GREENE (JOHN), ET AL. VS. TURNER (JAMES), ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000618-MR
JOHN GREENE AND
DIANNA GREENE
v.
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 08-CI-00870
JAMES TURNER AND LINDA TURNER,
HUSBAND AND WIFE; ROGER GULLETT
AND ONEIDA GULLETT, HUSBAND AND
WIFE; DANIEL MOORE AND REBECCA
MOORE, HUSBAND AND WIFE; MARK
SINGER; NATHANIEL GREY; AND DON
LEIDECKER AND MARYM. LEIDECKER,
HUSBAND AND WIFE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND THOMPSON, JUDGES.
ACREE, JUDGE: John Greene and Dianna Greene appeal the order of the Boyd
Circuit Court granting summary judgment to James Turner, et al., and imposing a
permanent injunction against Appellants. The injunction prohibits Appellants from
using property in a Boyd County subdivision for commercial purposes. For the
following reasons, we affirm.
Princeland Estates is a residential subdivision in Boyd County developed in
the 1970s. A plat map of the subdivision shows a series of numbered lots in
addition to an area marked “Tract A.” A set of restrictive covenants governing
Princeland Estates was recorded with the Boyd County Clerk in Deed Book 455,
Page 160. The relevant portion of the restrictive covenant provides:
The undersigned, Princeland, Inc., are the owners of a
certain tract of land to be designated as Princeland
Estates, do for the purpose of establishing a good
residential section hereby impose the following
restrictive covenants which shall apply to all lots in
Princeland Estates.
1. A building plot may consist of one lot, two lots, parts
of two lots, or one lot and part of another lot;
2. All lots shall be known and used solely as residential
lots;
3. No structures shall be erected, altered, placed or
permitted to remain on any residential building plot other
than one detached single-family dwelling not to exceed
two stories in height and a private garage. A split-level
dwelling shall be considered as being (sic) a two-story
dwelling.
....
6. No trade or like activity shall be carried on upon any
lot or plot nor shall anything be done thereon which may
be or become an annoyance or nuisance to the
neighborhood;
....
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21. The conditions and restrictions herein set forth are to
be covenants running with the title to the premises, and
will be faithfully observed, kept and performed,
provided, however, any one or more of such restrictions
may be modified, waived, or suspended, or again revived
at any time by a general instrument in writing to be
recorded in the County Court Clerk’s Office, signed by
the then owners of two-thirds in number of the lots in the
above subdivision, including those owned by Princeland,
Inc. Such conditions and restrictions shall remain in
force until July 1, 2003, and thereafter shall be
considered to have been extended by the lot owners for
successive periods of ten years each unless modified,
waived, or suspended as above provided.
In 2005, Charles Martin Horton bought Tracts B, C, and F. He sold Tract F to
Appellants in 2008. The deed which conveyed the land to Mr. Horton contained
the following provision:
The foregoing real estate is conveyed subject to all
restrictive covenants imposed in Deed Book 455, Page
160, and in those certain plats recorded in Plat Book 27,
Page 9; Plat Book 27, Page 20; Plat Book 28, Page 30;
and Plat Book 28, Page 37, and to all restrictions,
reservations, easements, and other matters previously
imposed and appearing of record.
The deed which conveyed Tract F to Appellants provided that property was
“conveyed subject to all restrictions, reservations, easements, covenants and
conditions, if any, previously imposed and appearing of record.”
After purchasing Tract F, Appellants began constructing a facility for pallet
repair and automobile repair and resale on that property. Appellees, who also own
property in Princeland Estates, brought an action to enjoin Appellants from
constructing and operating a commercial facility on Tract F, claiming the
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restriction against trade prohibited Appellants from doing so. The trial judge
granted summary judgment to Appellees and enjoined Appellants from operating
his business or constructing commercial facilities on Tract F. The trial court
reasoned the restrictive covenants applied to Tract F because Tract F was “the
same property acquired from Marty Horton by deed that makes the restrictive
covenants specifically applicable to the Greens’ [sic] property.” This appeal
followed.
On appeal, Appellants assert the trial court erred in applying the restrictive
covenant to his tract. The explicit language of the covenant, he contends, applies
to restrict the use of only lots, and not tracts, for commercial purposes. Appellees
do not believe “lots” or “plots” of land are distinguishable from “tracts,” and
further point to the language of the two deeds which specifically reference the
restrictive covenants in the Deed Book. This language, they argue, adopts the
prohibition against commercial activity for the tracts, as well.
The only issue before us is whether the covenants operated to restrict
Appellants from constructing and operating a commercial facility on Tract F. The
interpretation of a restrictive covenant is an issue of law, and our review is
therefore de novo.1 Colliver v. Stonewall Equestrian Estates Ass’n, Inc. 139
S.W.3d 521, 523 (Ky.App. 2003).
1
Although the trial court’s Summary Judgment and Permanent Injunction purports to reach only
findings of fact, some of the enumerated “findings” are actually conclusions of law, including the
finding that “the restrictive covenants (are) specifically applicable to the Greens’ property.” We
will review them accordingly.
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“The fundamental rule in construing restrictive covenants is that the
intention of the parties governs.” Id. at 522 (citing Glenmore Distilleries v.
