Cupola Golf Course, Inc. v. Dooley

Cupola Golf Course, Inc. v. Dooley (2005-081); 179 Vt. 427; 898 A.2d 134

2006 VT 25

[Filed 14-Apr-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 25

                                No. 2005-081


  Cupola Golf Course, Inc. and John Larkin       Supreme Court

                                                 On Appeal from
       v.                                        Chittenden Superior Court


  John A. Dooley III and Sandra A. Dooley        November Term, 2005


  Alan W. Cheever, J.

  Liam Murphy and Pamela Moreau, Burlington, for Plaintiffs-Appellees.

  Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for
    Defendants-Appellants.


  PRESENT:  Barney, C.J. (Ret.), and Dier (Ret.), Martin, (Ret.) and 
            Maloney (Ret.), Supr. J., and McCaffrey, D.J. (Ret.), Specially Assigned

        
       ¶  1.  PER CURIAM.   This litigation is about the protection of a
  view; in particular, the view from the living room windows of the home of
  Defendants John and Sandra Dooley ("Homeowners").  Homeowners' lot slopes
  steeply from west to east.  The street level of the residence, facing west
  on East Terrace Street, becomes the second-floor level of the residence. 
  Homeowners' living room windows, located on this second-floor level, frame
  a view toward the east.  Looking east from these windows, across the land
  owned by Plaintiffs Cupola Golf Course, Inc. and John Larkin
  ("Developers"), one can see Interstate 89, shopping malls, and on the
  horizon, a panoramic view of the mountains centering on the Mt. Mansfield
  "profile."    

       ¶  2.  Homeowners acquired this premises through a series of
  conveyances beginning with a deed from Roland and Evangeline DesLauriers to
  Borys and Frida Surawicz in 1956.  Homeowners' deed contains the following
  restrictive covenant:  No building higher than one story shall be erected
  on any land of Grantor lying easterly of the land herein conveyed and lying
  in Green Mountain Park.

       ¶  3.  Homeowners' property is part of the Green Mountain Park
  Subdivision.  The Subdivision was created by the DesLauriers from a parcel
  of land acquired by the DesLauriers from Fred C. Fisk in 1952.  From 1952
  until 1966, the DesLauriers sold lots in the subdivision.  All of these
  lots, including Homeowners' lot, were subject to general Subdivision-wide
  protective covenants.  These general covenants imposed, among other things,
  a two story height restriction on all lots in the Subdivision.  These
  covenants were recorded in Book 22, Page 444 of the South Burlington Land
  Records, and are referenced in Homeowners' chain of title.
  ¶  4.  The DesLauriers sold approximately twenty seven acres of land
  to Cupola Golf Course, Inc., one of the developers in this case. 
  Approximately ten acres of the land acquired by Cupola Golf Course, Inc.
  was later sold to John Larkin, the other developer in this case. 
  Developers' land is part of the Green Mountain Park Subdivision.
   
       ¶  5.  In 1978, Homeowners and other property owners within the
  Subdivision brought a petition for declaratory judgment against Cupola Golf
  Course, Inc., seeking to enforce the general Subdivision covenants as
  recorded in the South Burlington Land Records.  After a ten year
  "languish," a declaratory judgment order was issued in 1989.  This judgment
  specifically extinguished the general Subdivision-wide protective
  covenants. Bingham v. Cupola Golf Course, Inc. (c275 78Cnc).  Among the
  general covenants the court declared unenforceable was the two story height
  restriction on all lots in the Subdivision.   

       ¶  6.  Five years later, Developers brought an action seeking
  declaratory judgment against Homeowners to resolve the issue relating to
  the particular covenant in Homeowners' chain of title.  Developers argued
  that the declaratory judgment in the Bingham case precluded enforcement of
  Homeowners' covenant because the order contained language that "all (other)
  claims and counterclaims are dismissed with prejudice."  Specifically,
  Developers argued that this order operated to make Homeowners' particular
  covenant inoperative and void as a matter of res judicata.  Among other
  claims, Homeowners argued that the issues raised did not yet reach the
  appropriate level of "case or controversy" required by declaratory judgment
  law.  The trial court denied these and other preliminary motions to set
  aside the covenant and proceeded to a hearing on the merits. 
   
       ¶  7.  After taking evidence and conducting a site-visit to view
  Homeowners' property, the trial court made findings and issued a
  declaratory judgment determining that the particular covenant in the
  original Surawicz deed, carried forward in the deed to Homeowners, is
  effective.  The court determined that the term "easterly" in the specific
  covenant means due east.  The court also determined that "no higher than
  one story" meant that any structure on the burdened land could be no more
  than one story, and that the one-story structure could be no greater than
  twenty-six feet in height.  The declaratory judgment states that the
  covenant "impacts a strip of Developers' property east of Homeowners'
  property, as wide as Homeowners lot (approximately 100') and heading due
  east."  The judgment states that "[w]ithin this strip, no building will be
  built higher than 26 feet, and greater than one story, using the
  measurement standards set forth in the South Burlington Ordinance
  referenced in footnote 4."  We affirm.

