Vanderwood v. Woodward

2019 UT App 140

THE UTAH COURT OF APPEALS

ROBERT VANDERWOOD AND LORRAINE VANDERWOOD,
Appellees,
v.
KENNETH D. WOODWARD,
Appellant.

Opinion
No. 20180503-CA
Filed August 22, 2019

Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 160904934

Brad C. Smith, Attorney for Appellant
Jason M. Yancey, Richard W. Jones, and Taylor R.
Jones, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 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.
 Vanderwood v. Woodward

BACKGROUND 1

¶2 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 Restrictions.

¶3 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

1. “When reviewing a district court’s grant or denial of a motion
for summary judgment, we view the facts in a light most
favorable to the party opposing the motion.” Anderson Dev. Co. v.
Tobias, 2005 UT 36, ¶ 31, 116 P.3d 323 (quotation simplified).

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 Vanderwood v. Woodward

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.

¶4 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 hot-
rods. 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.

¶5 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,

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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 this lawsuit.

¶6 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’ setback requirements.

¶7 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.

¶8 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

20180503-CA 4 2019 UT App 140
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declaration, the Vanderwoods acknowledged that “there are a
handful of” homeowners in the Subdivision who “have violated
the side yard setback requirements.”

¶9 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 Restrictions.

¶10 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. 2 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.

2. The record contains no indication that the district court’s
injunction was ever stayed pending this appeal. However,
neither side has suggested that the case has become moot by
virtue of the Garage having been disassembled and rebuilt, and
therefore we presume that the district court’s order has not yet
been carried out.

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 Vanderwood v. Woodward

ISSUES AND STANDARDS OF REVIEW

¶11 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
simplified).

¶12 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.

¶13 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).

20180503-CA 6 2019 UT App 140
 Vanderwood v. Woodward

ANALYSIS

I. The Restrictions

¶14 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 requirements.

A. Abandonment of the ACC Procedures

¶15 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

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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.

¶16 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.

¶17 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

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agreement,” Fink, 896 P.2d at 655, and “[e]vidence of
abandonment must be established by clear and convincing
evidence,” Swenson, 2000 UT 16, ¶ 22.

¶18 One of the covenants at issue here is the provision
requiring that all construction within the subdivision be
approved in advance by an ACC. Part B.2 of the Restrictions
provides in relevant part as follows:

No building, structure or wall shall be erected,
placed or altered on any lot until the construction
plans and specifications and a plan showing the
location of the structure have been approved by
the [ACC] as to quality of workmanship and
materials, harmony of external with existing
structures, and as to location with respect to
placement on lot, topography and finish grade
elevation.

¶19 After reviewing the evidence submitted to it on summary
judgment, including the undisputed facts that no ACC had ever
functioned in the Subdivision, and that no homeowner in the
Subdivision had ever obtained approval for any construction
from any ACC, the district court determined that “the
requirement that all buildings get ACC approval has been
abandoned,” and no party challenges that determination on
appeal. We therefore credit the district court’s determination in
this regard, and consider the ACC-approval requirement to have
been abandoned.

¶20 The Vanderwoods argue, however, that abandonment of
the ACC-approval requirement does not necessarily mean that
all of Part B.2 must fall. Specifically, they argue that Part B.2’s
language mandating that the ACC review proposed construction
projects for, among other things, “harmony of external”
constitutes a substantive requirement that buildings within the

20180503-CA 9 2019 UT App 140
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Subdivision be in harmony with each other. 3 We simply
disagree. The provision is entirely procedural—it requires
that any construction project within the Subdivision be
submitted to the ACC for advance approval, and it sets forth
certain things the ACC should look for in conducting its review,
including “harmony of external.” If there is no requirement that
any homeowner submit construction projects to an ACC, then
the criteria that any such ACC would use to evaluate such
projects become irrelevant. In sum, we consider “harmony of
external” to have been among the criteria a functioning ACC
could have used to evaluate proposed construction projects, and
if there is no functioning ACC, then there is no body to review
projects for any such criteria. Given that Part B.2 is entirely
procedural, it loses all relevance and functionality once the ACC-
approval requirement has been abandoned. We therefore
consider the entire ACC preapproval process—including its
attendant procedures set forth in Part B.2—abandoned in its
entirety. 4

¶21 However, the abandonment of Part B.2, even in its
entirety, does not necessarily operate to invalidate the
Restrictions as a whole. As Woodward’s counsel acknowledged
during oral argument before this court, a finding of

3. Woodward argues that the provision (“harmony of external”)
is a nonsensical sentence fragment that in any event is too vague
and arbitrary to enforce as a substantive provision. We need not
consider these arguments, in light of our conclusion that the
entirety of Part B.2 has been abandoned.

4. Other provisions exclusively dealing with the ACC-approval
requirement must also be considered abandoned, including Part
B.3(e), which requires that “[a]ll exterior materials must be
approved” by the ACC prior to construction.

