Opinion
No. 110,043.
2014-10-10
Jan BROMAN; Norman Karlin; Marilyn Karlin; Roy Wilbur; Glenn Stroer; Larry Marshall; Joel Parriott; Lori Parriott; and Tom Williamson, Appellees, v. Sally ENFIELD, Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.Jason L. Reed, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellant.Paula J. Wright and Jared T. Hiatt, of Clark, Mize & Linville, Chartered, of Salina, for appellees.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Jason L. Reed, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellant. Paula J. Wright and Jared T. Hiatt, of Clark, Mize & Linville, Chartered, of Salina, for appellees.
Before SCHROEDER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Sally Enfield, a homeowner in the Upper Mill Heights Addition No. 2 Subdivision (Subdivision) in Salina, Kansas, appeals the district court's interpretation of the Declaration of Restrictions (Declaration) and specifically how it was applied to her activities as a lot owner within the Subdivision.
Specifically, Enfield contends that the district court erred when it found she was required to obtain approval prior to removing trees and erecting a fence on her lot because the homeowners in the Subdivision never properly constituted a committee, as contemplated by the Declaration, to exercise the approval power.
Having carefully reviewed the record, the terms and conditions of the Declaration, and the arguments of the parties, we find and hold that the formation of a committee as required by the Declaration qualified as a condition precedent to Enfield's obligation to obtain prior approval for her acts and, therefore, she did not breach the Declaration in either an actual or imminent manner because she could not seek approval from an entity that did not exist. Accordingly, we reverse the district court's decision.
Factual and Procedural Background
On May 13, 1970, the Upper Mill Development Company, Inc. (Subdivider), a Kansas corporation, recorded a final plat map with the Saline County Register of Deeds Office for the Subdivision, which consists of 12 residential lots. Lot 12 is restricted to multiple family dwellings, and the remaining 11 lots known as the Residence “ ‘AA’ “ District, are limited to single-family use.
That same day, the Subdivider filed a Declaration for the Subdivision with the Register of Deeds which imposed property use restrictions upon the owners of the various lots. According to the Declaration, the property use restrictions were for “the benefit of each owner of land in such subdivision ... and [were] restrictive covenants running with the title to such lots, or any part thereof.” The Declaration specifically required that after January 1, 1980, or as soon as lots 1–11 were sold, whichever occurred sooner, “all privileges, powers, rights and authority vested in the Subdivider [by the Declaration were to] ... be exercised by and vested in a Committee to be selected by the owners of a majority of the lots in the Residence ‘AA’ district of the [S]ubdivision.”
In order to ensure that the Subdivision remained “an area of high standards,” the Subdivider reserved “the power to control the buildings, structures, and other improvements placed on each lot.” Consequently, the Declaration requires owners to obtain written approval from the Subdivider before erecting any buildings, walls, structures, or other improvements. If, however, the Subdivider fails to approve or disapprove the plans and specifications within 30 days of a written request, such approval would not be required as long as the building, structure, or improvement did not violate any of the other covenants contained within the Declaration. Likewise, the Declaration also prohibits owners from committing a nuisance and restricts the destruction or removal of “native growth” to situations in which the lot owner obtained prior written approval from the Subdivider.
The Declaration further provided that in the event an owner violates any of the restrictions contained within the Declaration, “the Subdivider, and the lot owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms ... [of the Declaration] or to prevent the violation or breach of any of them.” Furthermore, whenever an owner has built a structure upon a lot in violation of the Declaration, “the Subdivider shall have the right ... to enter upon the property ... and summarily abate or remove the same at the expense of the owner, and any such entry and abatement or removal shall not be deemed a trespass.” According to the Declaration, “[t]he failure promptly to enforce any of the Reservations and Restrictions shall not bar their enforcement,” nor shall the invalidation of any of the restrictions by a court of competent jurisdiction invalidate any of the remaining restrictions.
In 2007, Enfield purchased lot 7 in the Subdivision, i.e., the residential property located at 1700 Upper Mill Heights Terrace, from Brian Richardson. At the time Enfield purchased the lot, it contained a black chain link fence which surrounded the backyard of the property. According to Glenn Stroer, the owner of the lot neighboring Enfield's, Richardson asked him for permission to build the fence and although he was “disappointed that [the fence] was chain link, he approved Richardson's request because he could only see a portion of the fence from his property and he knew Richardson's children, whom he adored, would benefit from it.
Shortly after moving into her residence, Enfield performed some cleanup on the property because the previous owners had littered the lot with refuse. Enfield also undertook the task of rebuilding her back deck as “the previous owner had cleverly concealed ... wood rot with plastic putty and heavy sealing paint.” Furthermore, Enfield discovered that five of her pine trees, which were located on a portion of her property that bordered Stroer's lot, had wilt disease and, despite her attempts to save them, she had to remove all five. Likewise, Enfield removed several cottonwood trees, which according to Enfield, were native to the property because they broke in half during an ice storm.
Then, towards the end of 2011 and the beginning of 2012, Enfield removed three large trees and several smaller hedge trees that ran along the north side of her property line. According to Enfield, although she was not aware of the Declaration's existence at the time she removed the trees, she later believed she did not violate the Declaration because the trees she removed were not native trees. In fact, she testified that pursuant to the Declaration, she saved all the trees considered native to the state of Kansas, i.e., the burr oaks and red cedars.
