J. Albert Lynch v. Town of Pelham , 167 N.H. 14 ( 2014 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough–southern judicial district
No. 2013-064
J. ALBERT LYNCH
v.
TOWN OF PELHAM
Argued: January 16, 2014
Opinion Issued: October 24, 2014
Cronin, Bisson & Zalinsky P.C., of Manchester (John G. Cronin and
Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff.
Donahue, Tucker & Ciandella, PLLC, of Exeter (Katherine B. Miller on
the brief and orally), for the defendant.
BASSETT, J. The plaintiff, J. Albert Lynch, Trustee of FIN-LYN Trust
(Trustee), appeals an order of the Superior Court (Nicolosi, J.) granting a
motion to dismiss his action seeking to enforce restrictive covenants contained
in a deed between the Trustee and the Town of Pelham (Town). The trial court
ruled that the covenants at issue are appurtenant and personal, and that the
Trustee lacked standing to enforce them. We reverse and remand.
The following facts were drawn from the plaintiff’s petition, the
allegations of which we accept as true for the purposes of reviewing the trial
court’s order on the motion to dismiss. Elter-Nodvin v. Nodvin, 163 N.H. 678,
679 (2012). In the 1980s, Elizabeth Mills owned twenty-four acres of land in
the center of the Town. After she fell ill, her daughter, Shirley Parker,
attempted to sell the property. Two local developers made offers to Parker with
the intent to subdivide the property into multiple building lots. Before she had
acted upon either offer, Louis Fineman and J. Albert Lynch, both residents of
Pelham, approached Parker about purchasing the entire tract for $300,000,
with the intention to sell it to the Town rather than develop it.
Fineman and Lynch approached the Town Board of Selectmen with their
proposal to purchase the property and then sell it to the Town. The Board of
Selectmen told them that the Town would be willing to purchase only eighteen
acres because it could not afford the entire tract. Sometime prior to the
conveyance, the FIN-LYN Trust was established with Lynch as the trustee. On
February 1, 1985, the property was conveyed to Lynch, as Trustee, by deed
recorded in the Hillsborough County Registry of Deeds. On or about March 25,
1985, the Town Planning Board signed an approved subdivision plan for the
property, also recorded in the Hillsborough County Registry of Deeds, which
depicted an eighteen-acre parcel, Lot 7-237, and six one-acre building lots, Lot
7-237-1 through Lot 7-237-6, intended for single-family use. The Trustee sold
the six building lots on May 1, 1985, and engaged in negotiations with the
Town relative to the eighteen-acre lot.
William Hayes, the chairman of the Planning Board, negotiated on behalf
of the Town. From the outset, the Trustee insisted that the eighteen-acre
parcel be used only for municipal buildings, and that the Town set up a
committee to study the development of town offices on the property. The Town
ultimately agreed to purchase the eighteen-acre parcel for $180,000, subject to
a number of restrictive covenants. The deed conveying the eighteen-acre parcel
was executed on May 31, 1985. It provided, in part:
(6) All buildings to be constructed on the land hereby conveyed
shall be of Colonial architecture and shall be architecturally
consistent with each other. No building shall have a flat or single
pitch roof and no building shall exceed two stories in height,
excluding the basement.
(7) Within two years of the date of this deed and prior to the
construction of any building or parking lot on the southern one
[-]third of the land hereby conveyed, the [Town] shall plant a dense
row, at least thirty (30) feet deep, of white pine, scotch pine, fir,
spruce or willow trees along the southern property line of the land
hereby conveyed.
....
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(13) The [Town] agrees to reconstruct and maintain the stone
wall along Marsh Road and said wall may be breached only for
ingress and egress.
....
The land hereby conveyed is subject to and has the benefit of
easements, restrictions, agreements and reservations of record, if
any there be, insofar as the same may now be in force and
applicable.
The deed did not specify whether the restrictions were intended to be in gross
or appurtenant, and likewise did not specify a means of enforcing the
restrictive covenants, such as a right of re-entry or reverter.
