Micklon v. Dudley, 2008 MT 323N (Mont. 9/16/2008)
| Decision Date | 16 September 2008 |
| Docket Number | No. DA 07-0753,DA 07-0753 |
| Parties | DENNIS MICKLON, Plaintiff and Appellant, v. ARTHUR DUDLEY and LYNN C. DUDLEY, Defendants and Appellees. |
| Court | Montana Supreme Court |
Appeal from: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 2005-085, Honorable Michael C. Prezeau, Presiding Judge.
For Appellant: William A. Douglas, Douglas Law Firm, Libby, Montana
For Appellee: James D. Reintsma, Reintsma Law Firm, Libby, Montana
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 This case involves a dispute between Dennis Micklon on one hand and Arthur and Lynn C. Dudley on the other. Micklon and the Dudleys own lots in the Lincoln West Subdivision near Libby, Montana: Micklon owns Lot 6 and the Dudleys own Lots 3 and 4. The dispute concerns a 3,000-square-foot shop the Dudleys constructed on Lot 3, in violation of a subdivision covenant ("paragraph 6") which states that "[n]o lot shall be used for any purpose except residential use."
¶3 In June 2005, Micklon filed suit against the Dudleys in the District Court for the Nineteenth Judicial District, Lincoln County. Micklon sought an order requiring the Dudleys to remove the shop from Lot 3. The District Court, however, concluded that the shop qualified as a "residential use" and, therefore, that the shop did not violate paragraph 6. The court did not find that the shop itself served a residential purpose. Rather, the court found that the shop was "actively `used in conjunction with' " the Dudleys' residential dwelling on Lot 4. The court thus reasoned that the shop was "an appurtenance" to the Dudleys' residence.
¶4 We reversed the District Court's judgment in Micklon v. Dudley ("Micklon I"), 2007 MT 265, 339 Mont. 373, 170 P.3d 960. We explained that "when a restrictive covenant limits a subdivision lot's use to `residential use,' a non-residential structure that is placed on that lot without an accompanying residential dwelling on the same lot violates the covenant, notwithstanding the fact that the structure is used in conjunction with a residential dwelling on an adjoining lot." Micklon I, ¶ 19 (emphasis added). Accordingly, because the Dudleys' shop was constructed on a lot unaccompanied by a dwelling house on the same lot, we held that the District Court had erred in concluding that the shop did not violate paragraph 6. Micklon I, ¶ 19.
¶5 On remand, the District Court observed that "[t]here are two ways the Dudleys' use of [Lot 3] can be brought into compliance with paragraph 6 of the subdivision covenants; they can either remove the garage, or they can construct a residence on the lot." The court noted, however, our decision in Tipton v. Bennett, 281 Mont. 379, 934 P.2d 203 (1997), which involved a factual scenario similar to the instant lawsuit. The Bennetts' 3,200-square-foot building violated a covenant that restricted use of their property to "residential purposes." The district court in that case, therefore, ordered the Bennetts either to remove the building within six months or to construct a residential dwelling on the premises within one year. Tipton, 281 Mont. at 382-83, 934 P.2d at 205. We disapproved the latter alternative remedy:
This later [sic] provision assumes that any building used incidental to a residence is permissible under the covenant. We hold that this interpretation of the covenant is too broad. The covenant clearly and unambiguously restricts usage to "residential purposes." The question is whether a large storage building qualifies as "for residential purposes."
The District Court's own factual findings do not support such a conclusion. In [Hillcrest Homeowners Ass'n v. Wiley, 239 Mont. 54, 778 P.2d 421 (1989)], we recognized that a garage "is a proper appurtenance necessary to the enjoyment of a dwelling house . . . ." Hillcrest, 778 P.2d at 423. In the present suit, the District Court acknowledged that the structure is not a garage; rather it is a 3,200 square foot storage building. With or without a residence, a 3,200 square foot storage building is not an appurtenance necessary to the enjoyment of a dwelling house.
Tipton, 281 Mont. at 383, 934 P.2d at 205-06 (ellipsis in Tipton). The Bennetts' building violated the covenant not only because it stood alone without a dwelling, but also because a 3,200-square-foot storage building "is not consistent with `residential purposes.' " Tipton, 281 Mont. at 383, 934 P.2d at 206. Accordingly, we reversed the district court's order to the extent it allowed the Bennetts to keep the storage building on the condition that they construct a residence on the property within one year. Tipton, 281 Mont. at 383, 934 P.2d at 205, 206.
¶6 In the case at hand, the District Court distinguished Tipton on the ground that "the Dudleys' garage cannot be classified as an `unnecessary appurtenance' to a dwelling house." The court "appreciate[d] that Micklon would like the Court to order the Dudleys to tear down and haul away their garage, jackhammer out the concrete slab, and start over from square one." However, the court observed that its "responsibility is not to impose the greatest possible financial pain on the Dudleys, but rather to require them to come into compliance with the subdivision's covenants." Accordingly, the District Court entered the following order (dated November 27, 2007):
¶7 Micklon now appeals. In essence, he contends that the Dudleys' shop could never qualify as "an appurtenance necessary to the enjoyment of a dwelling house." Tipton, 281 Mont. at 383, 934 P.2d at 206. He points to the following language in Hillcrest Homeowners Ass'n v. Wiley, 239 Mont. 54, 778 P.2d 421 (1989): " `A private garage is a proper appurtenance necessary to the enjoyment of a dwelling house and does not violate a "for residence purposes only" covenant.' " Hillcrest, 239 Mont. at 57, 778 P.2d at 423 (quoting Sandy Point Improvement Co. v. Huber, 613 P.2d 160, 163 (Wash. App. 1980)). Based on this passage, Micklon argues that the Dudleys' shop could not qualify as a "private garage . . . necessary to" the enjoyment of any house the Dudleys might build on Lot 3. He asserts that whereas "a `garage' is to provide the function of an `ancillary' appurtenance to the residence structure situated on a subdivision lot," any residential structure the Dudleys built on Lot 3 would itself be "ancillary" to their shop, given the shop's "mammoth" size. Micklon also argues that the Dudleys' 3,000-sqaure-foot shop and the 3,200-square-foot storage building at issue in Tipton are materially indistinguishable in terms of size and nature of use. He contends that both structures are "huge" and used for a host of purposes other than parking two or three cars.
¶8 In response, the Dudleys maintain that their shop qualifies as a residential use. They point to the District Court's finding that the shop "is not just an amorphous `large storage building,' " but rather "is actively incorporated into the Dudley's [sic] daily routine."
¶9 The Dudleys also inform us that, notwithstanding the District Court's order that they either "remove the garage situated on lot 3" or "begin construction of a residence on lot 3 that complies with the subdivision covenants," the Dudleys instead commissioned a boundary-line adjustment on December 27, 2007 (a month after the District Court entered judgment). According to the Dudleys, the boundary-line adjustment combined Lot 3 and Lot 4 into one lot—Lot 3A. The Dudleys suggest that because their shop on former Lot 3 has been "actively `used in conjunction with' " their residential dwelling on Lot 4 (as the District Court found), the boundary-line adjustment combining the two lots into Lot 3A effectively brought the shop into compliance with paragraph 6 of the subdivision covenants.
¶10 The Dudleys' decision to raise this new legal theory on appeal and their attempt to supplement the record in support of this theory are both highly inappropriate. It is well-established that " `the parties on appeal are bound by the record and may not add additional matters in briefs or...
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