Winney v. Jerup

Docket NumberS-23-0075
Decision Date28 November 2023
Citation2023 WY 113
PartiesJ. WILLIAM WINNEY, JR., Appellant (Plaintiff), v. MICHAEL TROY JERUP, Appellee (Defendant).
CourtWyoming Supreme Court


2023 WY 113

J. WILLIAM WINNEY, JR., Appellant (Plaintiff),

MICHAEL TROY JERUP, Appellee (Defendant).

No. S-23-0075

Supreme Court of Wyoming

November 28, 2023

Appeal from the District Court of Sublette County The Honorable Kate G. McKay, Judge

Representing Appellant:

Clark Stith, Rock Springs, Wyoming.

Representing Appellee:

Stuart R. Day and Erica R. Day, Williams, Porter, Day & Neville, P.C. Casper, Wyoming. Argument by Ms. Day.




[¶1] J. William Winney, Jr. sued neighboring property owner, Michael Troy Jerup, claiming Mr. Jerup constructed an outbuilding in violation of setback requirements governing their properties. The district court found the building violated the setback requirements but denied Mr. Winney's request for an order requiring that the structure be removed or relocated. We affirm.


[¶2] This appeal presents three issues:

1.Did the district court err in denying Mr. Winney's request for an injunction on the ground that it was untimely
2.Did the district court err in ruling that proof of an injury was an element of Mr. Winney's request for an order enjoining Mr. Jerup's violation of the protective covenants
3.Did the district court err in denying Mr. Winney's request for an injunction requiring Mr. Jerup to remove or relocate the outbuilding he placed in violation of the applicable setback requirements?


[¶3] Mr. Winney and Mr. Jerup reside on adjoining properties in the Hoback Ranches subdivision in Sublette County, Wyoming. All of the properties in the subdivision are subject to protective covenants, which have a stated purpose

to insure the use of the property for attractive residential purposes, to prevent nuisances, to prevent the impairment of the attractiveness of the property, to maintain the natural environment and protect the ecology of the area, and thereby secure to each tract owner the full benefit and enjoyment of his respective tract.

[¶4] The covenants contain two provisions governing setbacks. Paragraph 17 specifies that "[n]o building or any part thereof, including garages and porches, shall be erected on any tract closer than 100 feet to any edge of said tract." Paragraph 20 provides in relevant part:

There are hereby reserved to grantors, for the purpose of having adequate bridle paths, roadways, and utility easements to serve each tract, a perpetual easement of 33 feet in width along each edge of the herein described tract, for the purpose of erecting, constructing, and maintaining bridle paths, roadways, and public utility facilities, both underground and overhead.

[¶5] In 2018, Mr. Jerup began plans to construct an outbuilding to store his road maintenance equipment.[1] Based on the topography of his property, he chose the only remaining site that could accommodate the structure and its intended use. He knew the site was entirely within the 100-foot setback imposed by the protective covenants, but unbeknownst to him, a portion of the site also encroached thirteen feet into the 33-foot setback.[2]

[¶6] Because the building site was within the 100-foot setback, Mr. Jerup contacted Clinton Cragg, the neighbor whose property bordered the proposed building site, and offered to purchase his property. Mr. Cragg did not wish to sell his property but offered to execute an encroachment agreement by which he waived any objection to the encroachment on the 100-foot setback. Mr. Cragg executed the encroachment agreement on March 29, 2019, and it was recorded on May 1, 2019.

[¶7] In June 2019, Mr. Jerup began clearing ground in preparation for construction of the outbuilding. By July 8, 2019, the building was framed, and the roof trusses were in place. Mr. Winney observed the construction activity, and by the second week of July 2019, he knew the structure violated the setback requirements of the protective covenants.

Somewheres around the second week of July, I started looking more closely and I started to see some indication that it was going to be a building, so then the next question I had was if it's a building, does it comply with the covenants or not. I mean if it complied with the covenants, then end of
issue. Well, it didn't. And I had to go figure out how to ascertain to a factual basis and to satisfy you, as my attorney, that, in fact, there was a violation. So I set about measuring things and came to realize he not only was well within the 100[-]foot setback requirements, but he probably was within the 33[-]foot.

[¶8] On August 17, 2019, Mr. Jerup learned of Mr. Winney's objection to his outbuilding's location.[3] On August 21, Mr. Winney's attorney sent an email to Mr. Jerup's attorney asserting the outbuilding violated the 33-foot setback and demanding that Mr. Jerup cease construction and remove the building. On August 23, Mr. Winney's attorney sent a second email notifying Mr. Jerup's attorney that if construction continued, "the Winneys will likely be forced to seek an injunction to stop construction." On September 23, 2019, Mr. Winney's attorney sent a third email adding that the building violated the 100-foot setback.

