Cocks v. Swains Creek Pines

2023 UT App 97

THE UTAH COURT OF APPEALS

ARTHUR W. COCKS AND JULIE L. COCKS,
Appellees,
v.
SWAINS CREEK PINES LOT OWNERS ASSOCIATION,
Appellant.

Opinion
No. 20200961-CA
Filed August 24, 2023

Sixth District Court, Kanab Department
The Honorable Marvin D. Bagley
No. 170600114

Bruce C. Jenkins, Kimball A. Forbes, and
Kathryn Lusty, Attorneys for Appellant
J. Bryan Jackson, Attorney for Appellees

JUSTICE JILL M. POHLMAN authored the lead opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred. 1
JUDGE RYAN D. TENNEY authored a concurring opinion, in which
JUDGE RYAN M. HARRIS concurred.

POHLMAN, Justice:

¶1 Swains Creek Pines Lot Owners Association appeals the
district court’s judgment in which it ruled that Arthur and Julie
Cocks are entitled to continue using their two lots “for RV

1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
Cocks v. Swains Creek Pines Lot Owners Association

purposes until such time as there is a change of use.” We reverse,
vacate, and remand for further proceedings.

BACKGROUND 2

¶2 The Cockses, as trustees of the Cocks Family Trust, own
two lots in the subdivision known as Swains Creek Pines Unit
No. 3 (the subdivision), located in Kane County, Utah. 3 When
they acquired the lots via warranty deed in July 2014, the lots
consisted of “undisturbed mountain forest land.” They later
placed an RV on their lots.

¶3 The Cockses’ interest in the lots is subject to the
subdivision’s conditions, covenants, reservations, and restrictions
(the CC&Rs). The Swains Creek Pines Lot Owners Association
(the Association) is a nonprofit corporation that, through its board
of directors (the Board), has controlled the enforcement of the
CC&Rs since 1998. The Association also has adopted written
guidelines, rules, and regulations applicable to the larger Swains
Creek Pines community. One of those rules—Rule 16—provides,
“All structures, including cabins, trailers, garages, sheds, decks,
stairs, shelters, etc. shall be kept in safe and good repair.”
(Emphases added.)

¶4 Sometime after the Cockses purchased the lots,
controversy arose among some lot owners over the placement of
RVs and trailers (collectively, RVs) on the lots in the subdivision.

2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts consistent with that standard.” Grimm v. DxNA LLC, 2018 UT
App 115, ¶ 2 n.1, 427 P.3d 571 (cleaned up).

3. The Cocks Family Trust is the record owner of the two lots, but
for simplicity we refer to the Cockses as the owners.

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Some owners used, or supported the placement of, RVs on at least
some of the lots. Other owners opposed RV use and instead
supported the use of all lots “for cabins only.” Both sides
demanded that the Board “take action.”

¶5 In response, the Board enacted a resolution in October 2016
(the 2016 resolution) stating that the CC&Rs “do not allow for
placement of RV’s on lots” within the subdivision. 4 In support of
its conclusion, the Board cited paragraph 1 of the CC&Rs, which
states that the lots “are for single-family residential purposes
only” and are to be used and “held in such a way as to preserve
and enhance their pastoral, scenic beauty as mountain cabin
residential recreational sites.” Notably, paragraph 1 further states,
“No improvement or structure whatever, other than a first class
private dwelling house, patio walls, swimming pool, and
customary outbuildings, garage, carport, servants’ quarters, or
guest house may be erected, placed, or maintained on any lot in
[the subdivision].”

¶6 Despite its conclusion that the CC&Rs do not allow for the
placement of RVs on lots within the subdivision, the Board
adopted an enforcement policy in the 2016 resolution to address
the lot owners who had already placed RVs on their lots.
Specifically, as a “compromise,” the Board resolved that the
Association would not “pursue enforcement action” against
current owners of “[p]rior [n]on-conforming [l]ots” and that RVs
could remain on those lots until their current owners sold the lots
to someone other than an immediate family member. Thus, under

4. For purposes of the 2016 resolution, the Board defined a
“recreational vehicle” or “RV(s)” as “a motor vehicle or trailer
equipped with living space and amenities found in a home which
may include a kitchen, bathroom, bedroom, living room, water
and sewer; including, but not limited to, a camp trailer, motor
home, travel trailer, fifth wheel trailer, pop up trailer, and slide-in
camper.”

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the 2016 resolution, the Cockses were allowed to keep the RV
already placed on their lots, but they could not sell their lots for
RV use to an unrelated third party.

¶7 In November 2017, the Cockses filed suit against the
Association, challenging the Board’s interpretation of the CC&Rs
that led to its adoption of the 2016 resolution. 5 Believing that their
lots were more valuable as lots that allow RV use rather than as
lots restricted to cabin use, the Cockses sought, among other
things, a declaratory judgment “construing the CC&Rs” “to allow
for the use of trailers and RVs.”

