OLIVER WENDELL HOMES INC V JEFFREY HALL
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STATE OF MICHIGAN
COURT OF APPEALS
OLIVER WENDELL HOMES INC.,
UNPUBLISHED
September 16, 2003
Plaintiff-Appellant,
v
No. 240487
Oakland Circuit Court
LC No. 01-034692-CH
JEFFREY HALL and JANET HALL,
Defendants-Appellees.
Before: Owens, P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Plaintiff, an adjacent property owner to defendants, brought this action to enforce a
provision in a “Declaration of Covenants, Conditions and Restrictions” governing their property
use. In particular, plaintiff claimed that defendants violated a covenant that prohibited the
erection of a “Structure” when they planted, near the property line, a row of seven white pine
trees that were approximately five to seven feet tall. A “Structure” is defined in the governing
document as “any building, driveway, parking area, structure, dwelling, garage, shed,
outbuilding, fence, wall, hedge . . . .” Plaintiff sought an injunction and damages for breach of
the covenant claiming that the row of trees was a “hedge” and, hence, a prohibited structure
within the contemplation of the governing document. Defendants filed a motion for summary
disposition, pursuant to MCR 2.116(C)(10), arguing that the row of evergreen trees was not a
“hedge” and, thus, not prohibited. The trial court agreed with defendants, holding that the trees
did not constitute a “hedge” and that the deed restrictions did not apply to trees.
On appeal, plaintiff argues that the trial court erred in granting summary disposition in
defendants’ favor because the “evergreen hedge” was prohibited by the restrictive covenants as
determined by the Architectural Control Committee which was designated by the governing
document as the sole authority regarding the restrictive covenants. We disagree. This Court
reviews the grant or denial of a motion for summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition
under MCR 2.116(C)(10) tests the factual support for a claim and is properly granted when,
considering the documentary evidence in a light most favorable to the nonmoving party, there is
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no genuine issue of disputed material fact. Ottaco, Inc v Gauze, 226 Mich App 646, 650; 574
NW2d 393 (1997).
Article II (Approval of Structure) of the Declaration of Covenants, Conditions, and
Restrictions document provides:
A. No Structure may be erected, installed, or placed upon any Lot unless the Lot
Owner of such Lot has submitted the following documentation to Declarant and
Declarant has approved all of such documentation in writing:
1. A topographical survey of the Lot . . . ;
2. Construction and architectural plans . . . ;
3. Specifications for each Structure . . . ;
4. A landscaping plan of the Lot . . . ; and
5. A construction schedule . . . .
* * *
C. Declarant intends and desires that all Structures within the Property be
architecturally harmonious and architecturally pleasing and that the design and
location of such structures take into account the preservation of trees and the
natural environment of the Subdivision. In order to insure that such goals are
accomplished, Declarant shall, in Declarant’s sole discretion, have the right to
approve or disapprove the appearance, construction, materials, proposed location,
design, specifications, or any other attribute of any Structure.
Article III (Building Restrictions) of the Declaration of Covenants, Conditions, and Restrictions
document provides:
A. The restrictions, conditions, and requirements set forth herein shall apply to
each and every Lot. No Structure shall be constructed, installed, or placed on any
Lot in violation of the following restrictions, conditions, and requirements, unless
approved in writing by Declarant (or the Architectural Control Committee, if in
existence), in accordance with Article II, hereof.
* * *
K. No fence, wall or hedge of any kind shall be erected or maintained on any Lot
without the prior written approval of Declarant. . . .
L. Large trees measuring six (6) inches or more in diameter at ground level may
not be removed, by anyone other than declarant, without the written approval of
Declarant. Prior to the commencement of construction, each Lot owner shall
submit to Declarant a plan for the preservation of trees in connection with the
construction process. . . .
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As previously noted, “Structure” is defined in the document as “any building, driveway, parking
area, structure, dwelling, garage, shed, outbuilding, fence, wall, hedge, in ground swimming
pool, or any other improvement of a permanent or substantial nature.” Consequently, these
provisions, including the provisions mandating prior approval before any structure is “erected,
installed, or placed,” are applicable here only if the trees that defendants planted are deemed a
“Structure.”
Courts interpreting restrictive covenants give effect to the instrument as a whole where
the intent of the parties is clearly ascertainable. Cooper v Kovan, 349 Mich 520, 527; 84 NW2d
859 (1957). However, “where the intent and meaning of restrictions are not clear, they may be
construed in the light of surrounding circumstances and general plan under which the restrictive
district was platted and developed.” Ottawa Shores Home Owner’s Ass’n, Inc v Lechlak, 344
Mich 366, 373; 73 NW2d 840 (1955). Nevertheless, where ambiguity exists restrictive
covenants are construed strictly against “those claiming the right to enforce them, and all doubts
are resolved in favor of the free use of property.” O’Connor v Resort Custom Builders, Inc, 459
Mich 335, 341-342; 591 NW2d 216 (1999). Further, words used in covenants must be given
their ordinary and generally understood meaning. Borowski v Welch, 117 Mich App 712, 716717; 324 NW2d 144 (1982).
Here, even construing “the covenants as a whole, giving effect to their underlying
purpose” as plaintiff requests, the evergreen trees defendants planted were not prohibited by the
restrictive covenants and, thus, neither approval nor consent were required before the trees were
planted. The evergreen trees simply do not constitute a “Structure” within the contemplation of
the governing document. Considering the words “fence,” “wall,” and “hedge” as they are
ordinarily and generally understood, “trees” are none of them. That “trees” are distinguishable
from a “Structure” is apparent from the document itself in that it references “trees” several times
throughout the document. Consequently, reading the document as a whole, it is clear that the
parties did not intend that the planting of trees be considered a “Structure” that is “erected,
installed, or placed” for which a topographical survey, construction and architectural plans,
specifications, a landscaping plan, and a construction schedule were required. Further, the
expressed intent of the restrictions was to ensure that the proposed “Structures” were
“architecturally harmonious and architecturally pleasing and that the design and location of such
structures take into account the preservation of trees and the natural environment of the
Subdivision.” The planting of trees was not contrary to that intention. Accordingly, the trial
court properly granted summary disposition in favor of defendants.
Affirmed.
/s/ Donald S. Owens
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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