Williams v. Paley

• Decision Date: 03 May 1994
• Docket Number: No. 932SC411,932SC411
• Citation: 442 S.E.2d 558,114 N.C.App. 571
• Court: North Carolina Court of Appeals
• Parties: Patsy Simpson WILLIAMS, Plaintiff, v. Warren D. PALEY, Claire Paley, and Paley-Midgett, a North Carolina General Partnership, Defendants.

Page 558

442 S.E.2d 558

114 N.C.App. 571

Patsy Simpson WILLIAMS, Plaintiff, v. Warren D. PALEY, Claire Paley, and Paley-Midgett, a North Carolina General Partnership, Defendants.

No. 932SC411.

Court of Appeals of North Carolina.

May 3, 1994.

Parker, Poe, Adams & Bernstein by Charles C. Meeker and John J. Butler, Raleigh, for plaintiff-appellee.

Young, Moore, Henderson & Alvis, P.A. by John N. Fountain, Henry S. Manning, and R. Christopher Dillon, Raleigh, for defendant-appellants.

EAGLES, Judge.

Defendants contend that the trial court erred in granting summary judgment for plaintiff. We disagree and affirm.

I.

Initially, we note that an "injunction is a proper equitable remedy to enforce a restrictive covenant when the plaintiffs show that their remedy at law is inadequate and that they will suffer irreparable damage if the violation is allowed to continue." Barber v. Dixon, 62 N.C.App. 455, 457, 302 S.E.2d 915, 916, disc. review denied, 309 N.C. 191, 305 S.E.2d 732 (1983) (citing Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388 (1954); Franzle v. Waters, 18 N.C.App. 371, 197 S.E.2d 15 (1973)). See Crabtree v. Jones, 112 N.C.App. 530, 534, 435 S.E.2d 823, 825 (1993), disc. review denied, 335 N.C. 769, 442 S.E.2d 514 (3 March 1994) (issuance of an injunction depends upon a balancing of the equities between the parties which "is clearly within the province of the trial court"). The injunction here was granted upon plaintiff's motion for summary judgment pursuant to G.S. 1A-1, Rule 56.

Regarding G.S. 1A-1, Rule 56, our Supreme Court has stated:

The party moving for summary judgment must establish the lack of any triable issue by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). As this Court remarked in Koontz, "An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz, 280 N.C. at 518, 186 S.E.2d at 901. All inferences are to be drawn against the moving party and in favor of the opposing party. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379; Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897.

Branks v. Kern, 320 N.C. 621, 623-24, 359 S.E.2d 780, 782 (1987).

II.

In arguing that the trial court erred by entering summary judgment for plaintiff, defendants argue that "there exists a genuine issue of material fact as to whether nearby properties within 450 feet of the Gaskins lot have been 'turned to commercial use' " in a manner sufficient to terminate the restrictive covenants. We disagree.

The portion of the restrictive covenant, as written by plaintiff's predecessor in interest (Ruth Bragg Gaskins), at issue here provides:

BUT this land is being conveyed subject to certain restrictions as to the use thereof, running with said land by whomsoever owned, until removed as herein set out; said restrictions, which are expressly assented to by [the Brughs, predecessors in interest to defendants], in accepting this deed, are as follows:

(1) Said lot shall be used for residential purposes and not for business, manufacturing, commercial or apartment house purposes; provided, however, this restriction shall not apply to churches or to the office of a professional man which is located in his residence, and

(2) Not more than two residences and such outbuildings as are appurtenant thereto, shall be erected or allowed to remain on said lot. This restriction shall be in full force and effect until such time as adjacent or nearby properties are turned to commercial use, in which case the restrictions herein set out will no longer apply. The word "nearby" shall, for all intents and purposes, be construed to mean within 450 feet thereof.

TO HAVE AND TO HOLD the aforesaid tract or parcel of land and all privileges and appurtenances thereunto belonging or in anywise thereunto appertaining, unto them, the [Brughs], as tenants by the entirety, their heirs and assigns, to their only use and behoof in fee simple absolute forever, [b]ut subject always to the restrictions as to use as hereinabove set out.

Regarding the interpretation of restrictive covenants, in Black Horse Run Ppty. Owners Assoc. v. Kaleel, 88 N.C.App. 83, 85, 362 S.E.2d 619, 621 (1987), cert. denied, 321 N.C. 742, 366 S.E.2d 856 (1988), this Court stated:

Restrictive covenants are not generally favored in the law; any ambiguities in the restrictions are to be resolved in favor of the free and unrestricted use of the land. Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981). Nevertheless, such covenants must be reasonably construed to give effect to the intention of the parties, and the rule of strict construction may not be used to defeat the plain and obvious purposes of a restriction. Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967).

