Vargas P'Ship v. Four "H" Ranches Comm.

• Decision Date: 25 February 2009
• Docket Number: No. S-07-0022.,S-07-0022.
• Citation: 2009 WY 26,202 P.3d 1045
• Parties: VARGAS LIMITED PARTNERSHIP, a defunct Wyoming limited partnership; and Kit Martin, individually, Appellants (Defendants), v. FOUR "H" RANCHES ARCHITECTURAL CONTROL COMMITTEE, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

202 P.3d 1045

2009 WY 26

VARGAS LIMITED PARTNERSHIP, a defunct Wyoming limited partnership; and Kit Martin, individually, Appellants (Defendants), v. FOUR "H" RANCHES ARCHITECTURAL CONTROL COMMITTEE, Appellee (Plaintiff).

No. S-07-0022.

Supreme Court of Wyoming.

February 25, 2009.

Representing Appellant: Michael H. Reese, Attorney at Law, Cheyenne, Wyoming;

Ronald L. Brown, Attorney at Law, Fort Collins, Colorado. Argument by Mr. Reese.

Representing Appellee: John B. Rogers of Rogers and Rogers, P.C., Cheyenne, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] Four "H" Ranches Architectural Control Committee (ACC) brought suit on behalf of adjoining landowners in a residential subdivision located in Laramie County, Wyoming, to enforce the subdivision's declaration of protective covenants and enjoin the construction or improvements of several buildings by Vargas Limited Partnership, a defunct Wyoming Limited Partnership, and Kit Martin, individually (hereinafter referred to collectively as Martin), on their property in the subdivision. After the district court denied Martin's motion to dismiss, which asserted that the ACC was not the real party in interest, the district court conducted a bench trial and entered an order upholding the enforcement of the subdivision's declaration of protective covenants, permanently enjoining Martin's construction of any buildings or improvements not consistent with plans and specifications submitted to and approved by the ACC, and requiring the removal of the incompletely constructed buildings designated as Building A prime, Building A double prime, and Building B from Martin's property. Martin appeals the district court's order. We affirm.

ISSUES

[¶ 2] Martin presents, and ACC accepts, this statement of the issues:

I. Whether the District Court erred when it ruled that [ACC] has standing/real party in interest in this case.

II. Whether the District Court erred in its conclusion of law that construction of Buildings A and A Double Prime was substantially incomplete.¹

III. Whether the District Court abused its discretion when it entered its order for [Martin] to remove the buildings in question.

FACTS

[¶ 3] Four "H" Ranches Subdivision comprises eight parcels of approximately forty acres each in Laramie County, Wyoming. Hettich Enterprises, Inc., a Wyoming corporation (Hettich), the owner of all eight parcels in the subdivision, filed of record in 1996 a Declaration of Protective Covenants to which all eight parcels and their subsequent owners were subject. Of the protective covenants, those most pertinent to this appeal are:

1. Parcels shall consist of forty acres more or less and not more than one single family residence shall be constructed on each parcel.

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8. No building shall be erected ... on any lot until the construction plans and specifications and a plan showing the location of the structure has been approved by the architectural control committee as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation.... Any structure must be closed in and exterior finished within one (1) year from date of start of construction.

9. The architectural control committee shall be composed of two officers of Hettich Enterprises, Inc., and one owner of record of a parcel in Four "H" Ranches.... When all parcels are sold two members will be selected by owners of record and one will be a representative of Hettich Enterprises, Inc. who shall thereafter serve as the members of the committee....

10. The committee's approval or disapproval as required in these covenants shall be in writing. In the event the committee or its designated representative fails to approve or disapprove within thirty (30) days, after plans and specifications have been submitted to it, or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deem [sic] to have been fully complied with.

11. The principal dwelling shall have a minimum fully enclosed ground floor area devoted to living purposes, exclusive of porches, terraces and garage[,] of one thousand (1000) square feet, except that where the said principal dwelling is a one and one-half (1½) or two (2) story dwelling the minimum may be reduced to six hundred fifty (650') square feet of ground floor area, providing that the total living area of the one and one-half (1½) or two (2) floors is not less than twelve hundred (1200') square feet.