¶8 The Cockses also asserted that they were harmed by the
2016 resolution’s enforcement compromise, preferring that the
Board adopt a change-in-use standard rather than the standard
involving a sale to an unrelated third party. Under a change-in-
use standard, the Cockses would be able to sell the lots for RV use
not only to family members but also to third parties. In response
to the lawsuit, the Association asserted affirmative defenses,
including that a statutory business judgment rule barred some or
all of the Cockses’ claims.

¶9 The Association eventually sought summary judgment on
the ground that the plain language of the CC&Rs did not allow
for the lots within the subdivision “to be used as RV/trailer lots.”
The Cockses countered that the Association’s plain language
argument was undermined by the CC&Rs’ lack of express
language prohibiting RV use and by the Association’s history of
permitting the placement of RVs on subdivision lots. The district
court denied summary judgment and reserved for trial “any
issues concerning the plain language of the CC&Rs and the

5. The Cockses also named as defendants the individual members
of the Board. The Cockses ultimately stipulated to the entry of
summary judgment dismissing their claims against the board
members.

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Association’s past course of dealing.” The matter then proceeded
to a three-day bench trial, after which the court issued a written
decision.

¶10 As to the question of whether the CC&Rs allow or preclude
RV use, the district court rejected the Association’s position that
the CC&Rs unambiguously prohibit RVs in the subdivision. The
court reasoned that “nothing in the CC&Rs . . . expressly prohibits
RV use”; rather, the language in the CC&Rs “is ambiguous as to
whether RV use is prohibited.” It explained that the use of the
word “cabin” in paragraph 1 of the CC&Rs “does not expressly
exclude RVs or trailers,” nor does the phrase “first class private
dwelling house.” Indeed, “[t]he words ‘RV’ or ‘trailer’ are not
even used . . . in paragraph 1.” The court also deemed it significant
that “such words were not included in the sentence which
prohibits what can ‘be erected, placed or permitted or maintained’
in the subdivision.”

¶11 The district court then turned its attention to the evidence
presented at trial regarding the historical use of RVs on lots in the
subdivision. The court noted that the Cockses presented
testimony from association members who had placed RVs on
their lots since the 1970s. Those members testified that they did so
“for long periods of time . . . without ever being told or confronted
by board members that they could not make such use of their
property.” Further, some members recounted that “they had
specifically been told by realtors, contractors, association
members and board members[] that RV use was allowed.” In
contrast, the Association presented testimony from other
members “who were insistent they had been told by everyone
concerned that all lots in [the subdivision] were limited to cabin
development,” which they understood as “stick built structures
from the ground up, placed on a foundation.” The court
ultimately found that buyers and owners “were told what they
wanted to hear” relative to RV use in the subdivision. It also found
that the Association “was fully aware” of these conflicting

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messages and that the Association’s position was the CC&Rs
“allowed RV use on lots owned by lot owners who supported RV
use” and the CC&Rs “prohibited RV use on lots owned by lot
owners opposed to RV use.”

¶12 Regarding enforcement, the district court noted that some
former board members testified that the Association “took no
action to prevent the use of lots for RV purposes.” The court found
that “this lack of enforcement action” was “consistent with the
interpretation that the CC&Rs allow RV use.” The court further
reasoned that the Association’s “inconsistency” regarding
whether the CC&Rs prohibited or allowed RV use “supports the
Court’s finding of ambiguity” in paragraph 1 of the CC&Rs.

¶13 With this evidence in mind, the court next addressed the
Cockses’ contention that the Association had waived any right it
may have had to enforce the CC&Rs to preclude RV use. In
response to that argument, the Association had insisted that the
court could not find waiver because there was no evidence that
the Association had intentionally chosen not to enforce the RV
prohibition. The Association also cited an antiwaiver clause in
paragraph 22 of the CC&Rs, which provides that the Association
has the right to compel compliance with the CC&Rs but that “[n]o
delay or omission on the part of the [Association] . . . in exercising
any rights, power, or remedy herein provided, in the event of any
breach of [the CC&Rs] . . . , shall be construed as a waiver thereof
or acquiescence therein.” 6

6. More precisely, the antiwaiver clause provides that the
“reversionary owner”—the original developer—has the right to
compel compliance. Evidence was presented at trial, and the
parties appear to agree, that before the relevant events in this case,
the original developer assigned its reversionary-owner rights to
the Association.

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¶14 Without addressing the antiwaiver clause, the district
court rejected the Association’s counterargument on the grounds
that “it comes too late” and that the Cockses “were entitled to rely
upon the interpretation of the CC&Rs the association adopted
prior to the adoption of the . . . 2016 resolution.” The court
explained that ever since the Cockses purchased their lots, they
had been allowed to place an RV on them and could have “sold
their property, for RV use, to someone outside their immediate
family,” but that the Association is “taking those rights away”
under a “new interpretation of the CC&Rs.” The court determined
that the Association “cannot now change horses in mid stream to
deprive [the Cockses] of the full use of their property.”

