Zeal v. Ron Hill Estates Architectural Control Comm.
| Decision Date | 05 September 2019 |
| Docket Number | Appeal No. 2018AP2117 |
| Citation | 2019 WI App 58,389 Wis.2d 104,936 N.W.2d 406 (Table) |
| Parties | Thomas G. ZEAL and Christine M. Zeal, Plaintiffs-Appellants, v. RON HILL ESTATES ARCHITECTURAL CONTROL COMMITTEE, Kelly Errthum, Steven J. Errthum, Elizabeth A. Quinn, Russell C. Quinn, Thomas K. Schenkel, Melissa Schenkel, Peter J. Swenson, Lana J. Swenson, Duane A. Bernet, John L. Bjerke, Stormie A. Bjerke, Brandon J. Busch, Allison J. Busch, Lee R. Sherven, Deborah K. Sherven, Jeremy J. Ace, Karin R. Fehrman a/k/a Karin R. Ace, Steven P. Mueller, Catherine Mueller, Craig R. Johnson, Kristi M. Johnson, Gerald L. Anderson, Beth A. Anderson, Mark W. Vinje and Carmen L. Prechel, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
¶1 Thomas and Christine Zeal, lot owners in a residential subdivision, appeal an order denying their summary judgment motion and granting summary judgment in favor of the other subdivision lot owners and the subdivision’s Architectural Control Committee (collectively, "the neighbors"). Under restrictive covenants that govern lots in the subdivision, the Committee must approve proposed alterations to existing structures on any lot. The Committee denied the Zeals’ request to build a second attached garage based on a covenant that governs garages.
¶2 The Zeals sought declaratory relief in circuit court, namely, a declaration that the garage covenant does not prohibit the Zeals from adding a second attached garage, and also sought an order that the Committee must grant the Zeals’ request. The circuit court rejected this relief. The court instead agreed with the neighbors that the garage covenant unambiguously restricts each lot to a single attached garage and granted summary judgment to the neighbors.
¶3 Case law requires that, in order to be enforceable, restrictive covenants must be " ‘expressed in clear, unambiguous, and peremptory terms.’ " Diamondback Funding, LLC v. Chili’s of Wis., Inc. , 2004 WI App 161, ¶13, 276 Wis. 2d 81, 687 N.W.2d 89 (quoting Crowley v. Knapp , 94 Wis. 2d 421, 435, 288 N.W.2d 815 (1980) ). We conclude that the garage covenant does not contain a clear, unambiguous, and peremptory prohibition on the Zeals’ lot having more than one attached garage. Accordingly, we reverse the order granting summary judgment in the neighbors’ favor. Further, because the neighbors concede that summary judgment in favor of the Zeals is appropriate if the garage covenant does not contain such a prohibition, we remand with directions that the circuit court enter summary judgment in the Zeals’ favor.
¶4 The Declaration of Restrictions and Covenants for the subdivision ("the covenants") governs specified uses of the Zeals’ lot. Under § 7.01 of the covenants, lot owners seeking to erect or alter structures on their lots are required to obtain approvals from a committee of lot owners established under the covenants, known as the "Architectural Control Committee." Section 7.01 requires submitting to the Committee detailed plans meeting certain specifications.1
¶5 At all times pertinent to this appeal, the Zeals’ lot has had a single dwelling with a three-car attached garage. The Zeals submitted plans and specifications to the Committee pursuant to § 7.01 seeking approval to build a second three-car attached garage.
¶6 The Committee eventually took the position that the plans and specifications submitted by the Zeals complied with the review provisions of § 7.01. However, the Committee denied the request on the ground that § 4.03 of the covenants prohibits the Zeals from constructing a second attached garage.
¶7 Section 4.03, which we will call "the garage covenant," is the primary focus of this appeal. The garage covenant reads in its entirety:
¶8 The Zeals commenced this action against the neighbors in circuit court, seeking a declaration that the covenants do not prevent the Zeals from building the second attached garage described in their plans and specifications.
¶9 Both sides moved for summary judgment. The circuit court concluded that the neighbors presented the only reasonable interpretation of the garage covenant, and on this basis granted their summary judgment motion and denied the Zeals’ motion. The court’s order declared that the garage covenant prohibits the Zeals from building a second attached garage and granted the neighbors their attorney fees under a covenant that calls for shifting onto any lot owner found in violation of the covenants the attorneys fees expended in enforcement.2
¶10 The Zeals appeal. We will address additional background as needed below.
