February 05, 2014 – Curtis Myers and Barbara A. Myers, husband and wife v. Jacqueline K. Armstrong, No. 32,334

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date:_February 5, 2014

NO. 32,334

CURTIS V. MYERS and

BARBARA A. MYERS,

husband and wife,
Plaintiffs-A ppellees,

V.

JACQUELINE K. ARMSTRONG,
Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
William H. Brogan, District Judge

John D. Wheeler & Associates, P.C.
John D. Wheeler
Alamogordo, NM

for Appellees

John R. Hakanson, P.C.
John R. Hakanson
Alamogordo, NM

L. Helen Bennett
Albuquerque, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	This case is an appeal of a ruling by the district court enjoining Jacqueline
Armstrong (Defendant) from operating her dog training and boarding businesses on
her residential property and ordering her to remove or alter the metal building she
constructed to house the businesses. 	Defendant’s activities were found to be in
violation of the restrictive covenants of the subdivision where her property was
located. We affirm the judgment of the district court.
BACKGROUND
{2} 	Curtis and Barbara Myers (Plaintiffs) and Defendant were neighbors in the
Tierra del Sol Subdivision, located in Otero County, New Mexico. 	In 2000,
Defendant opened a dog training business on her property. In 2003, Defendant added
a dog boarding business. In January 2009, Defendant began construction of a 3,000
square foot metal outbuilding on her property for use in connection with the
businesses. Construction was completed in October 2009.
{3} 	Tierra Del Sol is a residential subdivision, with restrictive covenants put in
place by the developer. These covenants provide that all lots in the subdivision are
for residential purposes only. 	Dogs can only be maintained on any premises for
household, residential, and non-commercial use or benefit. All improvements in the

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subdivision require the written approval of the Architectural Control Committee
(ACC). 	Only single-family and related structures are permissible. 	Criteria for
approval include quality of workmanship, materials, and harmony with existing
structures. After 1984, there has not been an ACC.
{4} 	At trial, Plaintiffs asserted that Defendant’s 3,000 square foot metal building
used for the dog training businesses and constructed without ACC approval, as well
as the businesses themselves, violated the Tierra Del Sol restrictive covenants. The
district court agreed.
{5} 	On appeal, Defendant argues that the restrictive covenants are unenforceable
or void in the absence of an ACC. 	Defendant also argues that the covenants are
unenforceable because changes in the subdivision undermined the uniformity sought
by these restrictions. Finally, Defendant argues that Plaintiffs have, by acquiescence,
waived their right to enforce the covenants. We address these arguments in turn.
LACK OF AN ACC
{6} 	It is undisputed that the body empowered to enforce the covenants, the ACC,
ceased to exist in a meaningful way before Defendant began operating her businesses
from her property. Defendant concedes that she violated the restrictive covenants, but
argues that, in the absence of an ACC, the covenants were unenforceable. Defendant
further argues that, in the absence of an ACC, compliance with the restrictive

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covenants that required approval for improvements was impossible, and therefore the
entire scheme of the restrictive covenants was void. Defendant’s arguments raise a
legal question, and therefore we review the question de novo. Jicarilla Apache Nation
v. Rodarte, 2004-NMSC-035, ¶ 24, 136 N.M. 630, 103 P.3d 554.
{7} 	Defendant’s arguments fall within the ambit of Jones v. Schoellkopf, which also
addressed a subdivision lot owner who undertook an improvement that was a potential
covenant violation without the required architectural review committee approval. See
2005-NMCA-124, ¶¶ 18-19, 138 N.M. 477, 122 P.3d 844. In Jones, the architectural
review committee had fallen into disuse. Id. ¶ 21. The Jones Court noted that the lot
owner who was potentially in violation of a restrictive covenant had a right to review
but that the review power “would have to be exercised reasonably.” Id. ¶ 20. 	The
restrictive covenants were not declared unenforceable or void because there was not
an architectural control committee. 	See id. ¶¶ 26-28. 	Instead, the Jones Court
remanded to the trial court, requiring an equitable solution that took into account the
rights of all parties, given the requirements that the reviewing body, whether a court
or an architectural review committee, would have to exercise power reasonably and
take into consideration explicit prohibitions in the covenants. Id. ¶¶ 20, 26-28.
{8} 	Defendant relies on two cases, neither of which is helpful to her. One case,
Hourani v. Katzen, 305 S.W.3d 239 (Tex. Ct. App. 2009), is easily distinguishable on