¶15 Finally, the court addressed the Association’s business
judgment rule defense rooted in Utah Code section 57-8a-213. The
court determined that the statute provides the Association “with
the authority it claims for prospective application of the board’s
interpretation” of the CC&Rs. But the court determined that the
statute “does not provide the authority to adversely affect the
rights [the Cockses] have enjoyed (with the [A]ssociation’s tacit
approval) since they purchased their property.” It concluded that
the Cockses’ rights were “established” under the Association’s
earlier interpretation of the governing documents that RV use was
allowed. And based on the court’s determination that the 2016
resolution “constitutes a change to the governing documents,” it
determined that, in enacting the resolution, the Board “was not
using its best judgment to determine whether to pursue
enforcement” against the Cockses. Thus, the court ruled that the
Board’s enforcement of its interpretation of paragraph 1 of the
CC&Rs “going forward is a reasonable exercise of business
judgment” but that the Board’s reversal of its prior position
adversely impacted the Cockses’ rights and so was “arbitrary,
capricious and against public policy” as it relates to them.

¶16 The district court ultimately entered a judgment and
decree, which included two orders. First, it ordered that the

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Cockses are entitled to continue to use their lots in the subdivision
“for RV purposes until such time as there is a change of use.”
Second, it authorized the recording of the 2016 resolution “to give
notice to future interest holders of the Association’s interpretation
of its governing documents including the CC&Rs, for
[prospective] application and imparting notice to current and
future lot owners, board members, realtors and contractors of the
same for the future.”

¶17 The Association appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 The Association first contends that the district court erred
in determining that the CC&Rs are ambiguous about whether RVs
are allowed to be placed on lots in the subdivision. “The
determination as to whether a written instrument is ambiguous is
a question of law . . . .” Equine Holdings LLC v. Auburn Woods LLC,
2021 UT App 14, ¶ 25, 482 P.3d 880 (cleaned up), cert. denied, 496
P.3d 715 (Utah 2021). We thus review the district court’s decision
on ambiguity for correctness. See Brady v. Park, 2019 UT 16, ¶ 57,
445 P.3d 395. 7

¶19 Next, the Association argues that the district court erred in
its application of the business judgment rule by failing to presume
that the Board acted reasonably in adopting the 2016 resolution
regarding enforcement of the CC&Rs’ prohibition against RV use.

7. The Association also contends that “the clear weight of the
extensive evidence at trial supported finding the intent of the
contracting parties was to prohibit RVs in” the subdivision. We
need not reach this argument, however, because based in part on
the Cockses’ view that RVs are “structures” within the meaning
of paragraph 1 of the CC&Rs, see infra ¶ 28, we agree with the
Association that the CC&Rs unambiguously prohibit RV use.

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We review the court’s decision for correctness. See Fort Pierce
Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT
28, ¶¶ 15, 26 & n.12, 27, 379 P.3d 1218.

¶20 Last, the Association asserts that the district court’s waiver
analysis is flawed. “Whether the district court applied the correct
legal standard is a question of law, which we review for
correctness.” KB Squared LLC v. Memorial Bldg. LLC, 2019 UT App
61, ¶ 18, 442 P.3d 1168 (cleaned up).

ANALYSIS

I. Ambiguity

¶21 The Association challenges the district court’s
determination that the CC&Rs are ambiguous, arguing that the
plain language of the CC&Rs unambiguously prohibits RV use on
subdivision lots. Pointing to paragraph 1 of the CC&Rs, the
Association argues that an RV is “not one of the permitted
structures.” In its view, because the paragraph “prohibits any
improvement or structure except for those” listed and because
“an RV is not in that list,” paragraph 1 “unambiguously prohibits
RVs from being placed on any lot in” the subdivision. It also
complains that the district court “improperly allowed extrinsic
evidence to find ambiguity.”

¶22 The Cockses respond that the district court “was correct to
find the CC&Rs ambiguous.” Pointing out that RVs “are not
found in the express wording of the CC&Rs,” they assert that the
CC&Rs therefore do “not attempt to exclude RVs” from the
permitted “structures such as patios, carports, or guesthouses.”
They also suggest that the term “first class private dwelling
house” should be construed to “not exclud[e]” RVs because that
term “is not defined” in the CC&Rs. The Cockses further assert

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that “extrinsic evidence,” including Rule 16, “supports [their]
interpretation.”

¶23 “Restrictive covenants are a method of effectuating private
residential developmental schemes and give property owners in
such developments the right to enforce those covenants against
others in the development.” Fort Pierce Indus. Park Phases II, III
& IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 19, 379 P.3d 1218
(cleaned up). To this end, restrictive covenants “form a contract
between subdivision property owners as a whole and individual
lot owners.” Swenson v. Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807.
Thus, the interpretation of restrictive covenants is “governed by
the same rules of construction as those used to interpret
contracts,” and “generally, unambiguous restrictive covenants
should be enforced as written.” Fort Pierce, 2016 UT 28, ¶ 19
(cleaned up); accord Equine Holdings LLC v. Auburn Woods LLC,
2021 UT App 14, ¶¶ 21, 25, 482 P.3d 880, cert. denied, 496 P.3d 715
(Utah 2021); UDAK Props. LLC v. Canyon Creek Com. Center LLC,
2021 UT App 16, ¶ 14, 482 P.3d 841, cert. denied, 509 P.3d 768 (Utah
2022).

