*1
759
confession.4
Howard,
projects
object,
purpose
party
177,
an
with the
2012 Ark.
injury
person
cause
to another
or other
“(A)(1)(a)”in section 5-13-310. denied; Petition motion moot. claim is not one
Anderson’s seek for Brady
ing relief violation. He fails to any evidence—material or excul
patory—that or was withheld the State fact, any prejudice ensued. fails to
Anderson establish the existence of any fact or evidence extrinsic to the record any because defect in the criminal informa Gary Dye, individually DYE and Linda tion could or have been discovered raised persons similarly behalf of in the trial court.3 State, v. Smith situated, Appellants curiam). (per petitioner
Claims that a either could have v. known, knew, at the of trial do not time DIAMANTE, Membership a Private provide grounds for issuance a writ of Club, LLC, Appellee Golf Moreover, error coram nobis. Id. to the No. CV-16-127 statutory extent Anderson raises a claim of interpretation, again, fall within Supreme Court Arkansas. purview proceeding coram nobis Opinion February Delivered it is not an because error one of found categories the four of er above-referenced
ror, i.e., trial, insanity at the time of guilty plea,
coerced material evidence prosecutor,
withheld
or a third-
charged
Anderson committed the
acts on
omitted
terroristic
elements of the
crime.
2.
State,
3-4,
November
2006.
Anderson
2013 Ark.
v.
curiam).
(per
WL 5288963
argued
appeal,
In his Rule 37.1
Anderson
3.
failing
that trial counsel was ineffective for
4.Although
categories
the four
are not
set
challenge
charging
the criminal information
stone,
remedy of
coram nobis remains
multiple
him with
counts of a terroristic act
extraordinary remedy. See
Strawhacker
in violation of Arkansas Code Annotated sec-
State,
hThe group of a owners located tives appealing Hot Springs Village. They .of from the circuit court Saline order dues, County declaring mandatory golf membership, the terms of covenant and granting rights Appellee the club lien are referred appellants and en- between provisions. as “Tie-in” The Declarations disgorgement denying forceable and also the club to create authorize other eight points on appellants fees. The have membership categories judgment of appeal.1 We affirm the general public. made available trial court on all points. Declarations also state that the “Article, By- would be to the club’s Background and Procedural 19Facts laws, any, Regulations.” if Rules Communities, In Inc. Cooper adopted regu- rules Diamante (“Cooper”) Corporation of Amer- Club that authorized the creation of oth- lations plans private golf ica announced build golf |amemberships er that were privi- less *4 dwelling course with 450 units would leged golf memberships. than the full The private golf have access to course. the The adopted by-laws club also later in 2006. (“Diamante”) club was meant to be the representatives, Gary In the class amenity the premier associated with devel- Dye, and Linda filed suit in the circuit opment. of in properties Each the located County against court of Saline Diamante development to the covenants seeking judgment a declaratory the in supplemental contained declarations in contained the Declarations (“Declarations”), in were filed the were unenforceable. the Saline in County land-records office in Saline County Circuit Court authorized the certi- 1997. property fication a class of 450 owners require prop- The Declarations that all Inc., excluding Development, Cooper Land erty in development owners the become 25, 2013, and its affiliates. On November golf Further, “full” members. all Inc., a Group nonprofit corpo- DC Member dues, pay monthly pay must owners by ration Diamante proper- founded three anytime properties transfer fee owners, the are ty complaint to in filed intervene sold, give and lien and Diamante foreclo- the suit and the court to asked declare the rights unpaid sure to por- collect fees. The tie-in provisions valid and enforceable. On payment 28, 2014, requiring monthly April tions the appellants the filed a fourth (1) Finding years purchasers 1. dues transfer-fee covenants for of the lots, supplemental requiring in the appellants declarations all and that deferred are pay privately by using owners to owned barred statutes limitation from Club transfer against fees whenever a Diamante home sale of the in deferred lots defense covenants; (6) or lot is sold or otherwise Finding transferred are Club's use of the tie-in enforceable supplemental and not violation of