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its facts. In Hourani, a lot owner sought a variance from restrictive covenants to build
a bridge or driveway because access to his lot was severely limited by a lake that
spanned almost the entire width of the property. 	Id. at 244. In the absence of the
body charged with enforcement of the covenants, the lot owner submitted his
construction plans to all of the other owners in the subdivision. 	Id. 	Because he
received notice that his neighbors disapproved, he brought a prospective action for
declaratory judgment. Id. at 244-45. The Texas Court of Appeals affirmed the grant
of summary judgment in favor of the lot owner seeking a variance, but did not do so
by determining that the covenants were generally unenforceable or void in the absence
of the body entitled to enforce them. Id. at 252-254. Rather, the lot owner prevailed
because of the strength of his right to access his property. Id. The other case relied
on by Defendant, Hanchett v. East Sunnyside Civic League, 696 S.W.2d 613 (Tex. Ct.
App. 1985), in fact, directly supports Plaintiffs. 	Defendant cites Hanchett for the
proposition that failure to get approval from a defunct architectural review committee
is insufficient to justify an order to remove the violating structure. Id. at 615-16. But
relying on the fact that there was a clear violation of a clear covenant, the Hanchett
Court upheld the covenant and affirmed the order to remove the offending structure.
Id. at 616.

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{9} 	The fact that the ACC fell into disuse does not excuse compliance with the
remainder of the covenants. 	Jones, 2005-NMCA-124, ¶ 26. 	Covenants impose
binding obligations upon owners in planned subdivisions. 	Nettles v. Ticonderoga
Owners’ Ass’n, 2013-NMSC-030, ¶ 1, 306 P.3d 441. Defendant’s dog boarding and
training businesses clearly violate the covenants limiting subdivision lots to residential
purposes and prohibiting the maintenance of dogs for commercial purposes.
Defendant’s construction of a large commercial building clearly violates the covenant
allowing only single-family residential and related structures. A court, sitting in the
place of the ACC, cannot ignore the explicit prohibitions in the covenants. See Jones,
2005-NMCA-124, ¶ 27 (holding that a court sitting in the place of a defunct
architectural control committee must take into consideration explicit prohibitions in
the covenants). 	The lack of an active ACC did not, of itself, permit Defendant to
violate clear prohibitions in the restrictive covenants.
CHANGES IN THE SUBDIVISION
{10} 	Defendant argues that because the uniformity sought by the restrictive
covenants was effectively destroyed by other violations, equity favored denial of the
relief requested by Plaintiffs. 	We review the district court’s exercise of equitable
powers under an abuse of discretion standard. Amkco Co. v. Welborn, 2001-NMSC-
012, ¶ 8, 130 N.M. 155, 21 P.3d 24. 	Unless the decision of a trial court is clearly

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untenable or not justified by reason, we refrain from reversing a decision as an abuse
of discretion. State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829.
{11} 	“Restrictive covenants have historically been used to assure uniformity of
development and use of a residential area to give the owners of lots within such an
area some degree of environmental stability.” Heltman v. Catanach, 2010-NMCA-
016, ¶ 17, 148 N.M. 67, 229 P.3d 1239 (internal quotation marks and citation
omitted). “[S]uch covenants constitute valuable property rights of the owners of all
lots in the tract.” 	Montoya v. Barreras, 1970-NMSC-111, ¶ 12, 81 N.M. 749, 473
P.2d 363. But a covenant may be set aside when the uniformity or other purpose of
the covenant has been destroyed by other violations or changes in the neighborhood.
Heltman, 2010-NMCA-016, ¶ 17. In order to extinguish a covenant, the degree of
change must be so significant and radical that it is impossible to carry forward the
original purpose and intent of the grantors. Id.
{12} 	Defendant points out that there were businesses in the subdivision other than
hers, also in violation of the covenants. For several years, an auto mechanic operated
a shop on his property. He first operated out of his attached garage and then built an
800 square foot structure to house the business. 	The new structure conformed
architecturally to the style of his home. When the business was ready to expand, he
decided to move the business to town rather than construct a large building on his

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property. 	In part, he did so because he was concerned that a large, commercial
building would have been intrusive to his neighbors and, for this reason, construction
of such a building would not have worked. 	Another homeowner had sideline
businesses rebuilding backhoes, purchasing and rebuilding Volkswagens, and dealing
guns. 	This owner moved out prior to the start of Defendant’s businesses. 	Also,
Plaintiffs admit that there was a document destruction business with a presence in the
subdivision in the form of trucks related to the business. The district court found that
the business did not operate out of the subdivision. Finally, there was a large metal
carport on one property.
{13} 	Under New Mexico precedent, the district court had a reasonable basis to
conclude that conditions in the subdivision had not changed so radically that the
original purpose and intent of the covenants was frustrated. In Mason v. Farmer, our
Supreme Court refused to enforce a restrictive covenant in Cloudcroft because in the
sixty or so years since the passage of the covenant, Cloudcroft was transformed from
an exclusively residential and pedestrian summer resort that was reachable only by
wagon road to a full-service village with numerous year-round residents, a school, and
highway access. 1969-NMSC-050, ¶¶ 8-11, 13, 22, 80 N.M. 354, 456 P.2d 187. The
Mason Court determined that the evidence supported a finding by the district court
that it would be inequitable to enforce restrictions prohibiting commercial uses

