No. 05-056
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 57
KENNETH D. CREVELING and
SHARON L. CREVELING,
Plaintiffs and Respondents,
v.
E.W. INGOLD,
Defendant and Appellant.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV 2004-725,
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Steven T. Potts, Thompson Potts & Donovan, P.C.
Great Falls, Montana
For Respondents:
Chris A. Johnson, Sullivan Tabaracci & Rhoades, P.C.
Missoula, Montana
Submitted on Briefs: September 7, 2005
Decided: March 14, 2006
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant, E.W. Ingold (Ingold), seeks reversal of summary judgment in favor of
Respondents Kenneth and Sharon Creveling (Crevelings), and interpretation by this Court of
a restrictive covenant (covenant) contained in the warranty deed that effectuated the sale of
real property from Ingold to the Crevelings. The covenant states, “No trailers or mobile
homes are to be placed upon the property conveyed by this deed.” At issue is whether the
District Court was correct in determining that the covenant allowed: (1) temporary
placement of trailers and mobile homes on the property, (2) placement of trailer houses and
mobile homes for non-residential purposes, and (3) development of the property as a
campground for recreational vehicles (RVs) and travel trailers. We reverse.
ISSUES
¶2 The restated issues on appeal are:
1. Did the District Court err by ruling that the covenant prohibits only the permanent
placement of mobile homes and trailers on the property?
2. Did the District Court err by ruling that “trailers or mobile homes,” as used in the
covenant, means only trailer houses or mobile homes used for residences?
3. Did the District Court err by ruling that the covenant allows development of the property
as a campground for RVs and travel trailers?
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FACTUAL AND PROCEDURAL BACKGROUND
¶3 The material facts underlying this dispute are not at issue. Ingold sold a portion of his
land to the Crevelings in 1977 while he retained adjoining parcels. At Crevelings’ request,
the warranty deed transferring the property contained a restrictive covenant which states, “No
trailers or mobile homes are to be placed upon the property conveyed by this deed.” The
deed contained no other covenants except those of public record. Nor did the deed contain
any other language either explaining the purpose of the covenant, or defining its terms.
¶4 During the summer of 2004, Crevelings negotiated the sale of their property to a third-
party purchaser who planned to develop a “sportsman’s or RV park.” On July 1, 2004,
Crevelings filed a petition for declaratory judgment in the District Court, seeking an
interpretation of the covenant, and a judicial determination of whether the terms of the
covenant prevented use of the property as a campground accommodating RVs and travel
trailers. Ingold responded to the petition on August 13, 2004. On September 24, 2004,
Crevelings moved for summary judgment, which Ingold opposed on October 5, 2004. The
District Court granted summary judgment in favor of Crevelings on November 24, 2004.
STANDARD OF REVIEW
¶5 Generally, we review de novo a district court’s summary judgment ruling, applying
the same Rule 56, M.R.Civ.P. criteria applied by the district court. Howard v. St. James
Community Hospital, 2006 MT 23, ¶ 14, 331 Mont. 60,¶ 14, ___ P.3d ___ ¶ 14 (citation
omitted). Here, however, as the material facts are uncontroverted, we limit our review to
questions of law. Travelers Cas. v. Ribi Immunochem Research, 2005 MT 50, ¶ 14, 326
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Mont. 174, ¶ 14, 108 P.3d 469, ¶ 14 (citation omitted). A district court’s interpretation of
a restrictive covenant is a conclusion of law which we review to determine whether the
court’s conclusion is correct. Pablo v. Moore, 2000 MT 48, ¶ 12, 298 Mont. 393, ¶ 12,
995 P.2d 460, ¶ 12.
DISCUSSION
¶6 Ingold raises three allegations of error by the District Court. First, Ingold contests the
District Court’s determination that use of the phrase “placed upon” in the covenant prevents
only permanent, but not temporary, placement of trailers and mobile homes on the property.
Second, Ingold argues the District Court erred when it interpreted the covenant as preventing
trailer houses and mobile homes used as residences, but not RVs and travel trailers used
temporarily for camping purposes. Finally, Ingold disputes the District Court’s
determination that the covenant does not preclude use of the property for a “RV park, which
would provide facilities such as water and electricity, and sewage” for “tents, motor homes,
or travel trailers.”
ISSUE ONE
¶7 1. Did the District Court err by ruling that the covenant prohibits only the permanent
placement of mobile homes and trailers on the property?
¶8 General rules of contract interpretation apply to restrictive covenants. Toaves v. Sayre
(1997), 281 Mont. 243, 245, 934 P.2d 165, 166 (citations omitted). Any person having an
interest under a writing constituting a contract—like a restrictive covenant—may seek
declaratory relief concerning any question of construction arising under the instrument.
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Section 27-8-202, MCA. Where a contract, and by extension a restrictive covenant, has been
reduced to writing, the intention of the parties is to be ascertained, if possible, from the
writing alone. Section 28-3-303, MCA; Wurl v. Polson School Dist. No. 23, 2006 MT 8,
¶ 16, 330 Mont. 282, ¶ 16, 127 P.3d 436, ¶ 16, (citation omitted). The determination of
whether an ambiguity exists in a restrictive covenant, as in a contract, is a question of law for
a court to determine. King Resources, Inc. v. Oliver, 2002 MT 301, ¶ 21, 313 Mont. 17, ¶ 21,
59 P.3d 1172, ¶ 21 (citation omitted). Restrictive covenants are strictly construed and
ambiguities in covenants are resolved to allow free use of property. Newman v. Wittmer
(1996), 277 Mont. 1, 6, 917 P.2d 926, 929 (citations omitted). Mere disagreement between
the parties as to the interpretation of a written instrument, however, does not automatically
create an ambiguity. Wurl, ¶ 17 (citations omitted). Where the language of a covenant is
clear and explicit, the Court must apply the language as written. Wurl, ¶16 (citations
omitted).