In January 2012, Enfield decided to create an “entryway” or “courtyard” on the front of her property and she planned to surround this entryway with a fence. Specifically, Enfield planned to erect a chain link fence that matched the fence surrounding her backyard along her side yard and a wrought iron fence with a decorative gate along her front yard. Shortly thereafter, on either January 10 or 12, 2012, Stroer contacted Enfield about the removal of the hedge trees; specifically, Stroer dropped a copy of the Declaration in her mailbox. Upon receiving the Declaration, Enfield went over to speak with Stroer, and according to Enfield, he informed her that he was “upset about the trees being gone, ... [her] yard had always been a mess, ... he didn't like that he had to look at it, and [she] had no right to remove the trees without his permission. Stroer testified that he had this conversation with Enfield because she had violated the Declaration by “removing the natural habitat of [their] development,” which forever altered his lot's “skyline.” Additionally, Stroer detested the condition in which Enfield maintained her property.
According to Enfield, she apologized to Stroer and informed him that it had been her “intention all along to replace the trees—with quality Kansas native trees, specifically oaks,”—and she noted that she had “taken special effort to save (in place) two native bun-oaks ... that were being overshadowed/stunted by the overhanging junk trees and honey suckle brush.” At some point during this discussion, Enfield also informed Stroer that she planned to install fencing along the front portion of her property. Stroer testified that due to his concerns regarding Enfield's dogs—which are now deceased—esthetics, he told Enfield that the “fencing was not going to be allowed, unless everybody approved it.”
Subsequently, Lowe's delivered the fencing materials Enfield had ordered, i.e., Enfield ordered two types of fencing, chain link and lifetime cast aluminum, which according to Enfield, looks like wrought iron. Agitated by the arrival of the fencing material, Stroer drafted a complaint letter to Enfield on January 26, 2012, which directed her to replace the hedge trees, informed her that she could not install fencing without permission from the neighborhood, of his related esthetic and dog-related concerns, and advised her that the general condition of her property had deteriorated. Stroer obtained the signatures of three other owners in the Subdivision, i.e., Roy Wilbur, Larry Marshall, and Joel Parriott, because he wanted Enfield to realize that other lot owners besides himself were concerned. During this time, however, Enfield discovered a mistake with her order and she sent everything back to Lowe's and reordered what she needed. Consequently, Stroer did not send Enfield the letter; when he saw the fencing material disappear, he assumed that Enfield returned them because she had read the Declaration.
Following her discussion with Stroer, Enfield contacted Aubrey Linville, who was apparently the Subdivision's original developer, and Tom Williamson, a neighboring landowner, for advice as to how to handle Stroer's concerns. According to Enfield, Williamson advised her to “basically just send [the owners] a letter talking about all the things [she was] planning on doing to the yard.” Therefore, on February 20, 2012, Enfield sent a letter to all the lot owners in the Residence “AA” district and she forwarded a copy to Linville. In addition to explaining her previous landscaping efforts and her planned projects for the future, Enfield told the homeowners that she was going to build an “entryway courtyard” on the east and north side of her property. At trial, Enfield acknowledged that she did not specifically mention that she planned to install chain link fencing because she “already had chain link fence on the property [and she] didn't think that was necessary.” Additionally, Enfield explained that she did not include drawings or height specifications because Williamson simply told her to give the owners “a list of the things that [she was] planning on doing because if they [were] apprized then they [would] feel less concerned.”
Around the time Enfield drafted and sent her letter, Lowe's delivered a portion of the fencing materials she had ordered, and during the last week of February, Enfield installed “about half of the chain link.” Then the remainder of Enfield's fencing order arrived in April.
Stroer acknowledged receipt of Enfield's February 20 letter which he interpreted as “a letter of apology and a letter that she's thinking about some plans.” When Stroer saw the new fencing material arrive at Enfield's property, he was “disappointed and upset because it's an eyesore, and so [he] thought, well, she's going to put the fence up in spite of how [he felt] about it.” According to Stroer, he subsequently handed Enfield a copy of the letter he drafted on January 26, 2012. Enfield, however, denied that Stroer provided her with a copy of this letter. Enfield testified that she was unaware of the existence of this letter until Stroer informed her over the Memorial Day weekend that “he was sending [her] a certified letter and that he and [her] neighbors were going to be suing [her].”
On June 8, 2012, Stroer sent Enfield, by certified mail, a copy of the letter he drafted on January 26, 2012. Subsequently, although the Declaration references the formation of a “Committee” after January 1, 1980, or as soon as lots 1–11 were sold, whichever occurred sooner, the owners formed such a committee—for the first time—when they determined it was necessary “to address the multiple issues relating to the condition of [Enfield's] property and to enforce the provisions of the [Declaration].” The newly-formed Committee consisted of the following lot owners: Jan Broman (lot 1—600 Upper Mill Heights Drive); Norman and Marilyn Karlin (lot 2—612 Upper Mill Heights Drive); Wilbur (lot 5—1707 Upper Mill Terrace); Stroer (lot 6—1701 Upper Mill Terrace); Marshall (lot 9—1714 Upper Mill Terrace); Joel and Lori Parriott (lot 10—1728 Upper Mill Terrace); and Williamson (lot 11—1740 Upper Mill Terrace). Significantly, Stroer explained:
“We've really never had a committee until this situation with Miss Enfield came up, everybody has always treated each other with kindness and respect and wanted to please one another in the neighborhood so we've just verbally, with the exception of some of the Parriott[s'] jobs which were in writing, most of us have just verbally talked to each other, made sure that what we are getting ready to do is okay. There are very few people in our division that are even interested at this point in our life and a committee that meets every month we would have nothing to talk about because we treat each other the way we want to be treated.”
