                                 Cite as 2015 Ark. App. 650

                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-15-295


                                                Opinion Delivered   NOVEMBER 12, 2015
TERRI AKERS ET AL.
                             APPELLANTS         APPEAL FROM THE GARLAND
                                                COUNTY CIRCUIT COURT
V.                                              [NO. CV-14-250]

                                                HONORABLE JOHN HOMER
DARRELL BUTLER AND ANGIE                        WRIGHT, JUDGE
BUTLER
                    APPELLEES                   AFFIRMED



                             DAVID M. GLOVER, Judge

       The appellants in this case are twenty-one property owners who filed a “Verified

Petition for Temporary Restraining Order and Permanent Injunction” against appellees,

Angie and Darrell Butler, in April 2014. The petition alleged the Butlers were violating the

“Land Use and Architectural Controls” of the Forest Ridge Estates subdivision by using their

property for commercial purposes. The Butlers moved to dismiss or, alternatively, answered

and counterclaimed for declaratory judgment. Later in the case, the Butlers filed a motion

for summary judgment, seeking dismissal of the cause of action filed against them, or,

alternatively, declaring the “Land Use and Architectural Controls” inapplicable to them.

Appellants responded.

       Following a hearing on the motion for summary judgment, the trial court found the

Butlers were not bound by the document entitled “Land Use and Architectural Controls”

because they did not sign it and the document was not effective against third parties, which
                                  Cite as 2015 Ark. App. 650

included the Butlers. The trial court dismissed the complaint against the Butlers with

prejudice. This appeal followed, with appellants contending the trial court erred in granting

summary judgment in favor of the Butlers because 1) the land-use restrictions were valid and

unambiguous and the fact that the Butlers did not sign the restrictions was of no consequence

because, at the time the restrictions were signed, the Butlers did not own any subdivision

property, and 2) the lack of the magic word “consideration” in all of the acknowledgments

was of no consequence because the Butlers were not third parties and they had actual

knowledge of the restrictions at all relevant times, making them sufficient as a matter of law.

Also incorporated within their argument is the contention that material issues of fact remain

in dispute. We affirm.

       In April 2005, the Butlers entered into an “Agreement for Deed” with Mary and

Kenneth LaBuy, who were developing property called Forest Ridge Estates. The agreement

was for the sale and purchase of property at issue here. At the time this agreement was

executed, the “Land Use and Architectural Controls” referenced as part of the agreement had

not been filed and were not listed in the agreement. The “Agreement for Deed” provided

that if the Butlers defaulted on the agreement, the LaBuys could cancel the contract and

retain all the payments made by the Butlers as liquidated damages.

       The referenced “Land Use and Architectural Controls” restrictions were not filed

until October 28, 2005. The document was signed and acknowledged on that same date by

fourteen property owners within the subdivision, but the Butlers’ signatures were not among

them. Included among the restrictions was one in paragraph 1.1 prohibiting the use of


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subdivision property for commercial purposes. In addition, paragraph 3.1 of the document

provided a mechanism for amending the controls. None of the acknowledgments to the

document referenced “consideration.”

       A document entitled “Modification of Land Use and Architectural Controls” was

recorded on April 30, 2013. Pursuant to that document, paragraph 1.1 of the original

restrictions was amended as follows: “No noxious or offensive activity, and no commercial

activities of any kind shall be carried on or upon any tract in Forest Ridge Estates, nor shall

anything be done thereon that may become an annoyance or nuisance to the area, except that

rentals for special events shall be allowed.” (Emphasis added to show amended language.) The

document goes on to state that the modification applies to certain described lands. It was

signed by the Butlers, and, according to them, it was also signed by thirty-seven other owners

of property within Forest Ridge Estates, including the developers (the LaBuys). Also,

according to the Butlers, thirty-seven owners represented over eighty percent of the total

owners, and sixteen of the twenty-one plaintiffs in the instant case signed the modification.

       The Butlers thereafter built a barn on a portion of their property and began renting

it out. The appellants’ petition for a temporary restraining order and permanent injunction

followed, initiating this case.

       Our standard of review for cases involving summary judgment is well known.

Summary judgment should be granted only when it is clear that there are no genuine issues

of material fact to be litigated, and the moving party is entitled to summary judgment as a

matter of law. Wilcox v. Wooley, 2015 Ark. App. 56, 454 S.W.3d 792 (quoting Harvest Rice,


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Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575–76, 231 S.W.3d 720,

723 (2006)). The purpose of summary judgment is not to try the issues, but to determine

whether there are any issues to be tried. Id. Once the moving party has established a prima

facie entitlement to summary judgment, the opposing party must meet proof with proof and

demonstrate the existence of a material issue of fact. Id. On appellate review, we determine

if summary judgment was appropriate based on whether the evidentiary items presented by

the moving party in support of the motion leave a material fact unanswered. Id. We view

the evidence in the light most favorable to the party against whom the motion was filed,

resolving all doubts and inferences against the moving party. Id. Our review focuses not

only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment

is not appropriate, regardless of whether the nonmoving party presents the court with any

countervailing evidence. Id.

