Opinion
359070
09-29-2022
CRESTWOOD HOMEOWNERS ASSOCIATION, INC., Plaintiff-Appellant, v. KATHLEEN PAWLANTA, Defendant-Appellee.
UNPUBLISHED
Otsego Circuit Court LC No. 21-018475-CH
Before: M. J. KELLY, P.J., and CAMERON and HOOD, JJ.
PER CURIAM.
In this case involving a restrictive covenant, plaintiff, Crestwood Homeowners Association, Inc., appeals as of right the trial court's order granting summary disposition in favor of defendant, Kathleen Pawlanta. For the reasons stated in this opinion, we affirm.
I. BASIC FACTS
Pawlanta owns a lot within the Crest Wood Manor subdivision #2 that is subject to a restrictive covenant that runs with the land. Relevant to this appeal, Article III, paragraph 2 of the restrictive covenant provides:
No building or other structure shall be erected or altered or permitted on any site in the Plat of Crest Wood Manor #2 and Crest Wood Manor #3 other than one single family dwelling house with attached garage; except swimming pool, tennis court, badminton court, walls or fences and such other auxiliary construction.
Pawlanta built a "storage barn" measuring 10' x 14' on her lot so that she could store her "snowthrower and other winter items." After learning of the structure, the Association sent Pawlanta two letters demanding removal of the shed because it violated the restrictive covenant's prohibition on structures other than single-family residences. Pawlanta refused to remove the shed.
The Association filed a complaint requesting that the trial court order that Pawlanta remove the shed from her property and enjoin her from placing another shed on the property in the future. The complaint alleged that all "outbuildings," including sheds, barns, and storage containers, other than attached garages, were prohibited in the subdivision, and therefore, Pawlanta's shed violated the subdivision's restrictive covenant.
In August 2021, the Association filed a motion for summary disposition under MCR 2.116(C)(9) and (C)(10). It asserted that the restrictive covenant was legal, that it had not waived enforcement of the restriction, and there were no genuine issues of material fact. Pawlanta argued in response that the restrictive covenant was vague and did not define the term "auxiliary construction." As a result, Pawlanta contended that the restrictive covenant was ambiguous and unenforceable. Alternatively, she also argued that the Association waived enforcement of the restrictive covenant by failing to enforce prior violations.
Following a hearing, the trial court entered an order denying the Association's motion for summary disposition under MCR 2.116(C)(10) and granting summary disposition to Pawlanta under MCR 2.116(I)(2). The court found that the phrase "auxiliary construction" was ambiguous, so the restriction was unenforceable. Alternatively, the court found that the Association had waived enforcement. This appeal follows.
The court partially granted the Association's motion for summary disposition under MCR 2.116(C)(9). That portion of the court's order has not been challenged on appeal.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
The Association argues that the trial court erred by denying its motion for summary disposition and granting summary disposition to Pawlanta. We review de novo a trial court's decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009). Likewise, "[t]he interpretation of restrictive covenants is a question of law that this Court reviews de novo." Eager v Peasley, 322 Mich.App. 174, 179; 911 N.W.2d 470 (2017) (quotation marks and citation omitted).
B. ANALYSIS
A restrictive covenant is a contract between a buyer and seller of property that allows landowners to preserve a desired aesthetic "or other characteristics in a neighborhood, which the parties may consider valuable for raising a family, conserving monetary value, or other reasons particular to the parties." Bloomfield Estates Improvement Ass'n, Inc v Birmingham, 479 Mich. 206, 212, 214; 737 N.W.2d 670 (2007). "Restrictive covenants involve two fundamental freedoms-the freedom to contract and the freedom to use property." Mazzola v Deeplands Dev Co LLC, 329 Mich.App. 216, 223-224; 942 N.W.2d 107 (2019). The failure to enforce a deed restriction may deprive a landowner of their property rights whereas enforcing a deed restriction beyond the restrictor's intent may deprive a landowner of their legal right to use their own property. Thiel v Goyings, 504 Mich. 484, 496; 939 N.W.2d 152 (2019).
As noted above, Pawlanta's property is subject to the following restrictive covenant:
No building or other structure shall be erected or altered or permitted on any site in the Plat of Crest Wood Manor #2 and Crest Wood Manor #3 other than one single family dwelling house with attached garage; except swimming pool, tennis court, badminton court, walls or fences and such other auxiliary construction.On appeal, the Association first argues that the trial court erred by determining that the phrase "auxiliary construction" was ambiguous. We agree that the language is unambiguous. However, we disagree with the Association's contention that Pawlanta's storage shed is not an auxiliary construction permitted under the plain and unambiguous language of the restrictive covenant.