¶24 “When we interpret a contract, we start with its plain
language.” Willow Creek Assocs. of Grantsville LLC v. Hy Barr Inc.,
2021 UT App 116, ¶ 41, 501 P.3d 1179 (cleaned up). And “our
analysis is guided by the ordinary and usual meaning of the
words.” Id. ¶ 42 (cleaned up).

¶25 Like a contractual provision, a restrictive covenant is
ambiguous if it is “capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing
terms, or other facial deficiencies.” See Brady v. Park, 2019 UT 16,
¶ 54, 445 P.3d 395 (cleaned up). “[A] reasonable interpretation is
an interpretation that cannot be ruled out, after considering the
natural meaning of the words in the . . . provision [at issue] in
context of the [writing] as a whole, as one the parties could have
reasonably intended.” See id. ¶ 55.

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¶26 “Crucially, ambiguity is present only if both proffered
interpretations of the [writing’s] language are tenable and in
keeping with the [writing’s] language.” See Ocean 18 LLC v.
Overage Refund Specialists LLC (In re Excess Proceeds from Foreclosure
of 1107 Snowberry St.), 2020 UT App 54, ¶ 23, 474 P.3d 481 (cleaned
up). “Terms are not ambiguous simply because one party seeks to
endow them with a different interpretation according to his or her
own interests.” Mind & Motion Utah Invs., LLC v. Celtic Bank Corp.,
2016 UT 6, ¶ 24, 367 P.3d 994 (cleaned up).

¶27 The resolution of the ambiguity question here turns on
paragraph 1 of the CC&Rs, which provides as follows:

1. RESIDENTIAL USE. Each and all of said lots are
for single-family residential purposes only and are
not subject to further subdivision or partition by
sale; said lots to be used, built upon, improved and
held in such a way as to preserve and enhance their
pastoral, scenic beauty as mountain cabin
residential recreational sites free from unsightly
neglect or abuse. No building or structure intended
for or adapted to business purposes, and no
apartment house, double house, lodging house,
rooming house, hospital, sanatorium or doctor’s
office or other multiple-family dwelling shall be
erected, placed, permitted, or maintained on such
premises, or on any part thereof. No improvement
or structure whatever, other than a first class private
dwelling house, patio walls, swimming pool, and
customary outbuildings, garage, carport, servants’
quarters, or guest house may be erected, placed, or
maintained on any lot in [the subdivision].

The district court determined that paragraph 1 of the CC&Rs is
ambiguous, that is, that it may be interpreted in two reasonable
ways. On this record and given the positions the parties have

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taken during this litigation, we disagree with the court’s
determination.

¶28 To begin, both sides agree that RVs are “structures” within
the meaning of paragraph 1. The Association acknowledges that
“linguistically, an RV can be a structure” and asserts that an RV is
“not one of the permitted structures” under paragraph 1. And the
Cockses similarly accept that RVs qualify as structures as that
term is used in the CC&Rs, asserting that because the phrase “first
class private dwelling house” in context “does not attempt to
exclude RVs or trailers from structures such as patios, carports, or
guesthouses,” the “only exclusion found in this paragraph
pertains to buildings and structures intended for or adapted to
business purposes.” This position is consistent with the Cockses’
insistence throughout this dispute that Rule 16’s definition of
permissible “structures”—a definition that includes “trailers”—
provides extrinsic support for their proffered interpretation of
paragraph 1. See supra ¶ 3. Based on the parties’ shared
understanding, RVs fall within the scope of the structures
addressed in paragraph 1. 8

¶29 On the one hand, we first conclude that the Association’s
interpretation of paragraph 1—a reading that prohibits RV use—
is reasonable. As the Association correctly points out, RVs are not
expressly listed as one of the improvements or structures that may
be placed on subdivision lots. The most pertinent language of
paragraph 1 states, “No improvement or structure whatever,
other than a first class private dwelling house, patio walls,
swimming pool, and customary outbuildings, garage, carport,
servants’ quarters, or guest house may be erected, placed, or
maintained on any lot in such premises.”

8. By holding the parties to their agreement in this regard, we do
not—as a strictly linguistic matter—necessarily endorse that
interpretation of “structures.”

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¶30 Put more simply, this key last sentence provides that “[n]o
. . . structure whatever, other than” several listed things, may be
“erected, placed, or maintained” on a lot in the subdivision.
“Other than” means “except for.” Other than, Merriam-Webster,
https://www.merriam-webster.com/dictionary/other%20than
[https://perma.cc/664T-G528]. Again, the parties agree that RVs
qualify as structures. Because no structures are allowed except for
the listed things and because RVs are not listed, we thus agree
with the Association that the CC&Rs can reasonably be read to
exclude RVs as a permissible use.

¶31 On the other hand, we next conclude that—given their
position that RVs qualify as structures—the Cockses have not
proposed a tenable alternative interpretation of the language of
the CC&Rs. Rather, like the district court, the Cockses focus on
how RVs “are not found in the express wording of the CC&Rs,”
and they infer from this omission that the CC&Rs do not exclude
RV use in the subdivision. But we agree with the Association that
the failure in paragraph 1 “to prohibit RVs by name . . . is not the
same thing as allowing RVs.” Indeed, the Cockses’ proposed
reading overlooks that the omission of RVs from paragraph 1’s
last sentence of allowed structures cuts against their position.
Neither the district court nor the Cockses grappled with the
Association’s interpretation or provided a textual analysis to
explain why paragraph 1 does not exclude RVs from permissible
uses.

