Raintree of Albemarle Homeowners Ass'n, Inc. v. Jones

• Decision Date: 10 January 1992
• Docket Number: No. 910323,910323
• Citation: 413 S.E.2d 340,243 Va. 155
• Court: Virginia Supreme Court
• Parties: RAINTREE OF ALBEMARLE HOMEOWNERS ASSOCIATION, INC. v. Charles D. JONES, et al. Record

Page 340

413 S.E.2d 340

243 Va. 155

RAINTREE OF ALBEMARLE HOMEOWNERS ASSOCIATION, INC. v. Charles D. JONES, et al.

Record No. 910323.

Supreme Court of Virginia.

Jan. 10, 1992.

Gail S. Ogle, Abingdon, for appellant.

Bruce R. Williamson, Jr. (Williamson & Toscano, Charlottesville, on brief), for appellees.

Present: All the Justices.

HASSELL, Justice.

The primary issue that we consider in this appeal is whether a homeowners association has waived its right to enforce a restrictive covenant.

Raintree of Albemarle Homeowners Association, Inc. filed its bill of complaint against Charles D. Jones and Glenda M. Jones seeking to enforce certain restrictive covenants contained in a "Declaration of Statement of Restrictions[,] Covenants[,] and Conditions." The Homeowners Association requested that the chancellor issue an injunction which, among other things, would have prohibited Charles and Glenda Jones from keeping or storing a tow truck on their property.

The chancellor conducted an ore tenus hearing and granted partial relief. The chancellor enjoined Mr. Jones from: parking any vehicle on property owned by others without permission; placing vehicles in a state of disrepair on his property or on Old Brook Road; and placing vehicles with painted signs on his property. However, the chancellor found that, even though a tow truck which Mr. Jones regularly parked in his driveway violated a restrictive covenant, the Homeowners Association was not entitled to the issuance of an injunction because it had not uniformly enforced the restrictive covenant against other property owners in the subdivision. Additionally, the court did not grant injunctive relief against Glenda Jones and declined to award the complainant or respondents attorneys' fees. We granted the Homeowners Association an appeal and the Joneses a cross-appeal.

Citing Rule 5:11, Charles and Glenda Jones contend that the Homeowners Association's appeal should be dismissed because it failed to file a transcript with this Court. We disagree. In this case, the record consists of the pleadings, exhibits filed during the ore tenus hearing, orders of the trial court and its letter opinion. Even though the Homeowners Association did not file a transcript of the ore tenus hearing, the findings of fact upon which the chancellor relied are contained in his opinion. Therefore, we hold that the record is sufficient to permit this Court to consider the legal questions raised in this appeal. See Smyth v. Midgett, 199 Va. 727, 729, 101 S.E.2d 575, 578 (1958).

The relevant facts are not in dispute. Charles and Glenda Jones own Lots 1 and 2 of Phase I in the Raintree subdivision. The lots are located on Old Brook Road which is Virginia State Route 652.

In November 1987, Mr. Jones purchased a "wrecker service" business and he began to park a red tow truck, also described as a small wrecker, at his home. The Homeowners Association requested that Mr Jones cease parking the tow truck on his property. He refused to do so and continued to park the truck there through the date of the ore tenus hearing.

Two property owners in the Raintree subdivision, Gordon L. Nicely and Dennis Powell have, on occasion, parked pickup trucks owned by a utility company at their homes. Richard McDonald, president and a director of the Homeowners Association, testified that the Homeowners Association had determined that these pickup trucks, unlike the tow truck, were not commercial trucks which were kept and stored in the subdivision within the intent of the restrictive covenant.

The relevant restrictive covenant states:

No school buses, commercial vehicles, or habitable motor vehicles may be kept on or stored on any part of the property except within an enclosed garage. No trucks of any nature shall be parked overnight on the property subject hereto except in an enclosed garage, nor shall any vehicles of any description be permitted to be repaired on any lot or the Common Area, except in an enclosed garage or other area completely screened from roads and adjoining properties.

Id., art. V, § 5.01(j) (emphasis added).

First, the Homeowners Association argues that the trial court erred because the pickup trucks that Mr. Nicely and Mr. Powell parked in the subdivision are not trucks within the meaning of the restriction.

We disagree with the Homeowners Association. The trial court found that the pickup trucks are "trucks of any nature" as well as commercial vehicles within the meaning of the restriction. We have repeatedly said that where the grant or denial of injunctive relief is based upon findings of fact made by the chancellor, we will not disturb the decision unless it was plainly wrong or without evidence to support it. McCauley v. Phillips, 216 Va. 450, 456, 219 S.E.2d 854, 859 (1975). Additionally, "[w]hen the evidence introduced in the [trial] court is not made a part of the record on appeal, all questions of fact resolved by that court must be accepted as conclusive." Smyth, 199 Va. at 729, 101 S.E.2d at 578.

Next, the Homeowners Association argues that its failure to require Nicely and Powell to remove their trucks did not constitute a waiver of the Homeowners Association's right to enforce the restrictive covenant. In Village Gate Homeowners Ass'n. v. Hales, 219 Va. 321, 246 S.E.2d 903 (1978), we discussed the principles that we must apply when determining whether a homeowners association has waived its right to enforce a restrictive covenant. There, a homeowners association filed a suit to enforce certain covenants, conditions, and restrictions. The association sought an order requiring a homeowner to remove a front yard wall which had been constructed on her property in violation of a covenant which stated: "No front or side yard fence, wall or walls, or other similar type structures shall be allowed except those constructed by or on behalf of [the developer]." Id. at 323, 246 S.E.2d at 904 (brackets in...