       Appellants contend the circuit court erred in granting summary judgment in favor of

the Butlers, thus allowing them to operate a commercial business in a residential subdivision.

Specifically, they argue the restrictions on land use for the subdivision were valid and

unambiguous and should have been enforced against the Butlers by the court, and the fact

the Butlers did not sign the restrictions is of no consequence because, when the restrictions

were signed, the Butlers did not “own” any land in the subdivision, only an inchoate right

to acquire land at some future date if their rights were not forfeited under their contract. We

disagree.


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       Arkansas Code Annotated section 18-12-103 (Supp. 2013) provides in pertinent part:

       (a) As used in this section, “restrictive covenant” means a restriction on the use or
       development of real property regardless of whether the restriction is created by a
       covenant in a deed or bill of assurance, or by any other instrument.

       (b) An instrument creating a restrictive covenant is not effective to restrict the use or
       development of real property unless the instrument purporting to restrict the use or development
       of the real property is executed by the owners of the real property and recorded in the office
       of the recorder of the county in which the property is located.

(Emphasis added.)

       In its December 2, 2014 letter opinion, the trial court explained its decision in part:

       A.      Undisputed facts:

               1. The document purporting to impose restrictions on the use of the property,
       titled “Land Use and Architectural Controls,” was not signed by the Defendants, who
       were purchasing their property under contract of sale at the time.

                                                ....

       B.      Conclusions of law:

              1. Since the document titled “Land Use and Architectural Controls” does not
       include the signature of the Defendants, they are not bound by the document.

This undisputed finding of fact, and the conclusion of law based upon it, were set forth in

the summary-judgment order.

       As found by the trial court, it is undisputed the “Land Use and Architectural

Controls” document, which contains the restrictions relied upon by the appellants, was not

signed by the Butlers. Thus, the main thrust of appellants’ argument under this subsection

is that the Butlers’ signature was not necessary for the restrictions to be effective against the

Butlers because they were not the “owners” of the property; rather, because the Butlers were


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purchasing the property pursuant to a contract for deed, which contained a forfeiture clause,

they had no vested interest in the property—only an inchoate interest. The trial court was

not convinced by this argument, and we are not either.

       The parties have not provided us with an Arkansas case directly on point with the

facts presented here regarding whether a purchaser under a contract for deed is considered

an owner of the property under section 18-12-103. Appellants rely in part upon McGuire

v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988), in which our supreme court declined the

invitation to construe section 18-12-103 to require mineral owners to join in the execution

of bills of assurance before covenants can affect the use of real property. We find the facts

of that case to be significantly distinguishable from those presented here; therefore, we do

not find McGuire helpful. Furthermore, to the extent appellants rely upon cases in which

defaulting buyers under a land-sale contract containing a forfeiture clause contended they had

an equitable interest in the property and were entitled to a return of the payments they had

made, we do not find those cases helpful either. See, e.g., Collins v. Keller, 333 Ark. 238, 969

S.W.2d 621 (1998); White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950). Obviously, as

between a seller and a defaulting buyer, concluding that the buyer had an equitable interest

would totally negate the forfeiture clause the parties had agreed upon. That is not the

situation here. The Butlers were never in default, and this dispute is not between them and

the LaBuys, the sellers, over their land-sale contract. Instead, the dispute here is whether the

Butlers are bound by restrictive covenants they did not sign. The trial court found that the




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Butlers were not so bound, and we agree. We are convinced that, for purposes of section

18-12-103, the Butlers constituted “owners of the real property.”

       The appellants further argue the Butlers had actual knowledge of the restrictions. At

the time the Butlers entered into their contract to purchase the property in April 2005, the

land-use restrictions had not been executed. The restrictions were not executed until

October 2005, and they were executed without the Butlers’ signatures. We are not convinced

that, under the circumstances of this case, the clear requirement for signatures under section

18-12-103 was negated by the Butlers’ alleged knowledge of the restrictions, which at that

point was based upon a sentence in their agreement for deed that provided, “Complete list

of Land Use and Architectural Controls shall be part of this agreement.”

       We find no error in this basis upon which the trial court granted summary judgment

to the Butlers; therefore, it is unnecessary to address appellants’ second argument concerning

the trial court’s alternative basis for granting summary judgment. Neither is it necessary to

address the Butlers’ alternative rationales for affirming.

       Affirmed.

       WHITEAKER and BROWN, JJ., agree.

       Jonathan D. Jones, for appellants.

       Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for
appellees.




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