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2001

Holladay Duplex Management Company, L.L.C. v.Dale G. Howells, Lois Howlls, Howells FamilyTrust : Brief of AppelleeUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.H. Ralph Klemm, Esq.; Attorney for Appellees Dale G. Howells and Louis Howells, et al..Lincoln W. Hobbs, Esq.; Akiko Kawamura, Esq.; Hobbs, Adondakis and Olson, L.C.; Attorneys forAppellant Holladay Duplex Management Company, L.L.C..

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Recommended CitationBrief of Appellee, Holladay Duplex Management Company, L.L.C. v. Howells, No. 20010369 (Utah Court of Appeals, 2001).https://digitalcommons.law.byu.edu/byu_ca2/3280

IN THE UTAH COURT OF APPEALS

HOLLADAY DUPLEX MANAGEMENT ] COMPANY, L.L.C., a Utah liability ; company,

Appellant/Plaintiff, ]

vs. ]

DALE G. HOWELLS and LOIS ; HOWELLS, TRUSTEES of the ; HOWELLS FAMILY TRUST ; U/A/D 06/17/91; etal., ]

Appellees/Defendants. ]

) CaseNo.20010369fCA

) Priority 15 ) (Appeal) I Third Judicial District Court ) The Honorable Leon A. Dever

BRIEF OF APPELLEES

This is an appeal from a Judgment entered by the Honorable Leon A. Dever, District Judge, in favor of

Defendants/Appellees in the Third Judicial District Court.

LINCOLN W. HOBBS, ESQ (4848) AKIKO KAWAMURA, ESQ. (8568) HOBBS, ADONDAKIS & OLSON, L.C. 341 South Main Street, Suite 208 Salt Lake City, Utah 84111 Telephone. (801) 519-2555 Facsimile: (801) 519-2999

Attorneys for Appellant Holladay Duplex Management Company, L.L.C.

H. RALPH KLEMM, ESQ. (1838) 489 West 3500 South Bountiful, Utah 84010 Telephone. (801) 295-0718

Attorney for Appellees Dale G. Howells & Lois Howells, and 12 other defendants

Utah Court of Appeals

Clark of the Court

IN THE UTAH COURT OF APPEALS

HOLLADAY DUPLEX MANAGEMENT COMPANY, L.L.C., a Utah liability company,

Appellant/Plaintiff,

vs.

DALE G. HOWELLS and LOIS HOWELLS, TRUSTEES of the HOWELLS FAMILY TRUST U/A/D 06/17/91; etal.,

Appellees/Defendants.

CaseNo.200103699-CA

Priority 15 (Appeal)

Third Judicial District Court The Honorable Leon A. Dever

BRIEF OF APPELLEES

This is an appeal from a Judgment entered by the Honorable Leon A. Dever, District Judge, in favor of

Defendants/Appellees in the Third Judicial District Court.

LINCOLN W. HOBBS, ESQ. (4848) AKIKO KAWAMURA, ESQ. (8568) HOBBS, ADONDAKIS & OLSON, L.C. 341 South Main Street, Suite 208 Salt Lake City, Utah 84111 Telephone: (801) 519-2555 Facsimile: (801) 519-2999

H RALPH KLEMM, ESQ. (1838) 489 West 3500 South Bountiful, Utah 84010 Telephone: (801) 295-0718

Attorney for Appellees Dale G. Howells & Lois Howells, and 12 other defendants

Attorneys for Appellant Holladay Duplex Management Company, LLC.

LIST OF PARTIES

Appellant/Plaintiff

HOLLADAY DUPLEX MANAGEMENT COMPANY, L.L.C., a Utah limited liability company.

Appellees/Defendants

DALE G. HOWELLS and LOIS HOWELLS, TRUSTEES of the HOWELLS FAMILY TRUST U/A/D 06/17/91

JACK M. MONSON and DARLENE L. MONSON, TRUSTEES of the MONSON FAMILY TRUST U/A/D 11/06/91

MARION G COX and MARY E. COX

HELEN ELIZABETH MORGAN OLSEN, TRUSTEE of the HELEN ELIZABETH MORGAN OLSEN REVOCABLE LIVING TRUST AGREEMENT

CHARLES L. SUMMERS and CAROLE A. SUMMERS

MICHAEL A. SLEATER and DEANNA A. SLEATER

DELORES RASMUSSEN

ELLIOTT J. WINTCH and ATHELENE E. WINTCH

The above Appellees/Defendants are represented by H. Ralph Klemm.

Other Named Defendants

ALBERT R.PEARCE ROBERT C. BRADY and ELSIE I. BRADY ERMAL.LARSEN RHETT and V. ANN MILLER, TRUSTEES of the V. ANN MILLER

LIVING TRUST

These defendants are not represented in this action.

2

TABLE OF CUNi LNTS

TABLE OF AUTHORITIES

CASES

RULES

S , M

JURISDICTION

COMMENTS ON STATED ISSUES

1 OF THE CASE

A. Nature of the Case

B Course of Proceedings

( I >i |iii l imn at l u a l I ourt

MA II Ml Ml I H I M IS

SUMMARY ( )\< MnillMI'Nr

I. THE DISTRICT JUDGE PROPERLY RUI ID AS A MATTER OF LAW THAT THE LANGUAGE OF THE RESTRICTIVE COVENANT IN 1! If DEEDS TO PLAINTIFF'S PROPERTY IS CLEAR AND UNAMBIGUOUS

n. JUDGE DEVER CORRECTLY REFUSED TO OVERTURN JUDGE THORNE'S RIT'TXT^ ™T THE AMBIGUITY OF THE RESTRICTIV > \ NP" IN THE DEEDS TO PLAINTIFF'S I"

3

ffl. THE COURT OF APPEALS SHOULD AFFIRM THE DENIAL OF PLAINTIFF'S MOTION TO ALTER OR AMEND THE JUDGMENT 30

CONCLUSION 33

ADDENDUM 35

4

TABLE OF AUTHORITIES

CASES Pages

Buehner Block Co. v. UWC Assoc. 752 P.2d 892, 895 (Utah 1988). . 20, 24

Capital Assets Financial Services v. Lindsay. 956 P.2d 1090 (1998) 19

Cecalav.Thorlev. 764 P.2d 643 (Ut. App. 1998) 21

Faulkner v. Farnsworth. 665 P.2d 1292,1293 (Utah 1983) 21,29

Freeman v. Gee. 423 P.2d 155 (Utah 1967) 24

Gillmorv. Cummings. 904 P.2d 703,706 (Ut. App.1995) 19,20

Grow v. Marwick Dev.. Inc.. 621 P.2d 1249,1252, (Utah 1980) 24

Hartman v. Potter. 596 P.2d 653,656 (Utah 1979) 20

Hoffman v. Schwan (1941) 312 111 App 160, 38 NE2d 53 25

Homer v.Smith. 866P.2d622, 629 (Ut. App. 1993) 19

John Call Eng'g Inc. v. Manti City Corp..

743 P.2d 1205,1207 (Utah 1987) 21

Mann v. Wetter. 100 Or.App. 184,785 P.2d 1064,1067 (1990) 21

Olson v. Park-Craig-Olson. Inc..

815 P.2d 1356 (Utah App. 1991) . . . . 33

Parrish v. Richards. 336 P.2d 122, 8 Ut.2d 419 (Utah 1959) 21

Plateau Mining v. Utah Division of State Lands. 802 P.2d 720 (Utah 1990) 21

Skillman v. Smathehurst. (1898) 57 NJ eq 1,40 A 855 26

5

Swenson v. Erickson. 998 P.2d 807 (Utah 2000) 20,24

US Express. Inc. v. Utah State Tax Commission.

