Ruffinengo v. Miller
579 P.2d 342
Utah
1978
Check Treatment

*1 RUFFINENGO, Piero G. Appellant, Nancy MILLER,

Robert F. and H. the Art Company, Jones, Blair J. John Does 1 through Respon- Defendants dents.

No. 15348. Supreme Court of Utah.

5,May Durando,

Nann Novinski City, for appellant.

Anthony L. Rampton, City, Salt Lake respondents. defendants and

343 HALL, Justice: atories,' file, and admissions on together with affidavits, the- any, if show that there (hereinafter “Ruffinengo”) ap- is genuine issue as any material fact summary a peals judgment dismissing moving party is entitled to a enjoin his suit to of a the construction house judgment aas matter of law.1 If there is (hereinafter “Miller”) by alleged defendants any genuine issue as any fact, in a material violation of prohibiting summary judgment dwellings construction of should be denied.2 of two excess stories. The issue of standing raised presented facts to the trial pleadings is one of material pre fact which court are as follows: the are litigants. cludes the entry of summary judgment. adjacent lots owners in Northerest Sub- question covenant in is found division which a boundary, share common chain of title of all the subdivision although one lot is Plat “E” and the and purports to allow by any enforcement subdivision; other of said and all lot owners. developed separate plats by

two were cor- porate question entities hence lots in Ruffinengo contends he and Miller ostensibly from a com- did derive their titles from a common however, grantor, mon main- grantor since the corporate developers were corporations tains that both were wholly in fact the same. It long has been by Cunningham; one James established that if general a scheme for plats subject lots in both are to the same building or development is by as to intended restrictive covenants structure original grantor, they merely imposed by subsequent grantees differ- may developers; bring against specifically ent the covenants action each other to enforce provide by covenants, for enforcement “owner restrictive and such may intent owners of of the lots in subdivi- by be shown the acts of the grantor and the sion;” filing case, prior to the the instant attendant circumstances.3 It necessarily successfully Miller had a nearly defended follows that Ruffinengo should be afforded brought by lawsuit identical opportunity to make such showing by in the owners subdivision wherein was presenting his evidence. dwelling determined that was not in