Arkansas declarations authorize law; (2) Failing golf memberships find that tie-in cove- the Club to create for non- to give golf privileges nants are because unenforceable consti- owners and owners, tute an nonproperty appellants unreasonable restraint on alienation and that are of the using homes and lots in the two Diamante barred statutes limitation from subdivisions; (3) Finding by- practices against that the Club’s those in defense Club's laws, covenants; (7) they may as Failing from time to use of the tie-in amended find time, incorporated by duty proper- are into reference that the Club has breached its law; supplemental ty supplemental declarations a matter of as owners contained in the dec- (4) Finding regula- traps that the rules Club's larations to maintain the sand on the tions, they may prop- be amended from time to Diamante course for the use of the time, owners; (8) that, incorporated by erty declaring reference into the Not law; supplemental equity, as matter of law or in tie-in declarations covenants con- (5) Finding supplemental supplemental declara- tained in the declarations were tions authorize the Club’s failure to collect unenforceable Diamante. 2015) (B) (internal omitted). supplemented petition (Repl. marks amended states, declaratory judgment specifically court The statute further and asked the section “[t]his to declare the covenants contained validate transfer unenforceable; covenant order the club fee recorded this state before suit; July § 2011.” disgorge paid during Ark. Code Ann. 18—12— 107(b)(2) 2015). (Repl. go directly that dues recovered mandate course; upkeep the maintenance and Here, the Declarations properly applicable attorney’s obtain fees. County recorded Saline long Further, July before 2011. sup- The circuit court that the Declara- declared clearly impose tions a transfer fee plemental provisions and en- whenev- were valid any of er the lots are forceable and that there had been no sold. The statute Declarations; destroys a right apply contractual trans- breach also denied fer to property, fees and is disgorgement any appel- fees. therefore not procedural. appellants remedial or appealed lants ar- court’s decision and gue grants that the statute the court dis- eight points appeal their are addressed cretion to any declare invalid transfer below. fees
that were created before the act.
Standard
Review
very
the statute
terms does not
*5
specifically invalidate transfer fees record-
The
of
for an
standard
review
Therefore,
ed before
act.
we hold that
from
appeal
a bench trial is whether the
in declaring
the court did
err
findings
clearly
court’s
were
erroneous or
fees enforceable.
transfer
clearly against
preponderance
Ins.,
evidence.
v.
McSparrin
Direct
373
| (ill. Restraint on Alienation
270, 272,
572,
(2008);
283 S.W.3d
574
appellants argue
The
in then-
Peedin,
5,
v.
to determine amount as Well dues would as Rules purpose, Regulations is and by their which limited the use and maintenance club. This in appellants argue their third prevent collecting would Diamante from points and fourth that the circuit court completely specific to that unrelated it erred when determined that club’s purpose. We therefore hold the circuit that rules, by-laws, regulations and were incor court err it did not when did find that simplici into porated the Declarations. For assessment was unlawful restraint ty, of their points we will address both on alienation. provides below. The Arkansas Code City
The dissent on Broach relies v. covenant be effective restrictive will Hampton to in determine that the transfer unless is “recorded the office in in county prop fees this case were unreasonable. recorder recognized erty § that case we that a restraint on is located.” Ark. Code Ann. 18-12- 103(b) 2015). Further, provision is (Repl. “[a]ny alienation a its terms re penalizes power striction on must property, transfer the use of land be clearly provision prohibits apparent a in the language such deed the asserted Bentley, covenant.” Cochran v. present controversy, simply provide 159, 166, 253, (2007). How details and amendments issues that ever, this court has also stated that specifically contemplated were men- a contract “[w]hen refers writ another tioned as filed 1997. ing and makes the terms of that writing a argues The dissent that allowing Diamante contract, part of the the two documents by-laws reference regulations single agreement become a between the recording without them undermines the parties and must be