886P.2d 1115 (Utah App. 1994) .33

Walker v.Haslett. (1919) 44 Cal App 394,186 P 622 25

Winegar v. Froerer Corp.. 813 P.2d 104,110 (Utah 1991) 20

RULES

Utah Rules of Civil Procedure Rule 54(c)(1) 33

STATUTES

Utah Code Annotated. Section 78-2a-3(2)(j) 7

Utah Code Annotated. Section 78-33-1 8

6

JURISDICTION

The Utah Court of Appeals has jurisdiction in this matter

pursuant to Utah Code Annotated, Section 78-2a-3(2)(j).

COMMENTS ON STATED ISSUES

It appears to the defendants that the only real issue on this

appeal is whether or not Judge Thorne correctly held as a matter of law that

the language of the covenant in the deeds to plaintiffs property is clear and

unambiguous. The other two issues, although discussed separately herein,

can effectively be merged into this one question. Once the ambiguity matter

is considered and resolved by the court, the questions of reconsideration by

the succeeding District Judge and the failure to grant the Motion to Alter or

Amend Judgment will be resolved as well.

7

STATEMENT OF THE CASE

A. NATURE OF THE CASE.

Plaintiff is the present owner of lots 3 and 4 of the Ellison

Woods Subdivision in Salt Lake County. Plaintiff brought this action in the

District Court of Salt Lake County under the Utah Declaratory Judgments

Act (Utah Code Annotated 78-33-1) against all other owners of property in

that subdivision seeking to obtain a judgment declaring and decreeing that

certain restrictive covenants in the original deeds to its own property are

invalid and unenforceable. (R.l-25) The case was assigned to the

Honorable William A. Thorne, Jr., then a District Judge in Salt Lake County.

B. COURSE OF PROCEEDINGS

Fourteen of the twenty-four named defendants responded to

plaintiffs Complaint asserting that the restrictive covenant limiting

construction on each lot to a single-family dwelling house should be upheld

and enforced by the court. They also alleged that construction of multiple

dwellings on the lots in any form would be in violation of that covenant.

The answer was filed jointly on their behalf, and all of them are represented

by the same attorney. (R. 71-75)

During the course of the proceedings, the plaintiff filed a

Motion for Summary Judgment on grounds that the restriction on plaintiffs

8

property was invalid and unenforceable as a matter of law. (R.302-3)

Plaintiffs supporting memorandum asserts that the language of the covenant

in its deeds is uncertain and ambiguous and must be construed in favor of

free and unrestricted use of the property. Plaintiff also argued that the

covenant is invalid as a matter of law because it has been abandoned by the

property owners and because changes in the subdivision have rendered the

covenant valueless. (R.304-326)

Defendants asserted in their response that the motion should be

denied because the covenant restricting construction on the lots to a single-

family dwelling house is clear and unambiguous and because the questions

of abandonment of the covenant and the effect of changes in the subdivision

are questions of material fact that must be resolved by later trial proceedings.

(R. 329-346)

After a lengthy oral argument on these issues, the court entered

its Order Denying Plaintiffs Motion for Summary Judgment. The order

includes a ruling by the court that the covenant restricting construction on

the two lots to single-family dwelling houses is clear and unambiguous and

is therefore enforceable on its face. The court stated further that the issues

of abandonment and changes to the neighborhood that may nevertheless

invalidate the covenants are fact sensitive issues that could not be resolved

as a matter of law on the facts then before the court. (R.464-5)

The defendants never filed any dispositive motions in this case,

and they never claimed that the case could be resolved without a jury trial.

Upon completion of discovery by the parties, a Pre-Trial Order

was filed outlining the issues to be tried by the court. These included the

two factual issues relating to the effect on the covenant of changes in the

subdivision and the possible abandonment of the restriction. (R. 558-564,

565-571)

The first trial began and ended on March 15,2000. A mistrial

was declared when two of the chosen jurors were disqualified.

When Judge William A. Thorne, Jr. was appointed to the Utah

Court of Appeals, the case was re-assigned to Judge Leon Dever for further

proceedings. He convened a jury trial on November 13,2000, to resolve the

factual issues of change and abandonment. At the conclusion of plaintiffs

case, defendants made a Motion For A Directed Verdict. In opposing the

motion, plaintiffs counsel argued that the issue of the clarity or ambiguity

of the covenant was a question of fact that should be resolved by the jury.

(R. 162,164,171) He also argued that Judge Thome's ruling on ambiguity

was not binding on the succeeding judge and should be reconsidered by him

10

at that point. (R. 176) Judge Dever refused to overturn Judge Thome's

previous order and proceeded with the trial on the issues of change and

abandonment. (176)

At the conclusion of the evidence, defendants renewed their

Motion for a Directed Verdict. (R. 369) PlaintiflTs counsel again contended

that the judge should reconsider the ruling on the ambiguity of the deeded

covenant. (R. 373) Judge Dever again refused to overturn the previous

order of the court. (R. 379)

C. DISPOSITION AT TRIAL COURT

The case was submitted to the jury in the form of a Special

Verdict containing two questions about the effect of certain factors on the

covenant limiting construction on the two lots in the subdivision. The jury

decided that the changes in the subdivision had not defeated the purpose of

the restrictions and had not rendered the covenant valueless. The jury also

found that the restrictive covenant had not been abandoned. (R. 868-9)

Based thereon, Judge Dever entered judgment for the defendants on

March 14, 2001. This Judgment included a declaration that the covenant as

to construction is valid and enforceable by the other property owners in the

subdivision. (R. 931-934)

A few days later, plaintiff made a Motion to Alter or Amend the

n

Judgment seeking a reduction in the award of costs and requesting that the

court delete a paragraph of the judgment. (R. 950-952) Counsel argued in

his memorandum that paragraph two of the judgment should be removed

because of the court's ruling on ambiguity, but no other mention of that

ruling was made there. The judge granted the reduction of costs and denied

the other objections to the judgment. (R. 962-3) This appeal followed.

STATEMENT OF FACTS

The Ellison Woods Subdivision was developed in Salt Lake

County by Home & Garden Corporation in 1947. (PI. Exh. 3) As platted

and approved by county officials, the subdivision consisted of 35 lots, all of

which were sold in some form to the original buyers by 1956. Most of them

were sold by numbered lot, but lots 23 and 24 were further divided by the

developer into four smaller parcels and were sold by metes and bounds

description. (TR. 318-322)

Each of the deeds issued by the developer upon the sale of

subdivision property included a restrictive covenant that limited construction

on that property to "a single-family dwelling house." The portion of the

covenant that is relevant to this action (lots 3 and 4) reads as follows:

The grantees, his heirs, successors and assigns will not erect or permit to be erected on the lot or lots above described and purchased by him any building or construction to be used for any purpose

12

other than a one-family dwelling house, excepting only a barn, garage and customary outhouses

(Exhibits 6 & 7)

In 1997, the plaintiff purchased lots 3 and 4 of the subdivision.