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 Vanderwood v. Woodward

abandonment must be made on a provision-by-provision
basis. See Fink, 896 P.2d at 655 (stating that “[a]bandonment of
one covenant does not suggest abandonment of other, albeit
similar, covenants in the agreement”). Thus, a determination that
one provision is unenforceable does not require a determination
that all of the provisions are unenforceable; claims of
abandonment must be analyzed on a provision-by-provision
basis. Moreover, the Restrictions contain a severability clause,
which provides that each provision is “independent of and
severable from the rest,” and that if any of its provisions “shall
be held to be invalid or . . . unenforceable . . . that holding shall
[be] without effect upon the validity [or] enforceability” of the
other provisions.

¶22 In sum, Part B.2 has been abandoned, in its entirety,
including the “harmony with external” provision, and is
unenforceable against Woodward. Therefore, Woodward was
not required to obtain advance approval from a non-existent
ACC before he began building his Garage. But this covenant is
severable from the remaining Restrictions, and its abandonment
does not necessarily affect the enforceability of the other
Restrictions. 5

B. Building Materials Covenant

¶23 Woodward next argues that the provisions in the
Restrictions that regulate building materials (Part B.3) apply
only to dwellings, and are therefore inapplicable in this case
because the Garage is not a dwelling. In support of this
argument, Woodward looks to the structure and text of Part B.3

5. In addition to asserting that the ACC-approval provisions
have been abandoned, Woodward claims that the Restrictions’
setback requirements have likewise been abandoned, and we
discuss that specific claim below, see infra section I.C.2.

20180503-CA 11 2019 UT App 140
 Vanderwood v. Woodward

itself, and specifically points to the title of Part B.3—“Dwelling
Cost, Quality and Size”—to show that the restrictions within this
provision are all related to “dwellings.” Conversely, the
Vanderwoods contend that Woodward’s reliance on the
structure of the paragraph is misguided, and that paragraph
headings are not technically part of the contract and do not
control its interpretation. They instead argue for a broader
application of Part B.3, and contend that it applies to all
structures constructed within the Subdivision, and not just to
dwellings. In order to address the parties’ arguments, we find it
necessary to set forth Part B.3 in its entirety:

3. Dwelling Cost, Quality and Size. No
Dwelling shall be permitted on any lot at a cost of
less than $150,000, exclusive of lot and financing,
based upon cost levels prevailing on the date . . .
these covenants are recorded, it being the intention
and purpose of the covenants to assure that all
dwellings shall be of a quality of workmanship and
materials substantially the same or better than that
which can be produced on the date these covenants
are recorded at the minimum cost stated herein for
the minimum permitted dwelling size. The
minimum permitted dwelling size shall be as
follows:

(a) The ground floor square feet area of the main
structure, exclusive of garage and any one-story
open porches, shall not be less than 1,700 square
feet for a one-story dwelling.

(b) In a two-story home, which is two stories above
curb level, the combined area of the ground story
level and the story above ground-story level,
exclusive of garage and any one-story open
porches, shall total not less than 2,200 square feet.

20180503-CA 12 2019 UT App 140
 Vanderwood v. Woodward

(c) In a multi-level home (i.e. three or four level
split), the total area of all levels of the main
structure above ground, exclusive of garage and
any one story open porches, shall not be less than
2,200 square feet. For purposes of this paragraph,
only finished area in levels, the entirety of which
are more than ½ exposed above finished grade,
shall be included in the calculation of area.

(d) All dwellings shall be set on permanent
foundations. All houses shall have an attached
garage large enough to accommodate at least two
automobiles. All houses shall be finished with
brick, stucco or stone on all parts of the house
exterior. Foundations or basement cement must not
exceed three feet of exposure out of the ground
line, unless the appropriate finish materials as
described above are used for the facade. All houses
shall have a roof with a minimum 6/12 pitches.

(e) All exterior materials must be approved by the
[ACC] prior to commencement of construction.

(f) Aluminum or vinyl siding shall be allowed in
soffit and facia areas, and in other areas approved
by the [ACC].

(g) Roofing materials shall be cedar shake, tile, or
architectural grade asphalt shingles (20+ year type)
or as approved by the [ACC].

(h) Sewer system connections and fees shall be the
responsibility of buyer. Connections and
connection specifications shall be as determined by
the Health Department of the State of Utah or other
applicable governing bodies. All plumbing
fixtures, dishwashers and toilets shall be connected

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 Vanderwood v. Woodward

to the individual sewer system connection, which
shall, in turn be connected to the main sewer line
provided by developer.

