Thе appellees are residents of the Pleasant Valley Subdivision in Little Rock. When the subdivision was platted, a bill of assurance prohibiting any сommercial or business use of property in the subdivision was filed and recorded. Commercial use of that location was also prohibitеd by municipal zoning ordinances. Nevertheless, appellees operated a commercial day-care center out оf their home, applying for and receiving a special-use permit from the city of Little Rock without disclosing, as required by the permit application, that the requested use violated a bill of assurance. Appellants reside directly next door and share a common prоperty line with appellees. After learning that appellees were operating a day-care center in their home, appellants made complaints about increased traffic and safety concerns to the Little Rock Police Department, the Arkansas Department of Human Services, the Neighborhood Association Board, and to the appellees themselves. These efforts were ineffective, and appellants ultimately sued to enjoin operation of the day care, asserting that it constituted a nuisance and that it violated the bill of assurance. After a hearing, the trial court found that the appellees’ operation of the day cаre did not rise to the level of a nuisance, and that appellants waived the right to assert the bill of assurance by failing to assert it until three yеars after they were notified that appellees had filed for a permit to operate a day care in their home. From that dеcision, comes this appeal.
For reversal, appellants contend that the trial court erred in considering the waiver issue because waiver is an affirmative defense that was not specifically raised until after the hearing was concluded. They also argue that the trial court erred in finding that they waived the right to assert the bill of assurance. We reverse on the second point.
Appellants correсdy assert that waiver is an affirmative defense that must be specifically pled in one’s answer or other responsive pleading, see Wаrd v. Russell,
Nevertheless, giving due deference to the trial court’s superior opportunity to assess the credibility of the witnesses, seе McGuire v. Bell,
Where the law affords sеveral distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remеdies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.
Id. at 269,
Nor were appellants barred by the doctrines of estoppel and laches. Both doctrines are founded on the principle of detrimental reliance, and, perhaps because the issue was not raised until after the hearing was concluded, there is no evidence that appellees incurred any expenses or otherwise relied to their detriment on appеllants’ three-year delay in asserting their rights under the bill of particulars. See generally Cavaliere v. Skelton,
In light of appellants’ continued оpposition to the prohibited use through other consistent avenues, and the express provision in the bill of assurance that failure to immеdiately proceed upon learning of a violation thereof will not result in a waiver of rights, we hold that the trial court erred in finding that the appellants waived their rights under the bill of assurance.
Reversed and remanded.