violation of the covenants. As to the matter of collateral es- toppel, it to be noted Ruffinengo was not determined, The trial court as a matter of party nor in with privity party in the law, standing had no prior suit Consequently, Miller. grantor maintain the action since his was by be bound that proceeding. Col not common Miller’s and that was lateral estoppel is not a defense barred the doctrine further of collateral litigant who was not a to the action estoppel presented since the issue had al- and judgment claimed to have created an proceed- ready been determined estoppel.4 ing. Ruffinengo contends the doing, agree. erred in so and we The proposition clearly was stated in Summary Judgment proper only Blonder-Tongue University v. of Illinois pleadings, depositions, interrog- answers to Foundation5 as follows: Procedure, 56(c); Utah, Slavens, Rules Civil Rule In re v. Carmen 546 P.2d 601 Estates, 83, (1976); Halling Williams’ Utah 2d 348 P.2d 10 683 v. Industrial Commission of (1960). 112, (1927). 71 Utah P. 78 263 646, Young Felornia, 121 Utah 244 P.2d 313, 1434, 5. 402 U.S. 91 28 S.Ct. L.Ed.2d 788 (1952). 862 (1971). Gibbs, al., 54, Hayes, et a l. v. et 110 Utah 169 (1946), citing Campbell, P.2d 781 Korn v. (1908). N.Y. 85 N.E. 687 ELLETT, ap- never litigants, (concurring who Chief Justice Some —those dissenting): in a not be col- peared action — litigating the laterally estopped without question presented this never had chance to They issue. an owner adjoining this: can of land arguments on present their evidence and to restrictive covenants enforce process prohibits estop- Due the claim. *3 those restrictions? existing one or more ping despite them plaintiff land in E owns Plat which adjudications of the identical issue developed by was owned and Northcrest position. their squarely stand Manor, Investment, Inc., Inc. Phenix an- to be noted that if the doctrine It is also corporation, purchased the stock of that Ruffi- applied be to these facts should Northcrest Manor and thereafter transfer- denied his constitutional nengo would be previously red certain land he was not a right because Manor, corporation Northcrest Inc. to a prior suit. to the called Northcrest Investment which devel- that Miller’s contention oped the land and subdivided it as “North- also all other lot owners could not Subdivision, Plat F.” crest In connection litigation the burden of and and that sue with the the then owner filed enormous, would be accompanying expense a document in the office of the only resort real merit for he needed has no Recorder of Lake which so far as mate- Salt even- 19(a)6 protect against such to Rule rial hereto reads: as follows: The rule reads tualities. KNOW ALL MEN BY THESE joint inter- persons . PRESENTS: joined and be parties shall be made est THAT, WHEREAS, NORTHCREST plaintiffs as or defendants. same side CORPORATION, INVESTMENT join who should as person When a owner of Northcrest Plat so, or his consent refuses to do plaintiff “F”, County, situated in State obtained, be made be it of and desires and intends to sell or, cases, proper an involun- defendant convey purchasers the same to tary plaintiff. purposes contemplated, herein and in that Miller’s further contention of order to restrict use said simply privity” “in because Ruffinengo was thereof, thereby enhance the value neighbor’s to his an identical he had hereby agrees purchase with all who shall adjudicated per previously that was thereof, property, any part said that in reasons: This is so for suasive. purchase consideration and use at all unforeseeable (1) It is not thereof, shall be and is re- might reach a different result following respects, stricted in the to wit: the other lot owners than did LAND: Each lot in USE OF said sub- suit, may present a far simply because designated hereby division is as residen- convincing case. different lot, tial and none of the said lots shall be policy (2) has a consistent This court improved, occupied used or for other than permitting resolving doubts in favor of private, single family purposes, residence day their in court on the to have parties apartment and no flat or house shall be controversy.7 merits of thereon, structure shall be erected and no placed erected or of said lots other pro- for further and remanded Reversed one, garage two or three car than opinion. with this ceedings not inconsistent exceeding story and one MAUGHAN, JJ., CROCKETT, single family dwelling con- not to exceed one story height; . cur. Slavens, supra, footnote 4. 7. Carmen v. Rules Civil Procedure.

6. Utah owns land in F but placed restrictions upon Plat F Mr. own a does Plat E which abuts Cunningham, president of Northcrest defendants’ land Plat F. Investment Corporation, he did so to pro- tect the view of owners on the Cunningham One James B. made an affi- the land plat. in that davit which was filed with court. disputed. contents thereof were not It is noticed that does not

The affidavit is as follows: claim that defendants’ land subjected CUNNINGHAM, JAMES under any restrictions other than those set out by

oath, hereby deposes and states: Investment above set president

1. I am the of the North- forth. There is no claim that any crest restriction Corporation, by anyone Investment the devel- made other than oper Investment, of Plat “F” of the Northcrest Subdi- Inc. confers any right upon I have president vision. this cor- the plaintiff object to the *4 poration incorpora- since the date of its manner in which the defendants propose to tion. build their home. At the time the restric- tions were apply made to

2. That neither the Northcrest Invest- “Northcrest Subdivision, F” Corporation myself personally ment nor Invest- ment did not own participated and/or owned interest in an Plat E in plaintiff’s of Plat “E” of the land is located. Northcrest Subdivision. 3. When Northcrest Investment Cor- I holding concur

poration identified bringing this suit be- as Northcrest Plat “F” there cause of estoppel,” “collateral but I encumbering was no restrictive covenant dissent from the order remanding the ease property. trial. There are disputed no issues of I made the attached restrictive cov- fact shown in this case and I think the trial applicable to in Plat “F” enants the lots correctly ruled that the had Subdivision, together with the to maintain the suit. I would lots, by recording the same buyers of ruling affirm that award costs in the Office of the Salt Lake respondent. about August Recorder primary purpose intent of 5. The WILKINS, J., concurs in the views ex- height restrictions contained within pressed concurring in part and dis- protect the attached covenant senting opinion Mr. Chief Justice EL-' valley view of the Salt Lake for those LETT. [Emphasis to the restrictions. added.]

Whether applies to land is a matter intent on imposes part of the one who the restric- In this case is clear that when the tions.1 etc., 292; Am.Jur.2d, page at Sec. see the annotation in A.L.R. Covenants