addition. We are informed that the owner of said lot was conducting a magnetic sign business from his personal residence and that said business was terminated. Appellant, however, questions the determination that carports attached to the residences on lots two and six in block fourteen, and a flat sunshade over a driweway and attached to the residence on lot three in block fourteen, are not in violation of paragraph five of the 1962 restrictive covenants. Paragraph five reads in pertinent part, 'No building shall be erected, altered, placed or permitted to remain on any 'A' residential lot other than one detached single family dwelling not to exceed one and one-half stories in height and private garage for not more than two cars.' Appellant contends a garage is a 'building' and that Webster's Third New International Dictionary of the English Language Unabridged, p. 292, defines a building as 'usually covered by a roof and more or less completely enclosed by walls . . .' and therefore a carport or sunshade cannot be a garage since it does not have walls.

Appellant's definition is too narrow. A garage has been defined as a 'covered structure' (Mascolino v. Noland & Cowden Enterprises, 391 S.W.2d 710 (Ky.1965); 'a place for the care and storage of motor vehicles' (Wyatt v. State Farm Fire & Cas. Co., 78 Wyo. 228, 322 P.2d 137 (1958)); a place where motor vehicles can be sheltered and stored (Woods v. Kiersky, 14 S.W.2d 825 (Tex.Comm.App.1929)); 'a garage is a place, structure, or building where motor vehicles are stored and cared for' (38 Am.Jur.2d, Garages, and Filling and Parking Stations, Sec. 1); 'a private garage is a structure or building' (61A C.J.S. Motor Vehicles § 715). Had the drafter of the restrictive covenants desired to exclude carports and sunshades from the subdivision, it would have been a simple matter to have done so either by specifically excluding them or by defining garage in such a manner as to exclude them.

In the absence of a specific exclusion or a definition of garage that is clearly exclusionary in restrictive covenants, a carport or sunshade over a driveway and attached to a single-family residence is held to be a garage and permitted by the restrictive covenants.

It is next urged that the trial court erred in not considering evidence related to the operation of commercial businesses, multifamily condominiums, townhouses, and apartment buildings on real estate adjacent to but not located in Shalimar Plaza Addition. Appellant relies on Hecht v. Stephens, ...