from the Iowa District Court for Scott County, Mark R.
appeal the district court order granting summary judgment in
favor of the plaintiffs on their declaratory judgment action.
L. Shaff and Brandon W. Lobberecht of Betty, Neuman &
McMahon, P.L.C., Davenport, for appellants.
D. Arling and Tonya A. Trumm of O'Connor & Thomas,
P.C., Dubuque, for appellees.
asked to determine whether the district court properly
granted the plaintiffs' motion for summary judgment.
DuTrac Community Credit Union owns a parcel of real estate in
Waterford Place, a commercial development located in
Davenport, Iowa. DuTrac is now attempting to sell this parcel
to Kwik Trip, Inc. As part of its due diligence, Kwik Trip
discovered that the real estate was subject to a 1996
restrictive covenant that required the approval by an
architectural control committee before any building or other
structure could be erected. This committee consisted of two
named individuals. One of the named members is deceased and
the other named member has now either resigned from the
committee or refuses to act on its behalf. DuTrac and Kwik
Trip filed a declaratory judgment action asking the district
court to declare the restrictive covenant unenforceable based
on the doctrines of impossibility and supervening
impracticability. The defendants filed a resistance and
asserted the restrictive covenant could be made enforceable
by modification. The district court granted the
plaintiffs' motion for summary judgment. For the reasons
set forth below, we affirm the judgment of the district
court. We find the restrictive covenant cannot be enforced as
written, the defendants' proposed modification is not a
practical or effective way to carry out the original purpose
of the covenant, and the covenant should be terminated.
Background Facts and Proceedings.
Community Credit Union (DuTrac) owns a parcel of real estate
located in Davenport which is legally described as "Lot
6 and the Southerly 20 feet of Lot 5 of Waterford Place, an
Addition to the City of Davenport, Scott County, Iowa."
The land is located in an area more commonly known by the
name of its development, Waterford Place. The developer of
Waterford Place was Cathedral Partners, a general
partnership. Waterford Place consists of eighteen commercial
lots. Kwik Trip, Inc. (Kwik Trip) is seeking to purchase the
parcel of real estate owned by DuTrac. While investigating
title to the real estate, Kwik Trip discovered a restrictive
covenant that affects the land. The restrictive covenant
states in its entirety,
No building or other structure shall be erected on any lot in
this addition without the approval of the architectural
control committee consisting of David W. Lundy and/or Dennis
J. Britt. This shall be interpreted to include approval of
the structure, design, building materials, site plan,
landscaping and signage.[
September 4, 2015, DuTrac and Kwik Trip filed a petition for
declaratory judgment naming seventeen
defendants. All of the defendants have
an ownership interest in a parcel of real estate contained in
September 21, Defendant Hawkeye Real Estate Investment Co.
filed an answer indicating it had no objections to the
plaintiffs' petition. On October 6, these
defendants-Radiology Group Real Estate L.C.; Shamrock
Properties L.C.; Quad City OMS, L.C.; Duffy Family Limited
Partnership; and Bigger Better Betty Building, L.L.C.-filed
an answer to the plaintiffs' petition denying the
allegation that the restrictive covenant was
unenforceable. Defendants St.
Ambrose University and JTG, L.L.C. filed answers denying the
invalidity of the restrictive covenant. Both St. Ambrose and
JTG later filed withdrawals of the previously filed answers
and consented to entry of judgment as deemed equitable by the
district court. No other named defendant filed a responsive
pleading with the court, and default judgments have been
obtained against them.
petition for declaratory judgment, DuTrac and Kwik Trip
allege that the restrictive covenant is no longer
enforceable. Specifically, DuTrac and Kwik Trip allege that
the restrictive covenant is ambiguous so it may be
interpreted as a matter of law. Additionally, the restrictive
covenant provides no process by which new members of the
architectural control committee can or shall be added. The
restrictive covenant names two members to the committee.
However, David Lundy is deceased, and Dennis Britt has either
resigned from the committee or refuses to act on its behalf.
