Tuckborough Farm Homeowners Association, Inc., Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0473

Tuckborough Farm Homeowners Association, Inc.,
Appellant,

vs.

John W. Lang, et al.,
Respondents.

Filed April 4, 2022
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Hennepin County District Court
File No. 27-CV-20-14449

William M. Hart, Julia J. Nierengarten, Meagher & Geer, P.L.L.P., Minneapolis,
Minnesota (for appellant)

Kristy A. Fahland, Messerli & Kramer, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from the grant of a motion to dism iss, appellant homeowners
association argues that the district court erred by determining appellant’s action was time-
barred under a commencement-of-suit provision in the association’s governing documents.
By notice of related appeal, respondents and cross-appellants challenge the district court’s
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denial of their motion for attorney fees. We affirm the district court’s dismissal of the
complaint but reverse its denial of cross-appellants’ motion for attorney fees and remand.
FACTS
Respondent and cross-appellant property -owners John and Veronica Lang (the
Langs) owned a home in the Tuckboro ugh Farms Development which appellant
Tuckborough Farms Homeowners Association (the association) regulates. The association
and the Langs are governed by an amended and restated declaration (the declaration).
Under the declaration, property owners must get approval from the association’s
Architectural Control Committee (the committee) for “construction of or exterior changes
to a dwelling or other improvement.”
In July 2020, the Langs requested approval from the committee to make various
landscaping changes to their property, in cluding building split-ra il fencing along the
property line between them a nd their neighbors. The co mmittee approved most of the
Langs’ proposed plans except it denied their re quest for the split-rail fencing. The Langs
nevertheless installed the split-rail fencing, with installation complete on August 14, 2020.
The committee sent the Langs written notice on August 17, 2020, in October 2020, and
November 2020, instructing them to remove the nonconforming fencing. The Langs did
not remove the fencing. Meanwhile, the Langs’ approved landscap ing work continued
through mid-September 2020.
On November 13, 2020, the association served the Langs with a complaint alleging
breach of the covenants in the declaration and seeking injunctive relief. The Langs filed a
motion to dismiss under Minn. R. Civ. P. 12.02(e). The Langs asserted that the association
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failed to commence timely the action under paragraph 19g of the declaration, which states
that: “[An] action shall be commenced . . . no later than ninety (90) days after the . . . date
of completion, in the case of any other improvement [other than a dwelling].” The Langs
argued that, under paragraph 19 g, the fencing is an improvement separate from the
approved improvements, and therefore, the a ssociation had 90 days from the completion
of the fencing on August 14 to commence a la wsuit. The association argued that the 90-
day period commenced in mid-September when the Langs completed their entire
landscaping project. The Langs also sought attorney fees under paragraph 35 of the
declaration, which grants an owner the right to enforce the terms of the declaration.
The district court agreed with the Langs and dismissed the association’s complaint
as untimely under the declaration’s 90-day commencement-of-suit provision in paragraph
19g. However, the district court denied the Langs’ motion for attorney fees. This appeal
and cross-appeal follow.
DECISION
I. The district court did not err by dismi ssing the association’s complaint under
rule 12.02(e) as time-barred under the declaration.1

The association argues that the district court erred by dismissing their complaint as
untimely because the declaration’s 90-day pr ovision did not begi n until mid-September
when the Langs completed their entire landscaping project. We are not persuaded.

1 While we conclude that the association failed to serve its complaint timely, this opinion
should not be construed to condone the actions of the Langs, who deliberately installed an
unapproved improvement and failed to remove it after being repeatedly told to do so by
the association’s committee.
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A complaint “shall contain a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.
P. 8.01. A district court may dismiss a complaint when the plaintiff “fail[s] to state a claim
upon which relief can be granted.” Minn. R. Civ. P. 12.02(e).
When a district court dismisses a case under rule 12.02(e), we review de novo
whether the complaint sets forth a legally sufficient claim for relief. See Hebert v. City of
Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008). In doing so, a reviewing court “accept[s]
the facts alleged in the complaint as true and construe[s] all reasonable inferences in favor
of the nonmoving party.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014).
The district court dismissed the associ ation’s amended complaint as untimely by
determining that the association commenced suit 91 days after the Langs completed the
split-rail fencing, thereby commencing suit “one day too late” under the declaration’s 90-
day deadline. Therefore, we must interpret the declaration to determine whether the district
court erred as a matter of law.
Because we interpret restrictive covenants like contracts, see Snyder’s Drug Stores,
Inc. v. Sheehy Props., Inc. , 266 N.W.2d 882, 884 (Minn. 1978), the primary aim is to
determine and enforce the drafter’s intent, Staffing Specifix, Inc. v. Tempworks Mgmt.
Servs., Inc., 913 N.W.2d 687, 692 (Minn. 2018). If the language is unambiguous, we
enforce the agreement as expr essed by its plain meaning. Storms, Inc. v. Mathy Constr.
Co., 883 N.W.2d 772, 776 (Minn. 2016). The language of a contract is ambiguous if it is
reasonably susceptible to two or more interpretations. Glacial Plains Coop. v. Chippewa
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Valley Ethanol Co. , 912 N.W.2d 233, 236 (Minn. 2018 ). Contract interpretation is a
question of law that we review de novo. See Storms, Inc., 883 N.W.2d at 776.
Neither party argues that paragraph 19g of the declaration is am biguous. Instead,
they argue over its application. Paragraph 19g of the declaration provides:
If construction of or exterior changes to a dwelling or
other improvement are commenced without approval of the
builder and/or approval of the plans and specifications, or if
construction of or exterior ch anges to a dwelling or other
improvement are completed not in accordance with approved
plans and specifications, any Owner of a Lot may bring an
action to enjoin further construction and to compel the Owner
to conform the dwelling, fenc e or other improvement with
plans and specifications approved by the Architectural Control
Committee, provided that such action shall be commenced and
a notice of lis pendens shall be filed no late r than ninety (90)
days after the date on which the certificate of occupancy is
issued by the appropriate municipal authority, in the case of a
dwelling, or the date of completion, in the case of any other
improvement.

