Ruffinengo v. Miller , 1978 Utah LEXIS 1315 ( 1978 )

HALL, Justice:

Plaintiff (hereinafter “Ruffinengo”) appeals from a summary judgment dismissing his suit to enjoin the construction of a house by defendants (hereinafter “Miller”) alleged to be in violation of a restrictive covenant prohibiting the construction of dwellings in excess of two stories.

The basic facts presented to the trial court are as follows: the litigants. are the owners of adjacent lots in Northerest Subdivision which share a common boundary, although one lot is in Plat “E” and the other in Plat “F” of said subdivision; the two plats were developed by separate corporate entities hence the lots in question were ostensibly not acquired from a common grantor, however, Ruffinengo maintains that both corporations were wholly owned by one James B. Cunningham; the lots in both plats are subject to the same restrictive covenants as to structure height, they merely having been imposed by different developers; the covenants specifically provide for enforcement by any “owner or owners of any of the lots in said subdivision;” prior to the filing of the instant case, Miller had successfully defended a nearly identical lawsuit brought by two other lot owners in the subdivision wherein it was determined that the dwelling was not in violation of the covenants.

The trial court determined, as a matter of law, that Ruffinengo had no standing to maintain the action since his grantor was not common to Miller’s and that he was further barred by the doctrine of collateral estoppel since the issue presented had already been determined in the prior proceeding. Ruffinengo contends the trial court erred in so doing, and we agree.

Summary Judgment is proper only if the pleadings, depositions, answers to interrogatories,' and admissions on file, together with the- affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.¹ If there is any genuine issue as to any material fact, summary judgment should be denied.²

The issue of standing raised in the pleadings is one of material fact which precludes the entry of summary judgment. The covenant in question is found in the chain of title of all lots in the subdivision and purports to allow enforcement by any and all lot owners.

Ruffinengo contends he and Miller did derive their titles from a common grantor since the corporate developers were in fact one and the same. It has long been established that if a general scheme for building or development is intended by the original grantor, subsequent grantees may bring action against each other to enforce restrictive covenants, and such intent may be shown by the acts of the grantor and the attendant circumstances.³ It necessarily follows that Ruffinengo should be afforded the opportunity to make such a showing by presenting his evidence.

As to the matter of collateral es-toppel, it is to be noted Ruffinengo was not a party nor in privity with a party in the prior suit against Miller. Consequently, he cannot be bound by that proceeding. Collateral estoppel is not a defense as against a litigant who was not a party to the action and judgment claimed to have created an estoppel.⁴

The proposition was clearly stated in Blonder-Tongue v. University of Illinois Foundation⁵ as follows:

Some litigants, — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They never had a chance to present their evidence and arguments on the claim. Due process prohibits estop-ping them despite one or more existing adjudications of the identical issue which stand squarely against their position.

It is also to be noted that if the doctrine should be applied to these facts that Ruffi-nengo would be denied his constitutional right to appeal because he was not a party to the prior suit.

Miller’s contention that if Ruffinengo is not estopped all other lot owners could also sue and that the burden of litigation and accompanying expense would be enormous, has no real merit for he needed only resort to Rule 19(a)⁶ to protect against such eventualities. The rule reads in part as follows:

. persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, or his consent cannot be obtained, he may be made a defendant or, in proper cases, an involuntary plaintiff.

Miller’s further contention that Ruffinengo was “in privity” simply because he had an identical right to his neighbor’s that was previously adjudicated is not persuasive. This is so for two basic reasons:

(1) It is not at all unforeseeable that Ruffinengo might reach a different result than did the other lot owners in the prior suit, simply because he may present a far different or convincing case.

(2) This court has a consistent policy of resolving doubts in favor of permitting parties to have their day in court on the merits of the controversy.⁷

Reversed and remanded for further proceedings not inconsistent with this opinion.

CROCKETT, and MAUGHAN, JJ., concur.

1 . Rules of Civil Procedure, Rule 56(c); In re Williams’ Estates, 10 Utah 2d 83, 348 P.2d 683 (1960).

2 . Young v. Felornia, 121 Utah 646, 244 P.2d 862 (1952).

3 . Hayes, et al. v. Gibbs, et al., 110 Utah 54, 169 P.2d 781 (1946), citing Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687 (1908).

4 . Carmen v. Slavens, Utah, 546 P.2d 601 (1976); Halling v. Industrial Commission of Utah, 71 Utah 112, 263 P. 78 (1927).

5 . 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).

6 . Utah Rules Civil Procedure.

7 . Carmen v. Slavens, supra, footnote 4.