The Town has constructed municipal buildings on the eighteen-acre
parcel, now known as the Village Green. In March 2012, the Town voted to
approve construction of a new fire station on the Village Green. The design
was proposed in 2011. When the plans were first presented to the Board of
Selectmen, the minutes reflect that it was observed “that all of the deed
restrictions and covenants encumbering the property had been covered in the
proposed design; every [criterion] of the deed had been met.” However,
although the Town described the proposed fire station as being “designed in a
traditional New England fashion, with pitched roofs, clapboard siding and
double hung windows,” the Trustee disagreed. By letter dated March 27, 2012,
the Trustee advised the Board of Selectmen that the proposed fire station did
not comport with the restrictive covenants in the deed to the Town. The
Trustee filed a writ on April 20, 2012, in superior court. As of that date, the
Town had not responded to the Trustee’s letter, and it continued to plan for
construction. At oral argument before this court, the Town represented that
construction of the fire station had been completed.
In his writ, the Trustee alleged that “the portion of the new fire station
constituting the garage will have a flat roof,” and “portions of the new fire
station will consist of poured concrete walls” rather than clapboards. The
Trustee petitioned the court for declaratory and injunctive relief, claiming that:
(1) the proposed fire station would violate the restrictive covenants because it is
not of “Colonial architecture,” in whole or in part, and has, in whole or in part,
a flat roof; (2) the Town violated the deed restrictions when it failed to plant a
dense row of trees along the southern boundary of the Village Green; and (3)
the Town violated the covenants by failing to fully reconstruct and maintain the
stone wall along Marsh Road. He also requested attorney’s fees. The Town
moved to dismiss, arguing that the Trustee lacked standing to enforce the
restrictive covenants because the Trustee no longer owned any land near the
Village Green. The Trustee responded that because the covenants are in gross,
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he is able to enforce them. In the alternative, the Trustee sought to amend the
petition to add an abutting landowner as a party.
The trial court relied on Shaff v. Leyland, 154 N.H. 495 (2006), in ruling
that, because the Trustee did not own land benefiting from the covenants, he
lacked standing to enforce them. It interpreted Shaff to hold that any deeded
covenant that is not clearly labeled “in gross” — including those at issue here
— is an appurtenant covenant. The trial court also ruled that, even if it were to
construe the covenants as in gross and enforceable, the Trustee had failed to
allege a cognizable “legitimate interest” in enforcing the covenant. See
Restatement (Third) of Property: Servitudes § 8.1, at 474 (2000). The court
ruled that aesthetic concerns “cannot be considered legitimate where [the
Trustee] does not own any nearby property.” The court found that the equities
favored the unrestricted use of the Town’s land as endorsed by its voters, over
the aesthetic concerns advanced by the Trustee. It also rejected the Trustee’s
contract-based arguments. This appeal followed.
On appeal, the Trustee argues that the trial court erred by applying Shaff
to the exclusion of other accepted principles of deed interpretation. He argues
that the pertinent covenants were in gross and supports that argument in two
ways. First, he contrasts the covenants at issue with other covenants
contained in the deed that expressly identify the benefited dominant estate,
arguing that those servitudes that were not expressly appurtenant were
intended to be in gross. Second, he argues that, taking into account the
circumstances existing at the time of their creation, the covenants at issue
were intended to be in gross. Specifically, he argues that since the Trust had
already divested itself of its other property at the time of the conveyance to the
Town, it is clear that the parties did not intend the covenants to benefit a
particular parcel of nearby land, but rather the residents of the community,
independent of the ownership of any particular parcel.
The Trustee further argues that the trial court erred when, despite its
failure to identify a specific property benefiting from those covenants, it
concluded that the restrictions were covenants appurtenant. He supports this
contention by referring to the trial court’s denial of his request to add an
abutting landowner because to do so “would be futile.” The Trustee also
challenges the trial court’s conclusion that he lacked a “legitimate interest” in
enforcing the covenants. Finally, he argues that the trial court erred when it
denied his request to add an abutting landowner as an additional petitioner.
The Town counters that New Hampshire’s rules of deed construction
favor appurtenant restrictions, and that restrictive covenants may be in gross
only if the deed clearly states that the covenants created are in gross. The
Town argues that, because the deed did not specify that the restrictions were in
gross, the restrictions were appurtenant, and, since Lynch, in his capacity as
Trustee, owns no other land in the Town, he lacks standing to enforce the
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restrictions. The Town also contends that, even if the restrictions are in gross,
the Trustee is not entitled to enforce the restrictions because he has shown no
injury or damages entitling him to equitable relief. It adds that the trial court
did not unsustainably exercise its discretion by denying the Trustee’s motion to
amend because the deed contains no right to enforcement by third parties;
thus, adding a third party would not prevent dismissal of the action.
