Les Smith v. Elizabeth Brockway and Rebecca Brockway

• Court: Mississippi Supreme Court
• Decided: November 14, 2024
• Docket: 2023-CA-01027-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2023-CA-01027-SCT

LES SMITH

v.

ELIZABETH BROCKWAY AND REBECCA BROCKWAY

DATE OF JUDGMENT: 08/18/2023 TRIAL JUDGE: HON. VICKI B. DANIELS TRIAL COURT ATTORNEYS: THOMAS ALAN WOMBLE, JR. BOBBY T. VANCE COURT FROM WHICH APPEALED: PANOLA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: THOMAS ALAN WOMBLE, JR. ATTORNEY FOR APPELLEES: BOBBY T. VANCE NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 11/14/2024 MOTION FOR REHEARING FILED:

BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. The Panola County Chancery Court denied Les Smith’s petition for injunction and

declaratory relief against Elizabeth and Rebecca Brockway. Smith sought to enjoin the

Brockways from installing a manufactured home on their property allegedly in violation of

restrictive covenants. The chancellor found that the restrictive covenants were unenforceable

as to the Brockways’ property since the original grantor failed to sign the covenants as the

covenants themselves required.

¶2. Smith appealed the chancellor’s denial, arguing that the grantor’s signature on the

property’s original warranty deed was sufficient to trigger the restrictive covenants since the covenants were attached to the deed, the deed referenced the covenants, and the documents

were filed together. In line with the chancellor’s ruling, the Brockways argue the restrictive

covenants are unenforceable because the original grantor of their property failed to sign

them. Accordingly, the Brockways contend the restrictive covenants were never properly

attached to the land, were never accepted by the original grantees, and, therefore, have never

been effective.

¶3. We affirm.

FACTS

¶4. Rainmaker’s Development Company, Inc., developed the Lakewood Village

Subdivision. Frank J. Steed, the original president of Rainmaker’s, conveyed a parcel of

land, Lot 13, to the original grantees via a warranty deed with unsigned restrictive covenants

referenced and attached.

¶5. On April 20, 2023, Elizabeth Brockway and Rebecca Brockway purchased Lot 13

from Cheap Home Finders, Inc. Cheap Home Finders conveyed Lot 13 to the Brockways

via a quitclaim deed. The quitclaim deed was signed by the president at the time of Cheap

Home Finders, Jeremy Weaver, as the grantor of Lot 13; attached to the quitclaim deed was

a document containing the twelve restrictive covenants labeled at the top: “Restrictive

Covenants of Lakewood Village Phase I-II” and “Rainmaker’s Development Company, Inc.”

underneath. The restrictive covenants are dated “Nov. 4 ’91” and time-stamped 3:35 p.m.

¶6. Les Smith, a resident of the subdivision, filed a petition for injunction and declaratory

relief to prevent the Brockways from installing a preconstructed home or mobile home on

2 Lot 13, contending that such an act would violate the subdivision’s restrictive covenants.

The restrictive covenant Smith cited to support his proposition states: “ 9. (Structures) No.[]

house, trailers, mobile homes, pre-constructed buildings or campers may be allowed on said

lots. All structures shall be sightly, of a character to enhance the value of the property. All

proposed structures must first be approved by the developer or his assigns.” Smith’s motion

for injunction claimed the restrictive covenants were valid, arguing that they expressly stated

they would run with the land, that they had not expired or been changed, and that they had

not been declared void by a majority of owners as the covenants instruct must be done to seek

revocation.

¶7. The chancellor denied Smith’s motion to enjoin, finding that the restrictive covenants

for Lot 13 were unenforceable and had never been enforceable. In determining whether the

covenants were valid, the chancellor looked at the document containing the restrictive

covenants as a whole, as is done in contract construction. She concluded that covenant

number eleven created a condition precedent that required the document to be dated and

signed to become a valid contractual agreement; it states: “These restrictions shall run with

the land and shall be binding on all parties and all persons claiming through them for a period

of twenty (20) years from the date these restrictions are hereinafter dated and signed.”

(Emphasis added.)

¶8. As such, the chancellor found that the restrictive covenants never began to run

because the drafter of the covenants and the original grantor of the parcel, Steed, dated the

covenants but failed to sign them. Therefore, Steed, as the original grantor failed to present

3 a valid contractual obligation to the grantees, the grantees never validly accepted the

restrictive covenants by completion of the warranty deed, and, ultimately, the restrictive

covenants were never properly attached to Lot 13. Smith appealed.

¶9. On appeal, Smith asserts that the chancellor erred by finding the restrictive covenants

unenforceable. The crux of Smith’s argument is that the rules of contract construction apply

to create valid covenants since the restrictive covenants were attached to the original

warranty deed of Lot 13 and the warranty deed was properly signed by the grantor, rendering

the covenants signed. He next argues that the valid restrictive covenants ran with the land,

that privity of estate existed between the covenanting parties, and that the covenants touch

and concern Lot 13. He also purports that the restrictive covenants meet all the requirements

to be valid since their intent is clear throughout the terms set within them and that the

restrictive covenants themselves are clear and unambiguous. Further, Smith argues that all

Lot 13 purchasers had notice of the covenants and took it subject to them.