¶32 Instead, the Cockses suggest that a “first class private
dwelling house,” which is an allowed structure under
paragraph 1, encompasses any non-business structure, including
RVs. But they offer no basis for us to conclude that the natural
meaning of the words “first class private dwelling house”
includes an RV. A “house” is generally understood to refer to “a
building in which something is sheltered or stored” or “a building
that serves as living quarters for one or a few families.” House,
Merriam-Webster, https://www.merriam-webster.com/dictionar

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y/house [https://perma.cc/WVN6-XMEF]. In contrast, an RV is a
recreational vehicle—it is not a building. Thus, even if RVs
provide shelter and living quarters like a house does, we fail to
see how the term “first class private dwelling house” would be
intended to include vehicles like an RV. 9 As a result, and given
their acknowledgment that RVs are structures, the Cockses have
not shown an alternative interpretation of the CC&Rs that is both
reasonable and “in keeping with the [writing’s] language.” See
Ocean 18 LLC, 2020 UT App 54, ¶ 23. Where only one party’s
interpretation of a writing is reasonable, the writing is not
ambiguous. See Equine Holdings, 2021 UT App 14, ¶ 26. That is the
case here. The district court therefore erred in determining that
the CC&Rs are ambiguous.

¶33 Still, the Cockses assert that “extrinsic evidence supports
[their] interpretation” that RVs are permitted. The district court
similarly relied on extrinsic evidence to bolster its conclusion that
the CC&Rs were ambiguous. When a writing is ambiguous, “the
ambiguity must be resolved by considering extrinsic evidence of
the parties’ intent.” Brady, 2019 UT 16, ¶ 53. But “if a [writing]
contains no ambiguity, the court will not consider extrinsic
evidence and will enforce the [writing] according to its terms.” See
Brodkin v. Tuhaye Golf, LLC, 2015 UT App 165, ¶ 18, 355 P.3d 224
(cleaned up). Because we agree with the Association that the

9. These definitions, and our conclusion, are consistent with Mr.
Cocks’s understanding of the plain meaning of the relevant terms.
Mr. Cocks testified during his deposition that a “house,” as that
term is used in the CC&Rs, is “[a] permanent structure on a
foundation” and that an RV “wouldn’t be a house . . . because it’s
not a permanent structure on a foundation.” Mr. Cocks also
testified to his belief that an RV would not have been considered
a “first class private dwelling house” when the CC&Rs were
drafted in 1977.

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CC&Rs are not ambiguous, we further agree with the Association
that the court had no need to consider extrinsic evidence. 10 See id.

¶34 In short, we agree with the Association that the CC&Rs are
unambiguous because, given the language of the CC&Rs and the
parties’ agreement that RVs are structures, the CC&Rs are not
“susceptible to two . . . reasonable interpretations” about whether
they allow for the placement of RVs on lots in the subdivision. See
Swenson, 2000 UT 16, ¶ 11. Accordingly, we agree with the
Association’s position that the CC&Rs unambiguously prohibit
RV use. We thus reverse the district court’s judgment and order,
and we remand for further proceedings.

II. Business Judgment Rule

¶35 Next, the Association contends the district court erred in
analyzing the business judgment rule. Utah Code section 57-8a-
213, the source for the business judgment rule asserted here,
provides that the board of a homeowner association “shall use its
reasonable judgment to determine whether to exercise the
association’s powers to impose sanctions or pursue legal action
for a violation of the governing documents,” including “whether
to compromise a claim made by or against the board or the
association.” Utah Code § 57-8a-213(1)(a)(i). It further states, in
relevant part, that “[t]he association may not be required to take
enforcement action if the board determines, after fair review and
acting in good faith and without conflict of interest, that under the
particular circumstances” “a technical violation has or may have

10. “But if a party contends that an apparently unambiguous
[writing] contains a latent ambiguity, as opposed to a facial
ambiguity, the court will consider extrinsic evidence to determine
whether the [writing] contains a latent ambiguity.” See Grove Bus.
Park LC v. Sealsource Int’l LLC, 2019 UT App 76, ¶ 17 n.3, 443 P.3d
764 (cleaned up). Here, the parties do not contend that the CC&Rs
contain a latent ambiguity, rendering this exception inapposite.

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occurred” and “the violation is not material as to a reasonable
person or does not justify expending the association’s resources,”
or if the board determines that “it is not in the association’s best
interests to pursue an enforcement action, based upon hardship,
expense, or other reasonable criteria.” Id. § 57-8a-213(1)(b)(iii)–
(iv). And “in taking or not taking enforcement action,” the board’s
decision “may not be arbitrary, capricious, or against public
policy.” Id. § 57-8a-213(3).