When “ruling upon a motion to dismiss, the trial court is required to
determine whether the allegations contained in the [plaintiff’s] pleadings are
sufficient to state a basis upon which relief may be granted.” Avery v. N.H.
Dep’t of Educ., 162 N.H. 604, 606 (2011). “To make this determination, the
court would normally accept all facts pled by the [plaintiff] as true, construing
them most favorably to the [plaintiff].” Id. “When the motion to dismiss does
not challenge the sufficiency of the [plaintiff’s] legal claim but, instead, raises
certain defenses, the trial court must look beyond the [plaintiff’s]
unsubstantiated allegations and determine, based on the facts, whether the
[plaintiff] ha[s] sufficiently demonstrated [his] right to claim relief.” Id.(quotation omitted). “A jurisdictional challenge based upon lack of standing is
such a defense.” Id. at 607. When “the relevant facts are not in dispute, we
review the trial court’s determination on standing de novo.” Id.
Resolving the issues in this appeal requires interpretation of the deed
from the Trustee to the Town. “The proper interpretation of a deed is a
question of law for this court.” Appletree Mall Assocs. v. Ravenna Inv. Assocs.,
162 N.H. 344, 347 (2011). We review the trial court’s interpretation of a deed
de novo. Id. “In interpreting a deed, we give it the meaning intended by the
parties at the time they wrote it, taking into account the surrounding
circumstances at that time.” Id.; see also Restatement (Third) of Property:
Servitudes, supra § 4.1, at 496-97. We base our judgment on this question of
law upon the trial court’s findings of fact. Appletree Mall Assocs., 162 N.H. at
347. If the language of the deed is clear and unambiguous, we will interpret
the intended meaning from the deed itself without resort to extrinsic evidence.
Id. If, however, the language of the deed is ambiguous, extrinsic evidence of
the parties’ intentions and the circumstances surrounding the conveyance may
be used to clarify its terms. Flanagan v. Prudhomme, 138 N.H. 561, 566
(1994).
We first address the trial court’s conclusion that the covenants at issue
were appurtenant. “A covenant, as used in the context regarding the use of
property, is an agreement by one person, the covenantor, to do or refrain from
doing something enforceable by another person, the covenantee. Every
covenant has a burden to the covenantor and a benefit to the covenantee.”
Shaff, 154 N.H. at 497 (quotation omitted). “The benefit and the burden of a
covenant are subject to two general classifications — ‘appurtenant’ and ‘in
gross’ — which themselves are subject to further classification as ‘personal’ or
‘running with the land.’” Id. (quotation omitted). “‘Appurtenant’ means that
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the rights or obligations of a servitude are tied to ownership or occupancy of a
particular unit or parcel of land.” Id. (quotation omitted). Conversely, “‘[i]n
gross’ means that the benefit or burden of a servitude is not tied to ownership
or occupancy of a particular unit or parcel of land.” Id. at 498 (quotation
omitted). Both “[c]ovenants appurtenant and covenants in gross can be
personal or can run with the land.” Id. “Running with the land means that the
benefit or burden passes automatically to successors,” id. (quotation omitted),
whereas “‘[p]ersonal’ means that a servitude benefit or burden is not
transferable and does not run with land.” Id. (quotation omitted).
In Shaff, we observed that “[t]he general rule of construction favors
appurtenant servitudes over servitudes in gross,” and similarly favors
construction as “personal to the covenantee and [as] enforceable only by the
covenantee, unless a contrary intent is expressed in the language of the
covenant.” Shaff, 154 N.H. at 499. In Shaff, the original grantor petitioned the
court to enforce a restrictive covenant against a grantee after the grantor had
conveyed all of her interest in the original parcel. Id. at 496. The restrictive
covenant stated that it “shall run with the land” but expressed “no intent
regarding the benefit of the covenant or the type of covenant conveyed.” Id. at
499. At the time of the conveyance, the petitioner did own land in the
immediate area, and we concluded that the covenant was both appurtenant
and personal. Id. Therefore, because the petitioner no longer owned land that
benefited from the covenant, we held that she lacked standing to bring a claim.
