Wilcox v. Timberon Protective Ass'n

• Decision Date: 20 December 1990
• Docket Number: No. 10850,10850
• Citation: 111 N.M. 478,806 P.2d 1068,1990 NMCA 137
• Parties: Lyndol L. WILCOX and Betty L. Wilcox, Plaintiffs-Appellants, v. TIMBERON PROTECTIVE ASSOCIATION, a New Mexico corporation, et al., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1068

806 P.2d 1068

111 N.M. 478

Lyndol L. WILCOX and Betty L. Wilcox, Plaintiffs-Appellants,

v.

TIMBERON PROTECTIVE ASSOCIATION, a New Mexico corporation,

et al., Defendants-Appellees.

No. 10850.

Court of Appeals of New Mexico.

Dec. 20, 1990.

Certiorari Denied Feb. 13, 1991.

[111 N.M. 480] Beverly J. Singleman, Stephen A. Hubert, Martin, Cresswell, Hubert, Hernandez & Roggow, P.A., Las Cruces, for plaintiffs-appellants.

Thomas A. Sandenaw, Jr., Barbara J. Vigil, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for defendant-appellee Timberon Protective Ass'n.

Lisa K. Durrett, Charles W. Durrett, Durrett, Jordon & Durrett, P.C., Alamogordo, for defendants-appellees Shackleford, Jordan, Dempsey, Rhodes and Gray.

OPINION

APODACA, Judge.

The original opinion filed September 27, 1990 is hereby withdrawn, on the court's own motion, and the following opinion is substituted in its place.

Plaintiffs Lyndol and Betty Wilcox appeal the trial court's judgment entered after a bench trial in favor of defendants Timberon Protective Association (TPA) and individual lot owners. Plaintiffs had brought suit against defendants, seeking a declaratory judgment and injunctive relief to enforce certain subdivision restrictive covenants prohibiting the use of "mobile homes" as residences. After entry of judgment, the parties were ordered to bear their own costs and attorney fees. TPA cross-appealed, challenging only the ruling on costs. The cross-appeal was not docketed and is thus deemed abandoned. See SCRA 1986, 12-208.

Plaintiffs' appeal takes issue with the trial court's finding that, because the disputed "mobile homes" were converted to permanent residences, there was no violation of the restrictive covenants. Alternatively, the trial court ruled that, even if the covenants had been intended to prohibit all mobile homes, conditions had so changed that the restrictive covenants were no longer valid or enforceable. Additionally, the trial court concluded that, under a "balancing of hardships" test, plaintiffs were relegated to an action at law for damages only. It also ruled in favor of defendants on their defenses of good faith immunity, mistake of law, laches and estoppel.

Under their first three issues on appeal, plaintiffs contend the trial court erred in holding that: (1) the restrictive covenants, based upon the developer's testimony, were ambiguous with respect to whether mobile homes or only temporary structures were prohibited; (2) defendants' residences did not violate the covenant because their mobile homes were fully converted from "mobile" structures to permanent residences; and (3) substantial evidence supported the determination that the mobile homes were affixed to the realty. We agree with plaintiffs on issue one and hold that, as a matter of law, the restrictive covenants are not ambiguous. We consequently conclude the trial court erred in allowing extrinsic evidence to determine the intent of the covenants. We believe the covenants' intent was to prohibit the use of "mobile homes" as permanent residences at any time. For these reasons, we reverse the trial court and hold that plaintiffs are entitled to the relief requested, a declaratory judgment and an injunction against future violations of the covenants.

Because we conclude the restrictive covenants are not ambiguous, we need not reach plaintiffs' second and third issues. On plaintiffs' remaining issues, we reverse the trial court's judgment as to all defendants, excepting the judgment in favor of defendants Cyrus and Gladys Gray (the Grays), which we affirm. Our reversal is based on our determination that the trial court abused its discretion in denying plaintiffs' requested relief. This denial was premised on the trial court's findings favorable to defendants on the affirmative defenses pled by them. Our determination is founded on the criteria for the granting of injunctive relief set forth in Cunningham v. Gross, 102 N.M. 723, 699 P.2d 1075 (1985).

