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Wachter Development, Inc. v. Martin

Supreme Court of North Dakota

July 30, 2019

Wachter Development, Inc., Plaintiff and Appellee
v.
Kevin and Andrea Martin, Defendants and Appellants

          Appeal 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.

          Robert W. Martin, Minot, ND, for defendants and appellants.

          OPINION

          McEvers, Justice.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 DRO.

         [¶7] 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' property.

         II

         [¶8] This Court's standard of review for summary judgments is well established:

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 N.W.2d 393).

         [¶9] 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 ...


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