Id.
In Shaff, we commented that “[h]ad the respondent wished to hold the
covenant in gross, regardless of whether or not she owned land in the area, she
could have included language to that effect.” Id. We did not, however, create a
per se rule requiring all in gross covenants to be expressly stated as such in
the deed.
“A servitude should be interpreted to give effect to the intention of the
parties ascertained from the language used in the instrument, or the
circumstances surrounding creation of the servitude, and to carry out the
purpose for which it was created.” Restatement (Third) of Property: Servitudes,
supra § 4.1(1), at 496-97; see also Red Hill Outing Club v. Hammond, 143 N.H.
284, 286 (1998) (“[F]ormalistic requirements in real estate conveyancing have
largely given way to effectuating the manifest intent of the parties, absent
contrary public policy or statute.”). Although in Shaff we did not cite section
4.5 of the Restatement, we did apply the principles articulated in that section
and its comments:
The circumstances surrounding creation of a servitude will
generally indicate whether the benefit was intended or expected to
be appurtenant or in gross. The fact that the benefit serves a
purpose that is only or primarily useful to the holder of a
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particular interest in land, which was held by the original
beneficiary at the time the servitude was created, strongly suggests
that the benefit is appurtenant.
Restatement (Third) of Property: Servitudes, supra § 4.5 comment d at 541; cf.
Shaff, 154 N.H. at 499 (concluding “that the restrictive covenant was created to
personally benefit the respondent as the owner of land that benefited from
enforcement of the restriction”). The parties’ intent has long been the
touchstone of our interpretation of contracts, including deeds. See, e.g., Joslin
v. Pine River Dev. Corp., 116 N.H. 814, 817 (1976). A rule of construction,
such as the preference for construing covenants as appurtenant and personal,
may aid in discerning the parties’ intent when there is little evidence thereof,
but such a rule is not necessarily dispositive.
Here, the parties’ intent can be discerned both from the circumstances
surrounding the transfer as well as the plain language of the deed itself. At the
time of the conveyance, the Trustee owned no other property in the Town. The
deed did not identify any specific property intended to be benefitted by the
covenant; thus, there was no owner to enforce the covenants. Thus, if the
benefit of the covenant had been appurtenant, the restriction requiring
Colonial architecture and prohibiting flat roofs would have been unenforceable
from the moment that the deed was signed. Such a result would be neither
logical nor consonant with the intent of the parties. Recognizing that such a
circumstance can arise, the Restatement provides that, except where contrary
to the parties’ intent or public policy, “the benefit of a servitude is . . . in gross
if created in a person who held no property that benefited from the servitude.”
Restatement (Third) of Property: Servitudes, supra § 4.5(1)(b), at 540; cf. B.C.E.
Development, Inc. v. Smith, 264 Cal. Rptr. 55, 58 (Ct. App. 1989) (“We
conclude . . . that the talisman for enforcement is not the rigid requirement of
retention of an interest in land, but rests instead upon a determination of the
intention of those creating the covenant.”).
In addition to the circumstances of the transfer, we draw further support
for our conclusion that the parties’ intent was that the servitude be in gross, by
comparing the covenants at issue with other covenants in the deed which are
manifestly appurtenant. For example, one restriction contained in the deed
provides that “[n]o Police or Fire Station shall be located within 200 feet of the
rear lot lines of any single family home lot that fronts on Sawmill Road or
Timber Lane,” and another states that “[a] portion of the land hereby conveyed
to the north of Lot 7-237-6 100 feet deep is subject to an easement for the
benefit of said Lot 7-237-6 if it is necessary to properly construct and maintain
a septic system for the benefit of Lot 7-237-6” if one cannot be properly
constructed on Lot 7-237-6. These provisions establish both a dominant and a
servient estate — that is, they explicitly identify which parcel is benefited as
well as which parcel is burdened. See Arcidi v. Town of Rye, 150 N.H. 694,
698-99 (2004) (contrasting an appurtenant easement, which creates both
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dominant and servient estate, with an easement in gross, which names a
servient estate, but no dominant estate, because “the easement benefits its
holder whether or not the holder owns or possesses other land” (quotation
omitted)). But cf. Tanguay v. Biathrow, 156 N.H. 313, 316 (2007) (noting that
an argument that “lack of a dominant estate does not necessarily result in an
easement in gross” could have merit (brackets omitted)). We agree with the
Trustee that, when considered together, the evidence that the parties created
explicitly appurtenant servitudes when they so desired, and the fact that the
servitudes at issue would be unenforceable if they were read as anything other
than in gross, supports the conclusion that the covenants at issue were
intended to be in gross.
