Wimer v. Cook

Decision Date03 March 2016
Docket NumberS–15–0155.,Nos. S–15–0154,s. S–15–0154
Citation369 P.3d 210
Parties Rick and Terri WIMER, Curtis and Cynthia Li, and Harv Gloe, Appellants (Plaintiffs), and Harold Reimler, and Harold Reimler Trustee of the Reimler Family Trust, Appellants (Third Party Defendants), v. Jerry and Cheri COOK, and Cook's Construction, LLC, a Wyoming Limited Liability Company, Appellees (Defendants/Third Party Plaintiffs). Jerry and Cheri Cook, and Cook's Construction, LLC, a Wyoming Limited Liability Company, Appellants (Defendants/Third Party Plaintiffs), v. Rick and Terri Wimer, Curtis and Cynthia Li, and Harv Gloe, Appellees (Plaintiffs), and Harold Reimler, and Harold Reimler Trustee of the Reimler Family Trust, Appellees (Third Party Defendants).
CourtWyoming Supreme Court

Representing Appellants in Case No. S–15–0154: Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Representing Appellees in Case No. S–15–0154: P. Craig Silva of Williams, Porter, Day, and Neville, P.C., Casper, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ

, Justice.

[¶ 1] Rick and Terri Wimer, Curtis and Cynthia Li, and Harv Gloe (hereinafter collectively referred to as the Wimers) filed a complaint against their neighbors, Jerry and Cheri Cook and Cook's Construction, LLC (hereinafter collectively referred to as the Cooks), seeking an injunction prohibiting the Cooks from placing multiple single-family housing structures on a twenty-acre parcel of land owned by the Cooks because, in the Wimers' view, the conduct violated the neighborhood's covenants. The Cooks responded with a counterclaim and a third-party complaint against all their neighbors, including Harold Reimler, individually and as trustee of the Reimler Family Trust, seeking a declaration from the district court that the covenants had been abandoned.1 After a bench trial, the district court determined the covenants had not been abandoned and the Cooks' plan to develop the twenty-acre parcel did not violate the covenants. Thereafter, the Wimers filed this appeal and the Cooks cross-appealed. We affirm in part and reverse in part.

ISSUES

[¶ 2] The Wimers raised several issues on appeal, which can be distilled to the following:

Whether the district court erred when it denied the Wimers injunctive relief after determining that the Cooks' plan did not violate the protective covenants.

The Cooks cross-appealed and raised the following issue:

Whether the trial court erred as a matter of law when it drew the legal conclusion that the restrictive covenants have not been abandoned.

FACTS

[¶ 3] On June 7, 1978, Van R. and Kathy Jane Irvine recorded a "Declaration of Covenants, Conditions, and Restrictions" with the Natrona County Clerk for an area that will be referred to as the "Phillips Lane area" in Natrona County. All of the land involved in this case is subject to these covenants. The purpose of the covenants was "to insure the use and development of said property for exclusive residential and agricultural purposes only, to prevent the impairment of the attractiveness of said property for such purposes, and to maintain property values therein[.]" Although lengthy, it is important at the outset to quote the following portions of the covenants:

