David Smalley v. Stowe Mountain Club, LLC ( 2015 )


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  • Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
    ENTRY ORDER
    SUPREME COURT DOCKET NO. 2014-433
    APRIL TERM, 2015
    David D. Smalley                                      }    APPEALED FROM:
    }
    }    Superior Court, Lamoille Unit,
    v.                                                 }    Civil Division
    }
    }
    Stowe Mountain Club, LLC                              }    DOCKET NO. 132-6-08 Lecv
    Trial Judge: Helen M. Toor
    In the above-entitled cause, the Clerk will enter:
    Plaintiff David D. Smalley appeals pro se from a superior court judgment in favor of
    defendant Stowe Mountain Club, LLC (SMC). Plaintiff contends the trial court committed
    multiple errors in rejecting his claim that portions of a golf course operated by SMC violate
    restrictive covenants in Smalley’s deed. We affirm.
    This is the second appeal to reach the Court in this matter. As set forth in the first appeal,
    Smalley v. Stowe Mountain Club, LLC (Smalley I), 
    2011 VT 51
    , 
    190 Vt. 53
    , the factual
    background is as follows:
    Smalley’s property consists of a single-family residence on a 1.97 acre
    parcel located on Spruce Peak Road in the Town of Stowe. The property
    was acquired by Smalley’s predecessor-in-interest, Nancy Cooke, in a 1959
    deed from the Mount Mansfield Company (MMC), which operates the
    Stowe Mountain Resort. The deed contained sixteen separate “restrictions
    and conditions” to be “treated as covenants running with the land,” nearly
    all of which were concerned with maintaining the property’s residential
    quality. The first condition provided that no building on the property “shall
    be used for purposes other than a private dwelling.” Others required that
    the cost of the residence and garage to be constructed on the property “shall
    be not less” than a certain dollar amount; that the “design and materials” for
    the exterior of all buildings to be constructed must be “approved in writing
    by an architect” designated by MMC; that “the premises and buildings
    constructed thereon shall at no time be used or occupied for the purpose of
    any trade, manufacture or business or as a school, hospital, charitable
    institution, hotel, inn, motel, cabin, boarding house, lodging house or place
    of public resort”; that no “billboards, advertising signboards or signs of any
    kind” were to be erected on the property; that no animals were to be kept on
    the property except for dogs, cats, or stabled horses; and that no timber or
    trees were to be cut except as necessary to the residential development of
    the property.
    Following the list of restrictions and conditions, the deed additionally
    stated:
    It is understood between the Grantor and the Grantee herein that
    the conditions, restrictions and covenants in this deed are for the
    purposes of this deed only and may vary from those in deeds of
    other property heretofore, now or hereafter owned by the Grantor,
    except that land within 200 ft. of the boundaries of the lot here
    conveyed to Grantee shall be sold and conveyed by the Grantor
    subject to the same conditions, restrictions and covenants as are
    contained in this deed.
    Over the next several years, MMC subdivided and sold a number of
    additional residential lots on Spruce Peak Road in the vicinity of the
    Smalley property, all subject to the conditions and restrictions set forth in
    the 1959 deed. Most of the lots, like the Smalley parcel, adjoined land
    owned and used by MMC for resort purposes such as ski trails and access to
    the resort and resort parking. In 1977, Cooke and MMC entered into a
    second warranty deed “to correct any errors or deficiencies” relating to a
    boundary in the original deed. The corrected deed provided that it was
    “subject to certain covenants and restrictions of a residential nature as more
    specifically set forth” in the original 1959 deed. In January 1994, Cooke
    conveyed the property to Smalley. Like the corrected deed, the Smalley
    deed made the conveyance “subject to certain covenants and restrictions of
    a residential nature as more specifically set forth” in the original 1959 deed
    and, with one exception not relevant here, further provided that “[t]he
    balance of the covenants and restrictions” in the 1959 deed “shall remain
    valid and in effect.”
    In 2005 and 2006, SMC constructed a golf course in the area of Spruce
    Peak. Portions of two holes are located within 200 feet of the Smalley lot.
    The construction was preceded and facilitated by two transfers, one in 2003
    in which MMC conveyed the golf course property to Spruce Peak Realty,
    LLC (SPR), a transfer which it characterized in its tax return as a tax-
    exempt capital contribution, and a second in 2004 when SPR in turn
    conveyed the property to its own limited liability company, SMC, similarly
    characterized at the time as a capital contribution.
    The golf course opened for play in the summer of 2007. One year later, in
    June 2008, Smalley filed this action against SMC, alleging that the 2003
    and 2004 transfers of property within 200 feet of his lot triggered the
    covenant prohibiting use of the property conveyed “for the purpose of
    any . . . business or . . . place of public resort.” Accordingly, Smalley
    claimed that use of the property as a golf course violated his deeded
    property rights, and entitled him to a permanent injunction. SMC answered,
    2
    denying the violation and raising a number of affirmative defenses,
    including estoppel, laches, and unclean hands.
    Id. ¶¶ 2-6.
