Windcliff 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This opinion is nonprecedential except as provided by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
A21-0700

Windcliff Association, Inc.,
Appellant,

vs.

Aaron Breyfogle, et al.,
Respondents.

Filed January 18, 2022
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Wabasha County District Court
File No. 79-CV-19-1045

Ken D. Schueler, John T. Giesen, Dunlap and Seeger, P.A., Rochester, Minnesota (for
appellant)

Elizabeth J. Roff, Stellpflug Law PLLC, Minneapolis, Minnesota (for respondents)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
This appeal centers on the size of a new garage in the Windcliff community in Lake
City, Minnesota. Appellant, the Windcliff Asso ciation, Inc. (the Association), appeals
from a grant of summary judgment to respond ents Aaron and Abby Breyfogle, neighbors
in the community. The Association contends that the Breyfogles violated two covenants
2
restricting the construction of new buildings in Windcliff. Because the district court
correctly concluded that the Breyfogles did not violate the second of the two covenants,
we affirm in part. But because the district court erred by granting summary judgment to
the Breyfogles on the Association’s claim regarding the first covenant, we reverse in part
and remand.
FACTS
The Breyfogles live in the Windcliff common interest community. The Association
administers Windcliff, having succeeded to that role after the original developers departed
from the area. All properties in the community are subject to a set of restrictive covenants
contained in the Windcliff Declaration. The Association enforces these covenants.
In 2019, the Breyfogles decided to build a garage. In April, they submitted
construction plans to the Association. But because the Breyfogles proposed building a
garage that would total 1,656 square feet, the Association reject ed the plans. The
Association determined this size vi olated the first restrictive covenant 1 in the Windcliff
Declaration. That covenant states that “ outbuildings shall have a maximum size of 1200
square feet (as per Wabasha County zoning restriction).”
But the Breyfogles proceeded to build the garage regardless. After learning that the
county zoning ordinance limiting outbuildings to 1,200 square feet had been repealed, the
Breyfogles informed the Association that the first covenant “was no longer enforceable.”

1 All the covenants are listed in separately numbered paragraphs in the Declaration.
Because only two covenants are at issue, we refer to them as the first and second covenant.
The first covenant is Paragraph 1 of the Declaration, and the second covenant is Paragraph
16.
3
The Association filed suit against the Brey fogles, alleging breach of two restrictive
covenants in the Declaration. The first, as stated, set the maximum size of all outbuildings
at 1,200 square feet as per the now-repealed county zoning ordinance. The second required
property owners to obtain approval before constructing any building in Windcliff.
In response to the lawsuit, the Breyfogles sought out the original developer of
Windcliff, Sylvia Brown. Brown submitted an affidavit in which she explained her
intentions at the time that she drafted the di sputed restrictive covenants. According to
Brown, she (together with her husband) meant that the 1,200-square-foot size limit in the
first covenant would cease to be effective if the county zo ning ordinance was repealed.
She also averred that the coup le intended the covenants to be flexible, and that they
generally permitted variances that would not decrease property values in the development.
After receiving Brown’s affidavit, th e Association deposed her. During the
deposition, Brown testified that the Declaration was her first experience drafting covenants.
She explained that her goal was to make the first covenant consistent with the county
zoning ordinances. Bu t Brown also admitted that, at th e time of drafting, she did not
contemplate that the county mi ght change its ordinance. She conceded that when she
drafted the Declaration, she assumed that a ll the lots in Windcliff would sell before any
change in the zoning ordinances occurred. And she did not re call ever telling anyone
(orally or in writing) that the first covenant would change if the zoning ordinance also
changed.
After Brown’s deposition, the parties m oved for summary judgment. The district
court concluded that the fi rst covenant was ambiguous b ecause both parties advanced
4
reasonable interpretations of its meaning. Then, reasoning that the available extrinsic
evidence conclusively supported the Breyf ogles’ proposed interpretation, the court
determined that the Breyfogles did not breach the first covenant as a matter of law. Next,
the court concluded that the Breyfogles did not breach the only reasonable interpretation
of the second covenant. As a result, th e district court granted the Breyfogles’
summary-judgment motion and awarded them attorney fees.
The Association appeals.
DECISION
To evaluate the district court’s grant of summary judgment to the Breyfogles, we
must interpret both covenants. We use the tools of contra ct interpretation to do so.
Snyder’s Drug Stores, Inc. v. Sheehy Props., Inc., 266 N.W.2d 882, 884 (Minn. 1978). Our
primary aim in this regard is to determine the parties’ intent. Staffing Specifix,
Inc. v. Tempworks Mgmt. Servs., Inc., 913 N.W.2d 687, 692 (Minn. 2018). The first step
is to determine whether the language of the covenant is ambiguous, a question of law that
we review de novo. Glacial Plains Coop. v. Chippewa Valley Ethanol Co. ,
912 N.W.2d 233, 236 (Minn. 2018). If the covenant is unamb iguous, we will interpret it
de novo. Sehlstrom v. Sehlstrom , 925 N.W.2d 233, 238 (Min n. 2019). With this
framework in mind, we turn first to the languag e of each restrictive covenant, then to the
grant of summary judgment to the Breyfogles , and finally the district court’s grant of
attorney fees.
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I. The district court erred by interpreting the first covenant as a matter of law.

