Buckner v. Lakes of Somerset Homeowners Association Inc.

By not filing suit before appellants completed construction of their new roofthe appellee may suffer default consequences the nonconforming roofing materials being deemed approved.

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Click here for the full text of this decision FACTS:On Nov. 3, 2001, Helen and Richard Buckner presented sample roofing material to the architectural control committee for the Lakes of Somerset Homeowners Association Inc. The Buckners indicated that they wanted immediate approval, since the roofing project would begin the next day. A member of the committee notified the Buckners the next day that their deadline would not be met, and that the committee would review the material as soon as possible. The Buckners began replacing the existing roof anyway. On Nov. 10, the committee met and denied the Buckners’ request. The Buckners appealed the decision to homeowners’ association. On Nov. 18, the association’s board went to the Buckners’ home to view the materials that had already been installed. Richard Buckner told the board that the roofing contractor would replace the new materials at no charge. The board unanimously denied the Buckners’ appeal, notifying them in a letter on Nov. 19. The Buckners did not replace the roofing materials. Instead, the continued with the unapproved materials. The board notified the Buckners on Dec. 1 to stop working on the roof, but Richard Buckner said he would continue, saying the board decision was wrong. Eventually, after the roof had been completed, the homeowners’ association filed suit against the Buckners for violating the neighborhood’s deed restrictions. The association sought damages and injunctive relief. The Buckners’ answer asserted three affirmative defenses: 1. the architectural committee unreasonably withheld its approval of the roofing material because it had previously approved the use of the same or substantially the same material on two other homes; 2. the committee’s denial was arbitrary, capricious and racially motivated; and 3. the homeowners’ association did not file suit to enjoin the use of the disapproved materials before installation was completed as required by the deed restrictions. The association filed a motion for partial summary judgment, arguing that the uncontroverted evidence showed that the Buckners knowingly replaced their roof with unapproved materials, and that they could not prove any of their defenses. The Buckners filed a motion for continuance, saying that despite diligent efforts, they had not been able to secure necessary affidavits; furthermore, their counsel had scheduling conflicts. The trial court denied the continuance and granted the partial summary judgment. The association filed a second motion for partial summary judgment, asking for damages, injunctive relief and attorneys’ fees, since the issue of liability had been established by the first partial summary judgment ruling. The Buckners responded in part with the same evidence they produced at the first hearing. The trial court granted the association’s motion. The Buckners filed a motion for a new trial, saying that newly discovered evidence unavailable at the time of the first summary judgment hearing would likely have produced a different result if a new trial were ordered. The trial court denied the motion without a hearing. HOLDING:Reversed and remanded. The court examines the provision of the deed restrictions related to architectural control. The provision prohibits additions or alterations to the home’s exterior until approval from the committee. It then says, “In the event the [committee] fails to approve or disapprove any such detail, design, plan, specification or location within thirty (30) days after submission to it, or in any event if no suit to enjoin has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with.” The Buckners argue that the “in any event” phrase means that regardless of the committee’s timely approval or disapproval, a suit to enjoin completion had to be brought before the roofing job was complete. The board thinks that the phrase means that a suit had to be filed only if the committee failed to approve or disapprove of the materials within 30 days of the requested approval. The court finds the phrase unambiguous, then agrees with the interpretation of the phrase given by the Buckners, noting that “by not filing suit before the Buckners completed construction of their new roof, i.e., by not acting swiftly enough, [the board] may suffer default consequences, i.e., the nonconforming roofing materials being deemed approved.” OPINION:Livingston, J.; Livingston, Dauphinot and Holman, JJ.

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