                                           DA 07-0753

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 323N



DENNIS MICKLON,

              Plaintiff and Appellant,

         v.

ARTHUR DUDLEY and LYNN C. DUDLEY,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Nineteenth Judicial District,
                        In and For the County of Lincoln, Cause No. DV 2005-085
                        Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        William A. Douglas, Douglas Law Firm, Libby, Montana

                For Appellee:

                        James D. Reintsma, Reintsma Law Firm, Libby, Montana



                                                   Submitted on Briefs: September 10, 2008

                                                              Decided: September 16, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number, and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    This case involves a dispute between Dennis Micklon on one hand and Arthur and

Lynn C. Dudley on the other. Micklon and the Dudleys own lots in the Lincoln West

Subdivision near Libby, Montana: Micklon owns Lot 6 and the Dudleys own Lots 3 and

4. The dispute concerns a 3,000-square-foot shop the Dudleys constructed on Lot 3, in

violation of a subdivision covenant (“paragraph 6”) which states that “[n]o lot shall be

used for any purpose except residential use.”

¶3    In June 2005, Micklon filed suit against the Dudleys in the District Court for the

Nineteenth Judicial District, Lincoln County. Micklon sought an order requiring the

Dudleys to remove the shop from Lot 3. The District Court, however, concluded that the

shop qualified as a “residential use” and, therefore, that the shop did not violate

paragraph 6. The court did not find that the shop itself served a residential purpose.

Rather, the court found that the shop was “actively ‘used in conjunction with’ ” the

Dudleys’ residential dwelling on Lot 4. The court thus reasoned that the shop was “an

appurtenance” to the Dudleys’ residence.




                                            2
¶4     We reversed the District Court’s judgment in Micklon v. Dudley (“Micklon I”),

2007 MT 265, 339 Mont. 373, 170 P.3d 960. We explained that “when a restrictive

covenant limits a subdivision lot’s use to ‘residential use,’ a non-residential structure that

is placed on that lot without an accompanying residential dwelling on the same lot

violates the covenant, notwithstanding the fact that the structure is used in conjunction

with a residential dwelling on an adjoining lot.” Micklon I, ¶ 19 (emphasis added).

Accordingly, because the Dudleys’ shop was constructed on a lot unaccompanied by a

dwelling house on the same lot, we held that the District Court had erred in concluding

that the shop did not violate paragraph 6. Micklon I, ¶ 19.

¶5     On remand, the District Court observed that “[t]here are two ways the Dudleys’

use of [Lot 3] can be brought into compliance with paragraph 6 of the subdivision

covenants; they can either remove the garage, or they can construct a residence on the

lot.” The court noted, however, our decision in Tipton v. Bennett, 281 Mont. 379, 934

P.2d 203 (1997), which involved a factual scenario similar to the instant lawsuit. The

Bennetts’ 3,200-square-foot building violated a covenant that restricted use of their

property to “residential purposes.” The district court in that case, therefore, ordered the

Bennetts either to remove the building within six months or to construct a residential

dwelling on the premises within one year. Tipton, 281 Mont. at 382-83, 934 P.2d at 205.

We disapproved the latter alternative remedy:

       This later [sic] provision assumes that any building used incidental to a
       residence is permissible under the covenant.         We hold that this
       interpretation of the covenant is too broad. The covenant clearly and
       unambiguously restricts usage to “residential purposes.” The question is
       whether a large storage building qualifies as “for residential purposes.”


                                              3
      The District Court’s own factual findings do not support such a conclusion.
      In [Hillcrest Homeowners Ass’n v. Wiley, 239 Mont. 54, 778 P.2d 421
      (1989)], we recognized that a garage “is a proper appurtenance necessary
      to the enjoyment of a dwelling house . . . .” Hillcrest, 778 P.2d at 423. In
      the present suit, the District Court acknowledged that the structure is not a
      garage; rather it is a 3,200 square foot storage building. With or without a
      residence, a 3,200 square foot storage building is not an appurtenance
      necessary to the enjoyment of a dwelling house.

Tipton, 281 Mont. at 383, 934 P.2d at 205-06 (ellipsis in Tipton). The Bennetts’ building

violated the covenant not only because it stood alone without a dwelling, but also because

a 3,200-square-foot storage building “is not consistent with ‘residential purposes.’ ”

Tipton, 281 Mont. at 383, 934 P.2d at 206. Accordingly, we reversed the district court’s

order to the extent it allowed the Bennetts to keep the storage building on the condition

that they construct a residence on the property within one year. Tipton, 281 Mont. at 383,

934 P.2d at 205, 206.

¶6    In the case at hand, the District Court distinguished Tipton on the ground that “the

Dudleys’ garage cannot be classified as an ‘unnecessary appurtenance’ to a dwelling

house.” The court “appreciate[d] that Micklon would like the Court to order the Dudleys

to tear down and haul away their garage, jackhammer out the concrete slab, and start over

from square one.” However, the court observed that its “responsibility is not to impose

the greatest possible financial pain on the Dudleys, but rather to require them to come

into compliance with the subdivision’s covenants.”      Accordingly, the District Court

entered the following order (dated November 27, 2007): “No later than May 1, 2008, the

Dudleys shall remove the garage situated on lot 3 of the Lincoln West Subdivision.




                                            4
Alternatively, no later than May 1, 2008, the Dudleys shall begin construction of a

residence on lot 3 that complies with the subdivision covenants.”