together.” construed purpose of recording requirement. Ingersoll-Rand Co. v. El Dorado Chem. recording act designed Co., 226, 233, 191, 196 Ark. put subsequent purchasers on notice of (2008). affecting interests real property. There is clearly enough information in the Declara- This court has also specifically stated tions to purchaser allow a to make an restrictive covenants be amended inquiry Therefore, as to their contents. we Johnson, Eagle Mortg. Corp. later. by-laws hold that the regula- and rules and 765, 770, Ark. 427 S.W.2d tions sufficiently were referenced Further, in Kell this court cited cases from Declarations to incorporated. jurisdictions other permit a recorded to incorporate instrument an unrecorded IV. Dues Deferment of document. See 258 528 S.W.2d appellants argue their (“and at 655 jurisdic the cases from other fifth that the trial court erred when therein”); tions cited see also Moorestown it held that the pre Declarations did not Mgmt., Inc., Inc. v. Moorestown Bookshop, dues, vent the club from deferring 104 N.J.Super. 249 A.2d that challenges otherwise barred 1969) (N.J.Sup. Ct. Ch. (By-laws Div. were statute limitations. The Arkansas validly incorporated into a lease refer Code requires actions on a based breach of ence.); Rodruck v. Sand Point Maint. a written brought covenant to be within Comm’n, 48 Wash.2d 295 P.2d years. § five Ann. Code 16-56-115 (1956) (Deeds validly contained cov 719 (Repl. 2005). Declaratory relief is “depen enant incorporated which was into corpo- dent on and not available in the absence of by-laws.). ration’s justiciable controversy,” “intended by-laws Here both the and rules and to supplement supercede rather than ordi regulations validly incorporated *7 nary of Equita causes action.” Martin v. the covenant. repeatedly Declarations U.S., ble Assur. Soc. the 344 Ark. Life of mention that property owners would also 177, 181, (2001). 733, 40 Lastly, S.W.3d 736 subject to the contained the statute of begins limitations to run both documents. The ease law from both “complete when there is a present this jurisdictions court and other indicates action,” is, cause of absent conceal potential buyers that are on notice of unre- wrong, occurs, ment or “injury when the corded documents that are specifically ref- not when it is discovered.” Gunn v. Farm properly erenced within recorded instru- Exch., 434, ers Ins. at ments, and that this practice. is a standard 346, 352; Connelly, S.W.3d Hunter v. This not change rule does respect with 486, 491-92, 446 S.W.2d recorded affecting covenants land. While by-laws the were not created this case years until nine after the Declara- The trial court that it was found filed, tions by-laws, the generally as relate by known the club that was affirm deferring Assuming, arguen- as those who are. We the dues. benefits actively tolling for the of circuit and hold that the deferment do, the date court 2003 is that statute, that suit could have the latest of dues not a violation Declara- was the Dyes in 2008. The brought was tions. been years suit in four after their
brought
Memberships
Public
V.
court therefore
Golf
run. The
statute had
the
holding
on
any
action based
not err
did
point,
appel
For them sixth
the
of dues
time-
was
Diamante’s deferment
court erred in
argue
lants
that the trial
barred.
holding
the club was authorized to
golf memberships that do not
create other
Alternatively,
if
limita
even
the
any
claim
run
other
with the land
run,
not
the deferment of
had
period
tion
the statute of limitations.
wise
barred
of the Declara
not be breach
dues would
applicable
previously
We
addressed
that,
previously
have
stated
tions. We
regards
period above
limitations
of
...
language
covenant
“[w]here
breach
the Declarations.
unambiguous, application of
is clear and
case,
language
in the
governed by
our
the instant
will
[covenant]
is,
clearly puts
purchaser
interpretation;
the Declarations
general rules
may
“categories
that the club
parties governs
intent of the
as disclosed notice
create
land,
membership,
running
with the
plain language
the restriction.”
McGowen,
520, 522,
gener-
222 which
be made available to the
White
(2006). However,
argue
public.”
appellants
al
this lan-
we cau
guage
does not mean that the club could
tioned that the courts will
enforce cov
However,
golf memberships.
apply
do not
alike to all make other
“they
enants when
clearly put
enjoying
appellants
subdivision
the Declarations
units
the same
Kell,
golf membership
on notice that the full
properties.”