Likewise, Marshall testified that while the Subdivision did not have a “formal committee, [t]here really is a committee of sorts” because the practice had always been to talk to the neighbors and go to the group if anyone objected.
For instance, during the 25 years Stroer has resided in the Subdivision, he erected a wrought iron fence which surrounds his backyard, a sport court, i.e., a miniature tennis/basketball court, and a dog run on his lot. Moreover, following the initiation of this lawsuit, Stroer performed $30,000 worth of landscaping to “provide a shelterbelt—a buffer between Miss Enfield's property and [his own].” Prior to installing the sport court, Stroer only obtained permission from Wilbur, the owner of the lot contiguous to the sport court's planned location; Stroer did not submit plans and specifications for the sport court to every lot owner because “[n]o one else could see it.” Similarly, Stroer erected his fence after only obtaining the approval of “anybody that could see it,” and he only asked his immediate neighbors for permission to build the dog run. With respect to the fence, Stroer acknowledged that he did not submit his plans and specifications in writing to the Subdivider or a majority of the lot owners; instead, he submitted the plans in person to three or four “lot owners that were in [his] end” of the Subdivision. Stroer further conceded that while he received oral approval from a majority of the lot owners prior to performing the landscaping, he did not seek written approval, as required by the Declaration. When asked if he was aware of any improvements made in the Subdivision that were approved in writing by a majority of the lot owners, Stroer responded affirmatively and referenced an addition and roof change made to the Parriott family's home. Stroer acknowledged, however, that he did not have any documentation to prove this assertion.
Lori Parriott subsequently explained that she and her husband, Joel, had done a number of improvements to their lot. Specifically, the Parriotts made an addition on each end of their property, they replaced a deck, and when they replaced their roof, they did not use shake shingles as required by the Declaration. According to Lori, prior to making these improvements, she approached each of the owners in the Subdivision with a letter and/or plans, told them exactly what she and Joel planned to do, and once she got everyone's permission to proceed, she had each of them sign the letter and/or plans. When asked why she sought written permission for their additions when Stroer had testified that improvements had been “on a neighborly type of basis,” Lori explained:
“I did only because the first addition that we did was so soon after we moved, I had a copy of everything that I got from the title company with the restrictions and in reading those I knew that if we made any changes I would need to go to the neighbors.”
On June 14, 2012, Enfield received a certified letter from the Committee demanding that, in accordance with the Declaration, she replace the “hedge row of trees with some form of vegetation ... pre-approved by the Committee,” cease the construction of her fence and remove the portion that had already been installed, and address the deterioration of her lot. According to Lori, this letter was sent to Enfield because they “wanted her to number one keep up her property, number two [they] wanted the covenants to be honored and respected for the integrity of the neighborhood and [they] wanted the fence to come down.” According to Enfield, in addition to sending this letter, one of the Parriotts walked down to her house and told her that she “should be more neighborly and make changes [and] because it looked like [they] weren't going to resolve the issue, because neither [Stroer] or [herself] were willing to budge, that they were forming a committee.”
Moreover, in the same envelope as the letter from the Committee, was a letter composed by Marshall, discussing the changes Enfield was making to her front and side yards. Marshall explained that he was the second longest owner in the Subdivision, and he assured her that the owners had all abided by the Declaration:
“1. At the time of our home construction we designed a two-story home with a 28 foot living-room ceiling Roy Wilbur and Joe Roth objected and we complied by building a single story home with an 18 foot ceiling in the living room.
“2. There is a requirement to use shake shingle roofs. Several years ago we needed to replace our roof and at that time we requested the approval of the homeowners to use asphalt shingles and received that approval because shake shingles are a fire hazard and draw brown spiders.
“3. Joel and Lori Parriott wanted to do an expansion on the side of their home and they received the required approvals.
“4. Melinda removed the trees on the back of their home. Although she did not obtain the needed approvals no one objected because it was a back yard and not visible to others in the neighborhood.
“5. I would like to remove the wild area between our property and Parriotts but have not and do not intend to ask for approval because removing the wild area would be a detriment to the neighborhood and specifically the privacy between our two properties.
“6. Your neighbor Glenn wanted to install his decorative fence in his backyard. He applied and received approval.”
Then, Marshall instructed Enfield that she needed to undertake the following actions in order to comply with the Declaration:
“1. Remove the chain link fence. It was not and will not be approved. A decorative fence would most certainly be approved connected to [Stroer]'s fence.
“2. Submit a plan (drawing of some sort) as to what you intend to do and your timetable. A reasonable plan will most certainly be approved. That plan could be submitted to either Joel or myself for circulation around the neighborhood. If there is an item or two that are not acceptable we will sit down with you and do our best to work out a compromise.
“3. Remove the sacks, tools etc. from your front yard except when doing the work.
“4. Maintain your lawn in a manner consistent with the rest of the neighborhood.”
Shortly after Enfield received these letters, Marshall visited Enfield and told her he “believed that neighbors should get along and he would like to try to broker an agreement or some concessions between [Stroer] and [herself].” Enfield met with Marshall and the Parriotts on June 22, 2012, and during this meeting, Marshall stated, “ ‘So we can really understand it, ... draw some plans to show exactly where the fence is and what you are planning on doing to the area.’ “ Enfield complied with this request; likewise, she took Marshall and the Parriotts on a tour of her property and showed them what she was planning to do outside the house, i.e., “they walked through where the fence would go and where the gardens would go and where the garden bench and all that stuff.”
