Opinion
NO. 2014-CA-000907-MR
02-19-2016
MOHAMMAD R. SERAJI AND DEBRA T. SERAJI APPELLANTS v. GEORGE COCANOUGHER; TERESA COCANOUGHER; GARY KELLER; PAT KELLER; DAVID MOBLEY; PAM MOBLEY; JERRY CATON; FRANCES CATON; LARRY LANCE; LINDA LANCE; KIM SWIGER; DIANE BLEDNICK; RICK MORGAN; KELLI MORGAN; WALDON ADKINSON; INA ADKINSON; KELVIN ALCORN; PAM ALCORN; BRIAN PYLE; TAMMY PYLE; MASON MOORE; KELLY MOORE; RITA HOLIDAY; JODY MEREDITH; HEATHER MEREDITH; KEITH TYLER; LORI TYLER; RALPH PHILLIPS III; AND DANNY HOLLIDAY, D/B/A D&R INVESTMENTS APPELLEES
BRIEF FOR APPELLANTS: Michael W. Troutman Lexington, Kentucky BRIEF FOR APPELLEES: Bradley Guthrie Harrodsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 12-CI-00151 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. CLAYTON, JUDGE: This is an appeal from a decision of the Mercer Circuit Court granting injunctive relief to the Appellees, George Cocanougher, et al. Based upon the following, we affirm the decision of the trial court.
BACKGROUND SUMMARY
Appellants, Mohammed R. Seraji and Debra T. Seraji, purchased four lots of land in the Lee Oak Estates. The Appellees are other homeowners in the Estates and members of the Lee Oak Estates Neighborhood Association (hereinafter "Association"). The Appellees brought an action in the Mercer Circuit Court asserting that the Serajis breached the development's covenants and restrictions by 1) the erection of a fence without approval by the Association; 2) keeping horses on their property in violation of the covenants; 3) failure to timely complete landscaping as set forth in the covenants; and, 4) failure to timely bury utilities as set forth in the covenants.
The Appellees sought injunctive relief. The trial court held a bench trial on February 17, 2014. At trial, the Serajis argued that: 1) they had approval for the erection of the fence; 2) that the horses at issue were from a farm that was located behind the subdivision; and 3) that they have been unable to complete their landscaping due to problems with run-off. The Serajis also filed a counterclaim against the Association contending that the developer had failed to remedy water run-off problems on Holiday Court; that homeowners Gary and Pat Keller parked a school bus on their property in violation of the covenants and restrictions of the development; and, civil conspiracy.
After the bench trial, the trial court made findings and conclusions that the Appellees were entitled to injunctive relief regarding: 1) the removal of the fence; 2) prohibition regarding the horses on the property; and 3) the removal of the rock and dirt from the property. The trial court gave the Appellants 180 days from the date of the Order to comply with the injunction. As to the Appellants' counterclaim, the trial court enjoined the Kellers from keeping a school bus on their property and dismissed all other counterclaims. The Appellants then filed this appeal.
STANDARD OF REVIEW
On appeal, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01; A&A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999). Conclusions of law, however, are subject to independent appellate determination. "[The] [i]nterpretation or construction of restrictive covenants is a question of law." Black v. Birner, 179 S.W.3d 873, 877 (Ky. App. 2005). With these standards in mind, we review the decision of the trial court.
DISCUSSION
The Appellants first argue that the proposed fence does not violate the plain meaning of the property restrictions. They argue that "since restrictions are in derogation of the free and untrammeled use of real property, they are to be strictly construed with doubts resolved against them. They will not be enlarged by implication or extended to embrace something not plainly prohibited." Parish v. Newbury, 279 S.W.2d 229, 233 (Ky. 1954).
Restriction No. 7 provides that "[n]o fence shall be erected, constructed or maintained on any lot from the front of the main residence to the street..." The Serajis own four lots, three of which do not have a house on the lot. They argue that the restriction does not apply to their property because the fence must start at the main residence and extend to the street.
The trial court found that the fence was erected without prior approval from either the developer or the Association. Pursuant to Marshall v. Adams, 447 S.W.2d 57 (Ky. App. 1969), restrictive covenants should be strictly interpreted. There was no approval by either the developer or the Association in writing, as required prior to the erection of the fence. Thus, we agree with the trial court that the fence is in violation of the restrictive covenant and must be removed.
Next, the Serajis argue that the enforcement of the restriction fails by waiver, abandonment or estoppel. In determining whether these defenses apply, a court must determine whether the circumstances justify a waiver and, if so, to what extent? W.R.R. La Vielle v. Seay, 412 S.W.2d 587 (Ky. App. 1966). In denying this defense, the trial court held that the acquiescence by the Association was slight and that such inconsequential violations which did not affect a material change in the character and use of the restricted territory did not estop a property owner from objecting to substantial violations of the restrictive covenants when they occurred. The trial court held that the alteration of the property by the fence was substantial and this, we hold, was not clearly erroneous.
Finally, the Serajis argue that they were informed their construction plans had been approved in 2008 and the trial court erred in holding otherwise. As set forth earlier, however, any variation of the restrictions must be in writing and, in this case there was no specific variation set forth in writing. Thus, the trial court did not err in its findings and conclusions. We, therefore, affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANTS: Michael W. Troutman
Lexington, Kentucky BRIEF FOR APPELLEES: Bradley Guthrie
Harrodsburg, Kentucky