to the common
benefits
regulations
the rules and
767 They allege allowing that non-property- Multiple Arkansas. other owners owning to use the is a individuals course testified that good Diamante was a course. appellants’ fundamental breach the covenant and The pic- witness introduced provisions therefore tie-in cannot tures several be bunkers the course that However, pro- appear enforced club. those states disrepair. Howev- er, visions within the sales materials are nei- same witness later testified that he ther contained nor referenced within the considered Diamante to a “good” course, Therefore, they Declarations. did not be- and he confirmed that Diamante part agreement come of the between the had been making efforts to deal with other parties and are not terms under the cove- maintenance issues on the course. if Even nant. the facts alleged breach, were considered a certainly most would not so be mate-
VI. Course Maintenance rial as to defeat the purpose of paying dues and render the covenants unenforcea- appellants argue The in their ble. We therefore find error below. point materially seventh the club breached its duties to maintain the VII. Declaration That the Tie-in course not maintaining traps. the sand Covenants Were Unenforceable law, performance Under Arkansas “[w]hen appellants their last argue duty of a under a is contemplated, contract that, based on the accumulation of their any non-performance of duty is a above, points the court erred when it did Plus, breach.” v. Architecture 323 Zufari declare the at within issue Ark. 914 S.W.2d 761 the Declarations to be Spe- unenforceable. emphasized We have also further that “[a] cifically, appellants complain that the perform ‘material breach’ is a failure club breached the Declarations essential term condition that substan holding the clubhouse the exclusive use tially purpose defeats the of the contract However, owners. the Dec- party. for the A other material breach larations rules regulations and the performance par excuses of the other |1Rother clearly allow the club create Page Farms, ty.” Corp. TXO Prod. membership classes of ac- have Inc., 304, 307, 698 S.W.2d Further, cess the club facilities. (1985) (First) (citing Restatement specifically allow the club Contracts: Material Breach or Non-Per charge individual user fees for the ameni- Party Discharge One as a formance of provided through ties and services the fa- (1932)). § Duty the Other Therefore, cilities. trial court did not appellants point out that Diamante in holding err the covenants enforceable. $300,000 previously repair had set aside spending course but deferred repeatedly points The dissent out response They funds to the current suit. that the Declarations are cove restrictive allege the deferment of those dues a nants that are disfavored under Arkansas Vista, Maddox, Royal material breach of Diamante’s covenant to Law. v Oaks L.L.C. 119, 123, maintain the course. there nothing (2008). However, required the Declarations that we have stated that re spend the club to a certain amount on strictions on the use of land are disfavored Further, trial, Id.; course maintenance. law. Bentley, under the Cochran v. 159, 166, manager club testified the course was 369 Ark. (2007) (Provision
recognized being top prohibited one ten nonresi- *9 a on lots was covenants recorded after its effective date. structures residential dential McGoiven, covenant.); to White Accordingly, there is no need discuss restrictive 187, regarding of rules construction retroactivi- 364 Ark. (Provision (2006) ty portion appellant’s argu- because this of stipulated that may dwellings statutory be built ment involves construction. only single-family covenant.). Here, on lot was a restrictive a 18-12-107, Section entitled “Transfer in the none prohibited” covenants in perti- fee states lots prohibit how individual part: nent lot to only require but each owner used (b)(1) A transfer fee covenant recorded upon monthly and a transfer fee pay respect to real in this with Therefore, in the covenants contained sale. July state after 2011: cove- the Declarations are not restrictive (A) Does not run the title to the and such strict nants property; real scrutiny. (B) binding upon Is or enforceable in therefore find error the circuit We equity against: at law or judgment affirm court’s decision and (1) property; or The real on counts. all (ii) owner, purchaser, A subsequent Affirmed. mortgagee of an in the real interest property. joins. Special Sterling Justice David (2) This section does not a validate JJ., Hart, Baker and dissent. transfer fee covenant recorded this July 2011. state before Wood, J., participating. | in statutory first rule construction is ifiThe Hart, Justice, Josephine Linker reads, just giving construe it as it dissenting. ordinary meaning words their in common affirming En dissent. route to a language, giving every effect lul word. clearly by the erroneous decision Saline Quanex Div. v. Ark Okla- MacSteel of Court, County majority Circuit has Corp., homa Gas egregious errors of law and has en- made language of stat- When gaged legislating kind of plain unambiguous, ute is there is no rarely been bench that has seen this statutory need resort con- rules majority The has state. eviscerated our plain wording struction. The of section 18- statutes, recording introducing likely chaos applicable it only 12-107 makes to transfer system into that has this state for served July after 2011. covenants recorded century more than I half. will However, it error analysis end detail, points discuss these be- each here. ginning majority’s with the most funda- appeal specific This addresses
mental error
law.