(TR. 8,15) At that time there was an existing single-family dwelling that

straddled the property line between the two lots. Plaintiff immediately

converted the existing residence into a duplex and began renting both units

to third-parties. (TR. 16)

While plaintiffs owner was negotiating for the purchase of the

property, he was advised by several subdivision residents that the ownership

of the lots was subject to the restrictive covenant referred to herein. (TR. 9,

11,12,15,16, & 30) Despite the deeded restriction, plaintiff planned to

construct multiple-family townhouses on the property. (TR. 17,27)

In light of the opposition to its proposed construction of

multiple housing units on the property, plaintiff brought this action against

all other owners of property in the Ellison Woods Subdivision to obtain a

judgment under Utah Code Annotated 78-33-1 declaring and decreeing that

the restrictive covenants in its deeds to lots 3 and 4 are invalid and

unenforceable. (Complaint, R. 1-25) Fourteen defendants responded to the

Complaint and asserted that the restrictive covenant as to construction

should be upheld and enforced by the court. (Answer, R. 71-75)

13

During the proceedings the plaintiff made a Motion for

Summary Judgment, but that motion was denied by the Honorable William

A. Thorne, Jr. because material facts remained to be resolved by a jury at the

trial of the case. (R. 464-5 & Hearing TR. 24) The District Judge ruled that

the language of the covenant restricting construction to a single-family

dwelling house is clear and unambiguous and is therefore enforceable on its

face. But the issues of abandonment and changes in the neighborhood were

factual questions that had to be resolved at a trial. (R. 558-564)

The case was re-assigned to the Honorable Leon A. Dever

when Judge Thorne was appointed to serve as an Appellate Judge. Trial

commenced on November 13, 2000.

Plaintiff's first witness was its owner and manager Andrew

Kent Menlove. He testified that he intended to construct several twinhomes

on the rest of the property and to operate them as rental properties. He owns

several other companies that do the same thing. (TR. 17, 25, 26) Because of

the restrictive covenant, his purchase price was reduced by $47,500.00.

(TR. 30)

At the conclusion of the evidence in the case and during

argument on defendants' Motion for a Directed Verdict, plaintiffs counsel

again raised a question about the ambiguity of the restrictive covenant found

14

in the deeds. (TR. 162) But he asserted that the question of vagueness or

ambiguity of the covenant should be submitted to the jury as a question of

fact. (TR. 162,164,171) At this point Judge Dever reviewed the language

of the covenant and read parts of the Brief filed by the plaintiff in support of

the earlier Motion for Summary Judgment. (TR. 163) He also reviewed

Judge Thome's Order denying plaintiffs Motion for Summary Judgment

where the ambiguity question was resolved in favor of the defendants. (TR.

176) Then he refused to overturn that ruling stating that it was the law of the

case. (TR. 173,176) He clearly reconsidered Judge Thome's previous

decision, and then he affirmed it. (TR. 176)

When the judge was ready to submit the case to the jury,

plaintiffs attorney again argued the issue concerning the vagueness and

ambiguity of the restrictive covenant. (TR. 373) Counsel for plaintiff again

urged the court to submit the question of ambiguity to the jury as a question

of fact, but the judge again declined to do so.

The case was submitted to the jury in the form of a Special

Verdict containing two questions. First, the jury was asked to determine if

the changes in the subdivision had rendered the covenant valueless. Second,

the jury was asked to determine if the covenant had been abandoned by its

residents. The jury answered in the negative on each question. (R. 868-869)

15

Based on the jury verdict, the judge entered a judgment in favor

ofthe defendants and against the plaintiff, (ft. 931-934) Paragraph two of

the Judgment stated that the covenant in the deeds to the remaining

properties in the Ellison Woods Subdivision, including lots 3 and 4 of that

subdivision, that restricts construction to single-family dwellings remains

valid and enforceable by the residents thereof.

Plaintiff countered with a Post-Trial Motion to Alter or Amend

that Judgment. Plaintiff wanted paragraph two removed from the judgment

and asked that the court adjust the award of costs. The court granted the

request for a reduction in the award of costs, but the court denied the other

relief sought in the motion. (R. 962-963)

SUMMARY OF ARGUMENT

No summary judgment was ever entered by the court in this

action, either expressly or by implication. In 0rder to rule on Plaintiff's

Motion for Summary Judgment, Judge Thorne had to decide whether the

restrictive covenant as to construction in plaintiffs deeds was clear and

unambiguous or uncertain and ambiguous. Iii accordance with Utah law set

foith in the cases cited in Point I of this Brief the judge correctly ruled as a

matter of law that the language of the covenant is clear and unambiguous,

m£iking the covenant enforceable as written. The words "a one-family

16

dwelling house" mean that the buyer of property in the Ellison Woods

Subdivision can build only one house that is designed to accommodate one

family and is to be used as a place of residence. The covenant is stated in

plain and simple English, and the meaning is clear. So is the intent of the

parties. This is the only reasonable construction that can be applied to the

words of the covenant.

When the trial judge was asked to reconsider and change the

ruling as to ambiguity at the conclusion of the trial, he carefully reviewed

the language of the covenant and the briefs submitted by counsel in support

of plaintiffs position. He also heard extensive argument before declaring

that he would not change the decision of the previous trial judge. Any other

ruling would have been contrary to Utah law. The question of ambiguity is

clearly a question of law to be decided by the court.

Plaintiff's Motion to Alter or Amend the Judgment was

properly addressed and resolved by the trial judge. In allowing a reduction

of the court costs and denying the remainder of the motion, the judge

correctly followed Utah law and the facts of the case. His declaration that

the covenants in question are still valid and enforceable was properly

included in the final judgment. It was designed to determine the ultimate

rights of the parties on each side as between or among themselves. Any

17

further clarification sought by the plaintiff in Point III of this Brief is outside

of the perimeters of this case and should not be considered by this court.

POINT NO. I

THE DISTRICT JUDGE PROPERLY RULED AS A MATTER OF LAW THAT THE LANGUAGE

OF THE RESTRICTIVE COVENANT IN THE DEEDS TO PLAINTIFF'S PROPERTY IS CLEAR AND UNAMBIGUOUS.

No summary judgment was ever granted in this action by either

of the Judges who handled the case on a District Court level. A Motion for

Summary Judgment was made by the plaintiff prior to trial, but that motion

was denied by the Honorable William A. Thome, Jr. because "material facts

remained to be resolved by a jury at the trial of the case." See Order

Denying Plaintiffs Motion for Summary Judgment. (R.464-5 and Hearing

TR. p.24) A four-day trial commenced on November 13, 2000, to resolve

those issues of fact. See Pre-Trial Order (R.558-564).

Plaintiff contended in support of the Motion for Summary

Judgment that the language of the covenant in question is unclear and

ambiguous requiring that it be strictly construed in favor of free and

unrestricted use of the property. This claim required the court to resolve the

question of ambiguity before making a final ruling on the motion. Judge

Thorne determined as a matter of law that the language of the covenant was

18

clear and unambiguous and was therefore enforceable on its face. He also

ruled that the issues of abandonment and changes in the neighborhood which

may possibly invalidate the covenants were fact sensitive issues that could

not be resolved as a matter of law.

In arguing on this appeal that Judge Thorne in effect granted a

Motion for Summary Judgment in favor of the defendants when he ruled that

the covenant restricting construction to a single-family dwelling house was

clear and unambiguous, the plaintiff has misconceived some of the facts and

has failed to give proper deference to the rulings made by the District Court.

The ruling on ambiguity was necessary before the court could properly

resolve the issues raised by plaintiffs own Motion for Summary Judgment.

The ruling also defined the issues to be addressed at the trial and enabled

counsel for the parties to prepare their case presentations to meet and resolve

those issues.

The Rules of Construction applied to Deeds of Conveyance are

outlined in the Utah case of Capital Assets Financial Services v. Lindsay.

956 P.2d 1090 (1998), where the Utah Court of Appeals stated as follows:

Deeds are construed according to ordinary rules of contract construction. See Homer v. Smith. 866 P.2d 622,629 (Utah Ct. App. 1993), see also Gillmor v. Cummings. 904 P.2d 703,706 (Utah Ct.App. 1995). If the deed terms are clear and unambiguous, we interpret them according to their

19

plain and ordinary meaning, and parol evidence is generally not admissible to vary the terms. See Hartman v. Potter. 596 P.2d 653, 656 (Utah 1979); GiUmor, 904 P.2d at 706. "If the [deed] is in writing and the language is not ambiguous, the intention of the parties must be determined from the words of the agreement." Winegar v. Froerer Corp. 813 P.2d 104,110 (Utah 1991). "A court may only consider extrinsic evidence if, after careful consideration, the contract language is ambiguous or uncertain."