¶36 A dispute over the business judgment rule arose when the
Association invoked it defensively, asserting that the 2016
resolution was “a valid exercise of business judgment.” The 2016
resolution declared that although the CC&Rs “do not allow for
placement of RV’s on” subdivision lots, the Association would not
“pursue enforcement action” against “[p]rior [n]on-conforming
[l]ots” and that RVs could remain on those lots until their current
owners sold the lots to someone other than an immediate family
member.

¶37 The district court ruled that the Board’s action “going
forward is a reasonable exercise of business judgment” but that
the Board’s action vis-à-vis the Cockses was “arbitrary, capricious
and against public policy.” It reasoned that the Board’s position
as stated in the 2016 resolution was improper because it reflected
“a change to the governing documents” that adversely impacted
the Cockses’ rights.

¶38 On appeal, the Association contends that the district court
misapplied the business judgment rule by “not afford[ing] the
Board the appropriate level of deference to its judgment in
enforcing the CC&Rs.” According to the Association, the 2016
resolution “did not change the CC&Rs” but, instead, “simply
put[] the Board back into a posture of enforcing the CC&Rs as
written.” And by adopting the 2016 resolution, “the Board used
its business judgment to forgo enforcement of the RV prohibition
in the CC&Rs against current owners with RVs on their lots until

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the Resolution’s triggering event [of] an owner’s sale of a lot to
[an] unrelated third party . . . and to enforce the RV prohibition
against future owners.” 11 The Association asserts that the court
erred by substituting its judgment for the Board’s “by replacing
the triggering event” with a change of use, which means “that the
Cockses are allowed an RV until they or a future owner, related
or not, stop placing RVs” on their two lots. The Cockses respond
that the court “has not acted arbitrarily or capriciously,” arguing
that the exercise of the business judgment rule “does not justify
changing the CC&Rs.”

¶39 We reverse the district court’s determination that the
Board’s adoption of the 2016 resolution was “arbitrary, capricious
and against public policy” as enforced against the Cockses. The
court’s decision relative to the business judgment rule was based
on its view that the 2016 resolution “constitutes a change to the
governing documents.” In other words, the court’s ruling
regarding the 2016 resolution was premised on its conclusion that
the CC&Rs were ambiguous and did not, on their face, restrict RV
use. Because we have reached the opposite conclusion—we
have determined, based on the language of the CC&Rs and
the parties’ arguments, that the CC&Rs unambiguously prohibit
the placement of RVs on the subdivision lots—the 2016
resolution did not constitute a change to the governing
documents; rather, it simply reflected the Board’s interpretation
of existing language in the CC&Rs. Thus, the court’s ruling was
built on a flawed premise, and the court erred in concluding that

11. In fact, the Cockses benefited, in part, from the 2016 resolution
because the resolution declared that the Association would excuse
the Cockses’ own noncompliance with the RV restriction in the
CC&Rs.

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the Board violated the business judgment rule in adopting the
2016 resolution. 12

III. Waiver

¶40 Finally, the Association alleges errors in the district court’s
analysis of waiver.

¶41 The waiver issue arose when the Cockses argued to the
district court that the Association had waived any right it may
have had to enforce the CC&Rs to preclude the placement of RVs
on their lots. In response, the district court explained that the
Cockses always have been allowed to place RVs on their lots and
could have “sold their property, for RV use, to someone outside
their immediate family” but that the Association is “taking those
rights away” under a “new interpretation of the CC&Rs.” The
district court then concluded that the Association “cannot now
change horses in mid stream to deprive [the Cockses] of the full
use of their property.”

¶42 On appeal, the Association contends that the district
court’s waiver analysis was “legally incorrect” on the ground that
the court’s “rationale more closely followed an estoppel analysis”
but that even then, the court “failed to apply the legal framework
for estoppel.” The Association also asserts that the court erred in
failing to consider the Association’s defense based on the CC&Rs’
antiwaiver clause. The Cockses acknowledge that the district
court “did not address the anti-waiver provision directly,” but

12. Given that the 2016 resolution did not amend but, instead,
simply interpreted the CC&Rs, if the court were to conclude on
remand that the Board waived its right to enforce paragraph 1 of
the CC&Rs against the Cockses, see infra ¶ 47, the scope of that
waiver—not the 2016 resolution—would dictate whether the
Association will be able to enforce the provision absent a change
of use.

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they maintain that the “evidence supported its finding that the
right to exclude RVs and trailers was relinquished.” 13

¶43 “A party may establish waiver only where there is an
intentional relinquishment of a known right.” Mounteer Enters.,
Inc. v. Homeowners Ass’n for the Colony at White Pine Canyon, 2018
UT 23, ¶ 17, 422 P.3d 809 (cleaned up). “Courts do not lightly
consider a contract provision waived, however,” id., and “waiver
is a highly fact-sensitive issue,” Chen v. Stewart, 2004 UT 82, ¶ 81
n.14, 100 P.3d 1177, abrogated on other grounds by State v. Nielsen,
2014 UT 10, 326 P.3d 645.