On June 26, 2012, after Stroer had “some discussion with other neighbors,” the Committee sent Enfield another letter which directed her to undertake the following actions:
“1. The fence must be removed and no additional fencing installed unless approved by the neighborhood. A decorative fence along the north side of the property would likely be approved depending on the fence presented for approval. No other fencing would be approved at this time.
“2. The neighbors will pay for the removal of the present fencing to the edge of the back yard.
“3. The trees that were removed without approval must be replaced with new trees.
“4. You have indicated this is an ongoing long term project. At this time, it has been going on for 4 years and while we approve the general landscaping plan it needs to be completed by the end of this summer.
“5. You commented on drainage being a problem. We recommend you hire a landscaping firm to design proper drainage and grade the property so it does drain without damaging the house.
“6. The general appearance of the property is not good with mulch bags, concrete, bushes that have not been trimmed in years and weeding throughout the property making it unsightly.”
According to Marshall, the Committee sent this letter because during the June 22 meeting, Enfield was “aloof, not receptive,” and he noted:
“Yeah, over the 38 years I've been [living in the Subdivision] we always have been able to sit down and work out any issues with the neighbors, um, as a group or individual or however, it became apparent by this time the conversation was not going to solve the issue that, you know, we were getting absolutely nowhere and my feeling is that if you can work it out it's much better than ending up here in Court.”
Three days later on June 29, 2012, the Upper Mill Heights Addition Development Committee, i.e., Broman, the Karlins, Wilbur, Stroer, Marshall, the Parriotts, and Williamson, filed a lawsuit against Enfield requesting the issuance of “a Declaratory Judgment that the Restrictions were valid, enforceable and binding on [Enfield] and other lot owners; an award of the fees and costs incurred” in pursuing the action; and a temporary restraining order and a temporary/permanent injunction ordering Enfield to cease any further construction on her lot. Significantly, however, the plaintiffs subsequently amended their petition for declaratory judgment and permanent injunction by filing suit in their individual capacities: “Plaintiffs are individual lot owners in Upper Mill Heights. Plaintiffs represent a majority of the owners in Upper Mill Heights and have, pursuant to certain covenants and restrictions established by the Subdivider, formed a committee for the purpose of enforcing said covenants and restrictions.” Additionally, the plaintiffs amended their request for a permanent injunction by specifying that they desired an order requiring Enfield to remove the partially constructed chain link fence, fully comply with the Declaration in the future, and reimburse them for the costs of the action.
Enfield answered, discovery was held, and the matter proceeded to trial on April 23, 2013. After hearing the testimony, examining the documents admitted as evidence, and entertaining the parties' arguments, the district court found in favor of the plaintiffs. Specifically, the district court held that the Declaration was valid, binding, and enforceable against Enfield and the other lot owners because the Subdivider properly recorded it and thus put each owner on notice of the restrictions contained therein. Pursuant to the Declaration, the court further found that Enfield was required to obtain “written approval from a committee to be appointed by a majority of the lot owners” prior to erecting a fence on her property or destroying/removing native growth, including the “hedges, bushes and/or trees bordering the north end of [her] property line.” Despite the fact that the lot owners never formed a formal committee and did not strictly enforce the Declaration in the past, the court determined that the lot owners did not waive their right to do so because each owner possessed an individual cause of action to enforce the restrictive covenants. Indeed, the district judge stated:
“The covenants or restrictions go on to provide and this is a common problem that attorneys and Courts find in that when everyone gets along you don't have to worry about it, when people don't get along then you have to go back and start looking at the rules and that's why in the restrictions themselves the provisions are very clear that the mere fact that you don't have a committee formed or the mere fact that in the past you haven't strictly enforced each and every provision thereof does not in any way invalidate the restrictions or cause them to be in any way amended or compromised unless they are done so by agreement of the committee or by order of the court based upon proper application, neither one appears to have taken place.
“This Court certainly hasn't modified them and I don't have any evidence before me to indicate that the committee has done so other than the one addendum that has been testified to in this regard.”
Significantly, while the district court concluded that the owners had not waived the right to enforce the Declaration, it ordered them to “form a standing committee to address issues related to property maintenance, the construction or removal of improvements and/or native growth, and any and all other issues covered under the [Declaration]” and to provide notice of the committee's membership and procedures to the entire Subdivision. The district judge explained:
“[T]he Court also orders the neighborhood to maintain a standing committee from this point forward so that in the future we don't have a problem if a property owner needs to have access they ... don't have to wonder who is this committee and how it been formed or is the committee may have nothing to do but at least it's there and available in the event that someone needs to have access to it in the future.”
The district court then determined that Enfield's letter dated February 20, 2012, did not constitute sufficient notice of her proposed lot alteration plans because it did not qualify as “written plans and specifications.” Accordingly, the court found that Enfield violated the Declaration when she erected the chain link fence bordering the north and east ends of her property line and ordered her to remove the partially constructed chain link fence within 60 days. The plaintiffs offered to pay the costs associated with the fence's removal; therefore, the court further ordered Enfield to provide the plaintiffs with two written bids within 30 days.
