MOUNTAIN CREST, LLC, RODNEY FRISBEE, AND LINDA FRISBEE APPELLANTS
v.
MALCOLM KEITH KIMBRO, INDIVIDUALLY AND AS TRUSTEE OF THE MALCOLM KEITH KIMBRO REVOCABLE TRUST; AND CINDY KIMBRO APPELLEES
APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
60CV-17-3019] HONORABLE ALICE S. GRAY, JUDGE
Cross
Gunter Witherspoon & Galchus, by: Laura D. Johnson and M.
Stephen Bingham, for appellants.
Gill
Ragon Owen, P.A., by: Matthew B. Finch and Aaron M.
Heffington, for appellees.
PHILLIP T. WHITEAKER, JUDGE
Appellants
Mountain Crest, LLC, and Rodney and Linda Frisbee appeal the
order of the Pulaski County Circuit Court granting summary
judgment to appellees, Keith and Cindy Kimbro and the Malcolm
Keith Kimbro Revocable Trust. Appellants argue that material
issues of fact exist within the litigation and that the
circuit court erred in granting summary judgment. We affirm
for the reasons set forth more fully below.
Mountain
Crest, LLC, is the developer of Mountain Crest Estates-a
gated subdivision located in Maumelle, Arkansas. Mountain
Crest Estates was developed in four separate
phases.[1] Phase I of the subdivision contains lots
1-47; Phase II contains lots 48- 69. Phases I and II are
adjacent to each other, with Phase II situated to the north
of Phase I. The two phases have a common border with lots 48,
50, 51, and 52 of Phase II on the north abutting
lots 7-10 of Phase I on the south. Both Phase I and Phase II
are governed by separate and duly recorded bills of assurance
and attached plat maps. The bill of assurance for Phase II
requires the owners of lots 48-53 to construct and maintain a
private drive on the south side of their lots and dedicates
the private drive to the "Lot Owners serviced by the
private drives." This private drive along the south side
of lots 48-53 of Phase II abuts the north side of lots 7-10
of Phase I.
(Image
Omitted)
The
Malcolm Keith Kimbro Revocable Trust owns lot
48[2]
of Phase II upon which Keith and Cindy reside. Dixie Bryson
and Laura Foster own lot 8 located in Phase I of the
subdivision. Rodney and Linda Frisbee own lots 9 and 10 also
located in Phase I of the development. Bryson and Foster were
attempting to sell lot 8 and believed that they had access to
their property by use of the private drive located on the
Kimbros' property. The Kimbros disagreed and contended
that none of the owners of lots 8-10 of Phase I had access to
their lots using the private drive constructed on lot 48
pursuant to the Phase II bill of assurance.[3]
The
Frisbees and Mountain Crest, LLC (collectively "Mountain
Crest"), [4] filed suit seeking a declaratory judgment
and an injunction against the Kimbros claiming that the
easement for a private drive across the Kimbros' property
designated in the bill of assurance for Phase II of the
Mountain Crest Estates subdivision inured to the benefit of
their Phase I lots. The Kimbros answered and counterclaimed,
requesting a declaration that the private drive existed for
the sole and exclusive benefit of the lot owners described in
Phase II of the bill of assurance and that the owners of lots
8-10 had no right to the use of the private drive. They
further sought an injunction preventing the Mountain Crest
plaintiffs from utilizing the private drive.
Eventually,
the Kimbros filed a motion for summary judgment, arguing that
the covenants and restrictions of the Phase II bill of
assurance, including the reservation of the private drive,
are applicable only to the property located within Phase II;
therefore, the use of the private drive designated in the
bill of assurance is unambiguously limited to those Phase II
lot owners serviced by the drive. Mountain Crest responded
that the covenants and restrictions contained in the Phase II
bill of assurance applied to the "entire Addition,"
referring to the entirety of the Mountain Crest Estates
subdivision, and that their interpretation was supported by
the "general plan of development" for the entire
neighborhood. Essentially, on summary judgment, the circuit
court had to decide if the private drive described and
defined in lots 48-53 of the bill of assurance for Phase II
was limited only to Phase II or if it also applied to lots
8-10 of Phase I.
After a
hearing, the circuit court granted the Kimbros' motion
for summary judgment. The court found that the Phase II bill
of assurance was clear and unambiguous with regard to the
private-drive easement; that the easement benefited only lots
48, 50, 51, and 52 of Phase II; that only the lot owners of
lots 48, 50, 51, and 52 of Phase II are entitled to use the
easement; and the owners of lots 8, 9, and 10 of Phase I are
not entitled to use the easement for the benefit of any Phase
I lot. Mountain Crest and the Frisbees appeal.
Our
standard of review for summary-judgment cases is well
established. Anderson v. CitiMortgage, Inc., 2014
Ark.App. 683, 450 S.W.3d 251. Summary judgment should be
granted only when there are no genuine issues of material
fact to be litigated, and the moving party is entitled to
judgment as a matter of law. Thomas v. Clear
Investigative Advantage, LLC, 2017 Ark.App. 547, 531
S.W.3d 458. The purpose of summary judgment is not to try the
issues, but to determine whether there are any issues to be
tried. Graham v. Underwood, 2017 Ark.App. 498, 532
S.W.3d 88. In reviewing a grant of a summary judgment, the
appellate court determines if summary judgment was
appropriate based on whether the evidentiary items presented
by the moving party left a material question of fact
unanswered. Thomas, supra. We view the
evidence in the light most favorable to the party against
whom the motion for summary judgment was filed and resolve
all doubts and inferences against the moving party.
Id.
The
circuit court in this case was correct in finding that no
issues of material fact exist. Factually, Mountain Crest,
LLC, is the developer of a subdivision. In accordance with
the ordinary method of establishing restricted districts, it
surveyed and platted Mountain Crest Estates into separate
phases, recording a separate plat and bill of assurance for
each phase. In doing so, Mountain Crest LLC, obligated itself
to convey in conformity with the restrictions imposed in the
bill of assurance. McGuire v. Bell, 297 Ark. 282,
761 S.W.2d 904 (1988). Factually, lots 48-53 are in Phase II
of Mountain Crest Estates with each lot containing a private
drive. Factually, the Kimbros are owners of lot 48 and are
subject to the private drive. Factually, the Frisbees are
owners of lots 9 and 10 of Phase I of Mountain Crest Estates,
and their lots are not included in the plat or the bill of
assurance of Phase II.
The
circuit court was also correct in finding that the bill of
assurance for Phase II was clear and unambiguous and governed
only those lots in that phase. The preamble to the Phase II
bill of assurance defines who constitutes "Lot
Owners" in accordance with the document. It refers to
both appellant Mountain Crest, LLC, and appellee Malcolm
Keith Kimbro Revocable Trust as "Lot Owners" or
"Developers."[5] The bill of assurance then gives a
legal description of the property and states that the
property had been surveyed and platted and that such property
constituted an "Addition" known as Mountain Crest
Estates, Phase II. The bill of assurance further states that
the use of the land in "said Addition" was subject
to the protective and restrictive covenants set forth
therein. The property described and platted encompassed only
lots 48-69 of Mountain ...