Further instructions concerning deed construction are given in

the recent case of Swenson v. Erickson. 998 P.2d 807 (Utah 2000), where

the Supreme Court stated as follows:

Restrictive covenants that run with the land and encumber subdivision lots form a contract between subdivision property owners as a whole and individual lot owners; therefore, interpretation of the covenants is governed by the same rules of construction as those used to interpret contracts . . . Generally, unambiguous restrictive covenants should be enforced as written. However, where restrictive covenants are susceptible to two or more reasonable interpretations, the intention of the parties is ascertained from the document itself and the language used within the document. See Buehner Block Co. v. UWC Assoc. 752 P.2d 892, 895 (Utah 1988).

Whether ambiguity exists in the contract is a question of law.

See Winegar v. Froerer Corp.. 813 P.2d 104 (Utah 1991), where the

Supreme Court summarized the rules of interpretation as follows:

20

In interpreting a contract, the intentions of the parties are controlling. John Call Eng'g Inc. v. Manti City Corp.. 743 P.2d 1205,1207 (Utah 1987). If the contract is in writing and the language is not ambiguous, the intention of the parties must be determined from the words of the agreement... A court may only consider extrinsic evidence if, after careful consideration, the contract language is ambiguous or uncertain. Faulkner v. Farnsworth. 665 P.2d 1292,1293 (Utah 1983). A contract provision is ambiguous if it is capable of more than one reasonable interpretation because of "uncertain meanings of terms, missing terms, or other facial deficiencies." Id; see also Mann v. Wetter. 100 Or.App.184, 785 P.2d 1064,1067 (1990). Whether ambiguity exists in a contract is a question of law. Faulkner. 665 P.2datl293.

See also Plateau Mining v. Utah Division of State Lands. 802

P.2d 720 (Utah 1990); Cecala v. Thorlev. 764 P.2d 643 (Ut.App. 1998); and

Parrish v. Richards. 336 P.2d 122, 8 Ut.2d 419 (Utah 1959).

To summarize, it appears that the question of ambiguity is to be

decided by the court as a matter of law. If the court decides that the

covenant is clear and unambiguous, the covenant should be enforced as

written. If the language is uncertain or ambiguous, then the intent of the

parties should be ascertained from the language used in the document itself,

with extrinsic evidence to be limited to prove the purpose and intent of the

parties. But only in the construction of uncertain or ambiguous restrictions

21

will the court resolve all doubts in favor of free and unrestricted use of

property.

In the case now before the court, the language of the restrictive

covenant is essentially the same in both deeds to the two lots purchased by

the plaintiff in 1997. The relevant portions read as follows:

"The grantee, his heirs, successors and assigns will not erect or permit to be erected on the lot or lots above described and purchased by him any building or construction to be used for any purpose other than a one family dwelling house, excepting only a barn, garage and the customary outhouses, and that no dwelling house shall be erected or permit to be erected on said lot or lots which shall cost less than $1,000.00. And that a dwelling house costing less than $5,000.00 shall be set at least 100 feet back from the street frontline. All dwelling houses built on front 100 feet of said lot or lots shall cost at least $5,000.00 and shall be set back at least 20 feet from front line of lot. And all outbuildings such as coops, sheds, privies, etc., and not including garages attached to house shall be set back at least 125 feet from the street frontline.

It seems clear from the above language that the purpose of the

construction allowed on the two lots purchased by the plaintiff must be

limited to (1) a one family dwelling house, or (2) a barn, or (3) a garage, or

(4) the customary outhouses. The only part of this language that would raise

any question about clarity are the words "a one family dwelling house."

Once the meaning of those words is determined, the ambiguity of the

covenant is resolved.

22

Even a cursory examination of that phrase reveals that the

construction is limited to "a house." The word "house" is used here as a

noun. In this context the word "a" means "one" and limits the number of

houses to be placed on each lot.

The words "one family dwelling" are adjectives that describe

the type of house that is allowed on the property. So the buyer can build one

house that is designed to accommodate one single family. The word

"dwelling" does not change or obscure the type or nature of the construction.

It merely limits the use of the house to a place where people live, as

contrasted to a place where they work or worship or carry on some kind of

business.

This covenant is stated in plain and simple English, and the

meaning is clear. If you buy this property you can build one house that

provides a place for one family to live. Duplexes, apartments,

condominiums, and other buildings whose purpose it is to house more than

one family on the lot in question would violate the restriction. The meaning

is unambiguous, and so is the intent of the parties to the deed. The District

Court so held, and that holding should be affirmed by the court.

The Utah Supreme Court has held in an earlier case dealing

with restrictive covenants that the language of the covenant is to be taken in

23

its ordinary, general and popular sense and is not to be subjected to technical

refinement nor words torn from their association and their separate meanings

sought in a lexicon, as the plaintiff has done in his appeal brief. See

Freeman v. Gee. 423 P.2d 155 (Utah 1967).

In Swenson v. Erickson. cited above, the court was dealing with

a similar covenant that limited construction to "one single family dwelling."

The court held that the most reasonable interpretation of the covenant is that

it prohibits the erection of a large workshop on the premises.

The Supreme Court of Utah discussed and defined some of the

principles to be applied to the ambiguity question in Plateau Mining v. Utah

Division of State Lands, supra. The language of the court reads as follows:

A contract provision is not necessarily ambiguous just because one party gives that provision a different meaning than another party does. Buehner Block Co. v. UWC Assocs.. 752 P.2d 892, 895 (Utah 1988). To demonstrate ambiguity, the contrary positions of the parties must each be tenable. See, e.g.. Grow v. Marwick Dev.. Inc.. 621 P.2d 1249,1252, (Utah 1980). Even if a provision is not "immediately capable of definitive determination," that does not necessarily make the provision unenforceable.

Plaintiff argues that the restriction in the deed allows him to

place as many single-family dwellings on each lot that he can fit there, as

long as each unit houses only one family. This argument really tortures the

24

true meaning of the stated restriction, and it doesn't make much sense. This

interpretation could be used to extend construction on the property to include

all kinds of multiple-family structures, as long as only one family resided in

each unit. The intention of the grantor leaves no room for such an

interpretation. In this instance, the covenant was inserted in the deed to keep

out the duplexes, apartment houses, condominiums, and other business-

oriented types of construction. The intent of the grantor was to retain the

one-family basic residential integrity of the neighborhood. The placing of

more than one house on the lot would violate the provision set forth in the

deed.

Other state courts have had occasion to construe similar

covenants. See Walker v. Haslett (1919) 44 Cal App 394,186 P 622, where

the court recognized that where a restriction is to "a" private residence, in

the singular, not the plural, such a covenant forbids the erection on the

premises of more than one dwelling house or residence, and therefore

prohibits the construction of a double house.

A restriction placed in deeds to lots in a subdivision, fixing a

building line and providing that "no building was to be erected on any of the

lots other than a private dwelling house designed to be occupied by one

family only," was held by the court in Hoffman v. Schwan (1941) 312 111

25

App 160, 38 NE2d 53, to be intended to limit the number of private dwelling

houses on a lot to one. Therefore the court ruled that the defendants could

not subdivide their lot and construct another building on part of the

subdivision.

Construing a covenant which prohibited the erection of any

building other than for the purpose or use of "a" private dwelling, the court

in Skillman v. Smathehurst (1898) 57 NJ eq 1,40 A 855, rejected the

contention that a flat or apartment house being constructed fit within the

terms of the covenant because the flat was a number of private dwellings

built one upon another, finding that the restriction was to "a private

dwelling," in the singular, not to a building of private dwellings, in the

plural.