Next, the district court found that Enfield violated the Declaration when she removed the trees along the north property line of her lot. Although Enfield had attempted to mitigate this violation by “replanting some native trees,” the court held that if the committee determined that the installation of other vegetation was necessary to “restore the skyline that the ... occupants of the subdivision [had] been used to,” upon reasonable notice to Enfield, the plaintiffs could enter Enfield's property to perform such landscaping.
Finally, the district court opted to not rule on the issue of whether Enfield was maintaining her lot in a manner consistent with the rest of the Subdivision:
“As it relates to other issues of the maintenance and upkeep of the lot in this matter, that is a much softer issue and more difficult issue to determine in this matter, Miss Enfield has set forth in her letter of February 20th that she really does want to have a nice appearing property, she takes pride in her property, she wants to be a good neighbor and try to do the things she can and she has been laboring with many other challenges in her life too to do that and I would encourage her to continue those efforts and attempt to bring those but that area the Court finds under the restrictions somewhat becomes in the eye of the beholder and may better be [a] zoning issue than it is a Court issue....”
From this ruling Enfield has appealed.
Analysis of Appellate Issues
Did the district court correctly interpret the Declaration?
Enfield contends that the district court erred when it found that she was required to obtain approval prior to removing trees and erecting a fence because the homeowners never properly constituted a committee, as contemplated by the Declaration, to exercise the Subdivider's approval power.
The plaintiffs, on the other hand, claim the Declaration does not require the formation of a formal committee and while “the procedure utilized by the lot owners may not always have required a written application for approval or a written response, ... it always required prior approval of some sort from the lot owners.” Applicable standards of review
To resolve the issue at hand, we must interpret the Subdivision's Declaration. When interpreting restrictive covenants in deeds, an appellate court utilizes the same rules it applies to construe contracts. Falkner v. Colony Woods Homes Ass'n, 40 Kan.App.2d 349, 353, 198 P.3d 152 (2008). We exercise unlimited review over matters of contract interpretation as the interpretation and legal effect of written instruments are matters of law. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). Accordingly, an appellate court may construe a written instrument and determine its legal effect regardless of the construction made by the district court. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
To interpret the Declaration, we must first ascertain the intent of the parties. Falkner, 40 Kan.App.2d at 353. “[R]estrictive covenants contained in deeds should be construed according to the intent and purpose of the grantors collected from the entire document[, citation omitted,]” under consideration; this court will not base its interpretation upon the isolation of one particular clause or sentence. 40 Kan.App.2d at 353. Intent is to be determined from the language of the written instrument, without applying rules of construction, if the terms are clear and unambiguous. 40 Kan.App.3d at 353. An ambiguity does not exist within a written instrument unless two or more meanings can be construed from the instrument's provisions. 40 Kan.App.2d at 353. “[C]ovenents and agreements restricting the free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction. Doubt will be resolved in favor of the unrestricted use of property. [Citation omitted.]” Sporn v. Overholt, 175 Kan. 197, 199, 262 P.2d 828 (1953).
The questions of whether a party breached a written instrument or a condition precedent governed a party's duty thereunder are questions of fact. See Source Direct, Inc. v. Mantell, 19 Kan.App.2d 399, 407, 870 P.2d 686 (1994) (whether a party's duty was based on a condition precedent is a question for the finder of fact); Wichita Clinic v. Louis, 39 Kan.App.2d 848, 868, 185 P.3d 946 (whether a party breached the contract is a question of fact), rev. denied 287 Kan. 769 (2008). When reviewing a mixed question of fact and law, this court applies a bifurcated standard of review. See City of Wichita v. Denton, 296 Kan. 244, 255, 294 P.3d 207 (2013). Generally, the district court's factual findings are reviewed under the substantial competent evidence standard and its conclusions of law are subject to unlimited review. 296 Kan. at 255. Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. Venters v.. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011).
Furthermore, this case involves the granting of an injunction. Injunctions are equitable in nature, and the decision to grant an injunction involves an exercise of judicial discretion. Persimmon Hill First Homes Ass'n v. Lonsdale, 31 Kan.App.2d 889, 892, 75 P .3d 278 (2003). Generally, an appellate court will not interfere with such a decision absent a manifest abuse of discretion. Where, however, an appeal frames issues of law, including the threshold legal requirements for injunctive relief, a de novo standard of review applies. 31 Kan.App.2d at 892. Interpretation of paragraphs 5, 12, 23, and 24 of the Declaration
At the outset, as the district court found and the plaintiffs point out, the Declaration is valid, binding, and enforceable against Enfield and the other lot owners because the Subdivider properly recorded it and thus, put each property owner on notice of the restrictions contained therein. See K.S.A. 58–2222 (“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the Register of Deeds for record, impart notice to all persons of the content thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.”); Schlup v. Bourdon, 33 Kan.App.2d 564, Syl. ¶ 2, 105 P.3d 720 (2005) (“Until [an instrument creating an interest in land] is recorded, it is valid only between its parties and those having actual notice of it. Once recorded, it imparts notice to the world of its contents and is prospectively binding upon a later purchaser of the property.”).
Consequently, the issue in this case involves determining whether Enfield was required to obtain written approval prior to removing trees and/or erecting a fence on her lot. As explained above, the Declaration requires owners to obtain written approval from the Subdivider before erecting any buildings, walls, structures, or other improvements:
“5. Approval of Plans. For the purpose of further insuring the development of the lands so platted as an area of high standards, the Subdivider reserves the power to control the buildings, structures, and other improvements placed on each lot, as well as to make such exceptions to these Restrictions as the Subdivider shall deem necessary and proper.
