Kincheloe v. Milatzo

• Decision Date: 22 February 1984
• Docket Number: No. 83-100,83-100
• Citation: Kincheloe v. Milatzo, 678 P.2d 855 (Wyo. 1984)
• Parties: Thurston F. KINCHELOE, Michael L. Gill, David A. Rock, Michael C. Albee, Albert Grant Langston, Walter W. Roche, Dwain D. Dickman, Thomas D. Hall, Leonard McAffee and Eddie R. Miller, Appellants (Plaintiffs), v. Vito MILATZO, Angie G.F. Milatzo, American Construction & Excavating Company, David L. Ayers, Country West Mobile Homes, Inc., and Frank L. Neal, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 855

678 P.2d 855

Thurston F. KINCHELOE, Michael L. Gill, David A. Rock, Michael C. Albee, Albert Grant Langston, Walter W. Roche, Dwain D. Dickman, Thomas D. Hall, Leonard McAffee and Eddie R. Miller, Appellants (Plaintiffs), v.Vito MILATZO, Angie G.F. Milatzo, American Construction & Excavating Company, David L. Ayers, Country West Mobile Homes, Inc., and Frank L. Neal, Appellees (Defendants).

No. 83-100.

Supreme Court of Wyoming.

Feb. 22, 1984.

A. Joseph Williams of Guy, Williams, White & Argeris, Cheyenne, for appellants.

Bert T. Ahlstrom, Jr., and Kay Snider Coffman, Cheyenne, for appelleesVito Milatzo and Angie G.F. Milatzo.

Walter C. Urbigkit, Jr. and Carole Shotwell of Urbigkit, Whitehead, Zunker & Davidson, P.C., Cheyenne, for appelleesCountry West Mobile Homes, Inc. and Frank L. Neal.

ROSE, Justice.

This case originated in the district court where the plaintiffs-appellants, as purchasers of lots from various defendants-appellees unsuccessfully sought to restrain appellees from selling or otherwise disposing of adjoining properties in which some appellees were owners and others were possessed of contractual interests.

The trial court denied injunctive relief and we will affirm.

The appellants purchased lots from the appellees, the Milatzos, American Construction & Excavating Company and David L. Ayers, between March 31, 1978 and December 16, 1980.All of these properties were located within the parameters of a plat, properly executed, approved, filed on August 30, 1978, and designated as "Milatzo Subdivision, First Filing".¹The lots in this subdivision are one-half acre in size.

Prior to the filing and recording of the First Filing plat, the Milatzos had caused a map to be prepared.This map included the area contemplated by the First Filing together with adjoining land which later came to be known as Country West Subdivision.Following is a reduced copy of this map for easy reference.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This map, which never became a recorded plat, was designated "Milatzo Subdivision" and it shows all included lots to be one-half acre in size.When the plaintiffs-appellants purchased their lots in the First Filing, which contained only one-half-acre lots, they had been shown this map as it hung on the walls of the Milatzos' real estate agent's office.The real-estate personnel and perhaps others who were interested in selling lots in the First Filing had stated that the lots depicted by the map were no less than one-half acre in size.The appellants had also visited the property where all the lots indicated on the Milatzo Subdivision map were staked on the ground as one-half-acre lots.The area, identified on the map as the Country West Subdivision, was not platted at any time during which the appellants were purchasing lots in the First Filing area--nor has it ever been platted.Some of the appellants had also been made familiar with covenants which--by reference to an existing plat--restricted lot sizes to be no less than one-half acre.The court held these restrictions to be applicable to only those lots which were contained in the First Filing, but the appellants testified that when they purchased their properties in the First Filing they were led to believe and did believe that the covenants were applicable to all lots appearing on the Milatzo Subdivision map (reproduced, supra).

Following the platting of the First Filing and the signing of covenants, the defendants-appelleesAmerican Construction & Excavating Company and David L. Ayers obtained a number of lots in Milatzo Subdivision First Filing in repayment for services rendered and materials furnished.In their effort to sell their First Filing lots, the Milatzos engaged and gave a listing to the Key Real Estate Co., Ltd.Mr. Ayers and American Construction & Excavating Company also undertook sales of such properties as were owned by them in Milatzo Subdivision First Filing.

