Unpublished Disposition, 900 F.2d 262 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 900 F.2d 262 (9th Cir. 1988)

Lee M. HOLMES, Plaintiff-Appellee,v.David W. CASSIDY; Patricia Cassidy, Defendants-Appellants.

No. 88-15792.

United States Court of Appeals, Ninth Circuit.

Submitted April 11, 1990.* Decided April 20, 1990.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.


MEMORANDUM** 

Defendants-appellants David and Patricia Cassidy ("Cassidys") appeal from the decision of the Appellate Division of the United States District Court for the District of Guam, reversing in part and remanding a judgment of the Superior Court of Guam. The appellate division ruled that the superior court abused its discretion in entering an alternative judgment in this case. We affirm the appellate division.

Plaintiff-appellee Lee Holmes and his wife Joan ("Holmes") have resided in the Windward Hills subdivision since 1972; the Cassidys since 1968. The subdivision is subject to covenants and restrictions, of which the Cassidys had actual and constructive notice, including setback provisions mandating that no structure be nearer than twenty-five feet to the street property line nor fifteen feet to a side property line.

In February 1977, Holmes saw that the Cassidys were building a structure on the front of their lot, near the street property line. Despite informal requests by Holmes and letters from Holmes and his attorney asking the Cassidys to join in a survey to ensure that they were complying with the setback requirements and notifying them that Holmes would seek observation of the restrictions, the Cassidys declined to join in a survey and indicated they were going to build.

On February 9, a surveyor hired by Holmes confirmed that the foundation of the Cassidys' building, poured February 7, encroached more than ten feet into the street side setback and about six inches into the side setback; planned eaves extended the encroachments two feet more in each direction. On February 9 and 10, Holmes and his attorney advised the Cassidys by letter to bring the structure into compliance or face litigation. The Cassidys ignored the letter and a lawsuit was filed March 8, 1977.

The Cassidys' original design plans showed their building situated in compliance with the setback requirements. These original plans were submitted to and approved by the Windward Hills Architectural Control Committee ("WHACC"). The Cassidys later revised the plans to show the new building located at the rear of their lot. These new plans were submitted to and approved by the Department of Public Works, approximately two months after the Cassidys had begun constructing the building on the front of their lot. The building as constructed is not positioned as shown in either plan. The Department of Public Works issued a stop work notice on July 6, 1979.

The Cassidys counterclaimed when they filed their answer on March 2, 1978, alleging that the Holmes' house also violated the setback requirements. Apparently the Holmes' house had violated the setback restrictions by about four to eight feet from the golf course property line since the house was built in 1958.

The WHACC, composed of three members, was created by the original covenants and restrictions to review proposed construction and activities related to developments within the subdivision. In early February 1982, new members were appointed to the WHACC pursuant to circulation of a petition. The petition was prepared, apparently at the Cassidys' request and expense, by the law firm representing the Cassidys, and the Cassidys helped circulate it for signatures.

The Cassidys applied on February 11, 1982, to the new WHACC board for a variance from the setback requirements. The variance was granted, without notice to Holmes,1  on February 19, 1982. This was the only variance granted in the history of the subdivision.2  The WHACC determined that the Cassidys' building was unsightly in its unfinished state, that it was a "reasonable" structure, that the Cassidys properly maintained their property, and that most of the homeowners "liked" the Cassidys. The variance was granted although the WHACC found that the building in fact could have been built to comply with the setback regulations.

On March 11, 1982, the trial court ruled that the variance granted by the WHACC required that summary judgment be granted in favor of the Cassidys. By decision dated November 9, 1983, the appellate division reversed the summary judgment and remanded. In a memorandum disposition filed December 7, 1984, this court affirmed the appellate division's determination that the trial court must determine whether the variance was granted in good faith and on the basis of the factors specified in paragraph five of the covenants and restrictions. The case was affirmed in part, reversed in part, and remanded for further proceedings.

