June 2, 2014 § Leave a comment
Consider this description of what Joel Misita argued was a sign …
“It is a three-sided structure with a floor and a corrugated metal roof. It is constructed of metal and wood. It is triangular in shape and connects to three poles that form a frame, with two wheels. Each side is eighteen feet in length.The height is approximately fifteen feet, and the structure is capable of being raised higher. Exterior steps and a landing are attached to the back side. Two sides of the structure serve as illuminated signage. Each of those two sides contains four exterior lights that extend outward from the roofline a few feet and hang down, resembling street lamps. On the remaining side, the back side, a singlelight illuminates the door and exterior steps used for entry. The door may be locked by key and has glass window panes. An aerial power line provides electricity to the interior of the structure, in addition to the outside lighting. The interior is approximately 140 square feet. It is a fully-enclosed room, complete with a floor and a roof. The room is air-conditioned and serves as a showroom for some of Misita’s works. Although wheels are attached, the structure has not been moved since Misita placed it in its current position, by fitting and cross-bolting the frame into permanently attached receptors set by concrete into the ground.”
He took that position because he had constructed the thing on a three-acre parcel that was subject to a restrictive covnenant that “No structures are to be erected on the property.” If it’s a sign, it’s not a structure, right? His neighbors, the Conns, disagreed and filed suit in chancery court.
The chancellor ruled that the edifice was, indeed, a structure in violation of the restrictive covenant, and ordered Joel to take it down. Joel appealed.
The COA affirmed the chancellor’s authority to enforce the restrictive covenant, but reversed the finding that it was a structure, finding instead that it was a sign, as Joel maintained. The MSSC granted the Conns’ petition for cert.
In the case of Misita v. Conn, handed down May 15, 2014, the MSSC reversed the COA on whether the thing was a structure, and affirmed and reinstated the chancellor’s ruling. After concluding that the restrictions do run with the land and are enforceable between these parties, the court turned to the sign-or-structure issue:
¶10. … [W]e now analyze whether the object of this dispute is a structure or not. “Generally, courts do not look with favor on restrictive covenants.” Kemp v. Lake Serene Prop. Owners Ass’n, Inc., 256 So. 2d 924, 926 (Miss. 1971). “Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted.” Andrews v. Lake Serene Prop. Owners Ass’n, 434 So. 2d 1328, 1331 (Miss. 1983). “If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Id. “The language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes [v. Bd. of Dir. of La Cav Imp. Co.], 654 So.2d [524,] at 527 [(Miss. 1995)].
¶11. Both the circumstances and the plain language of the deed evidence that the word “structure” is clear and unambiguous and has broader application than sixty-two-feet-high buildings. “A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Royer Homes, 857 So. 2d at 752 (quoting Turner v. Terry, 799 So. 2d 25, 32 (Miss. 2001)). Therefore, the language of the restriction should be read in its “ordinary sense.”
¶12. We find that Misita’s “sign” is a “structure.” It is a one-room structure, complete with roof, floor, air conditioning, lights, door with window panes, and a staircase, inter alia. While not a bridge or dam, it is akin to a building or edifice, and is clearly “something built or constructed. Despite its adaptability for transport, it had not been moved since Misita erected it. The chancellor, who physically inspected the structure, found that it “is anchored to pipes which are sunk in the ground and Misita further secured the pipes by concrete.”
¶13. Black’s Law Dictionary defines a structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Black’s Law Dictionary 1464 (8th ed. 2004). In Sullivan v. Kolb,the Court of Appeals defined “structure” as “[s]omething made up of a number of parts that are held or put together in a particular way. —The way in which parts are arranged or put together to form a whole; makeup.—The interrelation or arrangement of parts in a complex entity.—Something constructed.” Sullivan v. Kolb, 742 So. 2d 771, 777 (Miss. Ct. App. 1999) (citing The American Heritage College Dictionary (3d ed. 1993)). It is a structure under both Black’s and Sullivan, as it is “composed of parts purposely joined together.” We find no error in the chancellor’s finding.
The court also pointed out in Fn 7 that the COA’s conclusion that the object was not a structure because it was not a building, dam, or bridge was not “consistent with its common usage, for there are many structures that do no qualify as a building, dam, or bridge, e.g., the Washington Monument, the Statue of Liberty, or the Great Sphinx, inter alia.”
This case is a nice complement to Rawaid d\b\a B.P. Quickmart v. Murguia & Arias Grocery, LLC, 124 So. 3d 118, 121 (Miss. App. 2013), which involved a dispute over interpretation of a restrictive covenant between store owners on adjoining property. Rawaid charged that the Mexican grocery next door violated a restrictive covenant against locating a convenience store on the property. The COA affirmed the chancellor’s conclusion that it did not. The opinion quotes Chancellor Malski’s sage finding that if a customer “ … were driving by these two stores and wanted to buy convenience type items—chips, soft drinks, or gas—even though these items were available at M&A Grocery, [he] would surely go to BP Quickmart. If [he] wanted to buy a piñata, . . . [he] would go to M&A Grocery.” But what about an enchilada to go?