Unambiguous restrictive covenants "must be enforced as written." Johnson Family Ltd Partnership v White Pines Wireless, LLC, 281 Mich.App. 364, 389; 761 N.W.2d 353 (2008). A contract is ambiguous if its language may be reasonably understood in two or more different ways. Edmore v Crystal Automation Sys Inc, 322 Mich.App. 244, 262; 911 N.W.2d 241 (2017). "[T]he language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjected to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon." Eager, 322 Mich.App. at 180-181 (quotation marks and citation omitted). See also Terrien v Zwit, 467 Mich. 56, 75-76; 648 N.W.2d 602 (2002) (stating that a term that is not defined in a contract will be interpreted "in accordance with its commonly used meaning."). "[A]ny uncertainty or doubt must be resolved in favor of the free use of property." Thiel, 504 Mich. at 497.
The term "auxiliary construction" is not defined by the restrictive covenant. The fact that a term is undefined does not render the contract ambiguous. Terrien, 467 Mich. at 76. Instead, this Court may consult a dictionary to determine the common meaning of a phrase in a restrictive covenant. See id. at 63-64. "Auxiliary" means "offering or providing help" or "functioning in a subsidiary capacity." Merriam-Webster's Collegiate Dictionary (11th ed). See also Black's Law Dictionary (7th ed) (defining "auxiliary" as "[a]iding or supporting" and "subsidiary"). "Construction" is defined as "[t]he act of building by combining or arranging parts or elements," and "the thing so built." Black's Law Dictionary (7th ed). Thus, as a result, the phrase "auxiliary construction," as used in the restrictive covenant, is commonly understood to refer to a structure built to function in a subsidiary capacity or to aid or support a single-family residence. Stated differently, an auxiliary construction is one that complements and supplements a single-family home.
The interpretation is further supported by the interpretive cannon ejusdem generis. Under that doctrine, when "general words follow a designation of particular subjects the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated." Rott v Rott, 508 Mich. 274, 299 n 11; 972 N.W.2d 789 (2021). Here, although the primary focus is on the term "auxiliary construction," the restrictive covenant actually states "such other auxiliary construction." Thus, it specifically directs that the phrase be interpreted in connection with the constructions that are expressly permitted.
The expressly permitted constructions are swimming pools, tennis courts, badminton courts, fences, and walls. The Association notes that that each of the listed constructions complement and supplement a single-family home and that they typically do no exist in isolation from a single-family residence. They also assert that the following structures-which have been constructed in the subdivision-fall within the definition of an "auxiliary construction:" dog kennels, children's playhouses, unenclosed/partially enclosed structures used to store firewood, and structure's attached to the single-family residence. We agree that the listed structures-and the structures that the Association has treated as conforming to the restrictive covenant-support and complement a single-family home. Yet, it is clear that a storage shed used to store equipment-such as a "snowthrower" and other winter gear-is also a structure that complements and supplements a single-family home. Moreover, a shed used to store equipment used to maintain a single-family home typically does not exist in isolation from a single-family home. Thus, under the plain language interpretation of the relevant language, a storage shed used to complement and supplement a single-family home is an auxiliary structure.
The Association posits that a shed is nevertheless impermissible because it could be used for a commercial purpose. That argument is unavailing and has no basis in the language used in the restrictive covenant. Dog kennels, children's playhouses, storage structures for wood, and structures attached to the side of a person's home may also be used for residential purposes or for commercial purposes. Similarly, swimming pools, tennis courts, and badminton courts may also be used for commercial purposes. Although there is nothing in the record suggesting that the structures of that nature existing within the subdivision are, in fact, being used for commercial purposes, there is also no evidence indicating that Pawlanta is using-or is even planning on using-her storage shed for commercial purposes. Instead, she has averred that the purpose is to store a "snowthrower" and other winter equipment that, likely, will be used to maintain the property during winter. More importantly, a shed (or other structure) used for commercial purposes is not prohibited because it is a shed (or other structure). Rather, it is prohibited under Article III, paragraph 1, if it is used for commercial purposes rather than for residential purposes. The Association's concerns regarding the hypothetical use of a storage shed for commercial purposes, therefore, are irrelevant to the interpretation of the phrase "auxiliary construction."
The Association also directs this Court to the results of an earlier enforcement action. Specifically, in 1994 the Association took enforcement action against homeowners who attempted to erect a shed on their property. In a written opinion granting the Association relief, the circuit court judge concluded that sheds were not permitted because-unlike swimming pools, tennis courts, and badminton courts-sheds are enclosed structures. We do not find that interpretation of the restrictive covenant to be persuasive. Although swimming pools, tennis courts, and badminton courts can be unenclosed, they may also be built as part of an enclosed structure. The deed language does not provide that the structures built to complement and support a single-family residence must be unenclosed.
Finally, the Association notes, repeatedly, that Pawlanta's shed is large enough to accommodate parking a vehicle inside. Under the plain language of the restrictive covenant, only attached garages are permitted. Pawlanta is not using the shed as a garage, however. If, in the future, she were to convert the shed from a storage structure used to complement and support her single-family home into a detached garage, then, there would be a basis to take enforcement action against her. The mere fact that such a conversion is possible, however, is not dispositive. Indeed, there are no size restrictions imposed on the permissible auxiliary constructions. As a result, it does not matter that the shed is tall enough for an "average adult" to stand inside and wide enough for a motor-vehicle to be parked inside.
