from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
Randall J. Bakke (argued) and Grant T. Bakke (appeared),
Bismarck, ND, for plaintiff and appellee.
W. Martin, Minot, ND, for defendants and appellants.
Andrea and Kevin Martin appeal a district court judgment
ordering the removal of a fence on their property after
finding the fence violated restrictive covenants recorded
against the property. The Martins argue the restrictive
covenants do not apply to their property because they agreed
to purchase the property before the covenants went into
effect. They also claim the restrictive covenants are
unconscionable. We affirm.
Wachter Development has an interest in the Promontory Point V
development in Bismarck. In April 2012, Wachter entered into
a purchase contract with K&L Homes for 30 lots in the
development. In July 2012, the Martins entered into a
contract with K&L for a lot in the development.
In April 2013, Wachter recorded a Declaration of Restrictions
and Obligations (DRO) against the development property. One
of the building restrictions prohibited fences on the
property. In August 2013, Wachter conveyed title to the
property to K&L. In the fall of 2013, the Martins were
informed of the prohibition on fences during the construction
of their home. In December 2013, the Martins requested a
variance from the fence restriction, but Wachter's
Architectural Review Committee denied the request. In March
2014, K&L conveyed the lot title to the Martins.
In July 2016, the Martins installed a "dog run" in
their yard, an enclosed area built with fencing material.
Wachter requested the removal of the dog run, but the Martins
refused, claiming the DRO did not apply to their property
because they agreed to purchase their lot before the DRO was
recorded against the property.
In February 2017, Wachter sued the Martins, requesting the
district court order removal of the fence. The Martins
counterclaimed, alleging the DRO does not apply to their
property because they were equitable owners of their lot
before the DRO was recorded. They also alleged Wachter waived
its right to enforce the DRO, and the DRO was unconscionable.
Before trial, the district court granted summary judgment to
Wachter on two issues: 1) the court concluded the DRO applied
to the Martins' property; and 2) the court concluded the
Martins' dog run constituted a fence prohibited under the
At trial, the parties presented evidence relating to the
Martins' counterclaim: whether Wachter was precluded from
enforcing the DRO on the basis of waiver or
unconscionability. In its order following trial, the district
court ruled the DRO was not unconscionable and Wachter did
not waive its ability to enforce the DRO. The court entered a
judgment ordering removal of the fence from the Martins'
This Court's standard of review for summary judgments is
Summary judgment is a procedural device under
N.D.R.Civ.P. 56(c) for promptly resolving a
controversy on the merits without a trial if there are no
genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only
issues to be resolved are questions of law. The party seeking
summary judgment must demonstrate there are no genuine issues
of material fact and the case is appropriate for judgment as
a matter of law. In deciding whether the district court
appropriately granted summary judgment, we view the evidence
in the light most favorable to the opposing party, giving
that party the benefit of all favorable inferences which can
reasonably be drawn from the record. A party opposing a
motion for summary judgment cannot simply rely on the
pleadings or on unsupported conclusory allegations. Rather, a
party opposing a summary judgment motion must present
competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and
must, if appropriate, draw the court's attention to
relevant evidence in the record raising an issue of material
fact. When reasonable persons can reach only one conclusion
from the evidence, a question of fact may become a matter of
law for the court to decide. A district court's decision
on summary judgment is a question of law that we review de
novo on the record.
Frontier Fiscal Servs., LLC v. Pinky's Aggregates,
Inc., 2019 ND 147, ¶ 6, 928 N.W.2d 449 (quoting
Becker v. Burleigh Cty., 2019 ND 68, ¶ 7, 924
In KLE Constr., LLC v. Twalker Dev., LLC, 2016 ND
229, ¶ 5, 887 N.W.2d 536 (quoting Border Res., LLC
v. Irish Oil & Gas, Inc., 2015 ND 238, ¶ 14,
869 N.W.2d 758), we explained ...