Trial was held July 2, 17, and 18, 1985. By letter to counsel dated January 10, 1986, the trial court raised sua sponte the issue of whether or not the WHACC was an indispensable party, whose absence from the trial required dismissal of the action. By decision and order dated May 9, 1986, the trial court held that the WHACC was an indispensable party and entered judgment dismissing the action without prejudice. By decision dated May 7, 1987, the appellate division remanded to the trial court with directions to render a judgment forthwith, in compliance with the December 7, 1984 remand from this court.

After remand, the trial court entered its findings of fact and conclusions of law on September 10, 1987. The court ruled that the earlier variance granted to the Cassidys by the WHACC was void because it was not based upon the factors contained in the subdivision covenants and restrictions. The trial court further found that there had been no change in the character of the neighborhood sufficient to justify ignoring or setting aside the covenants, that the Cassidys had a history of "unclean hands" in this dispute, and that Holmes' request for punitive damages was not warranted. Finally, the trial court held that injunctive relief was appropriate and, on October 6, 1987, entered a judgment in the alternative ordering that the non-complying structures be removed within six months or that a properly granted variance be obtained.

Holmes filed a timely notice of appeal to the appellate division on November 4, 1987. On November 10, 1987, the trial court entered a Writ of Permanent Injunction commanding the Cassidys

to remove the guest house and trash container now located on your property in the Windward Hills [S]ubdivision; or, bring the guest house and trash container within compliance with the restrictions and covenants for the Windward Hills Subdivision ... within six months; or, obtain a valid variance from the [WHACC] pursuant to paragraph five (5) of the restrictions and covenants of the Windward Hills Subdivision.

The Cassidys filed a timely notice of cross-appeal on November 17, 1987.

On November 7, 1988, the appellate division issued its decision, holding that the trial court's entry of the alternative judgment was an abuse of discretion. That portion of the injunction regarding obtaining a variance was reversed, and the case ordered remanded with instructions to enter an unconditional mandatory injunction in favor of Holmes, requiring the Cassidys to remove the non-complying structure. On December 5, 1988, the Cassidys filed a timely notice of appeal to this court.3 

The Superior Court of the Territory of Guam had jurisdiction over this action pursuant to Section 82 of the Guam Code of Civil Procedure. The Appellate Division of the United States District Court for the District of Guam had jurisdiction over the appeal from the superior court under 48 U.S.C. § 1424-3(a). We have jurisdiction over the appeal from the appellate division pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1424-3(c).

The Cassidys argue that the appellate division improperly substituted its discretion for that of the trial court in concluding that the entry of the alternative judgment was an abuse of discretion.4  We disagree, and affirm the appellate division.

As a general rule, a judgment must not be in the alternative. See 49 C.J.S. Judgments Sec. 74 (1947); see also Kaybill Corp. v. Cherne, 24 Ill.App.3d 309, 320 N.E.2d 598, 604 (1974); Wallace v. Hankins, 541 S.W.2d 82, 84-85 (Mo.Ct.App.1976); Pickering v. Pickering, 11 Ohio App. 458, 173 N.E.2d 156, 157 (1959); Hill v. Hill, 404 S.W.2d 641, 643 (Tex.Civ.App.1966); Lash Furniture Co. v. Norton, 123 Vt. 226, 185 A.2d 734, 736 (1962). That alternative judgments are generally disfavored is apparent from the rarity of reported instances. The few instances in which an alternative judgment may be appropriate involve actions for the specific recovery of property where the judgment may be for the property or its value, such as in actions in detinue or in replevin, see 49 C.J.S. Judgments Sec. 74, or establishing the legal priorities between an agreed boundary and the original surveyed boundary line, see, e.g., Chandler v. Hibberd, 165 Cal. App. 2d 39, 332 P.2d 133, 140 (1958).