       ¶  8.  Developers argue that Homeowners' covenant was extinguished
  by the declaratory judgment issued in Bingham in 1989.  As noted above, the
  Bingham court rendered null and void the general Subdivision covenants. 
  Developers' contention focuses upon the following provision in the order: 
  "Except as set forth above, all claims and counterclaims are dismissed with
  prejudice." 

       ¶  9.  Based upon this language, Developers moved for summary judgment
  dismissing Homeowners' claim, arguing that the particular covenant
  contained in Homeowners' deed was extinguished by the 1989 declaratory
  judgment order, and that this claim is barred by res judicata.  Developers
  raised further summary judgment issues, claiming that the covenant was
  voided by the Marketable Record Title Act, 27 V.S.A. § 601, et seq., as
  well as a change of circumstances, statute of limitations, waiver, laches
  and estoppel.  The trial court denied Developers' motions on each of these
  bases.   
   
       ¶  10.  Res judicata is a valuable doctrine of inclusion, founded
  upon the judicial economy and fairness of litigating and disposing of all
  issues involved in a legal dispute where the parties, subject matter and
  causes of action are identical or substantially identical. See Lamb v.
  Geovjian, 165 Vt. 375, 379-380, 683 A.2d 731, 734-735 (1996).  However, in
  this matter we are dealing with a declaratory judgment proceeding, a
  special remedy with special concerns.  The function of a judgment in such
  proceedings is to adjudicate and define specific rights and liabilities of
  parties.  A "declaratory action determines only what it actually decides
  and does not have a claim preclusive effect on other contentions that might
  have been advanced." Restatement (Second) of Judgments § 33 cmt. c (1982). 
  Where, as here, the specific covenant was never presented to the trial
  court or decided upon, the judgment has no preclusive effect.  Accordingly,
  the trial court correctly denied summary judgment on this issue. 

       ¶  11.  The issue raised under the Marketable Record Title Act
  similarly fails because the existence of the special covenant was made
  known to the Developers within the forty-year span over which the statute
  operates. See 27 V.S.A. §§ 601-603.

       ¶  12.  The issues of waiver and estoppel raised by Developers are
  negated by the lack of showing of a duty to raise the issue and a lack of a
  concomitant right of the Developers to rely on the claimed failure to raise
  the issue. See Mann v. Levin, 2004 VT 100, ¶ 27, 177 Vt. 261, 271, 861 A.2d 1138, 1147.

       ¶  13.  Developers failed to present sufficient evidence to support
  their contention that changes in the area and zoning compel denial of the
  covenant.  The trial court's ruling on this issue is supportable. See Id. ¶
  17 (citing V.R.C.P. 52(a)(2) for the proposition that this Court will
  uphold a trial court's factual findings unless, taking the evidence in the
  light most favorable to the prevailing party, and excluding the effect of
  modifying evidence, there is no reasonable or credible evidence to support
  them). 
   
       ¶  14.  Turning to the declaratory judgment proceeding itself, the
  first prerequisite is that there be a real case or controversy.  This
  requirement is jurisdictional. See Town of Cavendish v. Vermont Public
  Power Supply Auth., 141 Vt. 144, 147, 446 A.2d 792, 794 (1982).  Looking at
  the extended period of legal activity surrounding the properties involved
  in this case, this issue seems to have a simple answer.  However, the
  judiciary is not empowered to render advisory opinions.  Courts are not
  permitted to dispose of the merely hypothetical.  An action for declaratory
  relief must be based upon an "actual controversy," the claimed result of
  which is "not based upon fear or anticipation," but is "reasonably to be
  expected." Robtoy v. City of St. Albans, 132 Vt. 503, 504, 321 A.2d 45, 46
  47 (1974); see also Town of Cavendish, 141 Vt. at 147, 146 A.2d  at 794. 
  Thus, to avoid the probability of an advisory opinion, there must be a
  "case or controversy." 

       ¶  15.  In this case, the trial court found that the dispute over the
  particular covenant has not been resolved, and that the determination of
  the meaning of the restrictive covenant is not premature.  The court found
  that Developers have taken actions that manifest their intent to develop
  the land affected by the covenant.  Developers have initiated the lengthy
  permit process.  Although Developers have not yet put into place a formal
  development plan, the court noted that the pleadings sufficiently set forth
  Developers' proposal, and an alternative plan if the court found the
  covenant to be effective.  The court further found that Homeowners would
  pursue whatever legitimate recourse they have to limit development.  This
  is underscored by the efforts made by Homeowners to inform South Burlington
  Development Review Board that a decision on any plan of Developers should
  await a determination of the meaning of the covenant.  

