Opinion
CA 10-234
Opinion Delivered November 10, 2010
Appeal from the Faulkner County Circuit Court, [No. CV-09-813], Honorable Rhonda Kay Wood, Judge, Affirmed.
This case involves a dispute among residents of a subdivision in Conway, Arkansas, over a fence Garland and Martha Gable erected on their property. Appellants appeal from the trial court's deemed denial of their motion to reconsider an earlier order granting summary judgment in favor of appellees. On appeal, appellants argue that the trial court erred by denying the motion for reconsideration because 1) the applicable restrictive covenant is ambiguous, which creates a question of fact to be determined by the trier of fact, and 2) appellants presented sufficient evidence of the affirmative defense of laches to defeat appellees' motion for summary judgment. We affirm the trial court.
On July 16, 2009, appellees filed a complaint in which they sought a declaratory judgment requiring appellants to remove the fence and prohibiting them from constructing another fence in the future. In the complaint, appellees alleged that the fence was constructed in June 2009. Appellees submitted with their complaint a copy of the covenants and restrictions applicable to the property in the subdivision. Paragraph twelve of that document, which is titled "Sight Distance at Intersections," contains the following language: "No fence of any type shall be permitted at any point between the house and the street. This includes front and side yards on corner lots."
Appellants filed an answer in which they admitted that the fence had been constructed and pled the affirmative defenses of statute of limitations, waiver, estoppel, and laches. On August 14, 2009, appellees filed a motion for summary judgment. In response to the motion for summary judgment, appellants submitted an affidavit executed by Jim Counts in which he states that one week prior to the installation of the fence, the fence line was marked with white string along with additional white markings to identify where each post would be located. Counts also states that, during the installation of the fence, several of appellants' neighbors approached the workers to comment on the attractiveness of the fence and that there were no negative comments regarding the fence or its installation prior to or during the installation of the fence. Garland Gable submitted an affidavit in which he states that he asked sixty neighbors for comments about the fence and that they indicated they wanted the fence to remain. Gable also states that most residence owners were not aware of the covenants and restrictions and that he was not informed of the covenants and restrictions when he purchased his home. Appellants also submitted an affidavit executed by Harley Carter in which she states that she is a neighbor of appellees, lists several other violations in the neighborhood, and requests that appellants be allowed to keep their fence.
The hearing on appellees' motion for summary judgment consisted solely of arguments of counsel. Appellees argued that the language in the covenants prohibiting the fence is clear and unambiguous and that appellants failed to raise any unresolved material questions of fact. Appellants responded that the entirety of paragraph twelve of the covenants shows that it does not apply to appellants' fence. Appellants also argued that appellees' cause of action was barred by laches. On October 1, 2009, the trial court entered an order granting appellees' motion for summary judgment. In the order, the trial court found that the disputed language in the covenants is unambiguous. The court further found that there was no material fact at issue regarding the defense of laches and that laches did not apply to defeat the motion for summary judgment.
On October 13, 2009, appellants filed a motion for reconsideration. In support of the motion for reconsideration, appellants submitted an amended affidavit of Garland Gable, in which he states that he mentioned to several neighbors that he was planning on building a fence two years before it was constructed and no one voiced any objection. Gable states that the fence was completed in April 2009. Appellants also submitted an amended affidavit of Jim Counts in which he states that the fence was constructed in April 2009. The trial court never ruled on the motion for reconsideration, which was deemed denied on November 11, 2009, pursuant to Arkansas Rule of Civil Procedure 52(b)(1). Appellants have appealed from the deemed denial of their motion for reconsideration.
Appellants are appealing from a grant of summary judgment. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Bonds v. Hunt, 2010 Ark. App. 415, ___ S.W.3d ___. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Miletello v. Pugh, 2010 Ark. App. 528. Summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from the undisputed facts. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Appellants argue that the trial court erred by granting summary judgment to appellees and denying their motion for summary judgment for two reasons. First, appellants argue that the trial court erred in determining that the language of the applicable restrictive covenant was not ambiguous. Second, appellants argue that the trial court erred in determining that the defense of laches did not apply in order to defeat the motion for summary judgment.
Regarding the language of the restrictive covenant at issue, appellants did not produce any evidence to indicate that the prohibition on fences in paragraph number twelve means anything other than what it says. Appellants argue that a reading of paragraph twelve as a whole reveals that the prohibition against fences running between a house and the street applies only to fences that interfere with sight lines. However, the sentence in question expressly prohibits any type of fence that runs between the house and the street and is not limited by its language to only those fences that interfere with sight lines. The language of the sentence is clear and not open to differing interpretations. When the language of a restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed. See Holmesley v. Walk, 72 Ark. App. 433, 39 S.W.3d 463 (2001). The trial court did not err in finding that there was no disputed question of material fact regarding the applicable language in paragraph twelve.
Regarding the applicability of the doctrine of laches, appellants failed to "meet proof with proof" in order to defeat appellees' summary-judgment motion. The defense of laches is based on the equitable principle that an unreasonable delay by the party seeking relief precludes recovery when the circumstances are such as to make it inequitable or unjust for the party to seek relief. Larco, Inc. v. Strebeck, 2010 Ark. App. 263, ___ S.W.3d ___. The laches defense requires a detrimental change in the position of the one asserting the doctrine, as well as an unreasonable delay by the one asserting his rights against whom laches is invoked. Id. In addition, the application of the doctrine to each case depends on its particular circumstances. Id. A defense based on laches presents a question of fact which normally must be decided by the trial court. Id.
Notwithstanding that the issue of laches is generally one of fact, appellants were still required to produce some evidence on all of the necessary elements in order to defeat the motion for summary judgment. Appellants failed to do this. The parties appear to be focused on the amount of time that passed between when the fence was constructed and when the complaint was filed. The length of time after which inaction constitutes laches is a question to be answered in light of the facts presented in each individual case. Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 100, 671 S.W.2d 207, 210 (1984). However, the passage of time is not the only element necessary to establish the defense of laches. Laches requires a showing of some sort that the party asserting the doctrine has suffered or changed its position as a result of the lack of diligence or delay in assertion of rights. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). Appellants never produced any evidence to show that they would have refrained from building the fence in question or halted the construction of the fence if anyone in the neighborhood had objected before the fence was completed. Without this evidence, it would not be possible for a finder of fact to determine that appellants were harmed by the filing of the complaint after the fence was constructed. The trial court's grant of summary judgment in favor of appellees is affirmed.
Affirmed.
PITTMAN and GLADWIN, JJ., agree.