¶24 Under the traditional rules of contract interpretation, 6 a
court’s underlying purpose is to “determin[e] what the parties
intended by the contractual language.” Utah Transit Auth. v.
Greyhound Lines, Inc., 2015 UT 53, ¶ 31, 355 P.3d 947; see also
WebBank v. American Gen. Annuity Service Corp., 2002 UT 88, ¶ 17,

6. Woodward, citing case law from other jurisdictions, argues
persuasively that the Restrictions should be strictly construed in
favor of free and unrestricted use of property, especially given
that restrictive covenants are usually unilaterally imposed by a
developer prior to the homeowner’s involvement, and therefore
usually afford homeowners no opportunity to negotiate
particular language or provisions. See, e.g., Utah Transit Auth. v.
Greyhound Lines, Inc., 2015 UT 53, ¶ 31, 355 P.3d 947 (explaining
that strict construction is a form of contract interpretation where
“the court imposes a requirement that certain language must be
used to clearly and unequivocally show the parties’ intent”).
However, no matter how persuasive we might find this
argument, our supreme court has rejected it, see Fort Pierce Indus.
Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28,
¶ 19, 379 P.3d 1218 (stating that “interpretation of restrictive
covenants is governed by the same rules of construction as those
used to interpret contracts and that, generally, unambiguous
restrictive covenants should be enforced as written” (quotation
simplified)), and we are of course bound to follow our supreme
court’s pronouncements, see Ortega v. Ridgewood Estates, LLC,
2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical
stare decisis to follow strictly the decisions rendered by the Utah
Supreme Court.” (quotation simplified)). We therefore construe
the Restrictions in this case according to the usual rules of
contract interpretation.

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 Vanderwood v. Woodward

54 P.3d 1139 (“In interpreting a contract, the intentions of the
parties are controlling.” (quotation simplified)). Because “the
best indication of the parties’ intent is the ordinary meaning of
the contract’s terms,” Mind & Motion Utah Invs., LLC v. Celtic
Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994, we look first to the
contractual language itself and “consider each contract provision
in relation to all of the others, with a view toward giving effect to
all and ignoring none,” McNeil Eng’g & Land Surveying, LLC v.
Bennett, 2011 UT App 423, ¶ 8, 268 P.3d 854 (quotation
simplified). “If the language within the four corners of the
contract is unambiguous, the parties’ intentions are determined
from the plain meaning of the contractual language, and the
contract may be interpreted as a matter of law.” Id. (quotation
simplified).

¶25 The question presented here is whether Part B.3 applies to
all buildings within the Subdivision, or whether it is limited in
its application to dwellings. For the reasons that follow, we are
persuaded by Woodward’s argument that Part B.3 applies only
to dwellings, and does not apply to his detached Garage.

¶26 We begin our analysis, as we must, by examining the
plain meaning of the contractual language. See id. Here, not only
does Part B.3’s heading 7 seem to limit its reach to dwellings, but

7. The parties spend considerable energy arguing over the extent
to which we are permitted to consider the language of the
section heading. Woodward cites Scalia and Garner for the
proposition that the “title and headings are permissible
indicators of meaning.” See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 221 (2012). The
Vanderwoods respond by directing our attention to McEwan v.
Mountain Land Support Corp., 2005 UT App 240, 116 P.3d 955, a
case in which we stated that “contract headings are more
appropriately regarded as organizational tools than substantive
(continued…)

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 Vanderwood v. Woodward

the section’s text, introductory paragraph, and structure make
this point clear. It is noteworthy that the term “dwelling” (or
“house” or “home”) appears often throughout the entire
provision, not just in the title. In particular, the section’s
prefatory paragraph states that “the intention and purpose of the
covenants” is to “assure that all dwellings” are of a certain
“quality of workmanship and materials.” (Emphasis added.)
That paragraph uses the term “dwelling” four times. The
subparagraphs also focus on residences, discussing the
allowable minimum square footage for houses, requiring
“dwellings” to be “set on permanent foundations,” and
mandating that “houses” be “finished with brick, stucco or stone
on all parts of the house exterior.” (Emphasis added.)

¶27 The structure of Part B.3 also supports our conclusion.
The section (after the heading) begins with an unindented
paragraph focused on making sure that all “dwellings” are of a
certain “quality of workmanship and materials”; that paragraph
ends with a sentence terminating in a colon, followed by a series
of indented lettered subparts. Such a structure indicates that the

(…continued)
contract provisions,” and concluded that “the contract heading is
not actually part of the contract.” Id. ¶ 25. We think McEwan is
readily distinguishable here, given that, in that case, the
paragraph heading was directly at odds with the paragraph’s
text, whereas here the section heading is completely in harmony
with the section’s text. We therefore give the section heading
some weight in our analysis, cf. Jensen v. Intermountain Healthcare,
Inc., 2018 UT 27, ¶ 29, 424 P.3d 885 (stating that “when we need
help understanding an ambiguous [statutory] provision, titles
are persuasive and can aid in ascertaining the statute’s correct
interpretation and application” (quotation simplified)), but find
it to be something well short of a determining factor here, given
the clarity of the section’s substantive text.

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 Vanderwood v. Woodward

subparts following the initial paragraph are all related to the
prefatory paragraph and its objective. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 156 (2012) (stating that “[m]aterial within an indented
subpart relates only to that subpart; material contained in
unindented text relates to all of the following or preceding
subparts”).