finding
courf,
of the circuit
Supple-
“The
majority’s
handling
appellant’s
imposition
mental Covenants’
of transfer
correct,
point,
first
is at
not a
partially
while
fees is
violation Arkansas law.”
incomplete
misleading.
argument challenges
same time
The The
finding
this
entirety.
Accordingly,
is correct when it holds that the
lan-
plain
while
pro-
transfer-fee covenant is not
section
does not
guage
invalidated
18-12-107
plain wording
appellant
complete
section
with the
relief
18-12-107.
vide
only
appellant
it
applicable
sought,
the statute makes it
to that
did not foreclose
*10
(b)(2) states,
they
either. Section 18—12—107
forceable because
constitute an un-
“This section
not
does
restraint on
validate
transfer
reasonable
alienation of the
in
homes
lots in
fee covenant recorded
this state before
the two Diamante subdi-
Kell,
So,
Citing
July
supra, appellant
2011.”
visions.
statute ren-
as-
while
no
serts that the
transfer
after
dues-assessment covenants
ders
covenants recorded
27, 2011, valid,
do not meet the
July
requirements that
covenants recorded
would
allow court to
may may
they qualified
to that
prior
date
not
valid.
find
be
a “reasonable restraint on alienation” of
law,
valid,
Under Arkansas
any
be
the homes
lots in the
Diamante subdi-
on
property
restraint
alienation of
must be
Further,
the property-owners
visions.
as-
City
reasonable. Broach
Hampton,
“passed
sessment Kell
muster” because
(1984).
Had the been ments burden/benefit have not to the proper- added value undertaken, requirement that the sell ty but have had a instead deleterious effect er pay a transfer fee does not corre $5000 on real estate located within the Diamante spond equivalent to an Obviously, benefit. súbdivisions. fee, pays after the seller the transfer he or when it errs resolves this longer she no the privileges has of a Pull holding—or accurately more find- Member, Golf enjoys so he or she no bene ing—that “the circuit did not err court.
fit in terms a better maintained when did not find that the assessment Kell, course or supra, (prop clubhouse. Cf. unlawful on restraint alienation.1” erty-association closely fees tied to mainte The circuit made such finding. court nance of common areas while the itWhile did find the enforce- covenants community). owner lived in the able, it never found the transfer fees For appellant’s point, argues she second and club dues were alien- restraints ation, that, court in failing might circuit erred While it said implicit find that the tie-in ruling, covenants are unen- court’s .the circuit the transfer puzzling logic finding 1. There is a kind of to the not err that the moon made majority's correct, finding. logical green logically Carried to its ex- cheese. While treme, say one proper holding. did could circuit court statement would not abe *11 against prop- enforceable and that laws cannot be the fees were valid and enforced reasonable, simply it they wrong erty Appellant is owners. contends that the were infer that the circuit majority regulations for the and have been rules amended they not a restraint court meant that in six times and are likewise recorded However, fact on alienation. the remains County the Saline land records. finding majority of fact that the made dispute supplemen- There is no that the court not. That is not that the circuit did by- tal declarations to the refer Diamante for court appropriate appellate under regulations any.” laws and rules “if and the standard review. However, that not mean that the does not favor restrictions Arkansas law regulations bylaws and and rules as Vista, Royal on land. L.L.C. Mad Oaks amended can affect an interest in real dox, they To property. property, affect real anything im A restriction on land is that for must be recorded. The reason our re- pairs enjoyment the and free alien free cording put purchasers on laws is to notice case, this property. ation the this legal encumbrances to the real estate that a Full requirement includes the Golf considering buying. that are by the lot Membership paid for owner supplemental §Ann. 14-15^104. Code plays golf he or she or not and the whether supposedly incorporates declaration that paid requirement fees be transfer by bylaws Club’s reference the and rules lot whenever a is sold. states, regulations majority my analysis asserts Upon lot in the sale Diamante Sub- point this is incorrect it would because division or transfer of title to other an- ... in- “virtually render all transfer fees by initial sale of lot other after the the precisely I submit is what the valid.” Developer, deposit or a transfer fee Assembly by sec- enacting Club, General paid shall be to the fee to be such 11sdid 18-12-107, provide tion fixed, albeit too late established and collected in Diam- Club, relief owners time to by time successors ante