¶44 Because we have concluded that, in this case, the CC&Rs
unambiguously prohibit the placement of RVs on subdivision
lots, the district court should revisit its analysis of the waiver
arguments (including the antiwaiver clause of the CC&Rs),
starting with the understanding that the CC&Rs disallow such
placement. Further, we agree with the Association that the legal
framework that the court employed on this subject was somewhat
unclear, appearing to invoke estoppel principles rather than
waiver.

¶45 The court first explained the Association’s defensive
argument—that because it had not “intentionally chosen not to
enforce” the RV prohibition, it had not waived “its right to
interpret the CC&Rs” as prohibiting RVs. 14 The court then

13. Relatedly, the Association also argues that the district court
clearly erred in finding that the Association took no action to
enforce “the RV prohibition.” Because we are remanding this case
for further proceedings and instructing the court to revisit the
waiver issue and its findings, we do not resolve this argument.

14. As explained above, the position the Association took in the
2016 resolution was that it would not pursue enforcement action
(continued…)

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explained that the Association’s argument in this regard “comes
too late” and that the Cockses “were entitled to rely upon the
interpretation of the CC&Rs the association adopted prior to the
adoption of the . . . 2016 resolution.” By saying that the argument
“comes too late,” the court seemed to indicate that the Association
had waived its defense to the Cockses’ waiver argument. See State
v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (explaining that
“waiver, in the context of raising an issue before a court, is
generally the relinquishment or abandonment of an issue before
a trial or appellate court” and may be “implied, such as by failing
to raise an issue or argument at the required time” (cleaned up)).
But the court’s statement does not necessarily equate to a
determination that the Association actually waived its legal right
to enforce the CC&Rs and prohibit RVs. 15

¶46 Additionally, by saying that the Cockses “were entitled to
rely upon the [Association’s previous] interpretation of the
CC&Rs,” the district court cited reliance as an important fact, thus
implicating estoppel rather than waiver. See Mounteer, 2018 UT 23,
¶ 33 (comparing estoppel, which requires a showing that “another
party was harmed by its reliance on the prior statement or act,”
with waiver, which does not require a showing of reliance or
prejudice). The court further implicated estoppel in its conclusion
that the “association cannot now change horses in mid stream to
deprive [the Cockses] of the full use of their property.”

¶47 Given the nature of the district court’s discussion, we
cannot say that it necessarily found that the Association waived

against lot owners who were currently using their lots for RVs. See
supra ¶¶ 6, 36.

15. Moreover, the Cockses’ argument was directed at the
Association’s right to enforce the CC&Rs; their argument was not
that the Association had waived its defense to the Cockses’ waiver
argument.

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the right to enforce the RV prohibition. Further, the court made
no findings relevant to the Association’s argument that it did not
waive the antiwaiver clause. 16 Thus, we vacate the court’s decision
on waiver and remand this case for further proceedings. In so
doing, we direct the court to revisit the issue in light of our
reversal of its decision on ambiguity and to clarify the legal basis
for its waiver analysis. We further direct the court to address the
Association’s argument based on the antiwaiver clause. The
court’s factual findings “should be sufficiently detailed and
include enough subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was reached.” Armed
Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned
up).

16. Generally, an antiwaiver provision “precludes parties from
construing certain conduct as a waiver of contractual rights.” See
Mounteer Enters., Inc. v. Homeowners Ass’n for the Colony at White
Pine Canyon, 2018 UT 23, ¶ 19, 422 P.3d 809. “Antiwaiver
provisions aim to give contracting parties flexibility in enforcing
their rights under the contract . . . without resulting in a complete
and unintended loss of [those] contract rights if [a party] later
decides that strict performance is desirable.” Id. (cleaned up). “So
if the specific language of the antiwaiver clause expressly
precludes parties from construing certain conduct as a waiver of
contractual rights, courts must enforce this provision as part of
the parties’ agreement.” Id.; see also id. ¶ 22 (explaining that an
antiwaiver provision embodies “an agreement that specifically
prohibits the mere failure to enforce a contractual right as being
construed as waiver of that right”). However, “[e]ven an
antiwaiver provision is subject to waiver.” Id. ¶ 20. Thus, if a party
asserting waiver in the face of an antiwaiver clause can establish
“a clear intent to waive both the antiwaiver clause and the
underlying contract provision,” the court can conclude that the
parties intended to modify their contract. See id. ¶ 21 (cleaned up).

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CONCLUSION

¶48 Given the parties’ agreement that RVs are “structures,” the
district court erred in determining that the CC&Rs are ambiguous
about whether RVs are allowed in the subdivision. We therefore
conclude that the CC&Rs unambiguously prohibit the placement
of RVs on subdivision lots. Accordingly, we reverse the court’s
ambiguity determination; we reverse its determination that the
2016 resolution was arbitrary, capricious, and against public
policy; we instruct the court to revisit the waiver issue; and we
vacate its judgment and remand this matter for further
proceedings consistent with this opinion.

TENNEY, Judge (concurring):

¶49 I fully concur in the lead opinion. I write separately to
emphasize one potential question that we are not answering.