Fiorella, 273 Ky. 549, 117 S.W.2d 173, 176 (1938)). Where the parties’ intentions
are obvious, though imprecisely stated, the rules of construction will not operate to
thwart those intentions. Id. (quoting Ashland-Boyd County City-County Health
Dept. v. Riggs, 252 S.W.2d 922, 925 (Ky. 1952)). Since the decision in Brandon
v. Price, 314 S.W.2d 521 (Ky. 1958), Kentucky has abandoned the rule of strict
construction of restrictive covenants. Highbaugh Enterprises, Inc. v. Deatrick and
James Construction Co., 554 S.W.2d 878, 879 (Ky.App. 1977). We now view
them, not as “restrictions on the use of property,” which are generally disfavored,
but as “a protection to the property owner and the public[.]” Brandon, 314 S.W.2d
at 523. We ascertain the parties’ intent by examining “the general scheme or plan
of development and surrounding circumstances.” Colliver, 139 S.W.3d at 523
(citing Brandon, 314 S.W.2d at 523).
Before beginning our analysis of the parties’ intent, we must note that
several items from the record which may have assisted us in our analysis are
missing. Although the parties agree Tracts A-F are part of Princeland Estates, the
plat map of the subdivision shows only Tract A. The location of Tract F, or Tracts
B-E, was not apparent from a review of the plat map, and no description in the
record or the briefs revealed its location or characteristics. Appellants also failed
to properly designate for the record the video of the summary judgment hearing.
While Appellants attempted to do so pursuant to Kentucky Rule of Civil Procedure
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75.01, he did not identify the hearing by the date, and the video was omitted. It
was therefore unavailable for us to examine for additional clues as to the scheme of
Princeland Estates. Finally, there are three exhibits, labeled A, B, and C, which the
verified complaint references, but which cannot be found in the record. Some of
those items may have been included as exhibits during the summary judgment
hearing, but any marks made on the exhibits to the verified complaint are not
available for our review.
It is the duty of an Appellant to designate all portions of the record necessary
for the appellate court to rule on alleged errors. Burberry v. Bridges, 427 S.W.2d
583, 585 (Ky. 1968). Furthermore,
It is a rule of universal application in this and all other
appellate courts that where all the evidence is not brought
up on appeal, every fact necessary to support the finding
or judgment of the lower court must be assumed to have
been in favor of the successful party.
Wilkins v. Hubbard, 271 Ky. 780, 113 S.W.2d 441, 442 (1938). We proceed
accordingly.
Appellants urge us to rely upon Galbreath v. Miller, 426 S.W.2d 126 (Ky.
1968), to conclude the word “tract” has a distinct meaning from the word “lot.” If
this is correct, the reasoning goes, the restrictive covenant for Princeland Estates
restricts only lots to residential use. As the appellees did in Galbreath, Appellees
herein assert the words “tract” and “lot” are interchangeable, and therefore any
restrictions expressly applied to lots were also meant to restrict the development of
the tracts. While we do not believe Galbreath stands for the proposition that the
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words “tract” and “lot” can never be interchangeable, we do find considerable
guidance from that case. The court in Galbreath addressed “whether this deed, in
light of the plat, showed an intention of the developer to subject [the tracts] to the
residential restriction which was admittedly imposed upon the numbered lots.” Id.
at 127.
First, to determine whether the parties intended the tracts and lots to
be subject to the same restrictions, we examine the face of the plat. Id. The plat
contains a series of numbered lots of various sizes and an area of land marked
“Tract A.” No other property is labeled a tract, though the parties agree there are
other tracts in Princeland Estates. In Galbreath, it was “apparent the 23 acres were
divided into two distinct classifications.” Galbreath, 426 S.W.2d at 127. The
tracts were larger than the numbered lots, and it was evident they were not part of
the building lot plan.
Here, no such distinction is apparent. Although “Tract A” is labeled
differently than the numbered lots, the size of the lots varies rather greatly. Lot 1
appears to be nearly twice the size of Tract A, while most of the lots are several
times smaller. There is no uniformity of lots which lends the lone tract to ready
distinction. Furthermore, because the other tracts are not labeled on the plat or
described in the record, we cannot examine them to make additional observations
about characteristics which might distinguish them from the lots. We must
presume the characteristics of the missing tracts support a conclusion that they are
indistinguishable from the lots.
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Tract A is the only labeled section of property which does not face one of
the streets labeled as part of the subdivision. This fact tends to indicate the tract
was not meant to form part of the residential building scheme. Without more,
however, we cannot say that fact creates a significant distinction.
Unlike the circumstances of Galbreath, the restrictive covenant in this case
was not created in a deed, but originated in restrictions registered with the Boyd
County Clerk. We must examine the language of the registered restricted covenant
to determine if tracts and lots were treated as different types of property. The
restrictive covenant begins: “The undersigned, Princeland, Inc., are the owners of
a certain tract of land[.]” In this context, “tract” is used to describe the
development as a whole, and not a distinctive type of property within the
development.
Next, the restrictive covenant prohibits trade from occurring on “any lot or
plot.” A building plot may “consist of one lot, two lots, parts of two lots, or one lot
and part of another lot[.]” There is no indication the word “lot” identifies a
particular type of property in the subdivision; its use is generic. Given the use of
the word “lot” to refer generally to the subdivisions of that development, it appears
the parties intended to prohibit commercial activity on any portion of the whole
development.
The deed granting the property to Horton makes the transfer subject to the
restrictive covenants in the Deed Book, and the deed granting the property to
Appellants conveys the land “subject to all restrictions, reservations, easements,
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covenants and conditions, if any, previously imposed and appearing of record.”
This language reflects the restriction first imposed in the restrictive covenant. The
prohibition against commercial activity in the “lots or plots” of Princeland Estates
operated to prohibit such activity in any portion of the subdivision, including the
tracts. The trial court’s order was proper.
Because it was the intent of the parties to the restrictive covenant to prohibit
“trade or like activity” from occurring on any parcel of land in Princeland Estates,
the trial court’s order was proper. We affirm.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
M. Kevin Lett
Ashland, Kentucky
Garis L. Pruitt
Catlettsburg, Kentucky
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