Morris v. Kadrmas

• Citation: 812 P.2d 549
• Decision Date: 03 June 1991
• Docket Number: No. 91-7,91-7
• Parties: Greg D. MORRIS, Appellant (Plaintiff), v. Wayne KADRMAS and Shirley Kadrmas, husband and wife, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 549

812 P.2d 549

Greg D. MORRIS, Appellant (Plaintiff), v. Wayne KADRMAS and Shirley Kadrmas, husband and wife, Appellees (Defendants).

No. 91-7.

Supreme Court of Wyoming.

June 3, 1991.

Petition for Reconsideration or

Modification Denied June 27, 1991.

Micheal K. Shoumaker, Sheridan, for appellant.

Stuart S. Healy of Healy & Kinnaird, Sheridan, for appellees.

Before URBIGKIT, C.J., THOMAS, MACY and GOLDEN, JJ., and ROONEY, Retired Justice.

ROONEY, Justice, Retired.

Appellant brought this action against appellees requesting relief in the form of injunction and monetary damages for violations of the protective covenants on the Valley West Subdivision near Sheridan. The action was also against the Valley West Subdivision Land Owners Committee in the form of mandamus and declaratory judgment for failure to enforce the covenants. The district court dismissed the action against the Committee. Appellant appeals from a subsequent grant of appellees' We reverse and remand.

motion for summary judgment and denial of appellant's similar motion. Appellant owns lot 23 in the subdivision. Appellees own lot 24 therein.

The issues presented by appellant in this appeal are whether or not appellees violated the protective covenants by placing a 60' X 40' garage and shop building on lot 24 without (1) an accompanying residential structure, (2) with only a 12-foot set back from the lot line, and (3) with a metal roof. There is no issue of fact in this case. Appellees acknowledge the erection of the 60' X 40' metal-roofed garage and shop building without accompanying residential structure, and with only a 12-foot set back from the lot line, but they contend that such was proper since it had Committee approval. They word the issues on appeal:

"A. Did the District Court properly grant summary judgment to Appellees in view of the uncontroverted evidence that the Control Committee charged with the duty to approve construction and enforce the protective covenants of the subdivision did, in fact, review and approve the building plans and specifications submitted by Appellees in accordance with what the Committee perceived to be its delegated authority?

"B. If not, does the failure of the Appellant to appeal from the 'Order of Dismissal' granted to the Control Committee nevertheless prevent him from perfecting this appeal?"

The Declaration of Protective Covenants, executed and recorded by the original owners of the land and developers of the subdivision, provided in pertinent part:

"Said conditions, restrictions, covenants and reservations are imposed upon said above described realty as an obligation or charge against the same for the benefit of each and every lot, tract and parcel therein contained and the owner or owners thereof, and with the right of enforcement vested in the owner or owners of any one or more of the other lots above described, and said conditions, restrictions, covenants and reservations will be imposed upon each and every lot in said above described real estate, and are as follows:

"(1) That said lots shall be used for residence purposes exclusively and only one residence shall be permitted on each lot and that no buildings or structures, other than one-family residences with the customary out buildings, including a private garage and one barn, shall be erected, maintained or permitted on any such lot. * * * No residence building thereon shall exceed one and one-half stories in height, except with prior approval of * * * the Control Committee * * *. At the time 75% of the lots in the Subdivision shall have been sold and conveyed by the undersigned owners, the purchasers (owners) of said lots shall elect a Control Committee consisting of three (3) members who shall then replace the undersigned owners or their successors in interest as the approval authority for the provisions of these covenants.

* * * * * *

"(2) That no residence or other allowable structure erected upon any of said lots shall be erected, maintained or located nearer than 25 feet to the front lot line, nor nearer than 25 feet to any side lot line, except with the prior approval of the approval authority.

* * * * * *

"(4) * * * All pitched roofs shall have cedar shingles or shakes, except flat and low-pitched roofs may have natural gravel or shale roofs; exceptions: Sierra Forest Tone by Flintkote or as approved by the approval authority. * * *

* * * * * *

"(12) The approval authority shall have the right to vary the limitations provided by these restrictions and covenants to the extent of 10% of the requirements, and shall have the right to enforce these covenants.

* * * * * *

"(21) These covenants are to run with the land and shall be binding on all "(22) The approval authority shall have the sole and exclusive right and authority to determine compliance with the covenants contained herein and allocate and assess the costs for the improvements, maintenance and repair of all utilities and roadways. Upon the violation of any covenants or upon the failure to pay any assessments, written notice of such violation or failure shall be directed to the violator who shall have ten (10) days after receipt of said notice or after said notice should have been received in the ordinary course of mail, to correct the violation or pay the assessment due. If said violation is not corrected or payment is not made, owner or the approval authority may re-enter and take possession of the violator's premises and correct the violation at the violator's sole expense. In addition, damage may be assessed at the option of the owner or approval authority against the violator at the rate of $25.00 per day for each day the violation continues after the said 10-day notice. In the event suit is required to collect any sums due or enjoin the violation of any of the covenants contained herein, the violator, in addition to any of the other penalties provided herein or which may be assessed by the Court shall be liable for all attorney fees and costs incurred by the owner or approval authority in bringing such action."

parties and all persons claiming under them for a period of twenty-five (25) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by 75% of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Baros v. Wells, 780 P.2d 341 (Wyo.1989).

COMMITTEE APPROVAL

Appellees' contention that approval of the building plans and specifications by the Committee was sufficient authorization to disregard the covenants running with the land to the extent that the violations thereof were contained in such plans and specifications is incorrect. The Committee has no authority to vary the terms of the covenants other than as provided in the Declaration of Protective Covenants themselves.

Covenant No. 1 requires the existence of a residence for accompanying "customary out buildings." Authority is not given to the Committee to make an exception to this requirement. The only authority given to the Committee in the covenant to approve a variance is with reference to the requirement that no residence building shall exceed one and one-half stories in height. An effort by the Committee to approve a variance in the requirement that an outbuilding must have an accompanying residence is without legal force or effect. Appellees are in violation of this covenant. We held in Sutherland v. Bock, 688 P.2d 157 (Wyo.1984) that, under a covenant such as this one, an outbuilding cannot be justified without the existence of a residential structure on the lot. The covenant is specific in providing that the only building or structure shall be a "one-family residence with customary out buildings." (Emphasis added.)

Covenant No. 2 provides that no structure "shall be erected, maintained or located * * * nearer than 25 feet to any side lot line" except "with the prior approval" of the Committee. However, the extent to which the Committee can exercise this approval is limited by Covenant No. 12 which allows a variance of the covenants "to the extent of 10% of the requirements." Accordingly, the Committee cannot authorize a set back of less than 22.5 feet. An effort by the Committee to approve a set back of 12 feet is without legal force or effect. Appellees are in violation of this covenant.

Covenant No. 4 requires all pitched roofs to have cedar shingles or shakes "or

as approved" by the Committee. Again, it may be said that Covenant No. 12 limits the extent to which the committee could exercise the approval. However, the application of Covenant No. 12 is obviously only to the limitations capable of being restricted in degree or in percentage. The limitation relating to the type of roof lacks this capability. The Committee did not exceed its authority in approving a metal roof on the building. Appellees suggest that Covenant No. 12 creates an ambiguity in the Declaration. There is no ambiguity under our holding that the...