Rausch Coleman Homes, LLC v. Brech

303 S.W.3d 456, 2009 Ark. App. 225, 2009 Ark. App. LEXIS 292
CourtCourt of Appeals of Arkansas
DecidedApril 1, 2009
DocketCA 08-1113
StatusPublished
Cited by5 cases

This text of 303 S.W.3d 456 (Rausch Coleman Homes, LLC v. Brech) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rausch Coleman Homes, LLC v. Brech, 303 S.W.3d 456, 2009 Ark. App. 225, 2009 Ark. App. LEXIS 292 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

_[jAppellant, Rausch Coleman Homes, LLC, appeals the July 18, 2008 order of the Lonoke County Circuit Court granting summary judgment to appellees, who are thirty-two owners and residents of the land development at issue. Appellant argues that the trial court erred as a matter of law in granting appellees’ motion for summary judgment because the trial court improperly construed the bill of assurance. We disagree and affirm the trial court’s order.

Appellant is the owner of numerous lots in both Phase I and Phase II of Southern Comfort Estates in Cabot, Arkansas. Ap-pellees are thirty-two owners and residents of Southern Comfort Estates Phase I and Phase II. The bill of assurance for Southern Comfort | ^Estates Phase II provides that the minimum size for a principal residential structure would be 1700 square feet, heated and cooled. The bill of assurance also provides as follows:

20. DURATION OF COVENANTS. These covenants and restrictions are to run with the land and shall be binding upon all parties and all persons claiming under them until January 1, 2024, at which time said covenants and restrictions shall automatically be extended for successive periods of (10) ten years from each termination, unless 70% of the then owners of the lots agree in writing to amend said covenants and restrictions, either in whole or in part.
21. TO CHANGE THE COVENANTS. These covenants and restrictions shall not be amended, canceled, or supplemented unless an instrument signed by the owners of at least 70% of the then owners of the lots is placed on record agreeing to change the covenants and restrictions in whole or in part.

Also at the center of this litigation is a document entitled “Amendment to Bill of Assurance of Southern Comfort Estates, Phase II,” which was executed on February 29, 2008. It purported to change the minimum size for principle residential structures from 1700 to 1400 square feet, heated and cooled.

Appellees filed a Complaint for Injunction in Lonoke County Circuit Court on March 25, 2008. They asserted that they had complied with the restrictive covenants contained in the bills of assurance “at great expense” and relied on their enforcement to “maintain their desired life style and property values.” Appellees alleged that appellant had wrongfully obtained four building permits 1 from the City of Cabot, and that the four house | splans did not meet the minimum square footage requirements of the respective bills of assurance. Appellees contended that they would suffer irreparable harm if appellant were allowed to construct these houses and requested an injunction.

Appellant Rausch Coleman Homes, LLC, filed a motion for summary judgment on April 25, 2008, essentially arguing that there was no basis for an injunction because the proposed buildings were within the requirements of the properly amended bill of assurance. A hearing was held on June 20, 2008, and the trial court thereafter issued a letter ruling denying appellant’s motion for summary judgment. Appellees filed a motion for summary judgment on July 2, 2008.

On July 18, 2008, the circuit court entered an order denying appellant’s motion for summary judgment and granting ap-pellees’ motion for summary judgment. The trial court found that “the plain language of paragraph twenty (20) of the Bill of Assurance of Phase II of Southern Comfort Estates of Lonoke County, Arkansas, prohibits any amendment of the Bill of Assurance until the year of 2024.” The trial court noted that restrictions on land are not favored in the law, but found that because the language of the bill of assurance clearly and unambiguously prohibited any amendment until 2024, the instrument styled “Amendment to Bill of Assurance of Southern Comfort Estates, Phase II, Lonoke County, Arkansas” filed of record on March 4, 2008, violated paragraph twenty (20) of the bill of Rassurance. Appellant was enjoined from constructing any buildings inconsistent with the bill of assurance filed of record on July 24, 2006. This appeal timely followed.

Normally, on a summary-judgment appeal, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but in a case where the parties agree on the facts, the appellate court simply determines whether the appellee was entitled to a judgment as a matter of law. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). Our supreme court has written:

[Restrictions upon the use of land are not favored in the law. Further, a restrictive covenant will be strictly construed against limitations on the free use of land. Thus, all doubts are resolved in favor of the unfettered use of land.
Any restriction on the use of land must be clearly apparent in the language of the asserted covenant. Where the language is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the provision. In addition, we have said that the general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs.

Cochran v. Bentley, 369 Ark. 159, 166, 251 S.W.3d 253, 260 (2007) (internal citations omitted).

The rule of strict construction is limited by the basic doctrine of taking the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). |sThe first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007). The court must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. It is a well-settled rule that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. Different clauses of the contract must be read together and the contract construed so that all of its parts harmonize, if that is possible. See Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may safely be assumed that such was the aspect in which the parties themselves viewed it. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
303 S.W.3d 456, 2009 Ark. App. 225, 2009 Ark. App. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rausch-coleman-homes-llc-v-brech-arkctapp-2009.