||Florida Court of Appeals
||CASE No. 2D02-1048
||839 So.2d 928, 2003.FL
||March 26, 2003
||KENNETH AND SHELLY WILSON,
AND PAUL AND MONICA VIGNA, APPELLANTS,
REX QUALITY CORPORATION, APPELLEE.
||Appeal from the Circuit Court
for Polk County; Ronald A. Herring, Judge.
||Robert A. Young of Gibson,
Valenti & Ashley, Lake Wales, for Appellants.
||Tanya M. Comparetto of Law
Offices of Tanya M. Comparetto, P.A., Lakeland, for Appellee.
||The opinion of the court was
delivered by: Fulmer, Judge
||Kenneth and Shelly Wilson and
Paul and Monica Vigna appeal the final judgment entered in favor of Rex
Quality Corporation (the Association) in which the trial court declared
the Wilsons and the Vignas to be in violation of the Declaration of
Restrictions governing the Crown Pointe Subdivision. Rex Quality
Corporation is the name used by the homeowner's association and was the
plaintiff below. For the reasons set forth in this opinion, we reverse.
||The Wilsons and the Vignas are
two families that moved into the Crown Pointe Subdivision in 1997. The
underlying dispute centers on the Association's contention that the deed
restrictions prohibit Mr. Wilson and Mr. Vigna from parking their company
vehicles in the driveway of their residences. Mr. Wilson drives a Chevy
Astro Van that bears, in several places, the words "Enjoy Coca
Cola" painted in red. Mr. Vigna drives a Chevrolet S10 Pickup Truck
bearing the words "Precision Termite and Pest Control" followed
by "679-BUGS." The parties stipulated that the truck driven by
Mr. Vigna was a "small pickup truck."
||The restrictions at issue
provide in part:
||1. All lots shall be used only
for single family residential purposes, and use of said lots shall be
restricted and limited to conventionally constructed residential
||8. No sign of any kind shall be
displayed to the public view on any lot, except one professional sign of
not more than one (1) square foot, one sign of not more than five (5)
square feet advertising the property for sale or rent, or signs used by a
builder to advertise the property during the construction and sale period.
||14. No noisy automobiles,
trucks, motorcycles, dirt bikes or other similar type vehicles shall be
permitted, and no commercial trucks (except small pickup trucks) shall be
||18. No parking facilities shall
be permitted on any lot, except a paved pad large enough to accommodate
not more than two (2) automobiles. Private vehicles of a lot's occupants
may be parked on the lot's driveway. No wheeled vehicle or boat shall be
parked in the front or side yard of any lot.
||No trailers or recreational
vehicles shall be maintained or permitted on any lot, unless they are kept
completely inside a garage attached to the residential dwelling, or
approved by the Corporation pursuant to Paragraph three (3) above.
||Beginning in March 2000, the
Association sent letters to the Wilsons and Vignas advising them:
1 of the Declaration of Restrictions states that lots shall be used for
residential purposes and Article 18 refers to private vehicles of the
lot's occupants being parked in driveways. Article 14 prohibits commercial
trucks and Article 8 prohibits signs of any kind except "for
sale" signs relating to the property. By permitting a [Coca
Cola/Precision Termite] commercial vehicle to be parked on your
residential lot you are violating Article 1 not to mention 18. Furthermore
you are not in compliance with Article 14 and 8.
||In September 2000, the
Association filed the underlying complaint seeking a declaratory judgment
and specific performance of the restrictions. The complaint alleged that
the parking of a commercial truck at a residence within Crown Pointe was
prohibited pursuant to paragraph 14 of the Declaration of Restrictions and
that the parking of a commercial vehicle and the display of signage on any
vehicle within Crown Pointe violated paragraphs 1, 8, and 18. In their
answer to the complaint, the Wilsons and Vignas denied the Association's
interpretation of these restrictions and raised the affirmative defenses
of selective enforcement, waiver, and estoppel.