ARTICLE I
DEFINITIONS
1. Residential Use: All of the land designated in this area shall be utilized for single family residential purposes only, except that any and all agricultural operations of any nature may be carried on on any of the land at any time without restriction.
2. Owner: Shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any parcel which is part of the property, including contract buyers, but excluding those having such interest merely as security for the performance of an obligation.
3. Property: Shall mean and refer to that certain real property described in exhibit "A" attached hereto.
ARTICLE II
GENERAL RESTRICTIONS ON ALL OF THE PROPERTY
1. Zoning Regulations: No land within the area shall be occupied, used by, or for, any structure or purpose which is contrary to the zoning regulations of Natrona County, Wyoming.
2. Uses: Each parcel within the area shall be utilized for single family residential building and agricultural activities of any type, all other uses shall be expressly prohibited.
3. Prohibited Activities: Except that the dwelling on any parcel in the area may be leased by the owner or owners thereof for rental income purposes, no business, commercial, or manufacturing enterprise, or any enterprise of any kind or nature, whether or not conducted for a profit, shall be operated, maintained or conducted on any parcel in the area or on any improvement erected or placed therein, nor shall any dwelling or any part thereof be used as a boarding or rooming house, nor shall any mining or quarrying operations or operations for drilling of any oil or gas well be conducted or permitted in the area, nor shall any signs, billboards or advertising devices, except as hereinafter provided, be erected, placed or permitted to remain on any parcel in the area.
....
5. Animals and Livestock: It shall be permissible for the owners of any parcel, in addition to household pets, to own and maintain on the parcel horses, cattle, sheep, chickens and rabbits. No animal or animals shall be maintained in the area even though permissible within this provision, if it is determined that such animal or animals constitute a nuisance to other owners in the area. It is expressly understood that all dogs will be controlled and confined to the immediate household yard area of each and every residence in the area. No dogs shall be allowed to run loose and in any way become a nuisance or danger to the other residents of the area or the surrounding area.
6. No Resubdivisions: No parcel less than twenty (20) acres in size shall be sold or conveyed; however, conveyances or dedication of easements for utilities or private lanes or roads may be made. This provision shall be effective through May 1, 1983. After this date, additional subdivision into parcels less than twenty (20) acres in size may be allowed if provided for under Natrona County zoning regulations.
7. Service Yards and Trash: Clothes lines, service equipment, trash, woodpiles, or storage areas shall be screened by planting or fencing to conceal them from view of neighboring parcels, drives and roads. All refuse and trash shall be removed from all parcels and shall not be allowed to accumulate.
8. Fences: All parcels shall be fenced with at least five (5) barbed wires or sheep-tight woven wire and two (2) barbed wires and shall be maintained according to good ranching and management practices. In the event that the fences are not properly maintained, the adjoining property owner shall have the right to perform the necessary repairs and maintenance and share the cost of any repairs and maintenance with the owner.
ARTICLE III
RESTRICTIONS ON RESIDENTIAL TRACTS
1. Number and Location of Buildings: No buildings or structures shall be placed, erected, altered, or permitted to remain on any residential tract other than:
(1) one detached single family dwelling;
(2) an attached or detached garage; and
(3) a service type barn, stable or shed.
2. Mobile Homes: Mobile homes shall be deemed to be within the definition of a single family dwelling (assuming the square footage requirements of paragraph 4, below, are met) if the mobile home is placed on a solid and sightly concrete or concrete block foundation and all portions of the running gear are completely removed. Modular or component houses are also acceptable provided they are placed on a similar foundation.
....
6. Used or Temporary Structures: No temporary house, mobile home, basement, trailer or other structure of a non-permanent nature shall be allowed on any parcel as a place of residence or habitation either permanently or temporarily, except during construction periods, and no new dwelling shall be occupied in any manner prior to its completion. Construction of any new residential structures or outbuildings shall be completed in no more than one (1) year from the date construction commences.
....
ARTICLE V
GENERAL PROVISIONS
1. Severability: Should any part or parts of these covenants be declared invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining covenants.

On September 28, 1978, the Irvines recorded an amendment to the covenants in order to allow one parcel of land to be divided into two parcels of 19.88 acres and subsequently conveyed.

[¶ 4] All of the parties to this litigation moved into the Phillips Lane area after the covenants had been recorded. Mr. Gloe moved into the area in 1981, followed by Mr. Reimler and the Lis in 1994, the Cooks in 2005, and Mr. and Mrs. Wimer in 2006. At some point in time, relations between the Cooks and the other neighbors soured, resulting in several accusations, disagreements and conflicts involving law enforcement and court intervention. The facts behind those incidents are not relevant and will not be discussed. Suffice it to say that the Cooks and their neighbors have a rancorous relationship.

[¶ 5] In 2011, the Cooks bought a twenty-acre parcel of land on Phillips Lane across the road from the approximately 150–acre parcel where they live and farm. That same year and through 2012, the Cooks developed the twenty-acre parcel by building a road, having the property surveyed into ten two-acre lots, and having the county assign addresses to each of the ten lots. The Cooks also had electrical power installed on the lots and septic systems installed on six of the ten lots. Additionally, each of the lots has a water tap that connects to the Poison Spider Water District main line. Importantly, per county zoning regulations, the Cooks are required to maintain ownership of the entire twenty acres—they cannot sell any of the individual two-acre lots.

[¶ 6] The Cooks placed a house on one lot for Mrs. Cook's mother to...

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