subdivisions. assigns. or or deposit The transfer fee |igFull covers the transfer Golf appellant’s fourth Because third and Membership appurtenant related, points closely so I will dis- are may title. Such transfer fee be de- together. point, cuss them For her third or in creased increased the sole discre- appellant argues that the circuit court Club, tion of the its successors as- bylaws, finding erred the Club’s designated agent, or signs accordance they may as from time to be amended Articles, Bylaws, any, with the if Club’s time, into incorporated by reference Regulations and Rules or revised supplemental a matter declarations as any or amended Club owner of Appellant essentially law. makes Club its sole discretion. argument regard same the Club regulations. majority acknowledges, Appellant rules and asserts as the bylaws bylaws until 2006 did exist did exist until above-quoted supplemental and were not in the declaration recorded Saline County predated regula- land Most of the real es- also the Club’s rules and records. Accordingly, tate Diamante tions. what transactions subdivi- Consequently, sions claims was incorporated occurred before 2006. reference did citing many Arkansas section not Code Annotated exist when lots were 14-15-404, appellant argues by- purchased, including that the real estate owned (b) deed, bond, regarding No seven witnesses who testified instrument of writing conveyance for the of any appellant’s this case-in-chief. The real estate, byor which the title thereto majority correctly notes that Arkansas equity, be affected law or made or 18-12-103(b) Code Annotated section re- 21, 1846, executed after December shall quires restricting that an instrument good or against a subsequent valid is not use land effective unless *12 purchaser of the real estate for a valu- majority recorded. The cites Arkansas consideration able without actual notice cases that make restrictions valid without against any thereof or creditor of the recording in them accordance with section person executing such an ob- instrument 18-12-103(b). single The failure to cite a taining judgment or by decree which in support point Arkansas case of this is no upon law be a lien the real estate 18—12—103(b) mystery. None exist. Section deed, bond, the instrument, unless or states duly executed acknowledged (b) An creating instrument a restric- law, proved required by as is for filed not tive covenant is effective to restrict in the of record office the clerk and ex or development property the use of real county officio recorder where the purporting unless the instrument to re- real estate is situated. or development strict the use of the real from Apparently, majority’s the perspec- property by is of executed the owners tive, routine transactions real estate property the real and recorded the boring have become a little too since county office of the of recorder the so it things was time to shake up. The which the is located. majority’s finding—they mislabel it a hold- Assembly The General not be could more ing—that bylaws regula- the and rules and clear; bylaws because the and Club rules “sufficiently tions were referenced recorded, regulations they were incorporated,” simply are not to impose wrong. ignores plain effective restrictions on language It of our recording that Diamante subdivisions. statute limits “constructive notice” to recorded documents. Ark. Code majority finds no error its with 14-15-404(a)(l). §Ann. judicial subsection—by cancellation this Furthermore, regarding incorpo law “[tjhere is clearly enough fiat—because in- by by ration majority reference cited formation in the Declarations to allow a property, not concern real much did less purchaser inquiry to make an as to their covenants restrictive run with the majority point contents.” The misses the Ingersoll-Rand land. Co. v. El Dorado diligent that even the most of inqui- Co., Chem. 373 Ark. S.W.3d ries, he or she cannot know how will (2008), involving is a contract case a cus by be bound restrictions did not Unthat repair company. My tomer who sued a exist. All of the witnesses who testified in why research tells me the reason appellant’s purchased case their property majority has not proper cited Arkansas bylaws before the Before drafted. ty regarding incorporation by case refer 18-12-103(b) majority erased section majority’s ence is that none exist. The fiat, judicial pro- owners were Mortgage Eagle Corp. citation of v. John tected. son, (1968), majority has also Ar- eviscerated right is of no moment because the of a kansas Code Annotated section 14-15-404. majority of landowners to amend restric states, pertinent part part as tive covenants was recorded years purchasers bill assurances. Johnson from the the 93 de-