When employed, the benefit of an alternative judgment is that it limits subsequent litigation. See, e.g., Chandler, 332 P.2d at 140; see also Cox v. Schlachter, 147 Ind.App. 530, 262 N.E.2d 550, 554 (1970) (alternative judgment may be appropriate in order to "give full relief in one action and prevent a multiplicity of suits"). We agree with the appellate division that in the circumstances of this case the alternative judgment is likely to lead to, rather than to limit, further litigation.5 

Nor is this a case in which the use of an alternative judgment is necessary to "balance the equities between the parties." Cox, 262 N.E.2d at 554. The trial court's factual findings compel the conclusion that the equities strongly favor Holmes. The trial court found that the Cassidys "continued construction after receiving complaints from plaintiff and correspondence from plaintiffs' attorney; construction continued even after defendants stipulated to discontinue; in fact until they received a 'stop work' order and were threatened with a contempt citation from [the trial court]." Decision at 12 (Sept. 10, 1987). The court noted that by continuing to build, the Cassidys "showed a disregard for their neighbor's complaints as well as disdain for the legal process." Id. at 13. The court further found that the Cassidys acted with full awareness of the covenants and restrictions, of Holmes' intent to enforce strict adherence, and of the possibility that building the structure might nevertheless lead to a final judgment ordering its removal. Id. at 13-14. The court concluded that the Cassidys had "unclean hands" and that their actions were "egregious."6 

We therefore conclude that the superior court abused its discretion in issuing the alternative judgment permitting the Cassidys to obtain another variance from the WHACC.7  Accordingly, the decision of the appellate division must be

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

By letters to each new member of the board, dated February 16, 1982, Holmes' attorney had requested that he be notified of any application for a variance by the Cassidys

 2

Other possible violations of the covenants had occurred unchallenged over the years, including solar hot water tanks on three homes, two arguably non-complying walls at other homes, visible laundry lines, several inappropriate garbage receptacles, and a house perhaps containing fewer square feet of living area than mandated. There was evidence that the WHACC had done nothing about these violations and, therefore, had acquiesced in the changed character of the community

 3

On November 7, 1988, the appellate division also issued its decision in the Cassidys' cross-appeal, affirming the trial court in all respects. The Cassidys do not appeal this decision

 4

As a preliminary matter, the Cassidys contend that the appellate division impermissibly considered materials outside the record in reaching its decision. Specifically, the Cassidys argue that the trial court's Writ of Permanent Injunction, a copy of which Holmes attached to his opening brief before the appellate division, was not properly before that court, as the writ was filed on November 10, 1987, after Holmes filed his notice of appeal on November 4, 1987

This contention is clearly without merit. Even had the writ of permanent injunction not been attached to Holmes' opening brief, it was, as an element of the trial court's final disposition of the case, unquestionably part of the Clerk's Record on appeal, and therefore properly before the appellate division.

 5

Indeed, we note that any purported grant of a variance by the WHACC would require further litigation before the superior court to determine whether the variance was granted based upon the factors specified in paragraph five of the Windward Hills covenants and restrictions. Paragraph five authorizes the WHACC to grant variances only " [w]here the topography or location of the property lines of any of the lots prevents reasonable construction of the permitted structures within the specified area."

 6

The court also determined that any covenant violations on the Holmes' property were quite minor and arose from events preceding their ownership of the property, primarily from early faulty land surveys done on Guam. Id. at 12

 7

We note that the subdivision covenants and restrictions fail to provide for an after-the-fact variance; indeed, paragraph eight explicitly provides that no "structure shall be commenced, erected, or maintained until the plans and specifications ... shall have been submitted to and approved by the Architectural Control Committee." As a panel of this court indicated in an earlier appeal in this case, the WHACC has no discretion to act beyond the authority explicitly conferred by the covenants and restrictions. See Memorandum at 2 (9th Cir. Dec. 7, 1984); see also Johnson v. Dick, 281 S.W.2d 171, 175 (Tex.Civ.App.1955) ("This committee is clearly a creature of contract, and possesses only such authority as may be found in the written instrument creating it.")

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