¶50 In Point I, we conclude that the CC&Rs unambiguously
prohibit homeowners from placing their RVs on lots in the
subdivision. As we point out in paragraph 27, this conclusion
turns on language from the CC&Rs that prohibits the placement
of any “improvement or structure” that is not included in a
defined list. As we then explain, the Cockses have not provided a
plausible reading of the CC&Rs that would allow them to escape
that list or, by extension, this prohibition.

¶51 But this all assumes that an RV qualifies as a “structure” in
the first place. As we point out in paragraph 28, we’re comfortable
making that assumption because the Cockses have conceded that
this is so for purposes of these CC&Rs.

¶52 That concession is critically important to my decision to
join this opinion. “Utah courts have a long history of relying on

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dictionary definitions to determine plain meaning.” Cook v.
Department of Com., 2015 UT App 64, ¶ 13, 347 P.3d 5 (quotation
simplified). In relevant part here, Merriam-Webster defines
“structure” as “the action of building,” or, relatedly, as
“something (such as a building) that is constructed.” 17 Merriam-
Webster then defines “constructed” as “to make or form by
combining or arranging parts or elements: BUILD,” and it offers
as an immediate example the phrase “construct a bridge.” 18
Black’s Law Dictionary gives a similar definition for “structure,”
defining it as “[a]ny construction, production, or piece of work
artificially built up or composed of parts purposefully joined
together” and then offering as an example the phrase “a building
is a structure.” Structure, Black’s Law Dictionary (11th ed. 2019).

¶53 It’s noteworthy that the word “structure” is commonly
linked to the word “building.” In this sense, the word “structure”
seems to refer to a manufactured edifice that is in some sense fixed
in place. But to state the obvious: an RV is not a “building,” nor is
an RV generally fixed in place. And for what it’s worth, my
intuitive sense of the word’s ordinary usage suggests that an RV
is not a “structure” either. If a motorist on the interstate looked
over and saw an RV in the neighboring lane, I think that her
passenger would be a little confused if the driver made a
comment about the “structure” that was driving alongside them.
After all, an RV is a vehicle, not a structure. To me, anyway, those
seem to be different things.

¶54 Indeed, the CC&Rs in question seem consistent with this
understanding. They state that “[n]o improvement or structure
. . . may be erected, placed, or maintained” on any lot within the

17. https://www.merriam-webster.com/dictionary/structure
[https://perma.cc/65KY-AD98] (definitions 1 and 2(a)).

18. https://www.merriam-webster.com/dictionary/constructed
[https://perma.cc/596V-M2TK].

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subdivision, and they then carve out from this definition “first
class private dwelling house[s], patio walls, swimming pool[s],
and customary outbuildings, garage[s], carport[s], servants’
quarters, or guest house[s].” All of these things are buildings or
building-adjacent features that are fixed to the ground (or, in the
case of an above-ground swimming pool, essentially immovable
for practical reasons). Given all this, I would have been receptive
to the argument that a person could reasonably think that an RV
is not a structure. And if that were so, this would have meant that
this term is ambiguous with respect to how it’s used in this key
provision from these CC&Rs.

¶55 But while the Cockses hinted at such an argument in their
brief, they had seemed to take something of a contrary tack below.
This was perhaps unclear, though, so to pin things down, several
members of this court asked the Cockses’ counsel about this at the
appellate oral argument. In response to those questions, the
Cockses’ counsel repeatedly told us that an RV does qualify as a
structure. And while the Association’s attorney initially
suggested that an RV does not qualify as a structure in response
to similar questions during his opening argument, he strategically
saw the light by the time of rebuttal, now agreeing with the
Cockses’ counsel that an RV can be considered a structure for
purposes of these CC&Rs.

¶56 The ultimate question in a contract case is what the parties
meant with respect to the terms used in their contract. Because of
this, “parties to a contract may define their terms as they please—
a duck may be a goose,” “up may be defined as down, right as
left, day as night.” Penncro Assocs., Inc. v. Sprint Spectrum, LP, 499
F.3d 1151, 1152, 1157 (10th Cir. 2007) (quotation simplified). True,
courts will ordinarily “recognize and give effect to such private
definitions only where the parties’ intention to deviate from
common usage is manifest,” meaning that courts will usually look
for some “textual indicia that the parties intended such a
departure.” Id. at 1157. But both parties to this contract are now

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telling us that the term “structure” does indeed include an RV. So
regardless of how we might ordinarily interpret this term, I think
we have no choice but to take the parties’ agreed-upon word for
how to interpret this word for purposes of this case. At bare
minimum, the Cockses have certainly waived the right to argue
otherwise. And once it’s locked down that an RV can qualify as a
structure for purposes of these CC&Rs, the rest of our analysis in
Point I about what is unambiguously prohibited by the CC&Rs
naturally follows.

¶57 But even so, this case will of course set precedent that will
be used as a common law guide for future cases. On the
admittedly offhand chance that some future case arises that turns
on whether the term “structure” can include a vehicle like an RV
that can be driven across the country at high speeds, this opinion
should not be read as settling that question in either direction as
a matter of law. Rather, because our answer here starts with the
parties’ agreement that the term “structure” in this contract can
include RVs, I regard the question about how to interpret the term
“structure” elsewhere as remaining open.

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