[¶9] When Mr. Jerup learned of Mr. Winney's objection, the building was fully framed, had rafters and its front beam in place, and was about to have plywood put on it. It was substantially completed in the fall of 2019, and as completed, it measured thirty feet wide by thirty-six feet long by nineteen feet high.[4]

[¶10] On November 8, 2019, Mr. Winney sued Mr. Jerup; he alleged Mr. Jerup's outbuilding violated the 33 and 100-foot setbacks and requested an order directing Mr. Jerup to remove, or demolish and remove, the building from any location within the 100-foot setback. He also requested an award of attorney fees and costs. In support of the relief requested, Mr. Winney cited the enforcement provision of the protective covenants, which provides:

If the owner of any tract conveyed by Hoback Ranches, or their heirs, or assigns shall violate any of the covenants or conditions hereinabove set forth, it shall be lawful for the grantor or any other person owning a tract conveyed by Hoback Ranches to prosecute any proceedings at law or in equity against the person or persons violating any of the covenants or conditions, and either to prevent him from doing so, or to recover damages, including costs and reasonable attorney fees, for such violation, or both.

[¶11] The parties filed cross-motions for summary judgment, and the district court granted Mr. Winney's motion only as to the question of whether Mr. Jerup's outbuilding violated the 100 and 33-foot setbacks. It denied Mr. Winney's motion for summary judgment on his demand for injunctive relief and Mr. Jerup's motion on his affirmative defenses of laches and abandonment.

[¶12] Following a bench trial, the district court ruled in favor of Mr. Jerup. It found Mr. Winney unreasonably delayed commencing his action and that his delay prejudiced Mr. Jerup because he was unable to cure the setback violations, other than to remove or demolish the completed building. It further found that Mr. Winney failed to prove damages. After the court entered judgment, Mr. Winney timely appealed to this Court.


[¶13] Injunctions are "requests for equitable relief which are not granted as a matter of right but are within the lower court's equitable discretion." Olsen v. Kilpatrick, 2007 WY 103, ¶ 9, 161 P.3d 504, 507 (Wyo. 2007) (quoting Polo Ranch Co. v. City of Cheyenne, 2003 WY 15, ¶ 26, 61 P.3d 1255, 1264 (Wyo. 2003)); see also EME Wyo., LLC v. BRW E., LLC, 2021 WY 64, ¶ 36, 486 P.3d 980, 990 (Wyo. 2021) ("Requests for equitable relief are matters over which the district court exercises broad discretion.") (quoting Harber v. Jensen, 2004 WY 104, ¶ 8, 97 P.3d 57, 60 (Wyo. 2004)). We thus review the court's decision for an abuse of discretion. Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 18, 275 P.3d 438, 447 (Wyo. 2012) (citing In re Kite Ranch, LLC v. Powell Fam. of Yakima, LLC, 2008 WY 39, ¶ 21, 181 P.3d 920, 926 (Wyo. 2008)).

[¶14] "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Evans v. Sharpe, 2023 WY 55, ¶ 25, 530 P.3d 298, 307 (Wyo. 2023) (quoting Johnson v. Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 2018)).

A district court does not abuse its discretion if it could reasonably conclude as it did. To determine whether the district court's decision was reasonable, we consider the evidence in the light most favorable to the district court's decision, affording every favorable inference to the prevailing party and omitting from our consideration the conflicting evidence. This Court may not reweigh the evidence.

Id., 2023 WY 55, ¶ 26, 530 P.3d at 307 (cleaned up); see also Olsen, 2007 WY 103, ¶ 13, 161 P.3d at 508 (court's exercise of equitable discretion in enforcing restrictive covenant "will not be reversed absent a strong showing of abuse").


[¶15] "After a bench trial, we review the district court's findings of fact for clear error and legal conclusions de novo." Aimone v. Aimone, 2023 WY 43, ¶ 19, 529 P.3d 35, 41 (Wyo. 2023), rehearing denied; (citing Lyman v. Childs, 2023 WY 16, ¶ 10, 524 P.3d 744, 751 (Wyo. 2023)). Mr. Winney challenges the district court's legal conclusions and exercise of discretion, but he does not challenge any finding of fact we consider relevant to the court's exercise of its discretion.


[¶16] In its decision letter, the district court summarized its ruling as follows:

32) The Covenants authorize Winney to prosecute "proceedings at law or in equity

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