||After a non-jury trial, the
trial court entered a final judgment in which it acknowledged that
"there may be conflicting interpretations of Paragraph fourteen
(14)," but determined that as to the issues before the court,
"there is no ambiguity in Paragraph eight (8) and such Paragraph
controls." The judgment recites:
||Pursuant to Paragraph eight (8),
"no sign of any kind shall be displayed to the public view on any lot
. . ." and the only exception to that is the referenced For Sale
signs . . . . If the sign is on a vehicle that is on the lot, it is a
violation of the Declaration.
||The judgment concludes with an
order that the Wilsons and Vignas immediately come into compliance.
||Restrictive covenants are not
favored and are to be strictly construed in favor of the free and
unrestricted use of real property. Moore v. Stevens, 106 So. 901, 903
(Fla. 1925). "In construing restrictive covenants the question is
primarily one of intention, and the fundamental rule is that the intention
of the parties as shown by the agreement governs, being determined by a
fair interpretation of the entire text of the covenant." Thompson v.
Squibb, 183 So. 2d 30, 32 (Fla. 2d DCA 1966). "Due regard must be had
for the purpose contemplated by the parties to the covenant, and words
used must be given their ordinary, obvious meaning as commonly understood
at the time the instrument containing the covenants was executed."
Moore, 106 So. at 903. Any doubt as to the meaning of the words used must
be resolved against those seeking enforcement. Id. at 904.
||With these rules in mind, we
must review the restrictions and come to our own conclusion as to their
proper interpretation. See Baldwin v. Nature's Hideaway, Phase I-B
Homeowners Ass'n, 613 So. 2d 1376 (Fla. 2d DCA 1993); Royal Oak Landing
Homeowner's Ass'n v. Pelletier, 620 So. 2d 786 (Fla. 4th DCA 1993). We
first examine paragraph 8, which the trial court determined to be the
controlling provision. *X2 The prohibition in
this paragraph addresses display of a sign "on any lot," not
"on any lot or vehicle." Giving the words used their ordinary
and obvious meaning, we conclude that paragraph 8 relates only to signs
posted on the residents' lots and not to vehicles parked in the driveways.
The trial court's interpretation not only ignores the expressly allowed
professional signs but also prohibits certain vehicles that are expressly
allowed by paragraph 14. Furthermore, such interpretation would exclude
the temporary parking of service and repair vehicles as well as law
enforcement vehicles. *X3
||Having decided that paragraph 8
controlled, the trial court declined to resolve the conflicting
interpretations of paragraph 14 advanced by the parties. We conclude that
paragraph 14 is, in fact, the controlling provision. The Declaration of
Restrictions contains twenty- one paragraphs. Excluding paragraphs that
relate to the creation and operation of the Association and the owners'
liability for assessments, all of the paragraphs*save one*relate to the
use of real property. Paragraph 14, which relates specifically to
vehicles, distinguishes between automobiles, trucks, motorcycles, dirt
bikes, commercial trucks and small pickup trucks. With respect to
commercial vehicles, paragraph 14 provides that "no commercial trucks
(except small pickup trucks) shall be permitted." This provision does
not prohibit all "commercial vehicles." The plain meaning of the
words reflects an intent to permit certain commercial vehicles. Neither
the vehicle driven by Mr. Wilson nor the vehicle driven by Mr. Vigna is a
commercial truck as that term is used in the Declaration of Restrictions.
||Because we conclude that the
trial court erred by finding the Wilsons and the Vignas to be in violation
of the Declaration of Restrictions, we reverse the final judgment. Our
reversal renders moot the remaining issues raised in this appeal.
||KELLY, J., and GREEN, OLIVER L.,
SENIOR JUDGE, Concur.
The Association refers to the provisions of the Declaration as paragraphs
and articles interchangeably.
Contrary to the trial court's finding, paragraph 8 does not prohibit all
signs with the exception of "For Sale" signs. One professional
sign of not more than one square foot is permitted.
Testimony at trial established
that at least two residents regularly drove their law enforcement vehicles
home without complaint from the other residents or the Association.