The Town acknowledges that we have rejected the policy of strictly
construing restrictive covenants. See Joslin, 116 N.H. at 817; Heston v.
Ousler, 119 N.H. 58, 63 (1979). It nonetheless contends that any covenant not
expressly labeled as “in gross” must be deemed to be appurtenant, regardless
of the true intention of the parties at the time of the servitude’s creation. The
Town cites the policy reasons expressed in Waikiki Malia Hotel v. Kinkai
Properties, 862 P.2d 1048 (Haw. 1993), in support of that proposition:
Because the covenantee who personally holds the benefit of a
covenant in gross may be geographically removed from the
particular area burdened by the covenant, yet may still exercise
control over the use of land in such area, we believe that the
covenant must clearly and expressly reflect the intent to create a
covenant in gross.
Waikiki Malia Hotel, 862 P.2d at 1059.
To the extent that the Town argues that we should give primacy to a rule
of construction favoring appurtenant covenants over evidence of the parties’
intent, we disagree. See, e.g., Tanguay, 156 N.H. at 314-15 (finding deed
unambiguously created easement in gross, without stating “in gross,” although
grantor also owned land benefited by easement, because the grantor reserved
the right “to use said land for his own use and benefit”). The Town argues that
in Town of Newington v. State of New Hampshire we approved a reading of
Shaff that requires courts interpreting servitudes to disregard the parties’
intent or the circumstances at the time the servitude was established. See
Town of Newington v. State of N.H., 162 N.H. 745, 749 (2011). To the contrary,
we have long recognized “the prevailing view that cases involving restrictive
covenants present such a wide spectrum of differing circumstances that each
case must be decided on its own facts.” Joslin, 116 N.H. at 816. Therefore,
based upon the evidence of the parties’ intent provided by the plain language of
the deed and the context of the transfer, as well as the principles set forth in
the Restatement, we conclude that the covenants at issue were in gross.
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We next consider whether the Trustee can enforce the in gross
covenants. Under the traditional common law theory, “[w]here a person no
longer has any land in the vicinity which might be affected by the disregard of a
covenant, he or she cannot enforce the restrictions.” Shaff, 154 N.H. at 498
(quotation omitted). In Shaff, we contrasted this view with the one endorsed by
the Restatement, “which eliminates the requirement of an ownership interest in
benefited property in order to have standing to enforce a covenant in gross,
instead requiring only that a holder establish a legitimate interest in enforcing
it.” Id. (quotation omitted). Thus, we observed that “[a]doption of this view
would change the common law standing requirement for covenants in gross,
but not for covenants appurtenant.” Id. However, because we found that the
covenants at issue in Shaff were appurtenant, that case did “not present a
proper opportunity to decide whether to adopt such a rule because it [was] not
necessary to our decision.” Id. at 499.
Here, because we have concluded that the covenants at issue are in
gross, we now have the opportunity to decide whether to adopt section 8.1 of
the Restatement (Third) of Property: Servitudes. Section 8.1 provides:
A person who holds the benefit of a servitude under any provision
of this Restatement has a legal right to enforce the servitude.
Ownership of land intended to benefit from enforcement of the
servitude is not a prerequisite to enforcement, but a person who
holds the benefit of a covenant in gross must establish a legitimate
interest in enforcing the covenant.
Restatement (Third) of Property: Servitudes, supra § 8.1, at 474. By limiting
enforcement rights to only those beneficiaries with “a legitimate interest in
enforcing the covenant,” section 8.1 effectively accomplishes many of the policy
goals of the common law rule preventing enforcement of benefits in gross. As
the Reporter’s Note to that section explains, “[t]he traditional rule that a
restrictive covenant could be enforced only by a beneficiary who owned land
that would be benefited by enforcement generally operated to ensure that the
beneficiary had some interest other than simply forcing the burdened land
owner to pay for a release of the restriction.” Id. § 8.1 Reporter’s Note comment
c at 488. The traditional rule “prevented enforcement by original covenantees,
or their heirs, after they had disposed of the land benefited by the covenant; it
prevented fortune hunters and mischief makers from buying up old covenant
benefits for their nuisance value without also buying the land they were
intended to benefit.” Id. § 8.1 comment a at 475. “Requiring that the person
seeking enforcement who does not own benefited land show some legitimate
interest in enforcement of the servitude is intended to provide a substitute
means of preventing opportunistic use of servitude violations for extortion or
other improper purposes.” Id. § 8.1 Reporter’s Note comment c at 488-89.