¶11 The parties dispute whether the garage covenant prohibits the Zeals from building a second attached garage. The neighbors focus their arguments exclusively on the garage covenant and do not argue that, if it does not prohibit the second attached garage, some other covenant does. Nor do the neighbors argue that the Zeals’ requested relief of summary judgment is otherwise inappropriate.3
¶12 We summarize applicable legal standards, then present the parties’ interpretations of the garage covenant and explain our conclusion.
¶13 We review a grant or denial of summary judgment independently of the circuit court, applying the same standards as employed by the circuit court. Solowicz v. Forward Geneva Nat'l, LLC , 2010 WI 20, ¶13, 323 Wis. 2d 556, 780 N.W.2d 111. This includes when summary judgment is rendered pursuant to granting or denying a request for declaratory relief, "particularly [a request for declaratory relief] that turns upon a question of law." Olson v. Town of Cottage Grove , 2008 WI 51, ¶33, 309 Wis. 2d 365, 749 N.W.2d 211. Summary judgment is appropriate in cases in which there is no genuine issue of material fact and the moving party has established his or her right to judgment as a matter of law. WIS. STAT. § 802.08(2).
¶14 The interpretation of a restrictive covenant and the determination of whether the language of a restrictive covenant is ambiguous present questions of law. Zinda v. Krause , 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995).
¶15 To repeat, restrictive covenants may not be enforced unless they are " ‘expressed in clear, unambiguous, and peremptory terms.’ "4 Diamondback, 276 Wis. 2d 81, ¶13 (quoting Crowley , 94 Wis. 2d at 435 ). Ambiguity includes the circumstance in which the pertinent text is susceptible to more than one reasonable interpretation. See Solowicz , 323 Wis. 2d 556, ¶36.
¶16 By the same token, if the intent or purpose of a covenant is clear from its terms, it is to be strictly enforced. See id. , ¶36 (citing Zinda , 191 Wis. 2d at 166 ); see also id. , ¶41 (). Under this rule, a covenant "need not expressly prohibit the specific activity in question; when the purpose is ascertainable, the document should be construed to give effect to that purpose." See id. , ¶36 (citing Bubolz v. Dane Cty. , 159 Wis. 2d 284, 294, 464 N.W.2d 67 (Ct. App. 1990) ).
¶17 The parties present competing interpretations of the garage covenant. According to the Zeals, it establishes nothing more or less than the following: each dwelling is required to have at least one attached garage, which shall have a two- or three-car capacity. They argue that, on the topic of the number of attached garages any dwelling must or can have, the covenant exclusively addresses the minimum number of attached garages (each dwelling must have at least one), and therefore it could not unambiguously establish a maximum number of attached garages.
¶18 The neighbors contend that the garage covenant mandates that there be one, and only one , attached garage with a two- or three-car capacity. In the alternative the neighbors contend that, even if the garage covenant does not prohibit multiple attached garages, it places an aggregate car-capacity limit for all attached garages on each lot of not less than two cars and not more than three cars. Under this view, the Zeals have already reached the maximum allowed attached garage capacity of three cars and impermissibly seek a total attached garage capacity of six cars.
¶19 As we describe in more detail below, we conclude that the garage covenant does not unambiguously prohibit the Zeals from constructing a second attached garage. After explaining this conclusion, we further explain why we reject the neighbors’ arguments.
¶20 As we now explain, the garage covenant does not contain a prohibition on additional attached garages that is expressed in clear, unambiguous, and peremptory terms. Specifically, when examining the textual elements of the garage covenant individually and as a whole, the provision does not clearly express a maximum number for attached garages.
¶21 To repeat, the garage covenant reads: "All dwellings must have at least a two car (and not more than three car) attached garage." To begin, the verb phrase "must have" gives the garage covenant the character of a requirement, but not in the form of a maximum number of attached garages. There can be no reasonable dispute that the phrase "must have" in the garage covenant expresses a command that each dwelling must possess an attached garage, without clearly expressing a prohibition on the possession of additional attached garages.
¶22 Next, the phrase "at least," preceding "a ... garage," means "not less than." Least , AMERICAN HERITAGE DICTIONARY (https://www.ahdictionary.com/word/search.html?q=at+least ) (defining the idiom, "at least"). This is in contrast to a phrase like "at most," which is not used here and means "not more than." Most , AMERICAN HERITAGE DICTIONARY (https://www.ahdictionary.com/word/search.html?q=most) (defining "at (the) most" as "[a]t the maximum").
¶23 Significantly, the indefinite article "a," which the parties agree modifies "garage," does not necessarily...
To continue reading
Request your trial