Opinion
Hardin s&sGrace, Little Rock, for appellants.
Marian M. McMullan, Little Rock, for appellees.
SUPPLEMENTAL OPINION DENYING REHEARING.
[314 Ark. 565-A] HOLT, Chief Justice.
In their petition for rehearing, the Ingrams challenge our holding in Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993), by enumerating four points of error in the opinion. We deny the petition but address the errors alleged in order to clarify our analysis.
The Ingrams' first two assignments of error concern our holdings that there was only one violation of the restrictive covenant and that it was "temporary" in nature when, in fact, the chancellor did not discuss waiver, temporary or otherwise, when reaching her decision in favor of the Wirts and Henleys, and there [314 Ark. 565-B] were in fact, other violations of covenants within the Kellogg Addition.
RESTRICTIVE COVENANT
The Ingrams are correct in part for the chancellor in her findings focused on the circumstances of the acquiescence to the violation of the restrictive covenant stating:
The finding at trial that neither the doctrine of laches nor estoppel prevents the Plaintiffs from seeking enforcement of the restrictive covenant contained in the Bill of Assurance as to the Defendants' property should not be disturbed. The Plaintiffs' prior acquiescence to two residences on the Defendants' lot, one of which burned, does not constitute laches barring the Plaintiffs from seeking removal of the mobile home presently on the lot.
For this reason, we were improvident in characterizing and labeling Ingram's violation of the restrictive covenant as "temporary." A more correct statement would have been that there was not a waiver of the restrictive covenant in that the Wirts' and Henleys' prior acquiescence to the two residences on the Ingrams' lot did not constitute laches barring the Wirts and Henleys from seeking removal of the mobile home placed on Lot 3.
Simply put, the facts of this case and our holding can be better stated as follows: The Wirts and Henleys gave the Ingrams permission to move the second house onto Lot 3 only in order for them to care for their ailing, elderly mother. Once Mrs. Rea passed away and her home burned down, Lot 3 contained one family residence and was in compliance with its Bill of Assurance. Taken together, these facts support our holding that the restrictive covenant remains in place. Thus, the Wirts and Henleys merely acquiesced to this violation of the Bill of Assurance on the part of the Ingrams. Once one of the homes burned and vanished from the premises, the restrictive covenant remained in place. As a result, the Ingrams were precluded by the covenant from placing and maintaining the mobile home as a second residence on their lot. OTHER VIOLATIONS
The Ingrams claim for the first time in their petition that the record inadvertently contained a Bill of Assurance for Lots 12 and 13 of Sylvan Acres, not Lots 12 and 13 of Kellogg Addition which would have supported their claim of other [314 Ark. 565-C] violations of a Bill of Assurance and that we should now reconsider this substituted item of evidence. This we cannot do for we have to accept the record as it was originally presented to us, and based on this original record, we were correct in our holding that no other violations were proven at trial.
UNCLEAN HANDS
The Ingrams also argue in regard to the equitable defense of unclean hands, we misstated the chancellor's finding as to the existence of one house per each of the Wirts' and Henleys' lots. In this regard, Judge Brantley stated:
I would say there are only a few facts in dispute and I could probably find those, but I'm going to find that Mrs. Henley's house is totally located on Lot 6. I recognize that there is a dispute, but nobody got a survey and I have to believe the homeowner is in the far better position to know where her house is and, therefore, I ... of course, I find her a credible witness.
I'm just going to find as on the lots that the plaintiffs own there is no more than one house per lot, although the ownership of the lots has been ... is divided. Not one person owns each of these lots.
Tracking the trial court's opinion, we noted in our opinion that:
The basis of this argument is that there was some confusion as to whether there was more than one house located on Lot 6 which is owned by the Henleys. Chancellor Brantley adopted the testimony of the appellees, specifically Mrs. Henley, as to the existence of only one house on this lot. The Ingrams contended there was a rent house on the Wirt's property which bordered on Lot 6 and the Henley home was located on Lot 6. There was contradictory evidence on this issue, and the Chancellor chose to believe Mrs. Henley when she said there was only home located on the lot.
Ingram v. Wirt, 314 Ark. 553, 564, 864 S.W.2d 237 (1993).
Rather than summarily state in our opinion, as we did, that the evidence at trial was disputed as to whether or not there was more than one house on Lot 6 at any given time we could have embellished somewhat upon the factual basis of the trial court's findings and in particular by reciting Mrs. Henley's testimony:
Our home does not stretch across Lots 5 or 7. Lot 6 is wider [314 Ark. 565-D] than the other two lots and accommodates our home. There are no other homes located on original Lot 6. There are no homes other than Danny Wirt's on original Lot 5. There are no homes other than Cindy House's [Wirt's daughter] on original Lot 7. I am not aware of any other lots in Kellogg Addition that have two homes on them other than the Ingrams.
Ownership of Lot 6 was indeed divided, however, it is obvious that the chancellor determined that there was only one house per lot as there was testimony at trial indicating that from 1964 until 1989 there was a yellow rent house that bordered on Lots 6 and 7 that was ultimately torn down when Cindy Wirt built her house on Lot 7 and that since there was only one house now located on Lot 6, there was no violation of the restrictive covenants by the Wirts and the Henleys. We do not disagree with the chancellor's findings in this regard.
A.R.C.P.RULES 60(a) and (b)
In the opinion, we stated, relying on Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), that the "miscarriage[s] of justice" referred to in 60(b) refer to clerical mistakes or errors as described in Rule 60(a) and that, since a clerical mistake was not demonstrated to the chancellor with regard to the aerial photographs, the chancellor was correct in refusing to admit them. Now, the Ingrams claim that in so holding, we blurred the distinction between the two rules. We disagree, for as we explained in Phillips, supra:
Rule 60(a) does grant authority in the trial court to act on its own motion to correct clerical errors and mistakes. Rule 60(b) then provides ninety days in which the trial court may, on its own motion or any party's motion, correct the error or "prevent the miscarriage of justice." The reference to certain miscarriages of justice in Rule 60(b) is a reference to those clerical errors or mistakes described in Rule 60(a).
Phillips, 305 Ark. at 367, 807 S.W.2d at 925.
ORAL ARGUMENT ON PETITION FOR REHEARING
Lastly, the Ingrams submit that they should be permitted to argue their petition orally before the court. Oral argument on a petition for rehearing is not authorized under our rules. See Ark.Sup.Ct.R. 2-3(i). Thus, this request is denied as is the petition for rehearing.