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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 HARRIET HELTMAN,

 3          Plaintiff-Appellee,


 4 v.                                                            NO. 31,837

 5 ALBERT CATANACH,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 8 Sarah M. Singleton, District Judge


 9 Sawtell, Wirth & Biedscheid, P.C.
10 Bryan P. Biedscheid
11 Santa Fe, NM

12 for Appellee

13 Catron, Catron, Pottow & Glassman, P.A.
14 Richard S. Glassman
15 Santa Fe, NM

16 for Appellant
 1                            MEMORANDUM OPINION

 2 HANISEE, Judge.


 3   {1}   Defendant appeals a district court order enjoining him from subdividing his

 4 property to create two lots that are less than one-half acre, in violation of governing

 5 restrictive covenants. Determining that the district court did not abuse its discretion

 6 in granting Plaintiff’s requested injunction, we affirm.

 7 BACKGROUND

 8   {2}   This is the second injunctive order issued by the district court in favor of

 9 Plaintiff and Defendant’s second appeal arising as a result of his enjoinder. In the

10 preceding appeal, we concluded that the covenants sought to “ensure that all

11 properties contain only a single-family residence on a lot of at least one-half acre,”

12 Heltman v. Catanach, 2010-NMCA-016, ¶ 22, 148 N.M. 67, 229 P.3d 1239, and

13 prohibited “dividing [a] lot into two lots that are less than one-half acre and

14 maintaining a residential structure on each lot.” Id. ¶ 13. We further determined that

15 the district court erred in failing to consider evidence relevant to Defendant’s

16 “equitable defenses of changed conditions and waiver by acquiescence.” Id. ¶ 26. We

17 reversed and remanded to the district court for a new trial on the issue of whether

18 those defenses should prevent enforcement of the covenants. Id. Specifically, we

19 ordered the district court to consider evidence of other covenant violations in the

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 1 Lovato Subdivision No. 1 (subdivision), not limited to a single prior lot split, and

 2 evidence of Plaintiff’s acquiescence and failure to undertake efforts to enforce the

 3 covenants against other violations. Id. ¶¶ 22, 24. After reviewing the new evidence

 4 and the district court’s findings and conclusions, we determine that the district court

 5 did not abuse its discretion in concluding that the amount and nature of the change to

 6 the subdivision was not so significant or radical to warrant setting aside the covenants;

 7 that Plaintiff had not acquiesced to violations of the same or similar covenants and

 8 thereby waived her right to enforce the covenant at issue; and by granting injunctive

 9 relief in favor of Plaintiff. Because this is a memorandum opinion, the parties are

10 familiar with the facts of the case, and we have already issued a formal opinion

11 providing the relevant background information, we reserve discussion of pertinent

12 facts where necessary to our analysis.

13 DISCUSSION

14   {3}   Defendant appeals the outcome of the trial on remand, arguing that the district

15 court erred in ruling that there had not been a radical change in the subdivision, to

16 which Plaintiff had acquiesced, and in enjoining his proposed lot split. Defendant and

17 Plaintiff dispute the appropriate standard of review; however, a recent opinion from

18 this Court, addressing the same legal issues as those before us, resolves the dispute.

19 See Myers v. Armstrong, 2014-NMCA-051, ¶ 10, 324 P.3d 388 (stating that we review


                                               3
 1 a “district court’s exercise of equitable powers under an abuse of discretion

 2 standard).” The defenses of acquiescence and changed circumstances are equitable

 3 defenses. See Heltman, 2010-NMCA-016, ¶ 26. “An abuse of discretion occurs when

 4 a ruling is clearly contrary to the logical conclusions demanded by the facts and

 5 circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930

 6 P.2d 153. When reasons exist to both support and detract from a district court’s

 7 decision, there is no abuse of discretion. Talley v. Talley, 1993-NMCA-003, ¶ 12, 115

 8 N.M. 89, 847 P.2d 323.

 9 CHANGED CONDITIONS

10   {4}   Relevant to his equitable defense of changed conditions, Defendant argues that

11 despite our directive to the contrary, Heltman, 2010-NMCA-016, ¶ 26, the district

12 court failed to properly consider many properties based on the discernability of

13 changes violative of the restrictive covenants. Defendant maintains that these

14 properties illustrate that the subdivision is no longer representative of the original

15 purpose of the covenants. He additionally contends that the district court erred by

16 failing to consider the changed conditions in the aggregate. To support his contention,

17 Defendant identifies twenty-eight of the seventy-eight properties within the

18 subdivision that in his view effectuate substantial overall change. He contends that

19 this percentage of change is alone significant enough to bar the enforcement of the


                                              4
 1 covenant. He further points to eight lots, not located within the subdivision boundary,

 2 that illustrate “dense development” in the area.

 3   {5}   Prior to trial, the parties stipulated that one lot in the seventy-eight lot

 4 subdivision had been split in the manner precisely identical to Defendant’s proposed

 5 lot split. In addition to the two less than one-half acre lots created by the lot split, the

 6 parties agreed that there were three additional lots in the subdivision that were smaller

 7 than the one-half acre required by the covenants. The parties also stipulated that

 8 another subdivision covenant required that each property have only “one detached

 9 single-family dwelling [unit],” and they further agreed that four lots were used as

10 churches, and six properties contained “more than one dwelling unit[,]” including both

11 attached and detached guesthouses. The parties did not agree, however, as to whether

12 all of these stipulated properties constituted covenant violations.