Although the defendants strongly disagree with the meaning,

interpretation, inferences and provability of the testimony of witnesses about

the ambiguity of the covenant, none of that testimony is important here. The

question of ambiguity is to be determined by the court as a matter of law

from the language of the restriction, and the opinions and actions of

witnesses relating to this question are of no consequence.

The same can be said about comments of counsel. In every jury

trial conducted in this state, the trial judge instructs the jury that comments

26

of counsel are not evidence. Plaintiff's reliance on such comments in its

appeal brief should be totally disregarded by the court.

Plaintiff challenges the use in the covenant of the word

"family" arguing that the word might include extended family members.

The usual, plain meaning of the word "family" is used to describe a typical

group consisting of a father, mother and children. That is the construction

that should be used by the court in this case.

Plaintiff also contends that the use of the words "lot or lots"

makes the covenant ambiguous. A simple reading of the entire wording of

the covenant removes any doubt that the terms are used to describe existing

property in the Ellison Woods Subdivision, and the type of construction

placed thereon.

Under plaintiff's interpretation of the words "single family

dwelling" the owner of a lot could construct any number of family units on

the lot in any form and still argue that each unit satisfies the requirement of

"single family dwelling." This could include a ten-story apartment house,

duplexes, condos or anything else. This interpretation doesn't make any

sense. Why even have the covenant at all if this were the true meaning of

the language in the deeds to plaintiff's property.

27

POINT NO. II

JUDGE DEVER CORRECTLY REFUSED TO OVERTURN JUDGE THORNE'S RULING

ON THE AMBIGUITY OF THE RESTRICTIVE COVENANT

IN THE DEEDS TO PLAINTIFF'S PROPERTY.

As noted previously in this Brief, plaintiff made a Motion for

Summary Judgment prior to the trial of this case. In support of that motion

the plaintiff argued that the covenant restricting construction on its property

should be construed in favor of free and unrestricted use of the property.

Before making such an interpretation, the court had to review the language

of the covenant and determine whether it is clear and unambiguous or

whether it is uncertain and ambiguous.

Judge Thorne carefully reviewed the covenant and then ruled

that the language of the covenant is clear and unambiguous. Based thereon,

the judge denied plaintiffs Motion for Summary Judgment and ordered that

the case proceed to trial on factual issues relating to change and

abandonment.

At the conclusion of the evidence plaintiffs counsel again

raised the question about the ambiguity of the covenant found in its deeds.

But he asserted at that time that the question of vagueness or ambiguity of

the covenant should be submitted to the jury as a question of fact. At this

point District Judge Leon Dever reviewed the language of the covenant and

28

read parts of the brief filed by the plaintiff in support of the earlier Motion

for Summary Judgment. He also reviewed Judge Thome's Order Denying

Plaintiffs Motion for Summary Judgment where the ambiguity question was

resolved in favor of the defendants. Then he refused to overturn that ruling,

stating that it was the rule of the case.

Plaintiff claims on this appeal that Judge Dever erroneously

refused to reconsider Judge Thome's ruling on the question of ambiguity,

but it appears from the trial transcript that he did in fact reconsider the ruling

at that time. Then he affirmed it.

When these circumstances are placed into proper sequence and

context, it appears that the plaintiff was urging the court to set aside Judge

Thome's legal ruling on ambiguity and then submit that question to the jury

as a question of fact. Such action by Judge Dever would have been clearly

erroneous because the question of ambiguity of a restrictive covenant is a

question of law. See Faulkner v. Farnsworth. 665 P.2d 1292,1293 (Utah,

1983) where the court expressly stated that the question of ambiguity in a

contract is a legal question to be decided by the court as a matter of law.

Plaintiffs argument on reconsideration also implies that the

judge should have changed the ruling made by Judge Thome on the question

of ambiguity. Since no such change was forthcoming during the trial, the

29

Appellate Court can assume that Judge Dever followed the previous ruling

and applied it consistently throughout the trial. This brings us back to the

real issue in this case - whether or not the language of the covenant is clear

and unambiguous. It appears to the defendants that the issue of

reconsideration can be effectively merged into the issue discussed in Point I

of this Brief.

POINT NO. Ill THE COURT OF APPEALS SHOULD

AFFIRM THE DENIAL OF PLAINTIFF'S MOTION TO ALTER OR

AMEND THE JUDGMENT.

The third issue raised by the plaintiff on this appeal concerns

the trial court's denial of its post-trial Motion to Alter or Amend the

Judgment. In arguing this part of the appeal, plaintiffs counsel has been

somewhat creative in describing what the motion was designed to

accomplish at the trial level. He now claims that the motion was intended to

obtain "clarification of the covenants" so the plaintiff can determine how to

best utilize the property.

In reality, the motion was far more restrictive in scope than the

plaintiff asserts in its appeal brief. Nothing was said about the clarification

of the covenants. The plaintiffs Motion raised only one matter that has

30

been challenged on this appeal. On pages 3 and 4 of the Memorandum (R.

953-958) filed in support of the motion, plaintiff argued as follows:

"Subsequent to the apparent entry of judgment, counsel for both parties have also appeared before Salt Lake County on a planning and zoning issue. At that hearing, defendants' counsel relied upon the language of the Judgment in attempting to argue an interpretation of the covenants that is consistent with the Judgment but which plaintiff considers to be inconsistent with the facts as asserted by the defendants when they defended that action. Based upon the argument presented before the Salt Lake County Commission, plaintiff has concerns about the Judgment and wishes to have paragraph 2 on page 3 of the Judgment removed. The finding asserted in that paragraph was not determined by the jury and in fact mischaracterizes the covenant as it was argued by defendants' counsel. In light of the court's ruling as a matter of law that the covenants were not ambiguous, this portion of the judgment should be removed."

Paragraph 2 on page 3 of the Judgment states as follows:

"2. The covenant in the deeds to the remaining properties in the Ellison Woods Subdivision, including lots 3 and 4 of that subdivision, that restricts construction to single-family dwellings remains valid and enforceable by the residents thereof."

In asking that this paragraph be removed from the Judgment,

plaintiff seems to forget what this whole case was about. The Complaint

asked for a declaratory judgment declaring and decreeing that the restrictive

31

covenant as to construction is void and unenforceable. That relief was

denied, and the court properly declared that those covenants are still valid

and enforceable.

Rule 54(c)(1), Utah Rules of Civil Procedure, states as follows:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleading. It may be given for or against one or more of several claimants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between or among themselves.

In declaring that the covenant is valid and enforceable the court

was complying with this rule, and there is no reason to change that

declaration.

It now appears that the plaintiff wishes to have some

clarification of the judgment because of some alleged administrative

proceedings recently held before the Salt Lake County Commission. Those

administrative proceedings have no relevance to this case, and what occurred

there would not have provided any reason to amend the judgment that has

been entered in this action.

Plaintiff's attempt to now enlarge the Motion to Alter or

Amend the Judgment to include a request for clarification is very unfair to

the District Court. This issue was never raised in the lower court and should

32

not be considered on appeal. See US Express. Inc. v. Utah State Tax

Commission. 886 P.2d 1115 (Utah App. 1994); Olson v. Park-Craig-

Olsonjnc,, 815 P.2d 1356 (Utah App. 1991)

CONCLUSION

Plaintiff unwittingly finds itself in a strange conflict in this

case. At the trial court level plaintiff made a motion for summary judgment

where it asserted that the case could be resolved as a question of law. It

argued that no material facts existed and that the court could resolve the case

without a trial. But here on this appeal, the plaintiff argues that the trial

court erroneously granted a motion for summary judgment when it decided

that the language of the covenant is clear and unambiguous. He now asserts

that there were questions of fact about the ambiguity that should have been

presented to the jury and that a motion for summary judgment was not

proper at that time. At the trial court he argued that no questions of fact

remained to be resolved, and on appeal he argues that questions of fact

should have been submitted to a jury. This argument seems inconsistent at

best.

