                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-2035

                 Michael A. Friedman, Richard J. Nigon and Geoff Hirman,
                        as Trustees of the North Shore Pines Trust,
                                        Appellants,

                                              vs.

                                      Rosemary Palmer,
                                        Respondent.

                                     Filed May 11, 2015
                                          Affirmed
                                         Kirk, Judge

                              Crow Wing County District Court
                                  File No. 18-CV-14-362


James W. Nelson, Brainerd, Minnesota (for appellants)

Patrick M. Krueger, Borden, Steinbauer, Krueger & Knudson, P.A., Brainerd, Minnesota
(for respondent)


         Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and Kirk,

Judge.

                           UNPUBLISHED OPINION

KIRK, Judge

         In this restrictive covenant dispute, appellants challenge the district court’s grant

of summary judgment to respondent. We affirm.
                                         FACTS

       The facts in this case are undisputed. In December 1955, the owners of nine

parcels of real property in Crow Wing County established a trust agreement, which was

recorded the day after it was established. The property owners have since amended the

trust agreement four times, and all four amendments were recorded. The first amendment

occurred in 1957, when the property owners established certain restrictions, reservations,

and servitudes on the land, including a requirement that structures be “set back at least 50

feet from both the present easterly and westerly line of each of the separate parcels of

land owned by the several parties hereto.”

       The second amendment, in 1976, extended the terms of the trust until 2005. The

third amendment, in 1997, allowed the nine authorized parcels to be further subdivided,

subject to the existing restrictions, reservations, and servitudes of the trust agreement,

“provided that both the remaining portion of the original parcel and the new subdivided

parcel shall meet all minimum size and setback requirements under then existing County

Zoning standards applicable to residential lake shore lots.” In 2001, the property owners

amended the agreement for the fourth time.         They extended the terms of the trust

agreement and “[t]he restrictions, reservations and servitudes which constitute covenants

running with the land” until 2030 and deemed the previous restrictions, reservations, and

servitudes created anew.

       Respondent Rosemary Palmer is the owner of real property that is subject to the

terms of the trust. Although Palmer’s family originally owned a large parcel of land, they

decided to subdivide the property in 2001. In 2002, the trustees approved the subdivision


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of the property, and the Palmer family sold a portion of their property. Between 2008

and 2010, Palmer constructed a deck on her property that is attached to the east side of

her home. The deck is set back at least 10 feet but less than 50 feet from the current east

boundary of Palmer’s property. The deck is set back more than 50 feet from the property

lines as they existed from 1957 until the property was subdivided in 2002.

       In January 2014, appellants Michael A. Friedman, Richard J. Nigon, and Geoff

Hirman, as Trustees of the North Shore Pines Trust (the trustees), filed a complaint

against Palmer alleging that she violated the restrictive covenant in the trust agreement

when she built the deck less than 50 feet from the current boundary of her property. The

trustees requested removal of the deck.

       Palmer moved for summary judgment, and the trustees filed a responsive motion

for summary judgment. Following a hearing, the district court granted Palmer’s motion

and denied the trustees’ motion. The district court concluded that the 2001 amendment to

the trust deemed the 1957 agreement created anew, which meant that the 50-foot setback

requirement in the 1957 agreement applied to property lines as they existed at the time

the agreement was recorded in 2001. Because the subdivision of Palmer’s property did

not occur until 2002, the district court concluded that the 50-foot setback requirement

applied to the property lines as they existed in 2001, not to the new property lines that

were created in 2002. Thus, the district court concluded that Palmer’s deck does not

violate the restrictive covenant because it is within 50 feet of the property lines as they

existed prior to the 2002 subdivision. This appeal follows.