(Emphasis added.) Under the plain meaning of paragraph 19g, a fence is an improvement
other than a dwelling. An owner can bring an action against another owner regarding an
unapproved improvement no later than 90 days after completion of the fence.
Here, the split-rail fencing is an unapproved improvement that the association could
seek to enjoin through litigation further construction of no later than 90 days after its
completion on August 14, 2020, which woul d have been November 12, 2020. The
association’s service of the complaint on November 13, 2020, was therefore untimely.
The association argues that the split-rail fenc ing is part of a series of installments.
However, the association referred to the sp lit-rail fencing as th e only nonconforming
improvement. Indeed, they do not allege, nor have they ever alleged, that there were other
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nonconforming improvements. As a result, under the plain meaning of paragraph 19g, the
association had 90 days to bring suit agains t the Langs after completion of the split-rail
fencing.
The association further argues that their complaint refers to the unapproved fence
sections as being completed “on or about August 14, 2020,” which it contends is a date the
district court must construe in their favor. But the association did not raise this argument
below. Nor did the association dispute it in opposing the Langs’ motion to dismiss. Indeed,
both parties and the district court assumed August 14 as the completion date for purposes
of the Langs’ motion to dismiss. At the motion-to-dismiss hearing, the association’s
arguments centered on their assertion that the date to commence suit against the Langs did
not begin until about mid-September when they completed the entire landscaping project.
The association, therefore, forfeits this argument. Thiele v. Stich , 425 N.W.2d 580, 582
(Minn. 1988) (stating that appellate courts generally address only those issues presented to
and considered by the district court).
The association further argues that the commencement-of-suit provision in
paragraph 19g only applies to in dividual owners. But the association also failed to raise
this issue with the district court. As a result, this argument is likewise forfeited. Id.
We conclude that the district court di d not err by dismissing the association’s
complaint as untimely.
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II. The district court abused its discreti on by denying the Langs’ motion for
attorney fees.

The Langs argue that they ar e entitled to attorney fees under paragraph 35 of the
declaration because they “sought to enforce the 90-day limitation period, a term provided
in Paragraph 19 of the [declaration],” and we re successful in obta ining dismissal of the
action, they are entitled to “enforce this term of the [declaration].” We agree.
District courts have the discretion to award or deny attorney-fee claims. Becker v.
Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987). But attorney fees are
generally not recoverable absent a c ontractual provision or statute. Kallok v. Medtronic,
Inc., 573 N.W.2d 356, 363 (Minn. 1998). As noted above, we interpret contracts de novo.
See Storms, Inc., 883 N.W.2d at 776.
Here, paragraph 35 of the decl aration allows for recovery of attorney fees to those
“seeking enforcement of the terms” of the declaration. Paragraph 35 states:
Enforcement. The Owner of any Lot, including the
Declarants, or any of them, and the Association, shall have the
right to enforce, by any procee ding at law or in equity, all
restrictions, conditions, covenant s, reservations and charges
now or hereafter imposed by the provisions of this Amended
and Restated Declaration . . . . If successfully [sic], the parties
seeking enforcement of the term s hereof shall be entitled to
recover from the party violating the terms of this Amended and
Restated Declaration reimbursement for all costs and expenses
of litigation, including reasonable attorneys fees, witness fees,
service of process fees, deposition costs, expert witness fees
and any other costs incurred in securing such relief.

As previously noted, our first step is to determine whethe r the language is
unambiguous. The language of paragraph 35 provides any “Owner” the right to enforce
“all restrictions, conditions, covenants, rese rvations and charges . . . imposed by the
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provisions of this [declaration]” in any Minnesota court. If successful, “the parties seeking
enforcement of the terms hereof shall be entitled to recover from the party violating the
terms of this Amended and Restated Declaration reimbursement for all . . . attorney[] fees.”
Because this language is unambiguous, we apply its plain meaning.
Here, it is undisputed that the Langs ar e an “Owner.” They sought to enforce a
condition imposed by the declaration, speci fically, the 90-day co mmencement-of-suit
provision of paragra ph 19g. They succeeded. As a result, they are entitled to
reimbursement of reasonable attorney fees from the association as the party violating that
term of the declaration.
We remand to the district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.