Black Horse Run, 88 N.C.App. at 85, 362 S.E.2d at 621. In Tull v. Doctors Building, Inc., 255 N.C. 23, 39-40, 120 S.E.2d 817, 828 (1961), our Supreme Court discussed the termination of restrictions appearing in restrictive covenants:

The Court said in Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 553: "No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement."

See also 14 Am.Jur., Covenants, Conditions and Restrictions, Sections 305, 306, 307; 26 C.J.S., Deeds, Section 171; Thompson on Real Property, Permanent Edition, Vol. 7, Section 3651.

On the subject of changed conditions as affecting the enforcement of restrictive covenants, the cases are legion. Many of them are discussed or cited in Notes in 54 A.L.R. 812, 85 A.L.R. 985, 103 A.L.R. 734, 4 A.L.R.2d 1111. The cases, of course, deal with different facts, and it seems it is not possible to reconcile many of the holdings on substantially similar facts. A full discussion of the subject is likewise to be found in Booker v. Old Dominion Land Co., 188 Va. 143, 49 S.E.2d 314, and in Pitts v. Brown, 215 S.C. 122, 54 S.E.2d 538.

The Court said in Holling v. Margiotta, 231 S.C. 676, 100 S.E.2d 397: "We find no error in the conclusion of the lower court that the defendants failed to make out their defenses of laches, estoppel and waiver on the part of the plaintiffs. The free parking on the unoccupied portion of Lot No. 2 by customers while shopping in the nearby stores is not an objectionable commercial use of the lot. Utilization of the first floor of the garage apartment as a storage place for the adjacent grocery was an insubstantial commercial use. These very limited uses for nonresidential purposes were not objected to by plaintiffs or the other residents of the subdivision but should not, in equity be held to have estopped them from asserting their right against the subsequent substantial violation by defendants."

....

We are of the opinion, and so hold, that the unchallenged findings of fact do not show that the use of Lots 11, 12, 13, 15, 16, 17 and part of Lot 14 in Block P of this subdivision is such a radical or fundamental change or substantial subversion as practically to destroy the essential objects and purposes of the restriction agreement, as to warrant the removal of the residential restrictions, thereby destroying this residential subdivision with many fine, well kept homes. It would be inequitable to hold otherwise.

Tull, 255 N.C. at 39-40, 120 S.E.2d at 828. At this juncture, we note the following contention of defendants:

Plaintiff has argued and the Court apparently ruled that the termination provision is not triggered until a "radical change" in the area has occurred. It is true that, in cases when the covenants themselves do not provide for their own termination, the court inquires whether the covenants have been rendered virtually meaningless and obsolete by reason of "radical change" in the use to which other nearby properties have been put.

In this case, however, the covenants do provide for their own termination, and the "radical change" test is not appropriate. Hence, in order to overcome plaintiff's summary judgment motion, the defendants merely need to offer evidence tending to show that there has been some turn to commercial use of adjacent or nearby properties.

....

The facts of the case at bar are entirely different from the authorities cited by the plaintiff [Hawthorne v. Realty Syndicate, Inc., 300 N.C. 660, 268 S.E.2d 494, reh'g denied, 301 N.C. 107, 273 S.E.2d 442 (1980) (citing Tull, supra ); Williamson v. Pope, 60 N.C.App. 539, 299 S.E.2d 661 (1983) (citing Tull, supra ); Black Horse Run v. Kaleel, 88 N.C.App. 83, 362 S.E.2d 619 (1987), cert. denied, 321 N.C. 742, 366 S.E.2d 856 (1988) (citing Tull, supra ) ]. This Court is not being called upon to terminate a restrictive covenant which on its face has a perpetual duration. Rather, this Court is being asked to construe restrictive covenants which do contain a termination provision. When construing this termination provision, this Court must do so strictly against the grantor and in favor of the unfettered use of land. The termination provision here does not require "radical change" in the area for it to be triggered. Therefore, this Court should not imply that such a requirement exists. This Court instead should construe the restriction to require merely a showing that one or more adjacent or nearby properties in the area have been "turned to commercial use."

(Emphasis in original.) We disagree. First and foremost, our Supreme Court has stated that "[i]n construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that...