DURVAN W LECLEAR V DALE R FULTON
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STATE OF MICHIGAN
COURT OF APPEALS
DURVAN W. LECLEAR and CYNTHIA M.
LECLEAR,
UNPUBLISHED
May 20, 2008
Plaintiffs/Counter-DefendantsAppellees,
v
No. 277225
Ingham Circuit Court
LC No. 05-001184-CH
DALE R. FULTON,
Defendant/Counter-PlaintiffAppellant.
Before: Donofrio, P.J., and Sawyer and Murphy, JJ.
PER CURIAM.
Defendant appeals as of right, challenging the trial court’s judgment of no cause of
action, following a bench trial, on his counterclaim for violation of some deed restrictions. We
affirm in part, reverse in part, and remand for further proceedings. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Plaintiffs live in a subdivision that is subject to recorded Declarations of Restrictions.
The subdivision property was formerly co-owned by defendant, a proprietor who is entitled to
enforce the declarations. Plaintiffs filed an action against defendant, asserting claims for
intentional misrepresentation and violation of the Michigan consumer protection act, and
defendant filed a counterclaim alleging that plaintiffs violated the recorded deed restrictions by
failing to obtain approval for their house plans before construction and by failing to obtain
approval for the removal of trees. Plaintiffs’ claims were dismissed by the trial court pursuant to
defendant’s motion for summary disposition. Following a bench trial, the court found that there
was no cause of action with respect to defendant’s counterclaim.
A covenant constitutes a contract and is a valuable property right. Village of Hickory
Pointe Homeowners Ass’n v Smyk, 262 Mich App 512, 515; 686 NW2d 506 (2004). “Under
ordinary contract principles, if contractual language is clear, construction of the contract is a
question of law for the court.” Meagher v Wayne State Univ, 222 Mich App 700, 721; 565
NW2d 401 (1992). The language used therein should be given its ordinary and plain meaning,
and courts should give effect to every word, phrase, and clause. Id. “[W]hen the intent of the
parties is clearly ascertainable, courts must give effect to the instrument as a whole.” Village of
Hickory Pointe Homeowners Ass’n, supra, pp 515-516. When construing the language of a
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restrictive agreement, “[t]he provisions are to be strictly construed against the would-be enforcer,
however, and doubts resolved in favor of the free use of property.” Stuart v Chawney, 454 Mich
200, 210; 560 NW2d 336 (1997).
With respect to the removal of the trees, the recorded declarations state:
Trees existing on the lots will not be moved or destroyed without the
approval of Dale R. and/or Mary Jane Fulton, or their successors, or assigns, with
the intent being to maintain trees and shrubs as a living screen between the lots
and road for the utmost of privacy.
Durvan LeClear admitted that three trees (two spruce and one dead white pine) were removed
without defendant’s permission in order to put in the driveway to the home. Defendant gave
permission for the removal of a fourth tree, a white maple, but permission was not sought before
removal of the other three.
In finding no cause of action with respect to the alleged violation of the tree-removal
restriction, the trial court stated:
Now, in regard to the trees, the trees are paragraph 20 of the declaration of
restrictions. And it says with the intent being to maintain trees and shrubs as a
living screen between the lots and the road for the utmost privacy. The lots are
clearly highly treed lots. They look beautiful with a variety of different
hardwoods and Evergreen trees, and the driveways look very long, and Mr.
LeClear testified that two of the trees had to be removed to – because the person
installing the driveway required the two trees be removed. Two spruce trees were
necessary for the placement and excavation of the driveway. . . . And he also
indicated, removed one dead pine tree and two spruce trees and the four to five
inch maple that was obtained with Mr. Fulton’s permission. . . . Mr. LeClear
specified what trees, where they were, why they were removed. So I don’t
believe that the removal of those trees violate the spirit and intent of the
declarations of restrictions, so the Court does not find that that’s been established.
And therefore, the Court enters a no cause on the cross-claim.
Regardless of the perceived importance of the trees to the subdivision or their
interference with the desires of the homeowner, the prohibition on tree removal without approval
is clear in the declarations. The phrase “with the intent being to maintain trees and shrubs as a
living screen between the lots and road for the utmost of privacy,” is an explanation of the
purpose of the restriction, but does not circumscribe its application.
