Present: All the Justices
A. DALE SMITH, ET AL.
v. Record No. 990164 OPINION BY JUSTICE ELIZABETH B. LACY
January 14, 2000
CHESTERFIELD MEADOWS SHOPPING
CENTER ASSOCIATES, L.P., ET AL.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
A. Dale Smith and Richard M. Allen appeal the trial
court's judgment sustaining a demurrer dismissing their bill
of complaint seeking to have a restrictive covenant declared
null and void. Finding that the pleadings were sufficient to
state a cause of action, we will reverse the judgment of the
trial court.
In 1979, Allen owned approximately 5.5 acres of land on
the north side of Centralia Road at its intersection with
State Route 10 in Chesterfield County. He sought and obtained
a rezoning of the parcel to Agricultural (A) with a
conditional use permit to build an office complex. Ernest P.
Gates and Virginia Y. Gates (the Gates) owned a 5.5-acre tract
on the south side of Centralia Road at that intersection. The
Gates' home, known as "Wrexham," was located on their
property.
On July 14, 1980, Allen and the Gates executed a
restrictive covenant affecting Allen's property. Under the
covenant, Allen's land was to be "used only for the purposes
mentioned and allowed by the Special Conditional Use Permit
granted by the Board of Supervisors on November 28, 1979, in
case #79S101A for an office complex as reflected in the
official minutes of the meeting." The covenant was to run
with the land for a period of sixty years from the date of the
covenant and it was recorded in the land records of
Chesterfield County.
The Wrexham structure subsequently was relocated, the
Gates' property was rezoned to "Commercial" use, a portion was
sold to Chesterfield Meadows Shopping Center Associates, L.P.,
and Ukrop's Super Markets, Inc. (collectively "Chesterfield"),
and the Chesterfield Meadows Shopping Center was constructed
on the property. Allen's property was subsequently rezoned
from Agricultural (A) to "Neighborhood Business" and a portion
of the tract was sold to Smith.
On June 24, 1998, Smith and Allen filed a bill of
complaint in the court below, pursuant to Code § 55-153,
seeking to have the restrictive covenant declared void.
Chesterfield filed a demurrer, which the trial court sustained
by order entered on October 1, 1998. Smith and Allen were
given 21 days from the date of entry of the order to amend
their bill of complaint. On October 29, Allen and Smith filed
a motion for nonsuit which the trial court granted on November
2, 1998. Chesterfield filed a motion to vacate the court's
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order of nonsuit, which was granted on November 23, 1998,
based on the court's finding that it "lost jurisdiction on
October 22, 1998 because no Amended Bill of Complaint had been
filed or other Order entered." We awarded Smith and Allen
this appeal.
Smith and Allen argue that the trial court erred in
sustaining Chesterfield's demurrer because their bill of
complaint adequately stated a cause of action. In a cause of
action to have a restrictive covenant declared void, a party
must prove that changed conditions have defeated the purpose
of the restrictions, and the change must be "so radical as
practically to destroy the essential objects and purposes of
the agreement." Booker v. Old Dominion Land Co., 188 Va. 143,
148, 49 S.E.2d 314, 317 (1948). Smith and Allen assert that
the allegations contained in the bill of complaint that "[t]he
restriction was intended to protect the historical nature of
Wrexham," that the Wrexham structure had been relocated, and
that the entire property upon which Wrexham was located is now
zoned commercial and a shopping center has been built on the
property, were sufficient to state a cause of action for
declaring a restrictive covenant void.
Chesterfield responds first that our holding in Ward's
Equipment, Inc. v. New Holland North America, Inc., 254 Va.
379, 493 S.E.2d 516 (1997), bars consideration of Smith and
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Allen's allegations that the purpose of the restrictive
covenant was to protect the Wrexham structure. In Ward's
Equipment, we held that factual allegations contradicted by
the terms of authentic, unambiguous documents that are a part
of the pleading may be disregarded by a court in considering a
demurrer. Id. at 382, 493 S.E.2d 518. Chesterfield argues
that the restrictive covenant, which was attached to the
pleading, stated that "it is the desire of the parties hereto
to restrict the land containing 5.523 acres in accordance with
conditions imposed by the Board of Supervisors of Chesterfield
County in case #79S101A." This statement, according to
Chesterfield, is an unambiguous statement of the purpose of
the restrictive covenant. Therefore, Chesterfield contends,
Smith and Allen's argument that the purpose of the covenant
was to preserve the Wrexham structure is a factual allegation
in contradiction of the unambiguous covenant document, and is
barred by the doctrine recognized by Ward's Equipment. We
disagree.
The language quoted above from the restrictive covenant
does not address the purpose of the covenant. Rather, the
language describes the actual restriction that was imposed
upon the land. The purpose of the covenant, namely, the
reason why the parties chose to impose the restriction on the
land, is not set forth in the document itself. Because the
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document is silent as to the purpose of the restrictive
covenant, the rule in Ward's Equipment does not prohibit the
introduction of evidence on that subject, since such evidence
would not be considered a factual allegation contradicted by
the terms of the document.
Next, relying on Hechler Chevrolet v. General Motors
Corp., 230 Va. 396, 337 S.E.2d 744 (1985), Chesterfield
asserts that the introduction of evidence that the covenant
was created to protect the Wrexham structure is barred by the
parol evidence rule. In Hechler, parol evidence was not
allowed to show prior dealings between the parties because
there was no allegation that the contract in question was
incomplete or ambiguous. Id. at 403, 337 S.E.2d at 749. In
the instant case, Smith and Allen allege that the purpose of
the restrictive covenant was not contained within the
document, and that extrinsic evidence is needed to determine
the reason for imposing restrictions on the land. In light of
these allegations, we hold that the parol evidence rule does
not bar extrinsic evidence of the purpose of the covenant in
this case.
Finally, Chesterfield argues that the bill of complaint
fails to allege sufficiently changed circumstances to support
nullification of the restrictive covenant. According to
Chesterfield, allegations that an historical house has been
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relocated and a shopping center has been constructed in its
place alone are insufficient to establish the type of change
which would "destroy the essential objects and purposes" of
the restrictive covenant.
Considering these allegations in the light most favorable
to the plaintiffs, which we must when considering a demurrer,
W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 384,
478 S.E.2d 295, 300 (1996), we cannot say they are
insufficient as a matter of law. The fact that the pleadings
discuss changes to only a single property does not defeat the
cause of action at the demurrer stage in the proceedings.
For the above reasons, we conclude that Smith and Allen's
bill of complaint stated a cause of action. Accordingly, we
will reverse the trial court's order sustaining the demurrer
and remand the case for further proceedings. *
Reversed and remanded.
*
Because we are reversing the trial court's order
sustaining the demurrer, we do not reach the remaining
assignments of error pertaining to nonsuit.
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