Subsequent to the sale to the appellants of various lots in the First Filing, the Milatzos entered into a lease option with Frank L. Neal of Country West Mobile Homes, Inc. to sell and develop what was later designated as the Country West Subdivision.This area adjoined the First Filing area, and is illustrated as being within the confines of the Milatzo Subdivision map, supra.A proposed plat of this subdivision was prepared, showing lots which were one-quarter acre and smaller, and this plat was approved by all of the appropriate regulatory bodies although the document has never been recorded.These threatened Country West Subdivision lot transfers are the sales which the appellants seek to enjoin for the reason that the platted lot sizes are allegedly in violation of the oral representations, promises and covenants described above.

Contention of the Parties

In the trial court and in this court, the appellants rely upon the covenants, statements of the appellees and their agents, inspection of the properties and the map hanging upon the real estate company wall as representations from which, they contend, injunctive relief should flow, thus precluding the sale of any lot or lots in the proposed adjoining Country West Subdivision area since all lots in that proposed subdivision are to be less than one-half acre in area.

The appellees, on the other hand, urge that, while it is true that it was their original intention that all residential lots in the entire area designated as the Milatzo Subdivision would be no less than one-half acre in size, they had never made any written, oral or other form of legally binding representations to the appellants to the effect that the lots of the Country West Subdivision area would be platted and sold as one-half-acre lots.The appellees urge that the appellants were, at all times, on notice or chargeable with notice that appellees were not obligated to develop this adjoining land with one-half-acre lots because of the language of the covenants, the oral representations that were made, the information contained in the deeds and the title insurance commitments and policies, and by reason of the fact that a plat of Country West was not on file.With respect to the covenants which the Milatzos and David Ayers signed and recorded, the appellees say that it was their intention, and it is apparent on the face of the instrument itself, that the contained restrictions were to apply only to lots in the First Filing.

The Issues

The appellants describe the issues for our review as follows:

1."Whether the protective covenants apply only to lots included in the First Filing of Milatzo Subdivision."

2."Whether the statute of frauds bars plaintiffs from the requested injunctive relief."

3."Whether plaintiffs are legally entitled to have defendants enjoined from dividing lots into less than one-half acre in size on the theory of promissory estoppel."

Legal Theories of the Appellants

The appellants' argument that the developers of the Country West Estates should be enjoined from subdividing the land into small lots is based on three different theories: (1) written protective covenants; (2) promissory estoppel; and (3) common scheme or plan.Our discussion of the common-scheme-or-plan contention will flow from our disposal of the covenant, statute-of-frauds and estoppel issues, and we will not, therefore, separately address this concept.Furthermore, except as the appellants address the protective-covenant, statute-of-frauds and promissory-estoppel topics, they themselves do not support the common-scheme-or-plan theory in their brief with cogent argument or authority.This court will not consider alleged error that is supported only with perfunctory argument and no authority.Barnette v. Doyle, Wyo., 622 P.2d 1349(1981).

Legal Theories of the Appellees

The appellees argue that the covenants in question only apply to the First Filing, the statute of frauds operates to render null and void any oral representations made by the appellees, and the doctrine of promissory estoppel does not, under the facts of this case, serve to defeat the effectiveness and applicability of the statute of frauds.

Restrictive Covenants

On June 27, 1979 the Milatzos and David L. Ayers, owners of lots in platted subdivision First Filing, caused restrictive covenants to be recorded.These covenants provided, by reference to an existing plat, that the lots which the covenants contemplated were to be no less than one-half acre in size.The appellants say that the language of the covenants was indefinite and subject to court interpretation.They go on to urge that the trial court was in error when it decided that it was the intent of the parties--as that intent is gleaned from the covenants and all evidence of record--that the covenants were to apply to the lots in the First Filing only.The appellants contend that Ayers and the Milatzos intended that the covenants should be held to apply to all the area contained in the Milatzo Subdivision, and therefore the half-acre limitation contemplated by the covenants defines the lot size, not only in the First Filing, but also in the Country West Subdivision area (see map, supra).The appellees' position is that the covenants apply only to the lots contained in the area designated on the map, supra, as "First Filing."

The trial court agreed with the appellees' contention on this issue, and so do we.

The pertinent provisions of the protective covenants are the following:

"The undersigned, being the present owners of some of the following described real estate situated in Laramie County, Wyoming; towit:

"Milatzo Subdivision, First Filing, City of Cheyenne, Laramie County, Wyoming "do hereby make this Declaration of Protective Covenants applicable to all lands owned by the undersigned and separately ratifying and adopting this declaration.

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"6.Platted lots presently platted for a residential development shall not be divided for the construction...