VERA LEE ANGEL REVOCABLE TRUST, JOHNNY ANGEL, AND PAULA NAPPER APPELLANTS
JIM O'BRYANT AND KAY O'BRYANT JOINT REVOCABLE TRUST, JOHN W. WHITTAKER, SUSAN C. WHITTAKER, JOHN STANSEL HARVEY, LISA HARVEY, ERNEST BERNARD MCCOOL TRUST, GREGORY D. HAWKINS, SHARON L. HAWKINS, JIMMIE EARL O'BRYANT, BARBARA O'BRYANT, GLEN DALE PERCIFUL, TERESA M. PERCIFUL, ROBERT LOUIS GLADFELTER REVOCABLE TRUST, AND JEANNE M. MCFARLIN LIVING TRUST APPELLEES
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-16-304]
HONORABLE THOMAS LYNN WILLIAMS, JUDGE
Law Group, by: Philip B. Montgomery, for appellant.
Scott Hickam, for appellees.
JOSEPHINE LINKER HART, Justice
Vera Lee Angel Revocable Trust, through trustees Johnny Angel
and Paula Napper (Angel) appeal from an order of the Garland
County Circuit Court permanently enjoining them from using
for short-term rentals a house situated on a lot in the
Jeffries and Norvell Subdivision. On appeal, Angel argues
that the circuit court's rulings were clearly erroneous.
We reverse and dismiss.
facts in this case are not in dispute. The house in question
is a fully furnished 5000-square-foot structure that sits on
a 6.07-acre lot located in the Jeffries and Norvell
Subdivision in Garland County. The 26-acre subdivision, which
is adjacent to Lake Hamilton, was platted in 1953. In
pertinent part, the subdivision's bill of assurance
None of the lots shall be improved, used or occupied for
other than residence purposes and specifically none of the
lots shall be used for any commercial purpose, including
motels, tourist courts, motor hotels, hotels, garage
apartments, apartments, etc. and no commercial boat landings,
docks or facilities of any kind for commercial and fishing
boats for hire, shall be erected on or attached to said lots
and no stores shall be erected thereon.
In 2006, a restriction on condominiums was added.
the house was the home of John Angel's and Paula
Napper's mother and father. Later, it was placed in a
trust. For a time, John Angel and his wife also lived in the
house, but thereafter, the house was vacant. According to
Angel, he subsequently allowed friends and neighbors to
"use" the house on a "short-term basis, "
but he denied offering the house for rent before 2015.
decided to list the property on VRBO.COM. VRBO is the acronym
for "Vacation Rentals By Owner." VRBO.COM connects
private individuals with vacationers seeking short-term
rentals of properties located in resort areas. Appellees
attached to their complaint a copy of Angel's VRBO.COM
posting, which stated that the rental rate for the property
was $329 per night, with a two-night-minimum stay required.
March 23, 2016, appellees, who are the other landowners in
the Jeffries and Norvell Subdivision, filed a complaint
seeking to enjoin Angel from "offering the premises to
those who do not reside there, from carrying on a commercial
business, from engaging in short-term rentals, and from
similar activities that constitute a nuisance to the
Plaintiffs." Angel answered the appellees' complaint
and counterclaimed for declaratory judgment, asking the
circuit court to find that "there were no restriction[s]
on rentals and that short-term rentals are not prohibited by
the covenants contained within the Bill of Assurance."
hearing in which several of the property owners in the
subdivision testified, primarily on the issue of
whether short-term rentals affected the enjoyment of their
property, the circuit court granted a preliminary injunction.
The circuit court reasoned that Dunn v. Aamodt, 695
F.3d 797 (8th Cir. 2012) is
"controlling;" the bill of assurance for the
subdivision in which the house is located is not ambiguous;
using the property for short-term rentals violated the
covenants found in the bill of assurance; and continued
violation of the bill of assurance will cause the other
residents of the subdivision irreparable harm. Angel filed a
notice of appeal. However, by joint motion, the parties asked
the circuit court to make the injunction permanent. The
circuit court granted this request, finding that the bill of
assurance was not ambiguous; Angel's use of the property
"for overnight and weekly rentals is in violation of the
Jeffries and Norvell Subdivision Bill of Assurance"; and
the property had been used for "other than residential
purposes and has been used for a commercial purpose."
The circuit court ordered that Angel "refrain from
renting the subject property." The circuit court also
dismissed Angel's counterclaim. Angel again timely filed
a notice of appeal.
appeal, Angel argues that the circuit court clearly erred for
several reasons. First, he contends that the circuit
court's construction of the bill of assurance was
erroneous because it did not strictly construe the instrument
in favor of unfettered use of the land. Angel asserts that
the restrictions in the bill of assurance are not
"clearly apparent." In this vein, he first
challenges the finding that his use of the property was
argues that the language in the bill of assurance makes
"no reference whatsoever to rentals." While he
acknowledges that the plain language proscribes
"commercial structures such as motels, hotels and
tourist courts, " he notes that one of the appellees
"admitted" that the house "did not appear to
be a hotel in the traditional sense." Furthermore, he
asserts that while it was "obvious" that the
developer intended to restrict commercial venues such as
motels and hotels, stores, and marinas, the ...