District Court, Ogden Department The Honorable Mark R.
DeCaria No. 160904934
C. Smith, Attorney for Appellant
M. Yancey, Richard W. Jones, and Taylor R. Jones, Attorneys
Ryan M. Harris authored this Opinion, in which Judges David
N. Mortensen and Diana Hagen concurred.
Kenneth D. Woodward built a large detached garage (Garage)
behind his house. This infuriated his next-door neighbors,
Robert and Lorraine Vanderwood (the Vanderwoods), who
consider the structure an eyesore and not in keeping with the
subdivision's restrictive covenants, known as the
Declaration of Building and Use Restrictions (Restrictions).
The Vanderwoods sued Woodward, seeking (among other things) a
judicial order commanding Woodward to tear down the Garage.
After entertaining cross-motions for summary judgment, the
district court declared the Garage out of compliance with the
Restrictions, and ordered Woodward to tear it down. Woodward
now appeals, and we reverse.
The parties own adjacent homes in the Country Haven
Subdivision No. 3 (Subdivision) in Weber County, Utah, with
the Vanderwoods living immediately to the north of Woodward.
Each lot in the Subdivision is subject to the Restrictions,
which the Subdivision's original developer duly recorded
in May 2003, before any of the parties purchased property
within the Subdivision. Among other things, the Restrictions
contain a number of covenants that control not only the type
of structures that can be built within the Subdivision, but
also control, to some extent, the type of material that can
be used to build them and where they may be built. The
Restrictions also require that all construction plans be
approved by an "Architectural Control Committee"
(ACC), which was to be established and operated pursuant to
The original developer named members of the original ACC, but
these individuals did not actually function as an ACC, and
never provided any approvals or disapprovals of designs or
plans for any structures within the Subdivision. The
developer transferred all of the lots to new owners by 2003
or 2004, and since then the Subdivision's homeowners have
had the right to reform the ACC and make it functional, but
they never have. There are twenty-three lots in the
Subdivision, all of which are built out, and no proposed
building or structure has ever been reviewed, let alone
approved or disapproved, by an ACC. Indeed, prior to the
instant suit, not only had both Woodward and the Vanderwoods
built houses on their respective properties without seeking
the approval of any ACC, but both had also constructed some
type of outbuilding (Woodward had built a shed; the
Vanderwoods a detached garage) on their properties without
bothering to obtain ACC approval. The other residents of the
Subdivision acted similarly; all have built something on
their property without obtaining approval from anyone, and
the record does not contain evidence of any objection-prior
to the events giving rise to this lawsuit-by any homeowner to
any other homeowner's proposed construction, whether on
the basis of lack of ACC approval or for any other reason.
In May 2016, Woodward hired a local construction company
(Builder) to construct a "pole garage" on his lot
that he could use as a workshop to restore automobiles and
build hotrods. A few weeks later, Woodward applied for a
building permit from West Haven City for the project. As part
of the permitting process, a city building inspector
(Inspector) visited Woodward's lot and reviewed the plans
and the proposed placement. Inspector and Woodward also
discussed the Restrictions, and Inspector explained that,
because "there had never been an [ACC] functioning in
[the Subdivision]," it was "not only impossible,
but unnecessary for [Woodward] to receive approval" from
the ACC. After meeting with Woodward and reviewing the plans,
Inspector issued Woodward a building permit for the Garage,
and construction commenced.