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                                      DECISION

       The 1957 restrictive covenant, which was created anew and extended by the 2001

amendment, states that “[n]o structure, permanent or otherwise, shall hereafter be erected

on any of the separate parcels of land . . . unless said structures are set back at least 50

feet from both the present easterly and westerly line of each of the separate parcels of

land.” (Emphasis added.) The parties agree that the restrictive covenant is unambiguous

but disagree about how to interpret the word “present” in the covenant. The trustees

assert that, as used in the covenant, “present” establishes a 50-foot setback restriction that

applies to the property lines as they exist at any time the covenant is read or applied, and

that the restriction applies “to any day of any week in any year.” Palmer argues that

“present” refers to the property lines as they existed on the effective date of the renewal of

the restrictive covenant in 2001. Thus, according to Palmer, because the boundary line of

her unsubdivided property in 2001 was the original boundary of her property, the deck on

her subsequently subdivided property does not violate the 50-foot setback requirement.

By summary judgment, the district court adopted Palmer’s reading of the restrictive

covenant.

       Summary judgment shall be entered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that either party is entitled to

judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary

judgment, this court reviews “whether there are any genuine issues of material fact and

whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre


                                              4
& Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). When, as in this case, the “district

court grants summary judgment after applying the law to undisputed facts, we review the

legal conclusion de novo.” Westrom v. Minn. Dep’t of Labor & Indus., 686 N.W.2d 27,

32 (Minn. 2004). We must “view the evidence in the light most favorable to the party

against whom summary judgment was granted.” Id.

      Restrictive covenants are subject to the standard rules of contract interpretation.

See Snyder’s Drug Stores, Inc. v. Sheehy Props., 266 N.W.2d 882, 884-85 (Minn. 1978).

“[C]ovenants restricting the use of property will be given the full force and effect

intended by the party who created them, and where the language used is clear and

unambiguous it will be given its obvious meaning.” LaValle v. Kulkay, 277 N.W.2d 400,

403 (Minn. 1979). Generally, the “construction and effect of an unambiguous contract

presents a question of law for the court. The determination of whether a contract is

ambiguous is also a question of law, but the interpretation of an ambiguous contract is a

question of fact for the jury.” Savela v. City of Duluth, 806 N.W.2d 793, 808 (Minn.

2011) (citations omitted). A contract’s language is unambiguous if it has only one

reasonable interpretation. Halla Nursery, Inc. v. City of Chanhassen, 781 N.W.2d 880,

884 (Minn. 2010).

      Here, because the parties agree that the restrictive covenant is unambiguous, the

question before this court is the legal question of the meaning of “present” in this

restrictive covenant. Contracts are read to give effect to all of their terms. E.g., River

Valley Truck Ctr., Inc. v. Interstate Cos., 704 N.W.2d 154, 163 (Minn. 2005); Current

Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995); Chergosky


                                            5
v. Crosstown Bell, Inc., 463 N.W.2d 522, 525 (Minn. 1990). Here, if the drafters of the

trust agreement had wanted the restrictive covenant to apply to the east and west property

lines as they exist at any point in time, as the trustees argue, they could have omitted

“present” from the restrictive covenant. Thus, the trustees’ proposed reading of the

restrictive covenant runs afoul of a basic rule of contract interpretation. Further, the

district court’s reading of the restrictive covenant is consistent with both the commonly

accepted and the legally accepted understandings of “present.”         See The American

Heritage Dictionary 1393 (5th ed. 2011) (defining “present” as “[a] moment or period in

time perceptible as intermediate between past and future; now”); Black’s Law Dictionary

1302 (9th ed. 2009) (defining “present” as “[n]ow existing; at hand”). Applying the rules

of contract interpretation, and giving “present” its plain and ordinary meaning, the

restrictive covenant applies to the “easterly and westerly line of each of the separate

parcels of land” as they existed when the amendment renewing the restrictive covenant

was recorded in 2001.

       Thus, because Palmer’s property had not yet been subdivided when the

amendment renewing the restrictive covenant was recorded in 2001, the original property

lines that were in existence in 1957 were still intact. Palmer therefore did not violate the

restrictive covenant by building the deck attached to her home because it is set back at

least 50 feet from the original property line. The district court did not err by granting

summary judgment to Palmer.

       Affirmed.




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