    As we noted in Smalley I, the parties filed cross-motions for summary judgment.
    Smalley argued that the deed terms were clear and unambiguous, and essentially established a
    200-foot non-commercial buffer around his property. SMC claimed, to the contrary, that the
    deed, “[c]onstrued as a whole, . . . evinced a clear and unambiguous intent to establish a common
    scheme to maintain the quality of lots sold by MMC to third parties for residential development,
    but there was never an intent to bar the resort itself from developing the property it retained.” Id.
    ¶ 7. SMC also claimed that the golf-course property was not “sold and conveyed” in 2003 and
    2004 within the meaning of the 1959 deed because there was no monetary consideration or real
    change of ownership; the transactions were merely inter-corporate capital transfers among
    affiliated entities, all of whom were wholly owned or controlled by their parent corporation
    American International Group (AIG). Thus, it claimed that the deed restrictions were never
    triggered by an actual “sale” within the contemplation of the parties. SMC maintained that it
    would defeat the parties’ intentions to apply the “sold and conveyed” language to paper
    transactions in which the resort retained actual ownership and control of the property and sought
    to develop it through a wholly-owned affiliate. Id.
    The trial court ruled in favor of Smalley, concluding that the deed restriction was
    “intended . . . to create a buffer zone” between the residential properties and resort, that the 2003
    and 2004 transactions were plainly “sales,” that SMC had failed to adduce evidence to support its
    affirmative defenses, and that further discovery was not required. Id. ¶ 9.
    We reversed. While rejecting SMC’s claim that the deed restrictions did not run with the
    land, we concluded that the trial court erred in concluding that they had created a “resort-free
    ‘buffer zone’ around the Smalley property.” Id. ¶ 14. We noted that “[t]he covenants and
    conditions designed to maintain a high-end residential development, coupled with the absence of
    similar restrictions on land retained by the resort, could reasonably suggest that the parties did
    not intend to restrict development of land under the ownership or control of MMC.” Id. ¶ 18.
    That fact, in turn, raised questions about the circumstances under which the covenant would be
    triggered by a conveyance of the resort property. We remanded to the trial court to allow
    additional discovery on the parties’ intent with respect to the “sold and conveyed” clause in the
    deed, the exact nature of the transfers at issue, and SMC’s affirmative defenses. Id. ¶ 22.
    Following the remand, the parties conducted additional discovery, and the court held an
    evidentiary hearing over the course of two days in April and May 2014. The parties submitted
    post-trial memoranda, and the court issued a written ruling in July 2014. Apart from the
    evidence previously adduced, the court found that the only one piece of evidence that “sheds
    light on the intent of the covenants” was contained in correspondence between the parties and
    their attorneys preceding the 1959 conveyance from MMC to Smalley’s predecessor-in-interest,
    the Cookes. The court found that the letters reinforced the conclusion that the deed restrictions
    were not intended to limit MMC’s own resort activities on the land that it retained adjacent to the
    Smalley parcel. The court found that together with the covenants themselves, the letters
    supported a finding that the parties never intended that MMC’s subsidiaries or successors would
    be barred from operating a resort, or that “a sale to another party running a resort would restrict
    that party from conducting resort activities on land retained by MMC.” (Emphasis in original.)
    3
    The court also concluded that the transfers from MMC to SPR and SMC did not constitute a
    “sale and conveyance,” as the transactions were simply “capital contributions” to wholly-owned
    subsidiaries. Accordingly, the court entered judgment for SMC. The court denied a subsequent
    motion to amend the judgment. This pro se appeal by Smalley followed.
    Smalley raises numerous claims, most of which focus on whether the court erred in
    construing the meaning and intent of the deed restrictions, particularly whether the golf course
    land had been “sold and conveyed.” We have previously ruled that the deed restrictions at issue
    are ambiguous. Smalley I, 
    2011 VT 51
    , ¶ 18. In resolving that ambiguity, the general rule is
    that, “[w]hen doubt arises as to the extent of restrictive covenants, the rule . . . is that restrictions
    will not be extended by implication to include anything not clearly expressed, and doubt must be
    resolved in favor of the free use of the land.” Creed v. Clogston, 
    2004 VT 34
    , ¶ 17, 
    176 Vt. 436
    (quotation omitted). Furthermore, where a covenant is ambiguous, “the question of what the
    parties intended to prohibit is a question of fact to be determined on all the evidence.” Id. ¶ 18.
    We will uphold the court’s findings in this regard unless they are clearly erroneous. Id.
    Applying these standards to the record evidence, we find no basis to disturb the trial
    court’s conclusion that the parties did not intend to restrict the resort activities of MMC on the
    land that it retained, nor did they intend “that a sale to another party running a resort would
    restrict that party from conducting resort activities” on the land retained by MMC. Several
    factors support this conclusion. First, as we observed in Smalley I, the covenants construed as a
    whole were basically intended to “create and perpetuate a high-end residential development,”
    