In August 2016, while the Garage was still under
construction, the Vanderwoods approached Woodward and
provided him a letter objecting to the construction of the
Garage, and stating their belief that the building materials
being used- metal siding for the exterior walls and a metal
roof-were in violation of the Restrictions. Specifically,
they asserted that both houses and outbuildings must
"match in materials," and that "[b]rick, stone
or stucco" must be used for the exterior walls of the
structure, and "[c]edar [s]hake, [t]ile, or
[a]rchitectural shingles" must be used for the roof. The
letter voiced no objection to the Garage's location or
placement. In response, Woodward invited the Vanderwoods to
meet with Builder "to address any aesthetic
concerns," but the parties were unable to come up with a
mutually satisfactory solution. Thereafter, and with only the
Garage's roof left to be installed, the Vanderwoods filed
In their complaint, the Vanderwoods made several specific
claims that Woodward's Garage was in violation of the
Restrictions. First, they alleged that the Garage was out of
compliance because Woodward had not first obtained ACC
approval for the construction. Second, they complained that
the Garage was "not in harmony" with other
buildings in the Subdivision. Third, they asserted that the
Garage was constructed with materials not allowed by the
Restrictions. And finally, they claimed that the Garage was
located in a position that violated the Restrictions'
Following discovery, the Vanderwoods filed a motion for
partial summary judgment with regard to liability, seeking an
order declaring that the Restrictions constitute a valid and
enforceable contract and that, by building the Garage,
Woodward had violated the terms of that contract. Woodward
responded by filing a summary judgment motion of his own,
asking the court to declare that the Subdivision homeowners
had abandoned the Restrictions and that he had therefore not
violated them. Both sides also sought attorney fees.
Both sides filed sworn declarations in support of their
motions for partial summary judgment. Attached to the
Vanderwoods' first declaration are a number of
photographs depicting outbuildings in the Subdivision that
appear to be in violation of the side and rear yard setback
requirements. Woodward noted this in his responsive
declaration, stating that the "side and rear setback
requirements have been routinely disregarded in [the
S]ubdivision," and specifically noting seven homeowners
who he thought had done so. In a rebuttal declaration, the
Vanderwoods acknowledged that "there are a handful
of" homeowners in the Subdivision who "have
violated the side yard setback requirements."
After briefing and oral argument, the district court granted
the Vanderwoods' motion and denied Woodward's. In so
ruling, the court concluded, among other things, that (1)
"the requirement that all buildings get ACC approval has
been abandoned," but that the remainder of the
Restrictions had not been abandoned and were enforceable; (2)
the Garage's metal roof and metal exterior violates the
Restrictions; and (3) the Garage's location violates
"the side-yard setback provision" of the
Soon thereafter, the Vanderwoods filed a second motion for
summary judgment, this time asking the district court to
impose a remedy. Specifically, they asked the court to
enforce the Restrictions by ordering that the Garage "be
immediately disassembled and moved to comply with the setback
requirements" and, if rebuilt, to comply with the
Restrictions' roofing and exterior material requirements.
Woodward opposed the motion, arguing that injunctive relief
was improper. The court again granted the Vanderwoods'
motion, and issued the requested injunction. Pursuant to the
terms of the Restrictions, the court also ordered Woodward to
pay the Vanderwoods their attorney fees they had accrued in
bringing the lawsuit.
AND STANDARDS OF REVIEW
Woodward now appeals, and asks us to consider five issues.
The first three issues consist of challenges to the district
court's first grant of summary judgment. First, Woodward
contends that the Restrictions have been abandoned in their
entirety and are therefore unenforceable. Second, Woodward
contends that the provisions in the Restrictions regulating
building materials apply only to dwellings, and that
therefore the Restrictions do not forbid the construction of
a metal outbuilding. Third, Woodward contends that the
Vanderwoods have failed to adequately establish that the
Garage is in violation of the setback Restrictions. Summary
judgment is proper when "the moving party shows that
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of
law." Utah R. Civ. P. 56(a). "When reviewing a
district court's denial of summary judgment, we grant no
deference to the district court's legal conclusions and
review them for correctness." Anderson Dev. Co. v.
Tobias, 2005 UT 36, ¶ 19, 116 P.3d 323 (quotation
Fourth, Woodward contends that the district court's grant
of injunctive relief in favor of the Vanderwoods was
improper. "On appellate review, a grant of injunction is
overturned only upon showing that the district court abused
its discretion or that the decision is clearly against the
weight of evidence." Carrier v. Lindquist, 2001
UT 105, ¶ 26, 37 P.3d 1112.