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16. No noxious or offensive activity shall be carried on upon any parcel, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.

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19. Enforcement shall be by proceeding at law or in equity, against any person or persons violating or attempting to violate any covenant, either to restrain violation or recover damages.

20. Home owners association: At such time as seventy-five percent (75%) of the total parcels are sold or under contract, a meeting of all owners shall be called and an association formed[.] From that time forward the association shall be responsible for the maintenance and operation of all common recreational facilities, enforcement of covenants and such other duties as normally are in the scope of such associations.

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22. This Declaration of Protective Covenants shall be construed to be part of the conveyance of any of the premises herein described which may be hereafter executed by any of the parties hereto or any of their grantees, heirs, executors, successors or assigns without being mentioned therein. 23. Term of Covenants: Shall run with land twenty (20) years and extend automatically. ... A plat is attached hereto, marked Exhibit "A", covering the above described real property.

[¶ 4] Hettich eventually sold each parcel in the subdivision so that each parcel is now under private ownership. In 1998, Hettich sold Parcel 3 to Vargas Limited Partnership, which is now a defunct entity; Kit Martin is the sole responsible party for that defunct entity.

[¶ 5] Hettich provided Martin a copy of the protective covenants, and Martin reviewed them, before purchasing Parcel 3. Martin did not submit construction plans and specifications and a plan showing the location of structures to Hettich when purchasing Parcel 3. Martin has never submitted construction plans and specifications and a plan showing the location of structures to the ACC for approval. Martin has not obtained written approval from the ACC of any construction plans and specifications and a plan showing the location of structures on Parcel 3.

[¶ 6] In 2000, Martin constructed three buildings on Parcel 3, namely, a main shop designated Building A, a catch-all storage building designated Building C, and a garage for a house designated Building D. Martin has not constructed a residential dwelling on Parcel 3 because it is "very hard to find a contractor." In 2005, Martin began construction of a clean shop structure designated Building A prime. At the time the ACC filed suit in late August 2006, the work remaining to be done on Building A prime included insulation, a row of skylights to fill the opening along the roofline, and some trim around one of the ends of the building. In early September 2006, after the ACC filed suit, Martin began construction on a structure designated as Building A double prime, which is to be an east wing of the main shop designated as Building A. That building is "just, basically, a wood frame;" it lacks a ceiling, windows, and doors, and is "still in a state of construction." In the middle of August 2006, a few weeks before the ACC filed suit, Martin started construction of a structure designated as Building B which is to be a barn for the storage of hay and livestock. Work remaining to be done on that building includes sheet metal on the roof, overhead doors, and trim. The structures designated as Building A prime, Building A double prime, and Building B are of pole construction.

[¶ 7] On August 30, 2006, the ACC filed suit against Martin to enforce the Declaration of Protective Covenants, enjoin the construction of the several buildings on Parcel 3, and to remove any existing structure not in compliance with the protective covenants. Martin timely filed an answer, generally denying breach of the protective covenants. On October 24, 2006, Martin filed a motion to dismiss the suit on the grounds that the ACC was not the real party in interest to bring the suit as required by W.R.C.P. 17(a). On October 31, 2006, the ACC filed its resistance to the motion to dismiss. On November 13, 2006, just before the start of the bench trial, the district court heard argument on, and then denied, the motion to dismiss. Following the two-day trial, the parties submitted proposed findings of fact and conclusions of law. On December 5, 2006, the district court filed its order containing findings of fact and conclusions of law in which it enjoined Martin from constructing any improvement on Parcel 3 not consistent with plans and specifications submitted to the ACC for approval as provided in the protective covenants and previously approved in writing and in which it ordered the removal of Building A prime, Building A double prime, and Building B from Parcel 3. Martin timely appealed.

DISCUSSION

1. Standards of Review

[¶ 8] In regard to Martin's first issue, he argues that the district court erred as a matter of law when it ruled that, in light of the language of the pertinent protective covenants, the ACC was the real party in interest to bring this enforcement action. In reviewing the district court's ruling, we are required to consider the language of the pertinent protective covenants and W.R.C.P. 17(a), which states that "[e]very action shall be prosecuted in the name of the real p...