Bruce L. Cearlock and Nila Cearlock v. Charles Mendard et al.

Annotate this Case
ca04-680

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

BRUCE L. CEARLOCK and NILA CEARLOCK

APPELLANTS

v.

CHARLES MENDARD, ET AL

APPELLEES

CA04-680

May 18, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CV2003-8051]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

REVERSED AND REMANDED

Karen R. Baker, Judge

Appellants, Bruce Cearlock and Nila Cearlock, appeal from the entry of summary judgment in favor of appellees by the Garland County Circuit Court. On appeal, appellants assert that the circuit court erred in holding as a matter of law that appellants' property was subject to the "Declaration of Covenants and Restrictions" where all of the owners of the restricted tract did not join in the execution of the instrument creating the restrictions. We reverse the trial court's entry of summary judgment.

The facts in this case are undisputed. On December 20, 2001, following a series of conveyances, appellants purchased the subject parcel of property from Larry A. Richter and Wendy B. Richter. On October 2, 1981, over twenty-five years prior to appellants' purchase of the parcel of property, a "Declaration of Covenants and Restrictions" ("Declaration") containing numerous restrictions on the owners' property was executed. Appellants' predecessor in title, Cordell Tackle, Inc., Carl R. Cordell, Jr., President, and Coy L. Fisher and Venecia M. Fisher, his wife, signed the Declaration. However, there were three owners of lots within the Declaration that did not sign the document. The Declaration was recorded in the Deed and Mortgage Records of Garland County, Arkansas.

Appellants filed a petition for declaratory judgment on August 4, 2003, alleging that the Declaration was void in that all owners of the original tract had not executed the Declaration. On December 23, 2003, appellants filed a motion for summary judgment, which contained the same allegations as their petition for declaratory judgment. Appellants' motion for summary judgment references an affidavit from Guy McDill, a licensed Arkansas abstractor, which states that at the time of the execution of the Declaration, the owners of three of the lots did not join in signing it. On January 15, 2004, appellees filed a response to appellants' motion for summary judgment and a defendants' motion for summary judgment, alleging that because appellants' predecessors in title executed the Declaration, the covenants and restrictions were binding on appellants. The trial court entered summary judgment in favor of appellees finding that appellants' predecessors in interest signed the Declaration, and the Declaration was filed of record prior to the acquisition by appellants of any interest in property located within the description in the Declaration. This appeal followed.

The standard of review for appeals from a grant of summary judgment is well-established:

[S]ummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.

Brown v. Wyatt, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 9, 2005) (quoting Hisaw v. State Farm Mut. Auto Ins. Co., 353 Ark. 668, 676, 122 S.W.3d 1, 4 (2003)).

Arkansas Code Annotated section 18-12-103 (Repl. 2003) states that:

No restrictive or protective covenants affecting the use of real property nor any instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive or protective covenants or instrument purporting to restrict the use of the real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.

In McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988), our supreme court stated that where no general plan of development exists, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). The test of whether such a plan exits is whether substantial common restrictions apply to all lots of similar character or similarly situated. Id. (citing McGuire, supra). In Holaday, our supreme court held that a general plan or scheme of development existed because all of the homeowners in the subdivision adopted the bill of assurances and restrictive covenants. 1

In Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991), our supreme court held that there must be restrictions in the grantee's chain of title and a general plan of development before a restrictive covenant is enforceable and added: "As the Harbour [v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984)] opinion makes clear, it is proper to consider whether a general plan of development exists when determining whether a written covenant or restriction contained in the chain of title of the party seeking to avoid the restrictions remains valid." Id. at 399, 821 S.W.2d at 469.

In the case before us, it is undisputed that there were three owners of property within the description in the Declaration that did not sign the Declaration. Thus, under these facts, the test as to whether a general plan of development exists fails and the restrictive covenants are not enforceable. Accordingly, we reverse the trial court's entry of summary judgement in favor of appellee and remand this case to the trial court for further proceedings consistent with this opinion.

Gladwin and Griffen, JJ., agree.

1 Cf. Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992) (finding a general plan existed for development of a limited number of lots, not of the same character, (i.e. a cemetery) were not subject to the same restrictions).