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because widespread changes in Cloudcroft rendered the property in violation
unsuitable for residential uses. Id. ¶ 22. The Mason Court also held that enforcement
of the restriction would accrue no benefits to the other lots. Id. This case is unlike
Mason. 	Instead, it is akin to Jones, in which this Court found that prohibiting the
enforcement of a restrictive covenant was an abuse of discretion when six of 170 lots
had some degree of violation. 2005-NMCA-124, ¶ 16. The subdivision at issue in
this case has fifty-four lots. Over the years, there were only two lots with commercial
activities taking place. 	Only one of the two had a commercial structure, and that
structure was relatively small and built in the style of the related residential structure.
By the time Defendant chose to construct her building, no other commercial activity
remained in operation in the subdivision. The evidence seems to suggest that the only
violation or potential violation was a metal carport. 	The number, magnitude, and
tenor of violations presented to the district court do not indicate radical change such
that the purpose and intent of the covenants restricting commercial structures and
activities was frustrated. 	We are therefore unwilling to reverse the district court’s
exercise of discretion and set aside the covenant on the basis of changed conditions
and covenant violations.
PLAINTIFFS’ ACQUIESCENCE

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{14} 	Plaintiffs were aware of some of the other covenant violations in the
subdivision and also of Defendant’s businesses, but they did not attempt to enforce
the covenants until after Defendant built her large metal building. Defendant asserts
that Plaintiffs’ failure to enforce the covenants against other violators and delay in
enforcement against her constitute acquiescence on the part of Plaintiffs. Defendant
asserts that in not so finding, the district court committed reversible error. Neither
party raised a statute of limitations issue, and therefore we do not consider whether
any statute of limitations applies in this case. See In re Doe, 1982-NMSC-099, ¶ 3,
98 N.M. 540, 650 P.2d 824 (recognizing that appellate courts should not reach issues
not raised by the parties).
{15} 	We review the district court’s refusal to apply the equitable defense of
acquiescence on these facts for an abuse of discretion. 	See Wolf & Klar Cos. v.
Garner, 1984-NMSC-040, ¶ 10, 101 N.M. 116, 679 P.2d 258 (holding that a trial
court’s application of “clean hands” or other equitable defenses is reviewed under an
abuse of discretion standard).
{16} 	Waiver of the right to enforce a covenant by acquiescence requires a showing
that the party attempting to enforce the covenant previously acquiesced to other
violations of the same or similar covenants on another restricted lot. Heltman, 2010-
NMCA-016, ¶ 23. Important considerations include “whether the party seeking to

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enforce the covenant had actual or constructive knowledge of the prior violations, the
magnitude of the current violation as compared to prior violations, and whether the
prior violations were temporary, occasional, or permanent.” 	Id. 	Failure to enforce
against minor and trivial violations does not, of itself, constitute acquiescence. See
Neff v. Hendricks, 1953-NMSC-060, ¶ 7, 57 N.M. 440, 259 P.2d 1025 (holding that
failure to enforce minor and trivial violations did not bar enforcement of restrictive
covenants).
{17} 	Plaintiffs knew that there was a car mechanic who operated out of his attached
garage and then from a structure built in the style of his dwelling. In comparison to
Defendant’s metal building, the mechanic’s structure was small and built to conform
with the existing residence. He spoke with his immediate neighbors prior to opening
his business, none of whom objected. 	Instead of building a large structure like
Defendant’s, he moved his business into town to accommodate expansion. By the
time Defendant opened her business, the mechanic was no longer in the subdivision.
The owner with the sideline businesses was also out of the subdivision by the time
Defendant opened her businesses and built her structure. The metal carport, although
large, is unlike Defendant’s activities. In short, the impacts of these other violations
or possible violations were minor and trivial in comparison with the impact of
Defendant’s building and businesses directly across from the lots owned by the

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Plaintiffs. Furthermore, the restrictive covenants specifically provide that the failure
to promptly enforce any of the covenants or restrictions does not bar subsequent
enforcement.
{18} 	We reject the notion that individual owners in a subdivision must move to
enforce the covenants against relatively minor violations that have little impact on
them in order to maintain the right to enforce against violations that significantly
impact their rights. See 3 Herbert Thorndike Tiffany, The Law of Real Property, ch.
18, § 874, at 516 (3d ed. 1939) (stating that “[a]cquiescence in a breach of a minor
character would not, in any state, it seems probable, constitute grounds for denying
relief against a breach of a much more serious character”); see also Neff, 1953-NMSC-
060, ¶ 7 (holding that failure to enforce minor and trivial violations did not bar
enforcement of restrictive covenants). To adopt Defendant’s acquiescence argument
would allow any sort of construction within the limits of zoning laws in this
subdivision because minor, ultimately temporary, violations were not previously
protested. 	The district court did not abuse its discretion in declining to find that
Plaintiffs waived their right to enforce the restrictive covenants on the basis of
acquiescence.
{19} 	The judgment of the district court is affirmed.
{20} 	IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

TIMOTHY L. GARCIA, Judge

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