opinions/mds/peters063005.htm 18:15:42 GMT --> Peters v. Pine Meadow

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IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Paul Howard Peters,

Petitioner and Appellant,

v.

Pine Meadow Ranch Home Association aka Pine Meadow Ranch Home Owners Association and
as Pine Meadow Ranch Association,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040396-CA
 

F I L E D
(June 30, 2005)
 

2005 UT App 295

-----

Third District, Silver Summit Department, 990600413

The Honorable Bruce Lubeck

Attorneys: Boyd Kimball Dyer, Salt Lake City, for Appellant

Edwin C. Barnes and Walter A. Romney, Jr., Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Jackson.

GREENWOOD, Judge:

    Petitioner Paul Howard Peters appeals the trial court's grant of Respondent Pine Meadow Ranch Home Association's motion for summary judgment. We affirm.

    When reviewing a trial court's grant of a motion for summary judgment, this court reviews for correctness, giving no deference to the trial court's conclusions of law, and considers all evidence and reasonable inferences derived therefrom in the light most favorable to the losing party below. See Black v. Allstate Ins. Co., 2004 UT 66,9, 100 P.3d 1163. Summary judgment is proper only when there is no genuine issue of material fact and "the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

    We addressed most of Petitioner's arguments on appeal in Forest Meadow Ranch Property Owners Ass'n, L.L.C. v. Pine Meadow Ranch Home Ass'n, 2005 UT App 264, also issued today. Because the facts of this case closely track those of Forest Meadow, where applicable, the same reasoning applies. Indeed, the facts in the instant case provide even stronger support for our reasoning in Forest.

    First, Petitioner argues that Respondent shoulders the burden to show both that a trust existed and that descriptio personae does not apply to the Bates Deed--the deed by which Lot 6, among others, was transferred to Security Title Company (Security). In this case, while there was no mention of a trust beneficiary on the face of the Bates Deed, there is sufficient extrinsic evidence indicating the existence of a trust with Respondent as beneficiary to overcome the presumptive application of descriptio personae. See id. at 29-30. To wit, Petitioner's title traces back to Security, the entity that took title to the property in the Bates Deed as "trustee." Further, before Security transferred Lot 6, (1) Respondent and Security, acting together, filed Pine Meadow Ranch Plat "D" (Plat D), identifying Respondent as owner and subdivider and Security as "trustee," and (2) Respondent recorded the 1973 Covenants, Conditions, and Restrictions (the 1973 CC&Rs), which affect Lot 6 and specifically prescribe that each owner "pay to [Respondent]: . . . annual assessments or charges," as well as "interest, costs, and reasonable attorney[] fees." Additionally, the 1973 CC&Rs provide that assessments are a continuing lien on the properties. We view this evidence sufficient to overcome descriptio personae's presumption that no trust existed.

    Second, Petitioner contends that the 1973 CC&Rs do not run with the land for want of privity of estate. However, traditional notions of privity of estate exist here. For example, there is horizontal privity here because the 1973 CC&Rs were created in anticipation of subdividing and selling lots. See id. at 35. Furthermore, there is vertical privity because Petitioner is a successor to the estate of the original covenanting parties. See id.

    Third, Petitioner urges that it could not encumber Lot 6 with the 1973 CC&Rs because Respondent had only a beneficial interest in the land granted in the Bates Deed. However, Security, as trustee, ratified Respondent's encumbrance of Lot 6 when it and Respondent filed Plat D. See id. at 36.

    Fourth, Petitioner argues that the 1973 CC&Rs violate the doctrine of uniformity because they cover only 219 of 444 lots in the Pine Meadows Subdivision. However, "the doctrine of uniformity has not been adopted in Utah, and Petitioner did not allege facts sufficient to warrant an examination of the doctrine in this case." Id. at 39.

    Fifth, Petitioner posits that this court's holding in Dunlap v. Stichting Mayflower Mountain Fonds, 2003 UT App 283, 76 P.3d 711, cert. denied, 84 P.3d 239 (Utah 2004), refutes an inference of the trust's existence drawn from the 1973 CC&Rs. Specifically, Petitioner claims that because we disregarded the Dunlap plaintiffs' inference of ownership from "a stray title," id. at 11, that we must also disregard Respondent's inference of ownership from the 1973 CC&Rs because there was no recorded deed whereby Security granted Lot 6 to Respondent. However, Dunlap does not compel such reasoning. Here, unlike the situation presented in Dunlap, Respondent is a homeowners association seeking to act in that capacity by placing covenants, conditions, and restrictions on subdivided property. Additionally, unlike Dunlap, Respondent is not an adverse party claiming superior title vis-a-vis a competing owner. Rather, Respondent was acting as an agent of Security, regardless of whether the owner was Security or a trust with Security as trustee because W. Brent Jensen acted as president of both Respondent and Security. Also, in Dunlap, Park City Development's interest fell outside a reasonable grantor and grantee index search, see id., whereas here, reasonable title research of Lot 6 would have revealed the possibility of a trust, raising inquiry notice.

    Finally, Petitioner argues, without citing authority, that the trial court erred when it concluded that "even if [the 1973 CC&Rs] are not restrictive covenants that run with the land, they are restrictions that were contractually agreed upon [by Petitioner's] predecessors in interest and the developer of the subdivision." However, we agree with the trial court. The 1973 CC&Rs, coupled with the deed language, bind Respondent and its members, respectively, to collect and pay yearly homeowners association assessments. See Forest Meadow, 2005 UT App 264 at 36.

    Accordingly, we affirm the trial court's ruling.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Norman H. Jackson, Judge

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opinions/mds/peters063005.htm 18:15:42 GMT -->