With respect to the Grays, however, we hold they are legally entitled under covenant "H" to retain their present structure on their land. Covenant "H" exempts any lot owner from fully complying with the remaining restrictive covenants, if the Architectural Control Committee fails to approve within thirty days the lot owners' written building proposals or if no suit to enjoin the construction has been commenced before completion. From the facts presented to this court, we conclude that the Grays obtained Architectural Control Committee approval for placing their mobile home on the property and finished the building improvements before the filing of the suit giving rise to this appeal. On plaintiffs' final issue, we hold plaintiffs are entitled upon remand to entry of judgment against any defaulting defendants.

FACTS

Timberon, a large, planned resort community located in Otero County, is owned by subdivider North American Land Development, Inc. (the developer). The development encompasses 9,360 acres of mountainous terrain heavily covered with timber and consists of 33 separately developed subdivisions containing lots owned by a total of 4500-5000 property owners. The majority of the property owners, including plaintiffs and defendants, do not live full-time in Timberon.

Beginning in 1969, the developer prepared and recorded separate sets of restrictive covenants applicable to each of the subdivision units, as they were individually developed. Initially, the developer was in charge of architectural control and security duties within the subdivisions. In 1981, these responsibilities were assigned by written agreement to Timberon Property Owners Association (TPOA). TPOA later assigned these responsibilities to TPA in 1983. From September 1983 to time of trial, TPA had the authority and responsibility to approve or disapprove written building plans submitted by property owners and to enforce the restrictive covenants in Unit T-10.

Plaintiffs and the individually named defendants were all owners of residential lots in Unit T-10, one of the thirty-three units developed in Timberon. In 1979, the developer opened Unit T-10 for development and subdivided the unit into approximately 400 lots. Over 300 lots were designated for residential use, with the remainder set aside for commercial use. The developer recorded a set of restrictive covenants applicable to Unit T-10. These restrictive covenants contained provision D, which provided:

No trailer, mobile home, basement, tent, shack, garage, barn or other outbuilding shall at any time be used as a residence, nor shall any residence of a temporary character be erected or permitted to remain. However, contractors may use a temporary building during the course of construction. And a travel trailer may be used as a temporary residence for a period of up to thirty (30) days if it is not connected to a water line and septic tank and if it is so connected, then the travel trailer may be used for a period of up to one-hundred eighty (180) days out of any one year period. The travel trailer must be removed from the lot during the remaining balance of each year.

In the early 1970's, the developer sought advice from an attorney on the question of whether installation of the newer double-wide manufactured units would violate the language of provision D and similar covenant provisions of subdivisions like Unit T-10. The question had been raised by several property owners. Based on the legal advice obtained, the developer began allowing double-wide mobile homes as permanent residences throughout the subdivisions, if certain conditions were met.

TPA, while acting as the Architectural Control Committee, continued to follow this precedent set years before by the developer. As a condition for allowing "mobile homes" to be used as residences, TPA required that the wheels, axles, and tongue be removed from the unit, that the unit be placed upon a permanent foundation and that the unit comply with the minimum square footage requirements. If the exterior was sheet metal, TPA required that it be covered with stucco, brick, stone, or other veneer material.

According to the county tax assessor, however, except for one mobile home, none of the thirteen mobile homes located in Unit T-10 that he had checked were being taxed as permanent structures. According to his testimony, when a mobile home was permanently affixed to the realty, it was then considered a permanent residence and taxed as real property and not personalty. To be considered a permanent residence or structure for tax purposes, the "mobile home" had to be placed on a permanent foundation, with the hitch or tongue and wheels removed. The foundation had to be constructed of either a continuous concrete stemwall, pier and beam construction (with the piers located no more than ten feet apart), or mortared cinderblock. Although defendant Rhodes testified his mobile home in Unit T-10 was being taxed as a permanent residence, his residence was not the exception identified by the tax assessor.

In the fall of 1979, plaintiffs went to see lots in Timberon. The only mobile home they observed in their sales tour was a country store unit located in a commercial area. They did not know at that time whether this mobile home was in Unit T-10 or in some other unit. At this particular time, there were apparently three mobile homes already located within the subdivision. Plaintiffs, however, did not see them and were not even aware of their existence. Before plaintiffs purchased their first lot, the salesman told them that mobile homes were not permitted in Unit T-10. Plaintiffs saw and read the restrictive covenants before purchasing their lots.

In compliance with the covenants, plaintiffs built their own stick-built cabin in 1981. Later that year, they noticed three mobile homes in Unit T-10. At that time, Tom Cook was President of TPOA. Plaintiffs spoke to him on two occasions in 1982 to report the illegal...