McLain v. Anderson

• Decision Date: 19 February 1997
• Docket Number: No. 96-21,96-21
• Citation: 933 P.2d 468
• Parties: Dorothy M. McLAIN; Margo L. Nelsen; and David A. Nelsen, Appellants (Plaintiffs), v. Jerry A. ANDERSON and Faith K. Anderson, Husband and Wife, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 468

933 P.2d 468

Dorothy M. McLAIN; Margo L. Nelsen; and David A. Nelsen, Appellants (Plaintiffs), v. Jerry A. ANDERSON and Faith K. Anderson, Husband and Wife, Appellees (Defendants).

No. 96-21.

Supreme Court of Wyoming.

Feb. 19, 1997.

Brian N. Beisher of Hart & Reiter, Sheridan, for Appellants.

Micheal K. Shoumaker of Northern Wyoming Law Associates, Sheridan, for Appellees.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN JJ.

THOMAS, Justice.

Dorothy M. McLain, Margo L. Nelsen, and David A. Nelsen, some of the neighbors (neighbors) of Jerry A. Anderson and Faith K. Anderson (Andersons), instituted this action to enjoin claimed violations of certain restrictive covenants attached to a rural subdivision. They also sought to recover a $25.00 per day penalty together with attorney fees. Both attorney fees and the continuing penalty are provided for in the covenants. The neighbors assert that the trial court erred in construing the term "residence" as being a "lot" in the paragraph of the covenants relating to keeping livestock. In addition, the neighbors assert error on the part of the trial court in denying them attorney fees and the $25.00 per day penalty in connection with their claims against the Andersons. We hold that any error on the part of the trial court in its ruling that the developer intended the covenant relating to livestock to relate to a lot and not a residence that might exist on several lots has become moot because of an amendment of the covenants. We hold that there was no abuse of discretion in refusing attorney fees to the neighbors in this case, and the provision for a continuing penalty was a cumulative and discretionary sanction provided for the benefit of the collective landowners through the Architectural Committee. It was not intended to benefit individual owners who sought enforcement of the covenants. The Judgment entered in the trial court is affirmed.

The Brief of Appellants, filed by the neighbors, states the issues as follows:

A. Whether the District Court abused its discretion and ruled contrary to law by interpreting the term "residence" to mean "lot" as such term is used in the Restrictive Covenants of the Sherri View Subdivision, Article II, section 14.

B. Whether the District Court abused its discretion and ruled contrary to law in refusing to allow Appellants to recover from Appellees the attorney's fees and costs incurred by Appellants in bringing the action to compel Appellees to conform to the Restrictive Covenants of the Sherri View Subdivision.

C. Whether the district court abused its discretion and was in error when it ignored Appellants' request by not taxing and giving no reason for not taxing Appellees twenty five dollars ($25.00) per day from the date of notice to them that they were in violation of the Restrictive Covenants of the Sherri View Subdivision.

The Andersons, in their Brief of Appellees, respond by stating these issues:

1. The Judge did not err in interpreting the term "residence" to mean "lot" as used in Article II, Section 14 of the Covenants.

2. The District Court did not err by refusing to grant attorney fees.

Without raising further issues, a reply brief of the neighbors addresses the arguments raised in the Andersons' brief by a lengthy itemization of those arguments as perceived by the neighbors. ¹

The parties to this case own lots in the Sherri View Subdivision in Sheridan. The lots in the subdivision are subject to restrictive covenants that have been amended or restated at least four times since they were initiated on June 20, 1979. The last amendment occurred subsequent to the entry of the judgment of the trial court in this case.

The restrictive covenants in effect at the time this action was commenced, established an Architectural Committee composed of the Declarants of the restrictive covenants or their successors and assigns. To the Architectural Committee was delegated "all discretionary control over design, construction, maintenance and all other matters as set forth more particularly in these Covenants." On October 13, 1994, Margo Nelsen, on behalf of the Architectural Committee served notice on Faith Anderson that the Andersons' use of their lots was in violation of the restrictive covenants. ² About a month and a half later, the neighbors brought this action to enforce the restrictive covenants, alleging that the Andersons had refused to correct the violations of which they had been notified.