Fifth, Woodward challenges the district court's award of
attorney fees to the Vanderwoods as the prevailing party.
"Whether a party is the prevailing party in an action is
a decision left to the sound discretion of the trial court
and reviewed for an abuse of discretion." Larry J.
Coet Chevrolet v. Labrum, 2008 UT App 69, ¶ 16, 180
P.3d 765 (quotation simplified).
Woodward first contends that the district court erroneously
entered summary judgment in favor of the Vanderwoods on their
claim that Woodward breached the terms of the Restrictions.
This is a claim for breach of a contract. See Swenson v.
Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807 (stating
that "interpretation of [restrictive] covenants is
governed by the same rules of construction as those used to
interpret contracts"). A breach of contract claim has
four elements: "(1) a contract, (2) performance by the
party seeking recovery, (3) breach of the contract by the
other party, and (4) damages." America West Bank
Members, LC v. State, 2014 UT 49, ¶ 15, 342 P.3d
224 (quotation simplified). Woodward offers three reasons why
he believes the Vanderwoods' breach of contract claim
fails, either in whole or in part. First, he asserts that the
Restrictions-most notably the requirement that all
construction projects be reviewed and approved by an ACC-have
been abandoned, and that neither he nor any other homeowner
in the Subdivision remains bound by them. Second, he contends
that the Restrictions' provision governing building
materials applies only to dwellings, and not to his detached
Garage. Third, he claims that the Vanderwoods have not
provided sufficient evidence in support of their claim that
the Garage violated the Restrictions' setback
Abandonment of the ACC Procedures
Woodward first argues that the Restrictions'
advance-ACC-approval requirement (Part B.2), including its
provision requiring external "harmony" between
structures, has been abandoned. In his briefs, he further
asserts that the abandonment of this covenant renders the
Restrictions as a whole unenforceable. In response, the
Vanderwoods contend that, even if "the requirement to
obtain prior approval from the ACC has been abandoned or
waived," that provision can be severed from the
Restrictions without invalidating the Restrictions in their
entirety. While we agree with Woodward that Part B.2 has been
abandoned, abandonment must be analyzed on a
provision-by-provision basis, and the Subdivision's
collective abandonment of the ACC provisions does not mean
that the Restrictions have been abandoned in their entirety.
Property owners who purchase land subject to restrictive
covenants "have a right to enforce such covenants
against other owners who violate them."
Swenson, 2000 UT 16, ¶ 21. However,
"property owners may lose this right if the specific
covenant they seek to enforce has been abandoned."
Fink v. Miller, 896 P.2d 649, 652 (Utah Ct. App.
1995). Abandonment of a covenant occurs when there is
"substantial and general noncompliance with the
covenant." Swenson, 2000 UT 16, ¶ 22
(quotation simplified). Conversely, abandonment has not
occurred if the violations "are slight, unimportant, and
unsubstantial," "are of a minor nature and do not
destroy the general building scheme," or are
"inoffensive." Id. ¶ 23 (quotation
simplified). Simply put, abandonment has occurred "when
the average person, upon inspection of a subdivision and
knowing of a certain restriction, will readily observe
sufficient violations so that he or she will logically infer
that the property owners neither adhere to nor enforce the
restriction." Fink, 896 P.2d at 653.
Our supreme court has adopted a three-part test for
determining whether a specific covenant has been abandoned.
Under this test, courts "examine: (1) the number, nature
and severity of the then existing violations; (2) any prior
act of enforcement of the restriction; and (3) whether it is
still possible to realize to a substantial degree the
benefits intended through the covenant."
Swenson, 2000 UT 16, ¶ 27 (quotation
simplified). Furthermore, "[a]bandonment of one covenant
does not suggest abandonment of other, albeit similar,
covenants in the agreement," Fink, 896 ...