¶10. On the other hand, the Brockways argue on appeal that the chancellor did not err by

finding the Lot 13 restrictive covenants unenforceable; simply attaching the unsigned

restrictive covenants to the original warranty deed, they argue, was insufficient to trigger

their enforceability since covenant number eleven required the grantor to date and sign the

restrictive covenants to become enforceable. Specifically, the Brockways argue the

covenants (1) are subject to the Statute of Frauds; (2) are void for impossibility because Steed

is deceased and left no assigns, so it is impossible to obey the covenants, several of which

4 require the developer or his assigns’ approval; and (3) are unenforceable because there is no

homeowners association.

¶11. We affirm the chancellor’s denial of Smith’s motion to enjoin since the grantor failed

to sign the restrictive covenants evincing a lack of intent to create covenants that run with

the land.

STANDARD OF REVIEW

¶12. The Mississippi Supreme Court reviews the trial court’s findings of fact in actions

determining the enforcement of restrictive covenants under the manifest error and substantial

evidence standard. Misita v. Conn, 138 So. 3d 138, 141 (¶ 7) (Miss. 2014). Additionally, the

Court considers questions of law concerning the construction and interpretation of contracts

de novo. Id. The trial court will be found to have committed manifest error in its findings

if they were the product of prejudice, bias, or fraud, or if they were manifestly against the

weight of the credible evidence. McQuirter v. Archie, 311 So. 3d 1147, 1150 (¶ 8) (Miss.

2020).

DISCUSSION

I. Whether the chancellor erred by finding the restrictive covenants unenforceable.

¶13. The chancellor properly denied Smith’s motion to enjoin the Brockways. The plain

language of the restrictive covenants read together required the original grantor to date and

sign the restrictions to trigger their enforceability, and Steed failed to sign them. Steed’s

failure to sign the restrictive covenants indicates that he did not intend to create such

5 restrictive covenants that would run with the land. As such, the restrictive covenants are

unenforceable as to Lot 13.

¶14. To “run with the land,” a covenant must provide (1) an intent to create such a

covenant, (2) privity of estate between the covenanting parties, and (3) the covenant touches

and concerns the land. Misita, 138 So. 3d at 141 (¶ 8) (internal quotation marks omitted)

(quoting Hearn v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So. 2d 155, 158

(Miss. 1999)). Additionally, to ascertain the meaning, purpose, and intent of restrictive

covenants, their language “is to be read ‘in its ordinary sense,’ considering the entire

document” and the circumstances regarding their formulation. Stokes v. Bd. of Dirs. of La

Cav Imp. Co., 654 So. 2d 524, 527 (Miss. 1995) (quoting City of Gulfport v. Wilson, 603

So. 2d 295, 299 (Miss. 1992)). To determine the intent of the parties, we have held that the

intentions of the parties, as shown by the agreement, governs and is determined by a fair

interpretation of the entire text of the covenant. Id. at 528 (citing A.A. Home Improvement

Co. v. Hide-A-Way Lake, 393 So.2d 1333, 1336 (Miss. 1981)). Courts generally disfavor

restrictive covenants, so the Court views their construction more strongly against the person

seeking the restriction and in favor of the person being restricted when there is ambiguity.

Id. at 527.

¶15. Here, the language of the restrictive covenants is unambiguous: “These restrictions

shall run with the land and shall be binding on all parties and all persons claiming through

them for a period of twenty (20) years from the date these restrictions are hereinafter dated

and signed.” A fair interpretation of the restrictive covenants and reading the restrictive

6 covenants in their ordinary sense requires that the restrictive covenants be signed and dated

by the grantor to run with the land. Id. at 528.

¶16. The restrictive covenants required the grantor’s signature to become enforceable and

run with the land; thus, the first element necessary to create valid restrictive covenants that

run with the land, intent to create a covenant, is unmet. Mistia, 138 So. 3d at 141 (¶ 8). Since

the grantor, Steed, failed to sign the restrictive covenants as they required, no indication

exists that he intended to create restrictive covenants that would run with the land. If Steed

intended to create the restrictive covenants that ran with the land, he would have signed them

so that they would have become enforceable. It cannot be concluded that Steed intended for

the restrictive covenants to run with the land because he failed to meet all the elements

required to do so.

¶17. Because Steed, as the original grantor, failed to sign the document containing the

restrictive covenants, the restrictive covenants are not and were never enforceable. As such,

there is no grounds to hold that the chancellor manifestly erred by finding that the covenants

were unenforceable and by denying Smith’s motion to enjoin the Brockways from installing

a manufactured home on their property.

CONCLUSION

¶18. The chancellor properly denied Smith’s petition for injunction and declaratory relief

against the Brockways by finding that the Lakewood Village Subdivision’s restrictive

covenants were unenforceable. As provided by the unambiguous language of the restrictive

covenants and when reading them in their ordinary sense, the covenants were required to be

7 dated and signed by the grantor before they were to begin running, and the grantor failed to

do so.

¶19. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.