33

For reasons stated herein, the court should affirm the judgment

of the trial court on this appeal.

RESPECTFULLY SUBMITTED:

Attorney for Defendants/Appellees

CERTIFICATE OF SERVICE

I hereby certify that on the •/-

day of November, 2001,1

caused two copies of the foregoing BRIEF OF APPELLEES to be mailed,

first class, postage pre-paid to the following:

LINCOLN W. HOBBS, ESQ. AKIKO KAWAMURA, ESQ. HOBBS, ADONDAKIS & OLSON, L.C. Attorneys for Appellant 341 So. Main Street, Suite 208 Salt Lake City, Utah 84111

34

ADDENDUM

35

£^i26<1330^ "_jleeordeil at request of

At/'-'An-i Fe£,Pald t

^^m

DeF. i3ooK_^2A^/«e9, y ^ p i r ^ e ^ ) - . ! • < '

Kail T,x notice t o j l t v / . ?***f**ur >^^V'*f i ; . . „ •» •v^- : ; . . *> : ^ - v . ; -

' rilOKE $ GARDIN COWA]*; a Utah Corporation, organise d ' lar^^^ of Utah, with U s principal office at Salt Lake City;-of County o f ^ ^ l e ^ a ' t ^ t a t a ^ p f U t ^ ^ S 1 f

,"' ' GIIAUTOR, hereby Conveys and varrants against al l clsiiaini.by^;thro^ vly BRADSHAW, GRANTEE of Salt Lake City, for,the sum of Jen aid HoAOO^ilOiOO^Waii^andyfcffiKT1

,H - ^ - _ ^ _ . . . _ , _ . : « - - - * - - ^ ^ " - ^ - > - - ^ ^ i 8 n d ^ ^ other good and valuable, considerationj^the foHoving,tract^of/laMr

* ^ J * ~

5&feli#

ALL OF LOT J^HXISCH WOODS* Su^DinSIOK^USUBDIVISIOina^ 5?22/T0WKSHIP2 SOulH^R/aiGElfEASTttSALTlLAKS.EASE^©^HHUDIAH

A ,„ Subject to end together v l t h e n easecen^ the West 5 feet of Lot 3 , and over and '*--?..-.- - *• - ^;*-- * ^ -w of Ellison Woods Subdivision.

Also subject to any and a l l said premises*

l l t i e i

!pr!piCTie

?or*FT&f2erc&ul

Subject' to General Taxes

i across therVest,5 feeVof lota"lftontiag;tha East l i oa^H^I

11 water rights ond^aseiaents existing through,'? over, and 'upM'*j^{3&

aTter June a , 1 ? 4 7 | - ' v * ^ ^ ^ ^ ^ . ^ f !

The Grantee hereby agrees to the following reservations, restr ict ions , conditions and pro-y'jjj visions of sale * That no estate in or posression of the eaid prenises shal l be sold, t r s n a - ; ^ ^ ] ferred or conveyed to any person not of the Caucasian race. v / - .. « "\. . . u( -J-*

And the Grantee docs hereby covonrjit and a^ree with the Grantor, i t s successors and ass igns / / and with each and every purchaser o:' lot or lo ts ' in the above mentioned subdivision or t r a c t . •* of land. That 4 • M(: '• \ V '% \ \ •;&: • .,'

The Grantee, his heirs, successors and assirns will not errct or permit to be aracted on*-•„'.}i the l o t or lots atovc dcccribed and purchased by^hin, any building or construction to be used'!/ for any purpose other than a one f*r.ily dwelling; houtse, excepting only a barn, garage and the ll^ customary outhouses, ojid t h i t no dwelling nouse shall be erected or permitted to be erected J Vj£ i on said l o t or lots which shall cost lees than $1,000.00 and that a dwelling houst* costing ; ' ^f l e s s than fc5,000.00 rhnl Ic rvt at Ivtst 100 feet back from the street frontl ine. : Al iv ^»>&1 dwelling houses built on front 100 feet of said lot or lots shall cost at l e a s t $5,000.00 y: « : \^$ | and shall te set back at l e a s t 20 feet from front l ine of l o t . And a l l outbuildings such M ,-.>£$I coops, sheds, privies, e t c . , and not including garages attached to house, shall be set. back ^-^ at least 125 feet froa the ctrcrt frDntlir.e. , | . : « # • .;• -'.v - • ; / / • >'^H

The Officers who sif7> th i s deed hereby certify that this deed and the transfer 'representedJ'^-M thereby was duly authorized under a resolution duly adopted by the Board of Directors of the c**?' Grantor at a lnwful «>etinn duly held and attended by a quorum. -4 ^ ,;. ">;•; >>,«•

IH WITNESS WKUiEOF, the Grant>->r h.v caused i t s Corporate name and seal to be hereunto'". : -A"' affixed by i t s duly authorized officers this 22^ day of October A. D. 1951,

J«*\

• \r~*» • * • ' * » • . i • i\K(?*,? **;::' .'•.W.HtlV'v

. *.. STXir /^UTAH )

) SS, COUiiTV OF SALT LAKK )

On t h e

U<M«Hi:v?u"

HO-IE . COHAMY . & • * *

& & -:S:

C ^ v-B't«fflM:'l

1 Deo . & T r e e s .

22 day of October A. D, 1951 , p e r s o n a l l y . a p p e a r e d b e f o r e m» Louis C. Kimball and D. C a r l o s Ki-nball, Vho boing by nve duly sworn d i d a a y f each f o r h i m s e l f , ; ?-that he, the said Louis C. Klcball is the President, and he, the said D.» CArloa Kiiiball i s the ft? Secretary and Treasurer of Hor.e & Garden Colony, and that the within and foregoing instrument '* foregoing Instrument r

was signed in behalf of said corporation by authority of a resolution of i t e board of dir-< ^ ectors and said Louis C. Ki*b*ll and D. Carlos Kimball, each duly acknowledged to"W that aaid Corporation executed the sar.e and that the seal offixeci "* "' the.

Ledged to iaid Corporation.

My/CbrtaiaioA"vtpiree, it.: iY*...•;,./4j • * : . » :

>^- •*rrf \ flotaiy/

Residing .at Salt Lak» €totf$ji$tf^f.^\to

DEFENDANT'S EXHIBIT

urnK l i S ) « \» (Vi f

V! ' ' • ' * • . . ««ort«d at RsQuast

^ 1160817 >. **:|S

JUL vjttim wm < (Corporate Torn)** *

*HGK£ A 0AHDX5 COKPAHT, • corporation, organised and ax i s t ing undtr tht lavs of the fftata of Utah, with i t * , principal o f f l o t a t S a l t Lake Oity, County of Sal t Lake. State of Utah, grantor, hereby C0H7XTS AHD VABHAITS'-mgaiost a l l claiming by f throng \>r undsr I t . • to D. L. OU8TAVXS0H - - « . - . - - - - r - - ~ - - - - - - - - • • • • - • • - • • • - .Oraatst .of Salt tnke City, Utah, for the sum of Tan and ao/100 (te<J*00) Dollars nod oth.ar good and valuable consideration, the followiag dssoribad traot of l a i d I D 8a l t Lake County, State of Utah.

ALL OF LOT !+, XLLISOK WOODS SUBDIttBXOr, a subdivision of part of Jthi Horthvest 4 of Section 22, Tovnehlp 2 South, Bang* 1 l a s t . Sa l t Lake Basa and Meridian!