“Whether or not provision therefor is specifically stated in any conveyance of a lot made by the Subdivider, the owner or occupant of each and every lot, by acceptance of title thereto or by taking possession thereof, covenants and agrees that no building, wall, structure or other improvement shall be placed upon such lot unless and until the plans and specifications therefor and plot plan have been approved in writing by the Subdivider. Each such building, wall, structure or improvement shall be placed on the premises only in accordance with the plans and specifications and plot plan so approved. Refusal of approval of plans and specifications by the Subdivider may be based on any ground, including purely aesthetic grounds which, in the sole and uncontrolled discretion of the Subdivider, shall seem sufficient. No alteration in the exterior appearance of the buildings or structures shall be made without like approval. If the Subdivider shall fail to approve or disapprove the plans and specifications within thirty (30) days after written request therefor, then such approval shall not be required; provided that no building, structure or other improvement shall be erected which violates any of the covenants herein contained.”
Likewise, in addition to further restrictions upon occupancy, garages, outbuildings, boundary walls, utility lines, radio and television antennas, parking, commercial vehicles, lot elevation, clotheslines, garbage cans, storage piles, tanks, signs, letter boxes, yard lights, swimming pools, pets, and mining, the Declaration prohibits owners from destroying/removing the “native growth” of any lot without prior written approval. Specifically, the Declaration provides:
“12. Native Growth. The native growth of any lot shall not be permitted to be destroyed or removed except as approved in writing by the Subdivider. In the event such growth is removed, except as stated above, the Subdivider may require the replanting or replacement of same, the cost thereof to be borne by the lot owner. Tree and shrub planting shall comply with a general landscape plan selected by the Subdivider.”
While Enfield did not obtain written approval prior to removing the trees and erecting her fence, she contends that she was not required to do so because the lot owners never satisfied a condition precedent to her performance under the Declaration, i.e., the lot owners never formed a committee. “Conditions precedent to performance under an existing contract arise from the terms of a valid contract and define an event that must occur before a right or obligation matures under the contract.” M West, Inc, v. Oak Park Mall, 44 Kan.App.2d 35, 47, 234 P.3d 833 (2010).
We find that based upon the plain language of the Declaration, it appears a condition precedent to the exercise of the approval power clearly did exist. Although the Declaration specifies that the property use restrictions were for “the benefit of each owner of land in such subdivision ... and [were] restrictive covenants running with the title to such lots, or any part thereof,” all rights, privileges, powers, and authority contained within the Declaration vested specifically in the Subdivider. Because the Subdivider obviously did not intend to be involved with the maintenance and governance of the Subdivision in perpetuity, the Declaration provides:
“24. Committee. After January 1, 1980, or as soon as Lots One (1) through Eleven (11) are sold, whichever is sooner, all privileges, powers, rights and authority vested in the Subdivider shall be exercised by and vested in a Committee to be selected by the owners of a majority of the lots in the Residence ‘AA’ district of the [S]ubdivision.” (Emphasis added.)
While the plaintiffs are correct that paragraph 24 does not require the formation of a committee at a particular time, as it simply states that “ [a]fter January 1, 1980, or as soon as Lots One (1) through Eleven (11) are sold, whichever is sooner,” it clearly contemplates the formation of a committee prior to the exercise of any of the Subdivided powers. (Emphasis added.) In fact, the plain language of paragraph 24 expressly limits the exercise of the Subdivided privileges, powers, rights, and authority, to a committee selected by a majority of the lot owners in the Residence “ ‘AA’ “ district. The restrictions contained within paragraphs 5 and 12 of the Declaration clearly fall within the ambit of the Subdivided privileges, powers, rights, and authority, as these paragraphs are both contingent upon some action by the Subdivider. In fact, paragraph 5 places the power to ensure that the Subdivision remains “an area of high standards” upon the Subdivider: “[N]o building, wall, structure or other improvement shall be placed upon such lot unless and until the plans and specifications therefor and plot plan have been approved in writing by the Subdivider ” (Emphasis added.) Similarly, paragraph 12 provides that “[t]he native growth of any lot shall not be permitted to be destroyed or removed except as approved in writing by the Subdivider [,][and] [i]n the event such growth is removed ... the Subdivider may require the replanting or replacement of same.” (Emphasis added.)
Despite the plaintiffs' assertion to the contrary, the Declaration does not authorize the lot owners, as a whole, to exercise the approval power set forth in paragraphs 5 and 12 on an informal, as needed basis. The declaration explicitly calls for the formation of a committee, elected by a majority of the lot owners, and the fact that this committee is to be elected by a majority of the lot owners indicates that the committee's membership will not comprise the entirety of the Subdivision. Had the Subdivider desired the lot owners to have this power, the Subdivider could have transferred the privileges, powers, rights, and authority to the lot owners individually or as a whole rather than a committee. Moreover, if the lot owners found this requirement cumbersome, they could have amended the Declaration; yet, they chose not to do so.