¶28 Moreover, the drafters of the Restrictions often used the
term “garage” and “other non-inhabited structure” in other
sections, demonstrating that they knew how to draft provisions
dealing with such structures where that was their intention. See,
e.g., State Farm Mutual Auto. Ins. Co. v. Clyde, 920 P.2d 1183, 1187
(Utah 1996) (finding that the legislature’s omission of a term
from a statute was intentional because the same term was used
in several other statutes, thus demonstrating that the legislature
“knew how to use the term . . . but chose not to do so”); Nolin v.
S & S Constr., Inc., 2013 UT App 94, ¶ 16, 301 P.3d 1026
(concluding that the drafters of a contract could “differentiate
between the terms ‘Lot’ and ‘Residence’” and had “use[d] each
advisedly” where both terms appeared in the same section and
both had different definitions); cf. Pulham v. Kirsling, 2019 UT 18,
¶ 30 n.9, 443 P.3d 1217 (discussing the “expressio unius
principle, . . . which is ‘a canon of construction holding that to
express or include one thing implies the exclusion of the other,
or of the alternative’” (quotation simplified)). Part B.3 uses the
term “garage” four times, each time in reference to garages that
are attached to dwellings: once in articulating a requirement that
“[a]ll houses shall have an attached garage” big enough for two
cars, and three times to emphasize that square footage
measurements for dwellings should not include garage space. By
contrast, the drafters included elsewhere in the Restrictions (e.g.,
Part B.4) requirements for non-inhabited buildings, including
setback minimums (discussed below) for detached “[g]arage[s]
and other non-inhabited structure[s].” Had the drafters wanted

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 Vanderwood v. Woodward

the provisions of Part B.3 to apply to outbuildings and other
non-inhabited structures, they could have easily said so. 8

¶29 The Vanderwoods point out, however, that the specific
provisions in Part B.3(f) and B.3(g) that set forth requirements
for siding and roofing materials do not use the term “dwelling,”
and they argue that these provisions—despite their inclusion in
a list of items clearly intended to apply only to residential
buildings—have broader application. We find this argument
unconvincing. The more specific building exterior provision is
found in Part B.3(d), which states plainly that “[a]ll houses shall
be finished with brick, stucco or stone on all parts of the house
exterior.” We view Part B.3(f) as simply a clarification of Part
B.3(d), making plain that, while house exteriors must be mostly
brick, stucco or stone, aluminum or vinyl siding is allowed “in
soffit and facia areas.” And the provision regarding roofing

8. The drafters of restrictive covenants—usually developers—are
often well aware that the term “dwelling” has a particular
meaning in this context as a structure intended for human
habitation, and that such structures are typically subject to much
stricter building codes and requirements. As here, the term is
often defined by the governing municipality in its ordinances or
building code. See Weber County, Utah, Code of Ordinances,
§ 101-1-7 (2013) (“The term ‘dwelling’ means a building or
portion thereof, which is constructed in compliance with the
county’s adopted building codes and designed as a place for
human habitation . . . .”); see also RJW Media Inc. v. Heath, 2017
UT App 34, ¶ 16, 392 P.3d 956 (discussing the applicable
provisions of the county’s building codes and regulations to
conclude that “a structure is not considered a ‘dwelling’ unless it
contains cooking facilities” (quotation simplified)). We find it
quite unlikely that the drafters of the Restrictions used the term
“dwelling” by accident.

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 Vanderwood v. Woodward

materials, even though not specifically limited to dwellings in
the particular subsection in which it appears, is part of a long list
of things that were, according to the prefatory paragraph, all
supposed to “assure that all dwellings” be of an acceptable
“quality of workmanship and materials.” (Emphasis added.)

¶30 In sum, after considering each provision in Part B.3 “in
relation to all of the others, with a view toward giving effect to
all and ignoring none,” it is apparent that the restrictions
governing exterior building materials were intended to apply
only to dwellings. See McNeil, 2011 UT App 423, ¶ 8 (quotation
simplified). Neither side contends that the Garage is a dwelling,
and therefore Part B.3 does not apply to the Garage. Thus,
Woodward did not violate the Restrictions when he built a
detached Garage with a metal exterior and a metal roof.

C. Setback Covenant

¶31 Woodward next argues that the district court erred in
granting summary judgment on the Vanderwoods’ claim that
the Garage is in violation of the Restrictions’ setback
requirements. Part B.4 of the Restrictions contains setback
requirements for all kinds of buildings and structures that might
be constructed within the Subdivision. Specifically, with regard
to “[g]arage[s] and other non-inhabited structure[s],” the
Restrictions require that buildings be set back at least ten feet on
the “side yards, along a line paralleling side property lines.” The
Vanderwoods assert that Woodward’s Garage violates this side-
yard setback requirement in that it is located only five feet from
the property line dividing Woodward’s property from that
owned by his neighbor to the south. 9 Woodward defends against

9. The Garage is located on the part of Woodward’s property
that is farthest away from his northern neighbors—the
Vanderwoods—and closest to his southern neighbor, an
(continued…)

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 Vanderwood v. Woodward

this assertion in two ways. First, he maintains that the
Vanderwoods have not sufficiently proven the actual location of
the Garage. Second, he claims by way of affirmative defense that
the setback covenant contained in the Restrictions has been
abandoned and is therefore no longer enforceable against him.
We examine each argument in turn.