    2011 VT 51
    , ¶ 12, but do “not restrict MMC from using land that it . . . retained within 200 feet
    of the Cooke/Smalley parcel for resort activities.” Id. ¶ 14. Accordingly, as the trial court here
    observed, it would defy reason to conclude that MMC was free to build the golf course in
    question, but when MMC sold the property to a third party “suddenly that new owner would
    have to remove” any golf-related activities as a violation of the covenants.
    As the trial court also found, this conclusion finds additional support in some of the
    correspondence between the original parties and their attorneys in which they expressly
    negotiated the terms of the restrictive provisions at issue. Although not cited specifically by the
    trial court, a January 1959 letter from the purchaser proposed that the last two paragraphs of the
    deed specify that the same restrictions in the purchaser’s deed “will apply to the purchasers of
    any two acre lots adjoining my property.” This request was repeated in a subsequent letter dated
    July 24, 1959. MMC’s attorney’s response, in a letter dated August 18, 1959, indicated that
    MMC was resistant to the specific requirement that future sales of lots “be at least in 2 acre
    chunks,” but assured the purchaser of MMC’s intent to maintain the quality of the development
    and not do anything to depreciate its value.
    Thus, while the two-acre minimum was not ultimately included in the 200-foot restrictive
    covenant, the parties’ correspondence demonstrates that the covenant was designed and intended
    to apply to future sales of residential lots within 200 feet of the Cooke/Smalley lot, not to land
    retained and developed by MMC for resort activities or conveyed to a subsidiary or successor-in-
    interest for resort development. Thus, it does not apply to SMC. Contrary to Smalley’s
    assertion, this conclusion does not represent a prohibited “reformation” of the deed. Rather, it is
    4
    an interpretation based on the parties’ intent as determined from the language and extrinsic
    evidence.*
    In light of our conclusion, we need not consider whether the trial court correctly
    determined, as an alternative basis of decision, that “sale and conveyance” as used in the deed
    does not apply to transfers specifically structured as in-house capital contributions, and whether
    the transactions here fall within this category. Nor need we consider Smalley’s additional claims
    concerning his entitlement to legal fees and punitive damages.
    Affirmed.
    BY THE COURT:
    _______________________________________
    Paul L. Reiber, Chief Justice
    _______________________________________
    John A. Dooley, Associate Justice
    _______________________________________
    Beth Robinson, Associate Justice
    *
    In discussing the August 18, 1959 letter from the resort’s attorney to the purchaser, the
    court found that, although “the exact restrictions being discussed cannot be discerned because the
    prior letter was not admitted in evidence,” the correspondence supported the conclusion that the
    parties did not intend to apply the 200-foot restriction to the resort itself. Smalley asserts that the
    “prior letter,” dated July 24, 1959, was, in fact, admitted, and the record supports his assertion.
    However, he does not demonstrate, nor does the record show, how the court’s factual error was
    prejudicial. Indeed, as discussed, the correspondence as a whole supports SMC’s position.
    5
    

Document Info

Docket Number: 2014-433

Filed Date: 4/10/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021