Because the restrictive covenant does not provide a method
for determining the succession of membership to the
committee, DuTrac and Kwik Trip argue the committee is now
effectively defunct. DuTrac and Kwik Trip sought a judgment
from the district court declaring the restrictive covenant
unenforceable against them based on the doctrine of
impossibility and the doctrine of supervening
surviving member of the architectural control committee,
Dennis J. Britt, executed three separate affidavits with
regard to his participation on the architectural control
committee. Britt executed the first affidavit on December 11,
2015, and stated that he had "no interest in being a
member of the [c]ommittee, and . . . no intention of making
any decisions or taking any actions on behalf of the
[c]ommittee." He further stated that he had no intention
to act on behalf of the committee, and thus had
"effectively resigned" from it. However, on
December 16, Britt executed a second affidavit wherein he
discussed the terms of his resignation from the committee by
stating "[o]nce representatives are appointed, I will
resign." Last, on February 16, 2016, Britt executed a
third affidavit that appeared to reaffirm the statements from
his first affidavit. He stated that he signed the second
affidavit "in response to a hypothetical situation posed
to [him]: namely, if [he] was still a member of the
Committee, would [he] be willing to resign upon the
appointment of new representatives?" He then clarified
that the second affidavit did not affect his refusal to act
on behalf of the committee and reaffirmed that he had
effectively resigned from it.
January 29, 2016, DuTrac and Kwik Trip filed an application
for entry of default judgment against the remaining
defendants who did not file any responsive pleadings. DuTrac
and Kwik Trip also filed a motion for summary judgment that
alleged there were no genuine issues of material fact as to
the allegations contained in their petition for declaratory
judgment. The motion for summary judgment requested that the
district court declare the restrictive covenant unenforceable
and terminate the restrictive covenant. The appellants
resisted the motion for summary judgment. The appellants
asserted a factual dispute existed as to the continued
viability of the architectural control committee based on the
multiple affidavits submitted by Britt. Accordingly, DuTrac
and Kwik Trip could not establish, as a matter of law, an
objective impossibility or a legally sufficient supervening
impracticality to warrant the district court invalidating or
declaring the restrictive covenant unenforceable. Rather, the
appellants argued that under the Restatement (Third) of
Property the appropriate remedy was not to terminate the
restrictive covenant, but to modify it. The appellants
provided a proposed method to modify the restrictive
covenant. Their proposal was to have all eighteen lot owners,
or those willing to serve, act as the successor architectural
hearing was conducted on the motion for summary judgment on
March 10, and the district court issued its order granting
summary judgment to DuTrac and Kwik Trip on March 17. The
district court concluded that, due to the death and
resignation or refusal to act of its designated members, the
architectural control committee no longer existed.
Accordingly, the district court found it was objectively
impossible for DuTrac and Kwik Trip to comply with the
restrictive covenant requiring approval of the architectural
control committee prior to the erection of any building or
structure. The district court also concluded it would be
inappropriate to revise or modify the restrictive covenant.
The district court declared that the restrictive covenant
establishing an architectural control committee was invalid,
unenforceable, and of no further force or effect. The
appellants filed a timely notice of appeal, which we
Standard of Review.
review a district court's grant of a motion for summary
judgment for correction of errors at law. Concerned
Citizens of Se. Polk Sch. Dist. v. City of Pleasant
Hill, 878 N.W.2d 252, 258 (Iowa 2016). "Summary
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law." Iowa Arboretum, Inc. v. Iowa 4-H
Foundation, 886 N.W.2d 695, 701 (Iowa 2016) (quoting
McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d
518, 525 (Iowa 2015)). The district court's grant of a
motion for summary judgment is proper when "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." Id. (quoting Iowa R. Civ. P. 1.981(3)).
There is a question of material fact "if reasonable
minds can differ on how the issue should be resolved."
Cemen Tech, Inc. v. Three D Indus., L.L.C., 753
N.W.2d 1, 5 (Iowa 2008) (quoting Walker v. Gribble,
689 N.W.2d 104, 108 (Iowa 2004)). On our review, we view the
record in the light most favorable to the nonmoving party.
Iowa Arboretum, 886 N.W.2d at 701.
Impact of Britt Affidavits.
appellants argue that there is a genuine issue of material
fact as to whether Britt resigned from the architectural
control committee. The district court found that the question
of whether Britt formally resigned or not was not a
material fact in the case because neither party