Subject to any and a l l water r ights and easement axle t ing through, over and upon. • said premises. *.

Subject to and together v i t h an easement f o r polo l i n e and other u t i l i t i e s over and across the Vent f ive feet of anid Lot. •

Sub>ct to Oeneral Taxee a f ter hny 2 6 / 1 9 ^ 7 '

' # Th© Ornntee, hio he irs , successors and ass igns w i l l not araot or permit to be erected on the lo t or lo te above described and tnircliasad by hln any building or con- / etruetIon to be used for any purpose other than a one family dwelling house, excepting only a barn, gsrage and the customary outhouses, and that no dwelling house shel l ba erected or permitted to be erected on anld l o t or l o t e which ehAll coat lens than $1,000.00, And thnt n dwelling house coating laaa than $5,000,00 shall be aet at laaat 100 fes t back from the s tree t frontl ine* All dwelling houses b u i l t on front 100 f ee t of •aid l o t or l o t s shall cost a t l e a s t $5«000«00 #md ahnll be aet back at l eas t 20 feat from front l ine of l o t . And a l l outbuildings such no coope, chads, pr iv i e s , a to # , and not InciuAfag gnrages attached to houe e a hal l be aet baok nt lenot 125 f ee t from the street frontline, Thnt no e s ta t e in or poeeeanion of anld premlaee ahnll be sold, trans­ferred Or conveyed to any parson not of the Caucasian race.

Thk Offlosrs who ol^n th i s deed hereby c e r t i f y UiatUhla de«d and the transfer r e -nree*ntpd thereby wne duly authorised under a resolution duly adopted by the Board of

'Directors of the grantor at a lawful masting held and attended by a quorum, IN WITUT.33 WHERB0?, the grantor has oauaad i t Corporate name and seal to be

hereunto affixed by l ta duly author l i ed o f f i c e r s this 3d day of June A# D, 1 W »

^ N COKPANT

Preiildent

iry & Trensurer:

6TAT* '$ UTAH ) Ssl] scarry I OF s.\?/r LAKK ) *

Ot\ the 3d dny of June A# D. 19^9 tjnroonnlly appeared before roe Louis C, Kirch*!} and D# Cnrlos Kimbnll who be In A: by me duly sworn did e^ay, ench for himself, that he. the anld Louis C, Kimball la the Preaidani, and he , the eaid D. Carlos Kimball i s thn tteoretnry and Trensurer of HOBS A Garden Company, and that the within and foratfolntf instrument was alr.nad In bpluilf of eald corporation by authority of a reso lu­tion of l ta Hunrri of Directory and ewld Louis C, Kimball end 1). Cnrlos Kimball ea ' duly.*M3kiH lf>U/',rJ to mn thnt anld corporation etenutad t>ie seme and that the sse l iiftlxllnJa^Ctia senl of anld corporation.

» K n l i . r u I».il. Notary Public

•<HR:> Ilea id iii|; at Sal t Ink* City, Utah

2 DEFENDANT'S

1 EW 1 4<A0A JUsff/lt.

LINCOLN W. HOBBS, Esq. #4848 LINCOLN W. HOBBS, L.C. P.O. BOX 1560 SALT LAKE CITY, UT 84110-1560 (801) 575-6594

IN THE THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY

STATE OF UTAH

HOLLADAY DUPLEX MANAGEMENT ) COMPANY, L.L.C., a Utah Limited ) PLAINTIFFS MOTION FOR Liability Company; ) SUMMARY JUDGMENT

Plaintiff, )

vs. )

DALE G. HOWELLS and LOIS HOWELLS, ) TRUSTEES of the HOWELLS FAMILY TRUST ) U/A/D 6/17/91; JACK M. MONSON and ) Civil No. 980901408 D ARLENE L. MONSON, TRUSTEES of the ) MONSON FAMILY TRUST U/A/D 11/6/91; ) MARION G. COX AND MARY E. COX; ) ALBERT R. PEARCE; HELEN ELIZABETH ) MORGAN OLSEN, TRUSTEE of the HELEN ) ELIZABETH MORGAN OLSEN REVOCABLE ) LIVING TRUST AGREEMENT; CHARLES L. ) SUMMERS and CAROLE A. SUMMERS; ) ROBERT C.BRADY AND ELSIE I. BRADY; ) MICHAEL A. SLEATER and DEANNA A. ) SLEATER; ERMA L. LARSEN; RHETT and ) V. ANN MILLER, TRUSTEES of the V. ANN ) MILLER LIVING TRUST; DELORES ) RASMUSSEN; and ELLIOT J. WINTCH and ) ATHELENE E. WINTCH; )

Defendants. ) Judge William A. Thorne

Plaintiff hereby moves the Court, pursuant to Utah R. Civ. P. 56. for a Summary

Judgment ruling, as a matter of law, that the restrictions on the plaintiffs property are invalid and

unenforceable. Alternatively, plaintiff requests a ruling, as a matter of law, that the plaintiffs

proposed construction of luxury twinhomes does not violate the covenants alleged to encumber

the plaintiffs property.

This Motion is supported by a memorandum of points and authorities submitted herewith.

DATED this 5 day of April, 1999.

LINepLN W. HOBBS, Esq.' X>LN W. HOBBS, L.C.

for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy of the foregoing Plaintiffs

Motion for Summary Judgment to be mailed, postage prepaid, this 5 day of April, 1999, to:

H. Ralph Klemm, Esq. Attorney for Defendants 489 West 3500 South Bountiful, UT 84010

3686\.motion

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

HOLLADAY DUPLEX MANAGEMENT COMPANY, L.L.C., a Utah limited liability company,

Plaintiff,

vs.

DALE G. HOWELLS AND LOIS HOWELLS, Trustees of the Howells Family Trust U/A/D, June 17, 1991, et al.#

Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Case No.: 980901408

Judge William A. Thorne

Plaintiff's Motion for Summary Judgment came before this Court

for oral argument on June 30, 1999. Plaintiff was present and

represented by its attorney of record, Lincoln W. Hobbs. Defendants

were present and represented by their counsel of record, H. Ralph

Klemm. This Court, having heard argument and reviewed the Briefs of

both parties has determined that Material Pacts Remain to be Resolved

by a Jury at a Trial of this Case.

THIS COURT HEREBY ORDERS:

1. Plaintiff's Motion for Summary Judgment is denied.

2. This Court rules that the non-discriminatory covenants in

the deeds to lots 3 and 4 of the Ellison Woods Subdivision

the restricting construction to single family dwellings are

clear and unambiguous and therefore enforceable on its

face.

However, issues of abandonment or changes to the

nature of the neighborhood that may invalidate the

covenants are fact sensitive issues and are not, as a

matter of law, subject to a decision on the facts presently

before this Court.

Additionally, all covenants included in the deed that

restrict access to the property on the basis of race are

struck down as invalid.

All additional Motions are to be filed with the Court by

October 8, 1999.

Discovery is to be concluded by September 3, 1999.

Following discovery it is the responsibility of counsel to

inform the clerk when the parties are ready for trial.

CERTIFICATE OF NOTIFICATION

I certify that a copy of the attached document was sent to the following people for case 980901408 by the method and on the date specified.