1

¶32 On a motion for summary judgment the burden of proof
“shifts between the party moving for summary judgment and
the nonmoving party.” Jones & Trevor Mktg., Inc. v. Lowry, 2012
UT 39, ¶ 29, 284 P.3d 630; see also Utah R. Civ. P. 56. “Where the
moving party would bear the burden of proof at trial, the
movant must establish each element of his claim in order to
show that he is entitled to judgment as a matter of law.” Orvis v.
Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600. The movant must produce
“affirmative evidence” that demonstrates “an absence of a
genuine issue of material fact.” Salo v. Tyler, 2018 UT 7, ¶¶ 26, 29,
417 P.3d 581. If the movant does so, then the burden shifts to the
nonmoving party “to present evidence that is sufficient to
establish a genuine issue of material fact.” Waddoups v.
Amalgamated Sugar Co., 2002 UT 69, ¶ 31, 54 P.3d 1054. Such
evidence must constitute more than a mere “scintilla of
evidence,” see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
(1986), and must contain “more than just conclusory assertions
that an issue of material fact exists,” see Shaw Res. Ltd. v. Pruitt,
Gushee & Bachtell, PC, 2006 UT App 313, ¶ 22, 142 P.3d 560
(quotation simplified).

(…continued)
individual who is not a part of this litigation. These
circumstances mean that the district court’s order, somewhat
ironically, commanded Woodward to move his Garage five feet
closer to the Vanderwoods’ property.

20180503-CA 20 2019 UT App 140
 Vanderwood v. Woodward

¶33 Because the Vanderwoods bear the ultimate burden of
proof on the issue of whether the Garage is located in a position
that violates the setback requirements, and are also the ones
asking for summary judgment on that subject, in order to win
summary judgment the Vanderwoods bear the initial burden of
demonstrating, through “affirmative evidence,” that the Garage
does in fact violate the setback requirements. See Salo, 2018 UT 7,
¶ 26. In an effort to meet that burden, the Vanderwoods
presented multiple pieces of evidence to the district court,
including the following: (a) Lorraine Vanderwood’s sworn
declaration that she had personally “measured the distance
between the South fence on [Woodward’s] property and the
[Garage],” and found it to be five feet, “give or take a few
inches”; (b) a sketch prepared for Woodward by Builder that
shows the planned setbacks for the Garage as being five feet
from an unidentified line; and (c) Builder’s sworn affidavit that
the sketch was accurate and that “to the best of [Builder’s]
knowledge” the Garage was constructed “with 5’ setbacks . . . as
measured from the existing fence lines.” This evidence is
sufficient to meet the Vanderwoods’ initial summary judgment
burden, and therefore the burden then shifts to Woodward “to
present evidence that is sufficient to establish a genuine issue of
material fact.” See Waddoups, 2002 UT 69, ¶ 31.

¶34 Woodward has not met this burden, because he has
produced no substantive evidence to refute the Vanderwoods’
evidence. He provides no declaration of his own—or from
anyone else—claiming that the distance between the Garage and
his neighbor’s property is anything other than five feet. He
provides no evidence of any kind—expert or lay—to suggest
that the Vanderwoods are measuring the distance from the
wrong line. Instead, Woodward claims that the Vanderwoods’
evidence does not establish that the fence line—from which the
Vanderwoods’ measurements are taken—is the same line as the
actual property line, and asserts that the Vanderwoods’ evidence

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 Vanderwood v. Woodward

is therefore insufficient because it does not include an actual
survey, or other evidence from an expert, providing the exact
location of the Garage. As this court has recognized, such
“conclusory assertions” are insufficient to establish that there is a
genuine issue for trial. See Shaw, 2006 UT App 313, ¶ 22
(quotation simplified). Certainly a survey would be excellent
evidence of the Garage’s location, and if one of the parties had
produced one, it would perhaps be the best evidence to prove or
disprove the Vanderwoods’ contention. Such evidence may even
be entitled to more weight at trial than the Vanderwoods’ non-
expert evidence. But the Vanderwoods’ evidence is nonetheless
admissible, and tends to show that the Garage violates the
setback requirements, and Woodward has not raised any
substantive response to that evidence.

¶35 Because the Vanderwoods have demonstrated through
admissible evidence that the Garage was constructed in violation
of the Restrictions’ setback requirements, and Woodward has
failed to counter with any actual evidence to the contrary, we
conclude, as a matter of law, that the Garage violates the setback
requirements by approximately five feet. Therefore, we affirm
the district court’s grant of summary judgment on this point in
favor of the Vanderwoods. As such, this issue has been
conclusively decided, and Woodward will not be allowed, on
remand, to relitigate issues relating to the location of the Garage.