In its Judgment entered after trial, the district court relied upon covenants that it concluded were ratified after an amendment in October 1995. It noted that the evidence indicated covenant violations may exist on the lands of non-parties to the action, and the Architectural Committee had not strictly enforced the covenants. The court did recognize the standing of the neighbors to bring the action, and it ruled that the term "residence" should be construed to mean "lot" in so far as it related to the keeping of livestock. The court held that the Andersons had not violated a covenant by keeping two horses per lot on their property. The court did find, however, that the Andersons had violated several other covenants, such as maintaining an excess amount of trash on their property and not parking their trailers and a camper in a prepared location.

The relief afforded by the district court enjoined the keeping of more than two horses at a time on any subdivision lot; required the Andersons to remove or provide covenant approved covered storage for specified items that it had held were kept outside of the Anderson's buildings in violation of Article II, Sections (XII) and (XV) of the covenants; required the Andersons to correct the violations within forty-five (45) days, making their failure subject to damages at the rate of twenty-five (25) dollars per day; required the Andersons to park their trailer and camper in accordance with the covenants; and made each of the parties responsible for their own attorney's fees. In its Judgment, the district court did not award attorney's fees to the neighbors nor did it impose damages at the twenty-five (25) dollars per day rate authorized by the covenants.

The neighbors claim that the trial court erred in construing "residence" to mean "lot" in the covenant relating to the keeping of livestock. The pertinent language of Article II, paragraph (XIV) (emphasis added) stated:

No birds, dogs, pets, animals or livestock of any kind shall be kept, raised or cared for on a commercial basis within the subdivision. No swine, cattle, sheep, goats, or other livestock shall be permitted to be kept within the subdivision except that up to two horses per residence may be kept if adequate supplemental feed is provided to prevent overgrazing and erosion or related problems, and express consent of the Architectural Committee is first obtained.

Subsequent to the entry of the Judgment, it appears that the owners of property in the subdivision amended the covenant language. ³ As amended, Article II, paragraph (XIV) (emphasis added) reads:

Birds, dogs, pets, animals, or livestock kept as outside pets may be raised and kept except on a commercial basis within the subdivision EXCEPT that only two (2) horses per lot OR two (2) cows per lot OR six (6) goats per lot OR six (6) sheep per lot OR an acceptable combination of the above NOT to exceed six (6) total animals may be kept.

Our rule is that we dismiss a case if, during the pendency of an appeal, an event occurs that causes the case to become moot or makes a determination of the issues unnecessary. Van Riper v. State, 882 P.2d 230, 238 (Wyo.1994); Davidson v. Sherman, 848 P.2d 1341, 1348 (Wyo.1993). We do not decide cases or issues when the decision cannot be given effect or simply pertains to matters that might arise in the future. Foster v. Wicklund, 778 P.2d 118, 122 (Wyo.1989); Gulf Oil Corp. v. Wyoming Oil and Gas Conservation Com'n, 693 P.2d 227, 233 (Wyo.1985). When the determination of a matter is sought which, if provided, cannot have any practical effect on the existing controversy, the case is moot. Rocky Mountain Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911, 924 (Wyo.1989). Because the residents of the Sherri View Subdivision have adjusted the covenants so that they conform with the Judgment of the trial court, expressly providing that each resident may have up to two horses per lot, that issue in this case is moot.

The second claim of error by the neighbors is that the trial court abused its discretion in refusing to award attorney's fees, after holding that the Andersons had violated some of the restrictive covenants relating to the subdivision. The pertinent language in Article VI of the restrictive covenants reads:

In the event suit is required to collect any sums due, or to enjoin the violation of any of the covenants contained herein, violator, in addition to any of the other penalties provided herein or which may be assessed by a Court, shall be liable for all attorney's fees and costs incurred by Owner or its successor in bringing such action.

We follow the American rule that each party in a lawsuit bears its own attorney's fees in the absence of an expressed contractual or statutory provision for attorney's fees. Snodgrass v. Rissler & McMurry Co., 903 P.2d 1015, 1017 (Wyo.1995). UNC Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584, 594 (Wyo.1989). Pursuant to this rule it is generally recognized that attorney's fees cannot be recovered in the absence of specific statutory authority or a specific contract provision. Snodgrass, 903 P.2d at 1017; UNC Teton, 774 P.2d at 594; DeWitt v. Balben, 718 P.2d 854, 863 (Wyo.1986). The quoted language of the restrictive covenants does provide contractual authority to award attorney's fees to the neighbors.

While appropriate contractual authorization to award attorney's fees is present, we also must determine whether a proper basis exists in the record for...