METHOD NAME

Mail LINCOLN W HOBBS ATTORNEY DEF 341 South Main Street Felt Building, Suite 208 SALT LAKE CITY, UT 84111

Mail LINCOLN W HOBBS ATTORNEY PLA 341 South Main Street Felt Building, Suite 208 SALT LAKE CITY UT 84111

Mail H. RALPH KLEMM ATTORNEY DEF 489 WEST 3500 SOUTH BOUNTIFUL, UT 84010

Dated this 1L day of S^jpktviitA. ™99L;^^

Page 1 (last)

•ttssas'

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

HOLLADAY DUPLEX MANAGEMENT COMPANY, L.L.C., a Utah limited liability company,

Plaintiff,

DALE G. HO WELLS and LOIS HO WELLS, TRUSTEES of the HO WELLS FAMILY TRUST U/A/D 06/17/91; JACK M. MONSON and DARLENE L. MONSON, TRUSTEES of the MONSON FAMILY TRUST U/A/D 11/06/91; MARION G. COX and MARY E. COX; ALBERT R. PEARCE; HELEN ELIZABETH MORGAN OLSEN, TRUSTEE of the HELEN ELIZABETH MORGAN OLSEN REVOCABLE LIVING TRUST AGREEMENT; CHARLES L. SUMMERS and CAROLE A. SUMMERS; ROBERT C. BRADY and ELSIE 1. BRADY; MICHAEL A. SLEATER and DEANNA A. SLEATER; ERMA L. LARSEN; RHETT and V. ANN MILLER, TRUSTEES of the V. ANN MILLER LIVING TRUST; DELORES RASMUSSEN; and ELLIOTT J. WINTCH and ATHELENE E. WINTCH,

Defendants.

SPECIAL VERDICT

Civil No. 980901408 PR

Judge Leon A. Dever

MEMBERS OF THE JURY:

Please answer the following questions. If you find the evidence clearly and convincingly

established the issue presented, answer "Yes." If you fmdthe evidence is so equally balanced

that you cannot determine by clear and convincing evidence, or if you find the evidence is

against the issue presented, answer "No."

At least six of you must agree on the answer to each question before this verdict form is

completed, but all of the jurors do not need to agree on each of the questions.

1. Have there been changes in the Ellison Woods Subdivision that are so significant

that they I) neutralize the benefits of the restrictions to the point of defeating their purpose, or

2) have the changes been of such a nature that they render the covenant valueless?

ANSWER: Yes No ^ (

2. Has the restrictive covenant in the deeds to the Ellison Woods Subdivision prop­

erties been abandoned?

ANSWER: Yes No ^

DATED this / k day of November, 2000.

Foreperson

H. RALPH KLEMM Attorney for Defendants Bar No. 1838 489 West 3500 South Bountiful, Utah 84010 ^ , „ . _ Telephone: (801)295-0718 _ _ A g J) t-f j 0 )

POLES SOTEST GGSRT Third Judicial District

K

r-..T^RE£'j».;n^y . . . SALT LAKE COUNTY

Dopuiy Cl«ik

IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUIHTY

STATE OF UTAH

HOLLADAY DUPLEX MANAGEMENT COMPANY, LLC. A UTAH UMITEDLIABILrrY COMPANY,

PLAINTIFF,

VS..

DALE G. HOWELLS AND LOIS HOWELLS, TRUSTEES of the HOWELLS FAMILY TRUST U/A/D 06/17/91; JACK M. MONSON and DARLENE MONSON, TRUSTEES of the MONSON FAMILY TRUST U/A/D 11/06/91; MARION G. COX and MARY E. COX; ALBERT R PEARCE; HELEN ELIZABETH MORGAN OLSEN, TRUSTEE of the HELEN ELIZABETH MORGAN OLSEN REVOCABLE LIVING TRUST AGREEMENT; CHARLES L. SUMMERS, and CAROLE A. SUMMERS; ROBERT C. BRADY and ELSIE I. BRADY; MICHAEL A SLEATER and DEANNA A SLEATER; ERMA L LARSEN; RHETT and V. ANN MILLER, TRUSTEES of the V. ANN MILLER LIVING TRUST; DELORES RASMUSSEN; and ELLIOTT J. WINTCH and ATHELENE E. WINTCH,

DEFENDANTS.

JUDGMENT

CIVIL NO 980901408 PR

JUDGE LEON DEVER

The above action came before the Court for Trial on November

13,2000. The plaintiff and the defendants contesting this case were present in

court and were represented by their respective attorneys of record. The Court

impaneled a jury of eight persons to try the factual issues of the case and then

received evidence in documentary form and from witnesses called to testify on

behalf of flie parties. At the conclusion of the evidence, the court submitted

the Issues of Fact to the jury in the form of a Special Verdict, and the jury

answered the questions in the Special Verdict as follows:

1. Have there been changes in the Ellison Woods Subdivision

that are so significant that they 1) neutralize the benefits of the restrictions to

the point of defeating their purpose, or 2) have the changes been of such a

nature that they render (he covenant valueless?

ANSWER: Yes No_X

2. Has the restrictive covenant in the deeds to the Ellison Woods

Subdivision properties been abandoned?

ANSWER: Yes No _X

NOW, THEREFORE, in accordance with the verdict rendered by

the jury herein, and good cause appearing therefor,

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IT IS HEREBY ORDERED, ADJUDGED AND OECREED as

follows:

1. In accordance with the prior ruling of the court, the covenant

included in the deeds to the properties in the Ellison Woods Subdivision that

restricts access to the property on the basis of race is struck down as invalid

and unenforceable.

2. The covenant in the deeds to the remaining properties in the

Ellison Woods Subdivision, including Lots 3 and 4 of that subdivision, that

restricts construction to single family dwellings remains valid and enforceable

by the residents thereof.

3. In all other respects, the plaintiffs Complaint and this action

for declaratory relief against the defendants are dismissed with prejudice.

4. Pursuant to the Court's Minute Entry decision of February 21,

2001, Defendants' Motion for an Award of Attorney's Fees is denied.

5. Defendants are awarded judgment for costs of court in the sum

of $779.36.

6. Interest shall accrue on the Judgment for costs and attorney's

fees in accordance with Utah law until paid in full.

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f) davof V V W . , DATED this V) day of V T O \ y N — . ,2001.

BY THE COURT:

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the JUDGMENT

was served on counsel listed below, this / day of . 2001 to

the counsel listed below.

Lincoln W. Hobbs, Esq. HOBBS, ADONDAKIS & OLSON, L.C. Attorneys for Plaintiff Felt Building, Suite 208 341 So. Main Street SaltLakeCity, Utah 84111

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THIRD DISTRICT COURT SALT LAKE COURT SALT LAKE COUNTY, STATE OF UTAH

HOLLADAY DUPLEX MANAGEMENT CO, P l a i n t i f f ,

vs

DALE G HOWELLS, Defendan t

RULING ON PLAINTIFF 'S MOTION TO ALTER OR AMEND

C a s e No: 9 8 0 9 0 1 4 0 8

J u d g e : L . A. DEVER D a t e : 0 4 / 1 3 / 2 0 0 1

C l e r k : k a t h r y n b

The D e f e n d a n t s ' O b j e c t i o n t o t h e c o s t s t a x e d i n t h i s c a s e i s w e l l t a k e n . T h e amount of c o s t s awarded i s $ 1 1 4 . 0 0 The r e m a i n i n g c l a i m e d a m o u n t i s d i s a l l o w e d . A l l o t h e r o b j e c t i o n s b y t h e P l a i n t i f f a r e d e n i e d .

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Case No: 980901408 Date: Apr 13, 2001

CERTIFICATE OF NOTIFICATION

I certify that a copy of the attached document was sent to the following people for case 980901408 by the method and on the date specified.

METHOD NAME

Mail LINCOLN W HOBBS ATTORNEY PLA 341 SOUTH MAIN STREET FELT BUILDING, SUITE 208 SALT LAKE CITY, UT 84111

Mail H. RALPH KLEMM ATTORNEY DEF 489 WEST 3500 SOUTH BOUNTIFUL, UT 84010

Dated this J2L* day of /fyjiJl, , 20 Of .

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