In conclusion, the phrase "auxiliary construction" unambiguously refers to a structure that is built to aid, support, complement, and supplement a single-family home. The shed at issue was built to store items used to aid, support, complement, and supplement Pawlanta's single-family home, it is a permissible structure. Thus, although the court erred by finding that the restrictive covenant was ambiguous, it reached the right result by granting summary disposition to Pawlanta. See Gleason v Mich. Dep't of Transp, 256 Mich.App. 1, 3; 662 N.W.2d 822 (2003) ("A trial court's ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.").
Given our resolution, we need not address whether the Association waived enforcement of the restrictive covenant.
Affirmed. Pawlanta may tax costs as the prevailing party.
CAMERON, J. (concurring in part and dissenting in part).
In this dispute over whether a homeowners association's restrictive covenant permits the construction of a storage shed, I agree with the majority's conclusion that the building restriction in this case not enforceable because the Association failed to enforce similar violations in the past. I also agree with the majority's conclusion that the phrase "auxiliary construction" in the restrictive covenant is not ambiguous and therefore the restrictive covenant is enforceable. But I disagree with the majority's determination that the meaning of the phrase "auxiliary construction" is so expansive that it captures nearly any type of new building, including the storage shed in this case, so long as the building is complementary to a single-family dwelling. I therefore concur in part and dissent in part.
The restrictive covenant states:
No building or other structure shall be erected or altered or permitted on any site in the Plat of Crest Wood Manor #2 and Crest Wood Manor #3 other than one single family dwelling house with attached garage; except swimming pool, tennis court, badminton court, walls or fences and such other auxiliary construction.
In other words, the covenant prohibits construction of any "building or other structures" on the property unless the new construction fits into one of two narrow exceptions. First, a property owner may build one "single family dwelling house with attached garage." Second, an owner may build a "swimming pool, tennis court, badminton court, walls or fences and such other auxiliary construction." The majority concludes that the storage shed in this case is expressly authorized because it qualifies as an auxiliary construction.
I take no issue with the majority's definition of "auxiliary construction" as a structure built that complements and supplements a single-family home. I also agree that the storage shed in this case is a building that is being used in a way that complements Pawlanta's single-family home. Therefore, the generic phrase "auxiliary construction," standing alone, would appear at first blush to be broad enough to permit the construction of Pawlanta's storage shed.
But the phrase does not stand alone. The covenant uses "auxiliary construction" as a catchall phrase at the end of a short list of structures that are permitted by the Association. And unlike the generic catch-all, the list of permissible construction is very specific: a swimming pool, tennis court, badminton court, and walls or fences. Thus, the meaning of the phrase auxiliary construction is not just found in a dictionary. Rather, it requires us to examine that definition in the context of the specific list in which it is found.
As the majority correctly notes, this examination requires us to apply the cannon ejusdem generis. This cannon of construction states that when construing a provision that includes a list of terms that includes a catch-all phrase, the meaning of the catch-all phrase is limited to the same kind or type of items that are in the list. Stated more plainly, the cannon would instruct that-in a list limited to apples, oranges, grapefruit, strawberries, tangerines, and "other foods"-the phrase "other foods" would include only other fruits.
In my opinion, the majority misapplies this cannon. I first note that opening language for the restriction prohibits all "building[s] or other structure[s]" unless expressly authorized. Indeed, the restriction expressly permits the construction of only one building: a single-family home with an attached garage. Following this limited authorization, a specific list of structures is identified that may also be built on the property, namely: a swimming pool, tennis court, badminton court, and walls or fences. The items in this specific list are all different forms of structures. And none of the items in the list are buildings. The storage shed in this case is unquestionably a building. Therefore, the proper application of cannon ejusdem generis would define the catch-all phrase "auxiliary construction" to include the same kind or type of structures in the list. Because the storage shed is a building and the restrictive covenant permits only structures, the storage shed is not permitted.
The term "structure" is defined as: "[S]omething constructed, as a building or bridge." Random House Webster's College Dictionary (2001).
The term "building," is defined as: "[A]ny relatively permanent enclosed structure on a plot of land, having a roof and usu[ally] windows." Random House Webster's College Dictionary (2001).
This analysis is similar to our Supreme Court's reasoning in Rott v Rott, 508 Mich. 274, 299-300; 972 N.W.2d 789 (2021), in which the Court considered the following phrase from Michigan's recreational land use act (RUA), MCL 324.73301, "fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use." MCL 324.73301(1). Looking to the "unifying characteristics" of the listed activities, the Court reasoned that the activity at issue-ziplining-was not "any other outdoor recreational" activity contemplated by the RUA. The Court's reasoning is directly applicable in this case because the "unifying characteristics" of the listed structures do not include buildings. Thus, Pawlanta's storage shed, which is a building, is very different from the listed structures.
Nevertheless, I concur in part and dissent in part because I agree with the majority that the Association waived enforcement by failing to enforce earlier violations.