¶7     Micklon now appeals. In essence, he contends that the Dudleys’ shop could never

qualify as “an appurtenance necessary to the enjoyment of a dwelling house.” Tipton,

281 Mont. at 383, 934 P.2d at 206. He points to the following language in Hillcrest

Homeowners Ass’n v. Wiley, 239 Mont. 54, 778 P.2d 421 (1989): “ ‘A private garage is a

proper appurtenance necessary to the enjoyment of a dwelling house and does not violate

a “for residence purposes only” covenant.’ ” Hillcrest, 239 Mont. at 57, 778 P.2d at 423

(quoting Sandy Point Improvement Co. v. Huber, 613 P.2d 160, 163 (Wash. App. 1980)).

Based on this passage, Micklon argues that the Dudleys’ shop could not qualify as a

“private garage . . . necessary to” the enjoyment of any house the Dudleys might build on

Lot 3. He asserts that whereas “a ‘garage’ is to provide the function of an ‘ancillary’

appurtenance to the residence structure situated on a subdivision lot,” any residential

structure the Dudleys built on Lot 3 would itself be “ancillary” to their shop, given the

shop’s “mammoth” size. Micklon also argues that the Dudleys’ 3,000-sqaure-foot shop

and the 3,200-square-foot storage building at issue in Tipton are materially

indistinguishable in terms of size and nature of use. He contends that both structures are

“huge” and used for a host of purposes other than parking two or three cars.

¶8     In response, the Dudleys maintain that their shop qualifies as a residential use.

They point to the District Court’s finding that the shop “is not just an amorphous ‘large

storage building,’ ” but rather “is actively incorporated into the Dudley’s [sic] daily

routine.”


                                            5
¶9    The Dudleys also inform us that, notwithstanding the District Court’s order that

they either “remove the garage situated on lot 3” or “begin construction of a residence on

lot 3 that complies with the subdivision covenants,” the Dudleys instead commissioned a

boundary-line adjustment on December 27, 2007 (a month after the District Court entered

judgment). According to the Dudleys, the boundary-line adjustment combined Lot 3 and

Lot 4 into one lot—Lot 3A. The Dudleys suggest that because their shop on former Lot 3

has been “actively ‘used in conjunction with’ ” their residential dwelling on Lot 4 (as the

District Court found), the boundary-line adjustment combining the two lots into Lot 3A

effectively brought the shop into compliance with paragraph 6 of the subdivision

covenants.

¶10   The Dudleys’ decision to raise this new legal theory on appeal and their attempt to

supplement the record in support of this theory are both highly inappropriate. It is well-

established that “ ‘the parties on appeal are bound by the record and may not add

additional matters in briefs or appendices.’ ” Bahm v. Southworth, 2000 MT 244, ¶ 11,

301 Mont. 434, ¶ 11, 10 P.3d 99, ¶ 11 (quoting Groves v. Clark, 1999 MT 117, ¶ 22, 294

Mont. 417, ¶ 22, 982 P.2d 446, ¶ 22); accord Anderson v. Stokes, 2007 MT 166, ¶ 57,

338 Mont. 118, ¶ 57, 163 P.3d 1273, ¶ 57. It is equally well-established that this Court

“will not address a party’s new argument or a party’s change of legal theory on appeal.”

Dayberry v. City of East Helena, 2003 MT 321, ¶ 24, 318 Mont. 301, ¶ 24, 80 P.3d 1218,

¶ 24 (citing Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15,

961 P.2d 100, ¶ 15); accord Kellogg v. Dearborn Information Services, 2005 MT 188,

¶ 15, 328 Mont. 83, ¶ 15, 119 P.3d 20, ¶ 15.


                                               6
¶11    Accordingly, we will not consider the Dudleys’ contention that the post-judgment

creation of Lot 3A brought their shop into compliance with paragraph 6. Rather, we

affirm the District Court’s judgment on the ground that this case is distinguishable from

Tipton. Unlike the storage building at issue in Tipton, the District Court found in this

case that the Dudleys’ shop was actively incorporated into the Dudleys’ daily routine,

that it was actively used in conjunction with their residence, and that it was not serving a

commercial purpose. These findings are supported by substantial evidence. Thus, we

cannot agree with Micklon that the Dudleys’ shop could never qualify as “an

appurtenance necessary to the enjoyment of a dwelling house.” Tipton, 281 Mont. at 383,

934 P.2d at 206. Indeed, in light of the District Court’s findings, it is clear that the shop

essentially was an appurtenance being used in conjunction with a dwelling house; the

problem was that the dwelling house was not on the same lot. See Micklon I, ¶¶ 17-18.

If the Dudleys construct a residence on Lot 3, and if the shop is then used in conjunction

with and as an appurtenance necessary to the enjoyment of that residence, then Lot 3 will

no longer be in violation of paragraph 6.

¶12    We acknowledge the statement in Hillcrest, cited by Micklon, that “ ‘[a] private

garage is a proper appurtenance necessary to the enjoyment of a dwelling house and does

not violate a “for residence purposes only” covenant.’ ” Hillcrest, 239 Mont. at 57, 778

P.2d at 423. However, we do not agree with Micklon’s suggestion that only a private,

two- or three-car garage may be a proper appurtenance necessary to the enjoyment of a

dwelling house. The quoted language from Hillcrest does not support such a conclusion.




                                             7
¶13    On the basis of the record and having considered the parties’ arguments, we have

determined to decide this case pursuant to Section I, Paragraph 3(d) of this Court’s 1996

Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. We review a district court’s findings of fact to determine whether the findings

are clearly erroneous, Micklon I, ¶ 7, and Micklon has failed to establish that the District

Court’s findings are clearly erroneous. Accordingly, we conclude that this appeal is

without merit.

¶14    Affirmed.


                                                        /S/ JAMES C. NELSON


We Concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE




                                             8