The first covenant states: “All such outbuildings shall have a maximum size of 1200
square feet (as per Wabasha County zoning restriction).” The Association argues that the
district court erred by concluding that the covenant was ambiguous and that the Breyfogles
had not violated it.
A. The first covenant is ambiguous.
We begin by determining whet her the first covenant’s la nguage is ambiguous or
clear on its face. Glacial Plains Coop., 912 N.W.2d at 236. The language of a contract is
ambiguous if it can be reasonably interpreted in two or more ways. Id.
In support of their respective motions for summary judgment, both parties argued
that the language of the first covenant unambiguously supported their contrary
interpretations. The Associa tion argued that the covenant could only mean that the
maximum size for all outbuildings was 1,200 square feet, and that the parenthetical clause
was incidental and functionally meaningless. The Breyfogles argued that the covenant
meant that the maximum size for outbuildings was capped at the applicable limit set by the
county zoning ordinance. Because both in terpretations are reasonable based on its
language, the first covenant is ambiguous.
To convince us otherwise, the Association argues first that the district court erred
because it relied on extrinsic evidence. That occurred, the Association asserts, when the
court noted that the Wabasha County zoning ordinance had changed. But the language of
the covenant is susceptible to two reasonable interpretations regardless of whether the
ordinance changed. Accordingly, we are unpersuaded.
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Next, the Association claims that the use of parenthese s compels its interpretation
of the first covenant. That covenant, th e Association contends, has two distinct
components: the “mandatory clause” containing the 1,200-square-foot size restriction, and
the “nonrestrictive clause” containing the parenthetical reference to the zoning ordinance.
Under the Association’s readi ng, the “mandatory clause” is controlling and should be
enforced, while the “nonrestrictive clause” is ineffective. But when we interpret a contract,
we construe the language as a whole and attempt to harmonize all of the clauses. Storms,
Inc. v. Mathy Const. Co., 883 N.W.2d 772, 776 (Minn. 2016). The Association’s reading
fails to harmonize the clauses because it di sregards entirely the parenthetical clause. 2 In
sum, the district court correctly determined that the first covenant is ambiguous.
B. The interpretation of the first covena nt is a question of fact for a jury.
Even if the first covenant is ambiguous, the Association asserts, then the district
court erred by granting summary judgment to the Breyfogles because the interpretation of
the covenant is a question of fact that should have gone to a jury. We review this grant of
summary judgment de n ovo to determine whether the dist rict court correctly concluded
that no genuine issues of material fact exist. Montemayor v. Se bright Prods., Inc. ,
869 N.W.2d 623, 628 (Minn. 2017). The inte rpretation of an ambiguous contract term
poses a question of fact in the absence of conclusive extrinsic evidence.