Thus, we conclude that the adoption of section 8.1 addresses the legitimate
concerns of the trial court and commentators, while at the same time striking a
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reasoned balance in permitting enforcement of covenants in gross under
limited circumstances.
Having determined that these covenants are in gross, and that an entity
that holds the benefit of a covenant in gross can enforce it if it can establish a
legitimate interest in enforcement, we next examine whether the record
establishes that the Trustee has a legitimate interest in enforcing the covenant
on behalf of the trust.
The trial court found that the Trustee’s concerns “relate purely to the
Trust[ee]’s aesthetic taste, and cannot be considered legitimate where he,” in
his capacity as Trustee, “does not own any nearby property.” It added,
“[a]lthough the Town may have initially intended to be bound by the covenants,
there is no benefit to the Town or the petitioner in continuing them,” especially
because a Town vote indicated general approval for the fire station proposal.
The Town argues on appeal that the Trustee has no legitimate interest in
enforcing the restrictive covenants. The Town contends that the property was
not developed as part of an overall development scheme, and, therefore, that it
is not subject to reciprocal covenants. It further states that the Trustee has
not suffered economic harm attributable to the Town’s construction of the fire
station. We disagree with the Town and conclude that the record establishes
the Trustee’s legitimate interest in enforcement of the covenants.
A “legitimate interest” need not be financial. Comment c to the
Restatement (Third) of Property: Servitudes § 8.1, entitled “Legitimate interest
that entitles beneficiary to seek judicial enforcement,” explains:
Some covenant benefits in gross, like the benefits of conservation
servitudes, are similar to appurtenant benefits in providing
valuable benefits that are difficult to monetize and difficult or
impossible to replace. To establish a legitimate interest in the
enforcement of such a covenant, the beneficiary need not establish
that he or she will suffer economic harm from covenant violation,
but rather, that he or she seeks enforcement to advance the
purpose for which the servitude was created.
Restatement (Third) of Property: Servitudes, supra § 8.1 comment c at 477. We
view the covenants relating to the aesthetics of buildings constructed on the
Village Green to be of this type. The covenants are for the benefit of the public,
difficult to monetize, and difficult or impossible to replace. See id. Thus, to
demonstrate a legitimate interest in enforcement, the Trustee need not
demonstrate economic harm, but rather, that he seeks enforcement “to
advance the purpose for which the servitude was created.” Id. It is evident
that the Trustee’s petition was filed to advance the purpose for which the
servitude was created. The petition did not seek an award of damages, but
rather injunctive relief requiring the Town to “comply with the restrictive
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covenants in its deed,” as well as the award of litigation costs and fees incurred
by the Trustee.
We observe that the Reporter’s Note to section 8.1 discusses when a
party’s interest is not legitimate, thus precluding a finding of standing:
Situations that ordinarily call for denial of standing under this rule
arise where someone not otherwise connected to the burdened
property or development has bought up the rights of the developer
(or other original covenantor) after the developer or other
covenantor has severed his or her connection to the area. Unless
the claimant can demonstrate some interest other than simply
extracting payment from the burdened party, standing should be
denied.
Restatement (Third) of Property: Servitudes, supra § 8.1 Reporter’s Note
comment c at 489. Here, because the dispute is between the original grantor
and grantee, and does not involve a third party who has acquired rights and
now seeks to exploit them, the policy concerns giving rise to comment c are not
implicated.
We conclude that the covenants at issue are in gross and enforceable by
the Trustee, and that the record establishes that he has a legitimate interest in
enforcing the covenants on behalf of the trust. Therefore, the trial court erred
in ruling that the Trustee lacked standing. Upon remand, the trial court shall
determine whether the fire station violates the restrictive covenants, and, if so,
the nature of the remedy.
Reversed and remanded.
DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
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