2

¶36 Both sides filed summary judgment motions on the
question of whether the setback requirements in the Restrictions
have been abandoned, and the district court granted the
Vanderwoods’ motion, determining as a matter of law that the
setback requirements had not been abandoned. We conclude
that the court’s decision on this point was erroneous because, on
this record, neither side has established as a matter of law that
the setback requirements have (or have not) been abandoned.

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 Vanderwood v. Woodward

¶37 “[A] movant who seeks summary judgment on a claim on
which the nonmoving party bears the burden of persuasion may
show that there is no genuine issue of material fact without
producing its own evidence.” Salo, 2018 UT 7, ¶ 26. That
showing can be made “by reference to the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any.” Id. ¶ 25 (quotation
simplified). “Upon such a showing, . . . the burden then shifts to
the nonmoving party, who may not rest upon the mere
allegations or denials of the pleadings, but must set forth specific
facts showing that there is a genuine issue for trial.” Orvis, 2008
UT 2, ¶ 18 (quotation simplified).

¶38 Abandonment is an affirmative defense upon which
Woodward carries the burden of proof. See Fink v. Miller, 896
P.2d 649, 653 (Utah Ct. App. 1995) (stating that “the party
opposing enforcement” of the restrictive covenant bears the
burden of proving that the covenant has been abandoned). With
regard to their summary judgment motion on the issue of
abandonment, the Vanderwoods had the initial burden, as
movants, to demonstrate the absence of a genuine issue of
material fact, but they have not carried that burden in this case.
Indeed, in response to Woodward’s contention that the “side
and rear setback requirements have been routinely disregarded
in [the S]ubdivision,” the Vanderwoods have acknowledged that
“there are a handful of” homeowners in the Subdivision who
“have violated the side yard setback requirements.” The record
contains little additional evidence on this issue. Without
additional evidence to contextualize it, the Vanderwoods’
concession alone constitutes sufficient evidence to foreclose a
ruling, as a matter of law, that the setback requirements have not
been abandoned. There are only twenty-three lots in the
Subdivision and, while the record does not disclose how many
lots are included in the Vanderwoods’ “handful” concession,
even if it is just four, that would constitute over one-sixth of the

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 Vanderwood v. Woodward

Subdivision. See id. at 653–54 (holding that visible violations by
“[t]wenty-three out of eighty-one” homeowners—some 28%—
was sufficient to constitute abandonment as a matter of law).
The record also does not disclose how egregious these “handful”
of violations are—whether the buildings in question violate the
setback requirements by one inch or nine feet—or how apparent
they would be to a reasonable observer. See id. at 653 (stating
that a requirement has been abandoned when “existing
violations are so great as to lead the mind of the average person
to reasonably conclude that the restriction in question has been
abandoned” (quotation simplified)).

¶39 But we do not think Woodward is entitled to summary
judgment on this issue either, at least not on the record before us.
With regard to his cross-motion, Woodward is both the movant
as well as the party who will bear the ultimate burden of
persuasion at trial, and therefore to win summary judgment on
the issue of abandonment, Woodward must make “a sufficient
showing on elements on which [he] has the burden of proof.” See
Salo, 2018 UT 7, ¶ 24 (quotation simplified). Thus, to prove
entitlement to summary judgment on this issue, Woodward
must show that the “existing violations are so great as to lead the
mind of the average person to reasonably conclude that the
restriction in question has been abandoned.” See Fink, 896 P.2d at
653 (quotation simplified). Relevant to this inquiry are “(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 v. Erickson,
2000 UT 16, ¶ 27, 998 P.2d 807 (quotation simplified).

¶40 Woodward put forth only a scant amount of evidence to
support his claim. Indeed, Woodward’s key piece of evidence is
the Vanderwoods’ concession that “there are a handful of other
owners that have also violated the side yard setback.” While this
piece of evidence is enough to prevent summary judgment on

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 Vanderwood v. Woodward

this issue against him, it is insufficient to support entry of
summary judgment in his favor. As noted, the record before us
tells us nothing about the actual number of setback violations in
the Subdivision, nor their relative severity. 10 While there is no
indication that any homeowner in the Subdivision, prior to this
lawsuit, ever raised any objection to any other homeowner’s
construction project on the basis of a perceived setback violation,
the record likewise does not disclose whether “it is still possible
to realize to a substantial degree the benefits intended through
the covenant.” See id. (quotation simplified).

¶41 In the end, we are unpersuaded that, on this record, either
side is entitled to judgment as a matter of law on the question of
whether the homeowners of the Subdivision have abandoned
the side yard setback requirements contained in the Restrictions.
The record before us simply does not contain enough
information on this point to justify summary judgment either
way. We therefore reverse the district court’s entry of summary
judgment on this issue in favor of the Vanderwoods, and
remand for further proceedings. On remand, it will be up to the
district court to determine the form those proceedings take, and
to decide whether further motion practice, additional discovery,
or simply a trial is in order.