13   {6}   In addition to these stipulated facts, both parties agreed that there were eight

14 small lots that constituted “small lots with high density” outside the boundary of the

15 subdivision. Plaintiff presented witness testimony and argument indicating that the

16 subdivision retained its intended character despite the fact that over the approximately

17 seventy-year history of the subdivision, some changes, several more visible and

18 directly violative than others, had occurred within the neighborhood. On the other

19 hand, Defendant argued that the properties stipulated as violating the covenants,


                                                5
 1 considered with the additional properties that Defendant asserted to have violated the

 2 covenants, constituted a radical change in the subdivision. We have carefully reviewed

 3 the facts which led to the district court’s conclusions that “the amount and nature of

 4 the change within the [subdivision] is not so significant or radical that it warrants the

 5 setting aside of the [covenants] as a whole.”

 6   {7}   Under an abuse of discretion standard, our duty as an appellate court is to

 7 review the record to determine whether the district court has acted without reason and

 8 proper consideration and in disregard of the facts and circumstances of the case.

 9 Perkins v. Dept. of Human Servs., 1987-NMCA-148, ¶ 20, 106 N.M. 651, 748 P.2d

10 24. Here, the district court prepared and compiled approximately nine pages of

11 findings and conclusions, asserting its conformity with our instructions in Heltman,

12 considered all changes within the subdivision, including the twenty-eight properties

13 identified by Defendant, and explained the reasoning for its decision that there was no

14 “radical” or “significant” change in subdivision. Under this highly deferential standard

15 of review, it is not our place to reconsider evidence where it is apparent that the

16 district court engaged in a thorough examination of the facts of the case and reached

17 a legal conclusion that is supported by the evidence and findings. See Perkins, 1987-

18 NMCA-148, ¶ 19 (“An abuse of discretion is established if the . . . lower court has not

19 proceeded in the manner required by law, the . . . decision is not supported by the


                                               6
 1 findings, . . . the findings are not supported by the evidence[,]” or “when the decision

 2 is contrary to logic and reason.”). Furthermore, this court has long recognized that

 3 “[w]here there is room for two opinions, the [district court’s] action is not arbitrary

 4 or capricious if exercised honestly and upon due consideration, even though another

 5 conclusion might have been reached.” Id. ¶ 20. Accordingly, our review of the record

 6 indicates that the district court thoroughly considered the evidence, explained its

 7 findings, and reached a logical conclusion supported by the law; we cannot substitute

 8 our own judgment for that of the district court in order to reverse its ruling.

 9 PLAINTIFF’S ACQUIESCENCE

10   {8}   Heltman clarified that a “covenant should not be enforced by one who has

11 acquiesced in prior violations of the covenant[,]” and that the party seeking to enforce

12 the covenant can waive the right to enforce it if that party acquiesced “in a violation

13 of the same or a different covenant on a restricted lot.” 2010-NMCA-016, ¶ 23

14 (internal quotation marks and citation omitted). We identified relevant considerations

15 of waiver, including “whether the party seeking to enforce the covenant had actual or

16 constructive knowledge of the prior violations, the magnitude of the current violation

17 as compared to prior violations, and whether the prior violations were temporary,

18 occasional, or permanent.” Id. We then ordered the district court to consider evidence

19 of Plaintiff’s acquiescence in covenant violations other than the previous lot split. Id.


                                               7
 1 ¶ 25. Defendant argues that the district court erred in finding that Plaintiff had not

 2 waived her right to enforce the covenants as the record shows that Plaintiff failed to

 3 challenge certain violations of the covenants. He further asserts that where she did

 4 challenge the previous lot split, her efforts were insufficient.

 5   {9}   The district court’s findings and conclusions reflect that, again in accordance

 6 with our instructions in Heltman, it considered the evidence of Plaintiff’s

 7 acquiescence in other covenant violations to determine whether it was equitable to

 8 enforce the covenant against Defendant. Id. Indeed, the district court specifically

 9 indicated its compliance with Heltman, stating that it “has considered all changes and

10 Plaintiff’s conduct with respect to past enforcement of the [covenants] to adjudicate

11 Defendant’s claim that the doctrine of waiver by acquiescence should be applied to

12 bar” enforcement of the covenants. After considering the evidence, the district court

13 found that Plaintiff had no notice of a prior lot line adjustment; where she received

14 notice of a prior lot split, she opposed the effort; two of the violative properties were

15 constructed and used prior to Plaintiff’s move to the subdivision; and with regard to

16 single structure, multifamily usage violations, the changes were neither discernable

17 nor permanent. Ultimately, the district court ruled that as a result of these findings,

18 “Plaintiff ha[d] not waived her right to enforce the [covenants]” against Defendant.




                                               8
 1   {10}   As with the changed conditions asserted by Defendant, the district court

 2 likewise conformed with our instructions in Heltman as to acquiescence, and it

 3 considered in depth the evidence relevant to Plaintiff’s action or inaction with regard

 4 to other covenant violations in the subdivision. We cannot conclude that the district

 5 court reached an illogical conclusion or one unjustified by reason. See Myers, 2014-

 6 NMCA-051, ¶ 10; Sims, 1996-NMSC-078, ¶ 65. Accordingly, we determine there to

 7 be no abuse of discretion and affirm the district court’s ruling on this matter.

 8 CONCLUSION

 9   {11}   For the foregoing reasons, we affirm.

10   {12}   IT IS SO ORDERED.



11                                                  _________________________________
12                                                  J. MILES HANISEE, Judge

13 WE CONCUR:



14 _________________________________
15 CYNTHIA A. FRY, Judge



16 _________________________________
17 M. MONICA ZAMORA, Judge



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