subdivision’s suggest appellant that the amended lots and that barred even ferred being using valid without statutes of limitation the sale of covenants would be allowing against covenant lots recorded deferred defense recorded—the Arguing in Johnson of the covenants Club’s use of tie-in covenants. amendment further, appellant cove- that it is expressly states amended contends undis- puted binding “shall from and to collect dues nants after Diamante failed period years. in Saline on lots for duly it is filed record ten Addi- date tionally, appellant Arkansas.” the circuit County, asserts finding court erred in that this at 551. appli- barred the statute of limitations noteworthy It is that the has cable to written contracts because statutes practice appellate usual eschewed defenses, limitation do bar this opinion courts of this state recount *13 already rejected by issue had been the in a hear- presented the merits evidence circuit court Diamante its mo- when filed ing. pages trial Here there was to tion dismiss. testimony scarcely that was mentioned. is, majority’s holding that particularly This omission remarkable The the statute predicate applicable a limitations that is to provides it factual written because holding well-neigh it majority’s completely makes contracts reveals that misun- the legal impossible justify. principles to derstands the involved question this is case. This a that involves case-in-chief, presented In appellant her law, not contract law. The distinc- testimony the owners. several profound tion is are because these two Jr., Thompson, Sam D. a home owner distinct bodies law. 1998, Bodge, Jim a home since since owner 1998, Bowles, a If Alan home since is to be restriction that owner there runs 2002, Conner, land, apparent Jean home owner since with it clearly the must be 2000, Heinrich, a home to v. Nw. Ron owner since the landowner. Harbour Land Co., Inc., Bumpas, Tim a property owner since Schoonover, (1984). Moreover, John a home owner a restrictive covenant McCabe, against since and be strictly Dan must construed limita land, All of since 1999. these tions on free owner witnesses the use and all doubts purchased prior against lots to existence of Royal their are resolved the restriction. Vista, L.L.C., bylaws, supra. provi the Club’s so of course Oaks they could When the bylaws have no of what the would sions of notice a restrictive covenant have to, Accordingly, majority’s contain. the conclu- been the adhered covenant be clearly informa- enough sion that “there is to be and thus unen deemed abandoned Stricklin, purchas- Gentry tion the Declarations to allow forceable. (1971); inquiry er to as to their make contents” S.W.2d 580 Moore v. Adams, rings appel- All of witnesses in hollow. 141 S.W.2d case, they lant’s purchasers, when are Restrictions that deemed aban necessarily nothing by- found not simply spring back to life because doned do challenged laws did not exist. are not because within five years. 122Appellantargues for fifth point her | in finding majority wrong
that the circuit is when simply court erred asThe the supplemental supplemental declarations authorize finds the recorded dec- to gives the Club’s for 10 larations the club the “clearly failure collect dues au- thority vary to ship” date “Each commencement Diamante Lot Owner imagine between lots.” It is difficult to shall required pay monthly what finds “clear.” The sec- for a Full Membership.” Golf Accordingly, supplemental tion declarations that the language that the majority finds so states, it relies clear could interpreted give also be monthly only afore mentioned dues shall Diamante authority to determine Club; | commence on day a date fixed month the dues become a4the however, provided ap- payable dues shall be after the real estate is acquired. plicable Moreover, until day the first month supplemental when the declara- preceding filed, the date that either the Club- tions were golf club not fully house or the Golf Course is first made functional. Accordingly, another reason- available for use the members and able interpretation of language is that applicable will be each lot payable dues will become once the Diamante Subdivision when it first Club course declares and club sold Developer. monthly house open provide are ready dues shall commence and become due amenities that the Full Members will Golf payable living as to each lot or unit required pay for. on the date fixed the Club for com- Thus, the language ambiguous at least mencement. ambiguities in written instruments construing paragraph question, I *14 See, against construed the e.g., drafter. expressly note that it does not state that Elcare, Gocio, Inc. v. may dues not deferred. This fact does (1980). importantly, More comport previously with the stated law previously, noted restrictive on covenants upheld, that to be the restriction