The district court, however, found that the committee requirement was essentially irrelevant because under paragraph 23 of the Declaration, the lot owners have individual causes of action to enforce the restrictive covenants. Paragraph 23 provides:
“23. Remedies for Violations— Invalidations. For a violation or a breach of any of the Restrictions by any person claiming by, through, or under the Subdivider, or by virtue of any judicial proceedings, the Subdivider, and the lot owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach of any of them. In addition to the foregoing right, the Subdivider shall have the right, whenever there shall have been built on any lot any structure which is in violation of these restrictions, to enter upon the property where such violation of these Reservations and Restrictions exists and summarily abate or remove the same at the expense of the owner, and any such entry and abatement or removal shall not be deemed a trespass. The failure promptly to enforce any of the Reservations and Restrictions shall not bar their enforcement. The invalidation of any one or more of the Restrictions by any court of competent jurisdiction shall in no way affect any of the other Restrictions, and they shall remain in full force and effect.
“Should the owner fail, neglect or refuse to satisfy and discharge any lien arising hereunder within thirty (30) days, the Subdivider, its successors and assigns, shall have the right to interest on such liens at the rate of eight per cent (8%) per annum and shall be entitled to receive all costs of collection, including a reasonable attorney's fee.”
When the entire document, rather than one particular clause or sentence, is considered however, it is clear that paragraph 23 does not render the formation of a committee irrelevant, as paragraphs 23 and 24 can be read in harmony with one another. Paragraph 23 authorizes the lot owners, individually or as a whole, to prevent a violation of the Declaration or remedy a breach thereof; consequently, the lot owners may enforce the Declaration only in the event of an actual or imminent breach. Because paragraph 24 transfers the Subdivider's privileges, powers, rights, and authority to a committee elected by a majority of the lot owners, paragraphs 5 and 12 cannot be breached unless a committee, the entity charged with determining compliance, properly exists.
This interpretation of paragraph 24 does not negate paragraph 23 because unlike paragraphs 5 and 12, some of the restrictions contained within the Declaration are not dependent upon an exercise of authority by the Subdivider. For instance, paragraph 1 restricts the lots in the Residence “ ‘AA’ “ district to single family use, and paragraph 2 restricts lot 12 to multiple-family dwellings. Moreover, paragraph 7 which governs garages and outbuildings, is not contingent upon some action by the Subdivider:
“7. Garage. No garage or other outbuilding shall be placed, erected or maintained upon any part of such premises except for use in connection with a resident already constructed or under construction at the time that such garage or other outbuilding is placed or erected upon the property. Nothing herein shall be construed to prevent the incorporation and construction of a garage as a part of such residence. All residences shall have garages capable of containing two or more standard-sized automobiles. No carports shall be constructed on any lot.”
Likewise, paragraph 10 governs parking on or around the lots, and paragraph 18 restricts the types of pets kept on the lots without the Subdivided involvement:
“10. Parking. Provision shall be made on each lot for sufficient off-street parking for the occupants of each residence in the Residence ‘AA’ District so that automobiles will not habitually be parked on any residential street in the [S]ubdivision.
....
“18. Pets. No animals, birds or fowl shall be kept on any part of this property, except dogs, cats, birds and normal household variety pets which may be kept in reasonable numbers for the pleasure and use of the occupants, but not for commercial use or purpose. Birds shall be confined in cages.”
As explained above, in order to determine the parties' intent, it is necessary to construe all provisions of a written instrument together and in harmony with each other. Falkner, 40 Kan.App.2d at 356. Where, as in this case, “ ‘the language ... is clear and can be carried out as written, there is no room for construction or modification of the terms. [Citations omitted.]’ “ 40 Kan.App.2d at 356. Moreover, “ ‘[w]hen the intent of the parties ... is clearly ascertainable by construing the document from its four corners it is not considered ambiguous; although some terms may be conflicting, extrinsic evidence is inadmissible and rules of construction applicable to ambiguous contracts do not apply .’ [Citation omitted.]” 40 Kan.App.2d at 357. Paragraphs 5, 12, 23, and 24 of the Declaration are not contrary to each other, nor are they ambiguous, as no alternative meaning can be extrapolated from these provisions. See 40 Kan.App.2d at 356.
The Kansas case of Falkner is instructive here because the panel interpreted the Declaration of Restrictions applicable to the homeowners in the Colony Woods Subdivision in a manner consistent with our reading of paragraph 23. See 40 Kan.App.2d at 350–58. The Colony Woods Home Association (CWHA) operated Colony Woods under a Declaration of Restrictions which contains a provision entitled “ ‘Right to Approve Plans' (Section 7)” and another titled “ ‘Required Building Materials' (Section 9).” 40 Kan.App.2d at 350. Section 7 which established the Architectural Control Committee (ACC), a group of homeowners imbued with the responsibility of accepting and approving requests for new buildings/alterations under the Declaration of Restrictions, provided:
“ ‘No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision....
“ ‘Upon any such request for approval the party requesting such approval shall submit simultaneously with said request the following documentation:
....
“ ‘(d) A list of all exterior materials to be used which will include roof, masonry, siding and windows....
....
“ ‘... In the event said Committee, or its designated representative, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.’ “ 40 Kan.App.2d at 350.
Section 9 read: “ ‘Roofs shall be covered with wood shingles, wood shakes, slate or tile. Any building products which may come into general usage for dwelling construction in this area after the date of these restrictions shall be acceptable if approved in writing by the [ACC].’ “ 40 Kan.App.2d at 350. In addition, the Declaration of Restrictions also contained the following language set forth in Section 22:
“ ‘[T]he Developer, its successors and assigns, and also the owner or owners of any of the lots hereby restricted shall have the right to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of, or to enforce the observance of, the restrictions above set forth, in addition to ordinary legal actions for damages, and failure of the Developer, its successors or assigns, or any owner or owners of any lot or lots hereby restricted to enforce any of the restrictions herein set forth at the time of its violation shall, in no event be deemed to be a waiver of the right to do so thereafter.’ “ 40 Kan.App.2d at 354.