II. Injunctive Relief

¶42 Because we have determined that the Garage’s metal
exterior and metal roof do not violate the Restrictions, and that
the district court erred in deciding as a matter of law that the

10. The record does contain photographs depicting some of the
alleged setback violations, but those photographs come
unaccompanied by measurements or other identifying evidence
demonstrating whether the alleged violations actually exist,
much less their severity.

20180503-CA 25 2019 UT App 140
 Vanderwood v. Woodward

setback covenant had not been abandoned, we must vacate the
district court’s order commanding Woodward to
“disassemble[]” the Garage and, if rebuilt, to build it five feet
closer to the Vanderwoods’ property and with different
materials. That order was founded on incorrect premises, and
can no longer stand.

¶43 But we stop short of conclusively determining that the
Vanderwoods can never obtain an injunction in this case. We
have determined that Woodward does not need to obtain ACC
approval for his Garage, and that he may build his detached
Garage out of metal without violating the Restrictions. But it
remains to be seen whether the Garage—which is apparently
located only five feet from Woodward’s south property line—
violates an enforceable and non-abandoned provision of the
Restrictions. If it is determined, on remand, that the setback
provisions have been abandoned, then the Vanderwoods will
not be entitled to any kind of relief, let alone injunctive relief. But
if it is determined, on remand, that the setback provisions have
not been abandoned, then the Garage violates the Restrictions,
and the district court will then be required to determine whether
to order Woodward to tear down the Garage and move it at least
five feet to the north. We therefore offer the following analysis
regarding the possibility of injunctive relief, to guide the district
court should the matter arise on remand. See State v. James, 819
P.2d 781, 795 (Utah 1991) (“Issues that are fully briefed on appeal
and are likely to be presented on remand should be addressed
by this court.”).

¶44 A district court enjoys “broad discretion to enter
injunctions, especially in the context of restrictive covenants.”
South Ridge Homeowners’ Ass'n v. Brown, 2010 UT App 23, ¶ 6,
226 P.3d 758. “However, the right to an equitable remedy is an
exceptional one,” and even in the restrictive covenant context,
“absent statutory mandate, equitable relief should be granted
only when a court determines that damages are inadequate and

20180503-CA 26 2019 UT App 140
 Vanderwood v. Woodward

that equitable relief will result in more perfect and complete
justice.” Smith v. Simas, 2014 UT App 78, ¶ 14, 324 P.3d 667
(quotation simplified). Thus, injunctive relief is not automatic,
even if a violation of the restrictive covenants has already been
established. In that situation, courts employ a “balancing of
equities test” to determine whether to order injunctive relief to
remedy the violation. See Carrier v. Lindquist, 2001 UT 105, ¶ 31,
37 P.3d 1112. Under this test, the district court

has discretion not to grant an injunction for
violation of a restrictive covenant if the violation
by the defendant was innocent, the cost of curing
the violation would be disproportionate to the
benefit realized, the injury to the plaintiff can be
adequately compensated with damages, and the
violation does not cause irreparable injury to the
plaintiff.

Smith, 2014 UT App 78, ¶ 16. However, “because the application
of this doctrine is reserved for the innocent defendant, the
determination whether the defendant’s violation was innocent is
a threshold issue.” Id. (quotation simplified).

¶45 In Smith, we specifically considered whether the
defendants’ violations of the relevant restrictive covenants were
innocent where the defendants were aware that the plaintiffs
believed that the defendants’ actions were in violation of the
covenants, and that the plaintiffs had complained to the city and
the relevant homeowners association (HOA). Id. ¶ 17. The court
concluded that—despite knowledge of their neighbors’
opposition—the defendants “attempted to comply with the
[covenants] in good faith,” in part because the defendants had
obtained approval for their project, before construction
commenced, from both the HOA and the city, and the HOA and
the city refused to withdraw that approval even after learning of
the plaintiffs’ complaints. Id. Thus, despite the defendants’

20180503-CA 27 2019 UT App 140
 Vanderwood v. Woodward

awareness of the plaintiffs’ opposition, and despite a jury’s later
determination that the defendants had in fact violated the
covenants, we held that their violations were innocent because,
“[g]iven these authoritative rejections of the [plaintiffs’]
complaints during the planning and construction process,” the
complaints “were insufficient to give the [defendants]
knowledge or warning that they were encroaching upon
another’s property rights.” Id. (quotation simplified).

¶46 In the present case, the district court refused to apply a
balancing of equities test, concluding that, even though
Woodward had “consulted with the local building inspector
about the restrictive covenants” and the city had approved his
plans and issued a building permit, Woodward was not an
“innocent defendant” because he “had knowledge that he was
encroaching on another’s property rights” and elected to “roll[]
the dice.” But we cannot find any meaningful distinction
between Smith and the situation presented in this case, and
therefore we agree with Woodward that the district court’s
analysis was incorrect. In both this case and Smith, the defendant
attempted to comply with the relevant rules and restrictions.
Indeed, in both cases the defendant applied for, and received, a
building permit from the city based on the construction plans.
And in both cases, although the defendant was aware of a
neighbor’s belief that the plan violated the restrictions, such
general awareness of a complaint does not necessarily indicate
knowledge that the plans actually violate the restrictions.