must be not land are favored the law and cove clearly apparent. Harbour, Restric- supra. against nants must be construed a restric tions on strictly land must be construed Vista, L.L.C., Royal supra. tion. Oaks against land, limitations on of the free use Furthermore, interpretation of the the and all against doubts are resolved the supplemental espoused by declarations the Vista, L.L.C., Royal restriction. Oaks su- majority equitable prac- does not make pra. of deferring tice from some supplemental the While declarations do enforcing owners while on the burden oth- expressly give right Diamante the to By er owners. the majority’s dues, defer supplemental the declarations reading declarations, of the there is creat- state, expressly do to lot in “Title each the an equitable ed servitude2 that treats the subject Diamante which Subdivisions is similarly properties situated burdened un- assessment Club shall include a equally. interpretation Such an repug- is Membership Full Golf in the Club ... and very concept equitable nant to the of servi- such Membership appurtenant shall be tudes, if only which are enforceable pass and shall lot” with the title to each development strictly common scheme of is “Every person or entity who is the Moore, supra; supra. Gentry, adhered to. record owner of a lot or who purchasing Developer a lot in disputed Diamante Sub- It is not of burden division shall a Full paying monthly have Golf Member- dues for Full Golf Phillips Eng. Rep. 2. Because these restrictions do not touch and The themselves, they principle concern the lots are consid difference is these restrictions equitable Moxhay, ered equity. servitudes. Tull v. are enforced at unequally applied ongoing litiga- to at course of the Memberships was because Holding 450 lots in the Diamante tion. funds needed to maintain the least dues, requirement pay golf certainly jus- subdivisions. The course would not be per month at the at time stood pending litigation. which tified because there is $475 substantial, laitrial, particularly in | ^Finally, majority acknowledges gave fact that the covenants light of the that it is that covenants true that restrict right prop- to foreclose Diamante a use of land disfavored the law paid. As dues were erty if the assessed strictly against and must be construed 269 lot were as- hearing, of the owners single restriction. without a cita- Memberships pay sessed Full-Golf tion to authority asserts that the cove- that, according general to the for a club in question nants are not to these development, supported plan would principles well-established law. inequity The of this by 450 lot owners. majority boldly proclaims that “none Accordingly, ma- is manifest. situation pro- the Declarations in law of for affirm- jority no basis fact has hibit how the individual lots be used.” finding court’s ing the circuit the re- quiet enjoyment Is not the one’s home Full quirement pay Membership Golf Here, “use” of the of 269 land? the owners is enforceable. due they lots face the threat eviction if fail appellant’s I fifth find merit While to pay ever-increasing golf monthly points, I sub- and sixth nonetheless cannot membership whether foot in the set majority’s dispos- scribe to the rationale not, or neighboring club lot own- while Regarding ing points. of these the creation similarly are not ers bound the cove- categories membership, of club lesser apparent nant. It is not to me how majority partially is at least incorrect majority’s comports equity decision way point. that it handles this justice. that the sales material refers time, legislature I am certain is, best, contract, part sales *15 repair damage majority will that the Club, into merges the deed. See Inc. Surf recording has to our To- done statutes. Lubin, v. day’s majority opinion every states that (1984).I reject appellant’s likewise seventh purchase may real estate be affected argues she point wherein that the circuit “incorporating by reference” documents failing court erred to find that the Club unrecorded, only but do not duty to properly has breached maintain recording system even our exist. While will course., resolution of this lies likely legislative rescued swift ac- resolving conflicting testimony between tion, sanguine I am not so about manager Pope, Club lives disput- Madison who people trapped the accusations that and the fortunes of the ed the course being properly appellant’s maintained and Diamante subdivisions. contrary. Generally, to the
witnesses we I respectfully dissent. circuit sitting defer to the court at the trier of fact to resolve matters of credibili- Baker, J., joins. ty. Murphy, Health Baptist why 269. It is not clear portion of Pope’s cited testi- mony in which he admitted the Club $300,000 amassed from
had re- it on spending
frained maintenance