The Falkners, who owned a home in Colony Woods, replaced their wood roof with a laminate asphalt shingle roof without taking any action to obtain approval from the ACC. After the chairman of the ACC informed the Falkners that the ACC had not approved their roofing material and provided them with a request form for an exterior roofing material change, the Falkners attempted to obtain the requisite approval. The Falkners received no response, so their attorney wrote the chairman to determine whether the ACC had approved the request. In response, the CWHA's attorney told the Falkners that the ACC disapproved the roofing materials before the submission of their request form and that the CWHA planned to take further legal action. Consequently, the Falkners brought an action for declaratory judgment, and the CWHA counterclaimed for an injunction and damages.
When the district court entered judgment in favor of the Falkners, the CWHA appealed, alleging that the district court erred in its interpretation of the Declaration of Restrictions. Among other arguments, the CWHA contended that Section 9, not Section 7, applied to the Falkners' roofing project. Employing the rules relevant to interpreting contracts, a panel of this court determined that Sections 7 and 9 were both applicable because they could not be read distinctly and separately, as they were “not contrary to each other and no alternative meaning [could] be extrapolated from the provisions.' “ 40 Kan.App.2d at 357.
Then, similar to our interpretation of paragraph 23, the Falkner panel construed Section 22 as a general clause authorizing the CWHA or individual homeowners to enforce the restrictive covenants set forth within the Declaration of Restrictions unless a more specific clause otherwise controlled. See 40 Kan.App.2d at 356–57. Indeed, the panel explained:
“[I]n considering the Declaration of Restrictions as an entire document, it is clear that Section 22 is a general clause regarding the ability of CWHA and individual homeowners to enforce the Declaration of Restrictions while Section 7 applies specifically to situations where homes are ‘erected, placed or altered.’ Thus, if CWHA or a homeowner wanted to file suit to require another homeowner to sod their yard under Section 10, or to prevent another homeowner from installing an above-ground swimming pool under Section 13, or even to restrict another homeowner from conducting automotive repair on their land under Section 18, they would do so by filing suit under Section 22 because none of the provisions contain a more specific clause regarding the approval procedure and legal process. Like Section 9, Section 22 can be read in harmony with the more specific procedures outlined in Section 7.” (Emphasis added.) 40 Kan.App.2d at 356–57.
Additionally, as Enfield asserts, the Michigan Supreme Court's decision in Stuart v. Chawney, 454 Mich. 200, 560 N.W.2d 336 (1997), involves a set of facts similar to our case and is consistent with our conclusion. In Stuart, new owners (the Chawneys) bought land that was subject to restrictive covenants, including a covenant requiring approval of construction from an architectural control committee.
The Chawneys desired to build a residence on the property and had submitted their plans and obtained approval from a homeowners association for a neighboring subdivision which had jurisdiction over the purchased lots. The Chawneys began construction of their new residence.
Adjoining lot owners (Stuarts and others) sought an injunction to permanently enjoin the construction because they claimed no proper approval had been obtained for the construction.
After trial, a ruling in favor of the new owners, and a ruling in favor of the adjoining owners by the Michigan Court of Appeals, the Michigan Supreme Court ruled in favor of the new owners and held they had not violated any of the terms of the restrictive covenant because the adjoining owners had never actually formed a homeowners association; the adjoining owners did not by default constitute an “architectural control committee” and there was no properly constituted committee to which plans for the construction were required to be submitted. 454 Mich. At 211–13. The Michigan Court held that when “the entity charged with determining compliance with other standards did not exist, there was no violation to redress, on an individual basis or otherwise.” 454 Mich. at 213.
In its opinion, the Michigan Supreme Court stated:
“We agree with the Court of Appeals dissent, however, that there was no breach of the agreement because there was no properly constituted architectural control committee, i.e., no method for enforcing the standards of ‘beauty’ and ‘harmony.’
“It is undisputed that from the time the restriction agreement was recorded in 1967, to the beginning of the construction of the defendants' home in 1991, no architectural control committee separate from the original developer had been convened to consider proposed construction in Lincoln Green. All twelve lots had been improved by 1974....
“... In short, as noted by the Court of Appeals dissent, Lincoln Green lot owners acted at all times as if there were no separate architectural control committee for their subdivision.” 454 Mich. at 211.
This is precisely what has happened in the appeal before us. Due to the lot owners in the Subdivision's failure to properly constitute a committee that was plainly required by the Declaration, no entity existed that could properly ensure that the restrictions in the Declaration could be properly enforced.
In conclusion, we hold that because the formation of a committee qualified as a condition precedent to Enfield's obligation to obtain approval prior to altering the condition of her lot, she did not breach the Declaration in either an actual or imminent manner, as she could not seek approval from an entity that did not exist. Therefore, the district court erred when it found that Enfield needed to obtain written approval prior to erecting a fence on her property or removing native growth and ordered her to remove the partially constructed chain link fence and grant the plaintiffs access to her property, if necessary, to restore vegetation.
Given our holding, we decline to address Enfield's alternative argument, i.e., that her February 20 letter constituted sufficient notice to the lot owners of her plans and they waived the approval requirement by failing to respond to this letter within 30 days, because it is moot. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (as a general rule, appellate courts do not decide moot questions or render advisory opinions).
Reversed.