¶9 Here, the District Court looked only to the “plain meaning” of the language of the
covenant, and not to extrinsic evidence, to interpret the meaning of the covenant. Therefore,
the District Court must have concluded the instrument was not ambiguous and its words
should be applied as written. The covenant states, “No trailers or mobile homes are to be
placed upon the property conveyed by this deed.” We agree with the District Court’s
conclusion that the restrictive covenant is clear and unambiguous. Therefore, Crevelings’
and Ingold’s intent in agreeing to the terms of the covenant shall be determined solely by the
language of the covenant itself.
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¶10 The language of a restrictive covenant should be understood in its ordinary and
popular sense. Fox Farms Estates Landowners v. Kreisch (1997), 285 Mont. 264, 268, 947
P.2d 79, 82, citing Toaves, 281 Mont. at 246, 934 P.2d at 166-67. The District Court here
recognized that Montana law gives no specific meaning to the term “placed upon,” nor was
the phrase defined by the parties in their deed. Therefore, “placed upon” should be given an
“ordinary meaning.” We disagree however, with what the District Court determined “placed
upon” ordinarily means. The District Court found that “‘placed upon’ contemplates a
permanent placement of a trailer or mobile home on the property.” (Emphasis added.) Thus
the District Court concluded that temporary placement of trailers or mobile homes on the
property was not precluded by the covenant.
¶11 Ingold argues that the District Court’s interpretation of “placed upon” is wrong
because the parties to the deed did not use any temporal modifiers, like “permanently,” to
limit the application of the term. We agree. “In the construction of an instrument, the office
of the judge is simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-4-
101, MCA, quoted in Wurl, ¶ 20. In Wurl, we applied this rule in the context of an
employment contract between a speech pathologist and the school district. In that case,
unambiguous language in Wurl’s contract stated that Wurl assented to “other provisions”
outlined in a separate agreement which dictated Wurl’s compensation. No language of
limitation modified the phrase “other provisions.” On that basis, we concluded that “to adopt
the School District’s interpretation of the employment contract would require us to ignore our
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proper role in interpreting contracts and insert language such as ‘salary-related’ into the clear,
unambiguous and inclusive phrase ‘other provisions’ in the contract.” Wurl, ¶ 20. We
declined to insert limiting language into the contract in Wurl. Wurl, ¶ 20. Similarly, we must
decline to insert limiting language into the restrictive covenant before us.
¶12 As discussed in Wurl, it is not the proper role of the judiciary to insert modifying
language into clearly written and unambiguous instruments where the parties to the
instrument declined to do so. The unambiguous language of the covenant here contains no
words to indicate the parties’ intent to restrict the prohibition of trailers and mobile homes on
the property, whether temporally or otherwise. Therefore, pursuant to statutory rules of
construction and our case law, we must conclude that the District Court erred in its
interpretation of the plain language of the covenant, and that the covenant as written
precludes the placement of any trailers or mobile homes upon the property.
ISSUE TWO
¶13 2. Did the District Court err by ruling that “trailers or mobile homes,” as used in the
covenant, means only trailer houses or mobile homes used for residences?
¶14 Ingold next objects to the District Court’s determination that the covenant disallows
only trailer houses, and those trailers or mobile homes used for residences.
¶15 Relying on the same rules of interpretation outlined in Issue One, we determine that
the District Court erroneously inserted into the covenant modifying language not intended by
the parties when it limited the covenant’s effect to prohibiting only “trailer houses” and
mobile homes “used for residences.” The covenant includes neither the word “house” nor the
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modifying phrase “used for residences” to confine its application. The covenant’s plain
language gives no indication the parties intended anything but an absolute prohibition of
trailers and mobile homes on the property.
ISSUE THREE
¶16 3. Did the District Court err by ruling that the covenant allows development of the
property as a campground for RVs and travel trailers?
¶17 We have determined that the unambiguous language of the covenant prohibits trailers
from being placed on the property. Therefore, the District Court erred in ruling that the
covenant allows the development of an RV park to the extent that it would accommodate
trailers or mobile homes in contravention of the covenant.
CONCLUSION
¶18 For the foregoing reasons, we reverse.
/S/ PATRICIA COTTER
We Concur:
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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Justice John Warner concurs.
¶ 19 I concur with the Opinion of the Court. The only alternative to this Court’s
conclusions is that the warranty deed that effectuated the sale of the property in question
from Ingold to Crevelings was ambiguous, and thus a trial would be necessary to determine
the intention of the parties. However, Crevelings specifically argued that the deed is
unambiguous and is to be interpreted as a matter of law. This Court will not formulate
arguments or locate authorities for parties on appeal. State v. Kearney, 2005 MT 171, ¶ 16,
327 Mont. 485, ¶ 16, 115 P.3d 214, ¶ 16.
/S/ JOHN WARNER
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