Relying on Webb v Smith (After Second Remand), 224 Mich App 203; 568 NW2d 378
(1997), plaintiffs argue that their failure to obtain defendant’s permission to remove the trees
falls within the “technical violation” exception to strict enforcement of property restrictions.
It is a “well-understood proposition that a breach of a covenant, no matter how minor and
no matter how de minimis the damages, can be the subject of enforcement.” Terrien v Zwit, 467
Mich 56, 65; 648 NW2d 602 (2002) (citation and internal quotation marks omitted). In Cooper v
Kovan, 349 Mich 520, 530; 84 NW2d 859 (1957), on which this Court relied in Webb, supra, the
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Supreme Court recognized that valid deed restrictions will generally be enforced by injunction,
subject to three exceptions: “(a) [t]echnical violations and absence of substantial injury; (b)
[c]hanged conditions; and (c) [l]imitations and laches.” A technical violation is “a ‘slight
deviation’ or a violation that “ ‘can in no wise . . . add to or take from the objects and purposes of
the general scheme of development.” ’ ” Webb, supra, p 212, quoting Camelot Citizens Ass’n v
Stevens, 329 So 2d 847, 850 (La App, 1976).
The “technical violation” exception to enforcement by injunction concerns the relief that
a court may grant upon finding a breach of a covenant. The trial court in this case incorrectly
found no breach and did not address the issue of relief. Even if the court were to conclude that
injunctive relief was not warranted for the breach, the determination whether a breach had been
established was significant to defendant’s entitlement to attorney fees. Paragraph 27 of the
declarations states:
27. . . . In case of a violation or threat to violate the restrictions or
conditions herein contained, or breach of any of the covenants or agreements
hereof, any of said parties shall forthwith have the right to institute appropriate
proceedings at law or in equity to obtain relief against the owner or owners and
any occupants of the premises involved, as well as against any other proper party
to such proceedings, and, in addition to other remedies given by law, shall be
entitled to recover from such owner or owners all costs and expenses, including
attorney fees, actually incurred and expended in enforcing the terms and
conditions hereof. . . .
Even a breach that amounts to a “technical violation” not warranting injunctive relief is
nonetheless a breach. Plaintiffs’ argument does not provide a basis for upholding the trial court’s
entry of no cause of action. The judgment of no cause of action with respect to the breach of
covenant concerning the removal of the trees is reversed and we remand for further proceedings.
On remand, the trial court may determine the appropriate relief, whether equitable or legal in
nature.
Defendant’s additional argument, that the declarations require a homeowner to submit
plans for his approval before constructing a home, is without merit. The declarations set forth
restrictions on the size and construction of a house, but do not expressly require prior approval of
the plans. The declarations expressly require approval for certain items, such as use of materials
other than stone, brick, wood, aluminum or wood shingle on exterior walls, construction of
accessory buildings, placement of a satellite dish, and removal or relocation of trees. The
absence of similar language with respect to the submission and approval of house plans belies
defendant’s contention that submission and approval of house plans is necessary. Moreover, this
Court will not infer a restriction that is not expressly stated in the controlling documents.
O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 341; 591 NW2d 216 (1999). Thus, the
trial court did not err in dismissing this claim.
Defendant contends that although the trial court did not address his request for attorney
fees and costs, the declarations entitle him to an award under ¶ 27. Plaintiffs assert that
defendant’s lawsuit was not one to “enforce” the deed restrictions, but was brought in defense of
their lawsuit against defendant, and that the Declarations of Restrictions do not provide for
reimbursement of attorney fees, costs, and expenses for suits brought in defense. We find no
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merit to plaintiffs’ argument. The fact that defendant may have been prompted to litigate the
issues in his countersuit by the institution of plaintiffs’ action against him does not disqualify
him from the recovery of costs and expenses that were incurred in enforcing the terms of the
declarations. On remand, the trial court shall determine and award “all costs and expenses,
including attorney fees, actually incurred and expended in enforcing the terms and conditions
hereof.”
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent
with this opinion. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ William B. Murphy
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