¶47 One potential difference between Smith and this case is
that, in Smith, the defendant actually did obtain HOA approval
for the proposed construction, while Woodward did not. But the
district court determined that any requirement that Woodward
obtain ACC approval before beginning construction had been
abandoned and, as noted above, no party challenges that
determination on appeal. This distinction is therefore not
material. In both this case and Smith, the defendants proceeded

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 Vanderwood v. Woodward

with a good faith belief that the actions they were taking
complied with applicable rules. In Smith, that belief turned out to
be wrong; indeed, a jury later found the defendants had violated
three provisions of the covenants. See id. ¶ 8. In this case,
Woodward’s good faith belief may turn out to be wrong in the
end, in the event that it is later determined, on remand, that the
setback requirements have not been abandoned. 11 But whether a
judge or jury later determines that a violation exists is not the
relevant inquiry here; instead, the inquiry should be
appropriately focused on the good (or bad) faith nature of the
defendant’s belief at the time construction commenced.

¶48 In short, we are unable to meaningfully distinguish Smith
from this case. If the homeowner in Smith was an innocent
defendant entitled to have the court undertake a balancing of
equities before entering an injunction, then so is Woodward.
Accordingly, we determine as a matter of law, on this record,
that Woodward is an “innocent defendant” who has met the
threshold requirement for application of a balancing of equities
test, and we instruct the district court that, if it is later
determined that the setback requirements have not been
abandoned, it is to undertake a balancing of equities analysis
before issuing injunctive relief in favor of the Vanderwoods.

III. Attorney Fees

¶49 Finally, Woodward challenges the district court’s award
of attorney fees to the Vanderwoods as the prevailing party.
Under Utah law, “[i]f attorney fees are provided for by contract
the fees are awarded in accordance with the terms of that

11. The district court vindicated Woodward’s belief that the
ACC-approval provision had been abandoned, and we have, in
this opinion, similarly vindicated Woodward’s belief that his
metal Garage did not violate Part B.3.

20180503-CA 29 2019 UT App 140
 Vanderwood v. Woodward

contract.” TS 1 P’ship v. Allred, 877 P.2d 156, 160 (Utah Ct. App.
1994). Here, the Restrictions specifically provide that “[i]n any
action to enforce [the Restrictions] the prevailing party shall be
entitled to an award of reasonable attorney’s fees and costs
incurred in prosecuting such action.” Accordingly, any award of
attorney fees is dependent on a determination of which party
prevailed, which is “a decision left to the sound discretion of the
[district] court.” Larry J. Coet Chevrolet v. Labrum, 2008 UT App
69, ¶ 16, 180 P.3d 765 (quotation simplified). Based on the district
court’s ruling, the Vanderwoods certainly prevailed before the
district court. But we have determined that the district court’s
ruling was in several respects erroneous, and therefore deem it
necessary to vacate that court’s “prevailing party” determination
as well as its award of attorney fees to the Vanderwoods. At the
conclusion of the proceedings on remand, the district court
should reassess the “prevailing party” issue and award attorney
fees as appropriate at that time. See Cantrell v. Cantrell, 2013 UT
App 296, ¶ 22 n.6, 323 P.3d 586 (“[B]ecause we reverse the
district court’s order and remand for further proceedings, the
district court may reevaluate [the appellee’s] request for attorney
fees upon entering judgment at the conclusion of those
proceedings.”).

CONCLUSION

¶50 As a matter of law, Woodward does not need to seek
ACC approval for his Garage, because no ACC has ever
functioned in the Subdivision and that requirement has been
abandoned, including any requirement that building projects be
reviewed for their level of “harmony” with the neighborhood.
As a matter of law, Part B.3 of the Restrictions applies only to
dwellings, and because the Garage is not a dwelling, that
provision does not apply to Woodward’s Garage. As a matter of
law, the Garage is out of compliance with Part B.4, which
requires a ten-foot setback along the side yard for any garages,

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 Vanderwood v. Woodward

but there remains an unresolved factual issue about whether the
setback provision has been abandoned. We therefore reverse the
district court’s summary judgment order, vacate its injunction,
and remand this case for further proceedings. If it is determined,
after those further proceedings, that the setback provision has
not been abandoned, the district court should employ a
balancing of equities in determining whether to impose
injunctive relief for the setback violation. Finally, we vacate the
district court’s order granting attorney fees to the Vanderwoods
as the prevailing party, and instruct the court to reassess
appropriate attorney fees following the conclusion of
proceedings on remand.

20180503-CA 31 2019 UT App 140