Omohundro v. Sullivan

BURKE, Justice,

dissenting, with whom GOLDEN, Justice, joins.

[127] I respectfully dissent. I disagree with the majority's conclusion that the pertinent language in the restrictive covenants is unambiguous. Objectively, the language is ambiguous and subject to differing interpretations regarding the necessity of consent from all Exhibit "A" lot owners before subdivision of Exhibit "B" lands can occur. The interpretation of an ambiguous restrictive covenant raises genuine issues of material fact that preclude summary judgment. Jackson Hole Racquet Club Resort, 889 P.2d at 958. I would reverse the grant of summary judgment and remand for trial.

[128] In interpreting restrictive covenants, we endeavor to effectuate the intent of the declarant. Stevens, T 13, 90 P.8d at 1166. We must consider the entire document, not a single sentence or paragraph in isolation. Id. The declaration of restrictive covenants at issue here is a twenty-seven page document. As the majority opinion recognizes, the entire document, with the possible exeeption of the single sentence at the heart of this dispute, applies only to Exhibit "A" lands. That sentence is:

Notwithstanding any other provision in this declaration, any action, step or procedure (including without limitation, the further subdivision of any lot within the development) or the omission of any act, step or procedure which would allow or entitle the City of Buffalo to take possession, ownership, and control of the irrigation water rights applicable to the development on Exhibit "B" lands as set forth in said attached agreement shall require the written consent and approval of 100% of all lot owners within the development as well as the record owner(s) of Exhibit "B" lands.

(Emphasis in original.)

[129] This sentence does not specify whose actions are restricted or what lands are to be burdened by the restrictions. The *1086Omohundro Trusts assert that this sentence is consistent with the rest of the document and is intended to restrict actions taken by the owners of Exhibit "A" lands, and to burden only Exhibit "A" lands. The Sullivan Group contends that the sentence is intended to restrict actions taken by the owners of both Exhibit "A" and Exhibit "B" lands, and to burden both properties. Because the sentence is silent about whose actions are restricted, and which properties are to be burdened, both interpretations are plausible. When language can reasonably be interpreted more than one way, it is ambiguous. Seq, eg., Treemont, Inc. v. Hawley, 886 P.2d 589, 592 (Wyo.1994).

[130] The majority accepts the Sullivan Group's position. In reaching that result, the majority relies upon two propositions that are not warranted by the language of the document. First, in paragraph 18, the majority states that it is "understandable that the developer would create, and that potential buyers would want, covenants that would restrict the right of all owners, including both Exhibit 'A' and Exhibit 'B' owners, from taking any action that would give the City the right to acquire the water rights attributable to all of the property." While it may be understandable that potential buyers of Exhibit "A" lots would want the right to control development of Exhibit "B" property, there is no specific unambiguous language in the document reflecting the intent of the declarant/developer to convey that right to the Exhibit "A" owners. The observation by the majority may be a fair inference to be gleaned from the document, but it is, at most, an inference. Another, and conflicting, inference that could also be drawn from the document is that the declarant/developer did not intend to provide Exhibit "A" lot owners with veto power over the development of Exhibit "B" lands. Neither inference finds direct support in the language of the restrictive covenants. If an inference must be made about the developer's intent, it should, at this stage of the legal proceedings, be made in favor of the Omohundro Trusts, the party opposing summary judgment. Mathisen, 1 9, 169 P.3d at 64.

[131] Second, and perhaps more significantly, the majority concludes that the restrictions created by the disputed sentence are "all-inclusive," applying to both Exhibit "A" and Exhibit "B" lands. Again, I do not believe that interpretation is supported by the language of the entire document or the specific language of the sentence in dispute. The sentence is found in the second paragraph of Section 38.18, a section entitled "No Further Subdivision." The first paragraph of this section provides that Exhibit "A" lands cannot be further subdivided without the consent of all owners of Exhibit "A" and Exhibit "B" lands. It is undisputed that this restriction applies only to the further subdivision of Exhibit "A" lands. The paragraph does not mention subdivision of the Exhibit "B" lands, or give any indication of an intent to restrict further subdivision of the Exhibit "B" lands.

[132] The Omohundro Trusts assert that the sentence is intended to burden the Exhibit "A" property only. Their suggested interpretation is buttressed by the parenthetical phrase in the sentence immediately following the restricting language: "(including without limitation, the further subdivision of any lot within the development)." It is undisputed that the terms "lot" and "development" as used in the document refer only to Exhibit "A" lands. The limiting nature of the parenthetical phrase is difficult to reconcile with the "all-inclusive" interpretation adopted by the majority. The phrase is not addressed in the majority's analysis and raises a question: If the declarant/de-veloper intended to be all-inclusive and restrict development of all property, why was the parenthetical example limited to further subdivision of Exhibit "A" property? It is abundantly clear that further subdivision of Exhibit "A" lands and its impact on water rights was considered and addressed in the document. There is no corresponding explicit unambiguous language in the document in general, or in Section 8.18 in particular, evidencing an intent to restrict further subdivision of Exhibit "B" lands.

[133] In the final analysis, I am convinced that there is more than one objective*1087ly reasonable interpretation of the disputed sentence. "The only way to shake out what the parties intended or did not intend is by the adversary process of a trial." Shrum, 559 P.2d at 1387. Accordingly, I would reverse the grant of summary judgment and remand the case to allow the district court to resolve the ambiguity at trial.