       ¶  16.  This, in conjunction with the history of the previous
  litigation, sufficiently satisfies the "case or controversy" requirement
  for jurisdictional purposes.  As the trial court pointed out, it would be
  inequitable to perpetuate the uncertainties of the parties any further. 
  The issues in this phase of the case have "languished" since 1994 and cry
  out for resolution and finality.  Accordingly, the court's finding that
  this case is an actual controversy was certainly within the scope of the
  statutory purposes of 12 V.S.A. § 4722. 
   
       ¶  17.  As noted above, the particular covenant in Homeowners' deed
  stated that "[n]o building higher than one story shall be erected on any
  land of Grantor lying easterly of the land herein conveyed and lying in
  Green Mountain Park."  Developers argued that the court should construe the
  term "easterly" as imposing a burden on a strip of land the width of
  Homeowers' property, approximately 100 feet, extending straight out to the
  east from the eastern edge of Homeowners' property.  Conversely, Homeowners
  argued that the term "easterly" encompasses a cone-shaped burdened area
  stretching from their house northeast to Mount Sterling and southeast to
  Bolton Mountain.  Homeowners argued that this more expansive definition is
  necessary to effectuate the purpose of the covenant, which they argue was
  to protect a panoramic view of this mountain range.

       ¶  18.  After a merits hearing and a site-visit of Homeowners'
  property, the trial court found that the language of the covenant is
  ambiguous because the covenant is subject to more than one reasonable
  interpretation.  This Court agrees that the references to an "easterly"
  direction and a height limit of "higher than one story" are sufficiently
  non specific to support resort to the intention of the original parties and
  the circumstances of the grant. See Creed v. Clogston, 2004 VT 34, ¶ 13,
  176 Vt. 436, 440, 852 A.2d 577, 581.  Thus, the trial court did not err in
  determining that the covenant was ambiguous.  

       ¶  19.  Some of the original parties to the covenant are deceased;
  others have no clear recollection of the transactions.  The trial court
  therefore looked to the surrounding circumstances at the time the
  instrument was executed to determine the intention of the parties, the
  subject matter and purpose of the covenant. See McDonough v. W.W. Snow
  Constr. Co., 131 Vt. 436, 441, 306 A.2d 119, 122 (1973).  
   
       ¶  20.  Developers argue that the covenant does not mention "view"
  even though the impact of all these proceedings seek its protection.  We
  agree with the trial court that protection of a "view" was implicit here. 
  To preserve an open area above and across neighboring land is
  characteristic of a covenant related to a view.  The term "easterly" is a
  very generalized description of direction.  This description becomes more
  specific and meaningful when, as the court noted, almost due east, on the
  horizon, is the "profile" of Mt. Mansfield. 

       ¶  21.  The deed does not specify the exact location of the covenant
  and its impact on Developers' land.  There are no referenced monuments or
  markers.  The trial court sought to determine the span of the covenant and
  its impact upon Developers' land.  With the aid of testimony and a visit to
  the property, the trial court determined that the covenant burdened a
  100-foot corridor of land to the east of Homeowners' property, the
  boundaries of which would be determined in relation to the 1956 magnetic
  east bearing.  The trial court found that there was no evidence that the
  original parties intended the covenant to protect a view extending from
  Mount Sterling to Bolton Mountain.  Rather, the trial court found that the
  purpose of the covenant was to protect a view of Mt. Mansfield, the closest
  and most prominent mountain in the view, as well as its central focus. 

       ¶  22.  Homeowners seek a wider swath over Developers' land, but this
  construction would overlap with the Subdivision covenants that existed at
  the time of the original grant, covenants that were mentioned in the very
  same deed setting out this covenant.  As the trial court found, it
  certainly is improbable that the parties granting this special covenant had
  any intent to supercede the Subdivision covenants, or to impose an
  alternative one story restriction on all lots east of Homeowners' lot,
  regardless of their location in relation to Homeowners' property.  This
  determination is supported by reasonable and credible evidence, as well as
  sound logic.  We see no error. 
   
       ¶  23.  This Court also finds no error in the trial court's
  interpretation of the "one story" requirement to prohibit buildings higher
  than twenty-six feet or greater than one-story.  The trial court correctly
  found that the pertinent question is what the parties would have considered
  one-story to mean in 1956.  The court properly weighed the evidence in
  light of this standard.  In any event, it is our understanding that the
  parties do not challenge the height definition if the Court affirms the
  trial court's ruling that the covenant is valid. 


       Affirmed.



                                       BY THE COURT:



                                       ______________________________________
                                       Albert W. Barney,Chief Justice (Ret.), 
                                       Specially Assigned

                             
                                       ______________________________________
                                       Hilton H. Dier, Superior Judge (Ret.), 
                                       Specially Assigned
   
                                                            
                                       ______________________________________
                                       Stephen B. Martin, Superior Judge (Ret.)
                                       Specially Assigned

                 
                                       ______________________________________
                                       Ellen H. Maloney, Superior Judge (Ret.),
                                       Specially Assigned


                                       _______________________________________
                                       Francis B. McCaffrey, District Judge 
                                       (Ret.), Specially Assigned