2 The Association also contends that the district court’s interpretation renders the
“mandatory clause” superfluous. But the “mandatory clause” is not rendered superfluous
just because it is potentially subject to ch ange. And because th e Association’s own
interpretation renders the parenthetical clause superfluous, this argument does not persuade
us that the district court erred.
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Donnay v. Boulware, 144 N.W.2d 711, 716 (Minn. 19 66). And when the terms of a
contract are ambiguous and disputed by the pa rties, summary judgment is generally not
appropriate. Id.
To determine whether the ex trinsic evidence is conclusive here, we turn to Brown’s
affidavit and deposition statements. This evidence is far from conclusive. In her affidavit,
Brown stated that the language of the first covenant “was meant to be interpreted in such a
manner that the 1200 square foot size restriction would be in applicable if repealed by the
Wabasha County Zoning Commission.” At her deposition, Brown agreed with the
Breyfogles’ counsel that her “goal in the drafting was to make the covenant consistent with
the county zoning rules.” But Brown also stated that if she had been aware that the county
would change its ordinance, she would have added language indicating that the covenant
would change along with the ordinance. She also admitted that at the time she drafted the
Declaration, she assumed that all lots would sell before the county changed its ordinance.
These statements imply that Brown may not have anticipated that the ordinance would
change and thus, at the time of drafting, she may not have intended to tie the maximum-size
limitation to the county ordinance.
Because the extrinsic eviden ce does not conclusively demonstrate Brown’s intent,
the meaning of the ambiguous and disputed la nguage of the covenant presents a genuine
issue of material fact. Id. Accordingly, the district court erred by granting summary
judgment to the Breyfogles on this issue.
Still the Breyfogles argue that the district court correctly inte rpreted the covenant
following Mission Covenant Church v. Nelson , 91 N.W.2d 440 (Minn. 1958). Mission
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Covenant concerned a church that subdivided real property it owned into three plots.
91 N.W.2d at 441. The church conveyed two of the three plots to Nelson and imposed
restrictive covenants on both plots. Id. at 441-42. Later, Nelson conveyed the plots to two
others, who then attempted to enforce the restrictive covena nts against the church on the
portion of the original property that the church retained. Id. at 442. The issue before the
supreme court was whether the church, by co nveying two of the three subdivided plots
burdened with restrictive covenants, had also created an implied restrictive covenant that
burdened its retained plot. Id. In this context—a pure question of law—the supreme court
reasoned that covenants restricting property are to be “strictly construed against
limitations” on the use of property. Id. The Breyfogles seize upon this language, but they
do not explain how it applies in context of the factual dispute posed here.3
Because the first covenant is ambiguou s, and the extrinsi c evidence is not
conclusive, its interpretation presents a question of fact for a jury.
II. The district court correctly interpreted the second covenant.
The second covenant provides that no construction can begin unless the property
owner first submits building “plans to Declar ants and obtain[s] pr ior written approval of
the plans from Declarants.” The Association argues that the district court correctly
concluded that the second covenant was una mbiguous but erred by concluding that the
Breyfogles did not breach it.

3 The Breyfogles also argue that Costley v. Caromin House, Inc. , supports the district
court’s interpretation of the first covenant as a matter of law. 313 N.W.2d 21 (Minn. 1981).
But Costley involved the interp retation of an unambiguous restrictive covenant term in
context of a motion for a temporary injunction and is inapposite. Id. at 26.
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Here, the only reasonable interpretati on of the second covenant is that the
Breyfogles were required to obtain prior a pproval from “Declarants” before building the
garage. The “Declarants” are defined as “Rod ger H. & Sylvia A. Brown.” No provision
in the Declaration provides fo r the Association taking over th e role of the Declarants.
Accordingly, the only reasonabl e interpretation of th e second covenant is that Windcliff
residents must obtain prior written approva l from Rodger and Sylvia Brown, not the
Association.4 The district court properly grante d the Breyfogles’ motion for summary
judgment on this claim.
Still the Association contends that becaus e it took over enforcin g the covenants, it
has the power to withhold approval from build ing plans under the second covenant. To
support this assertion, the Association point s to section 5.6(1) of the Restatement of
Property (Third) (2000). This provision contem plates the transfer of the right to enforce
restrictive covenants to a homeowner’s associ ation. But Restatements are not binding
authority unless specifically adopted in Minnesota law. Williamson v. Guentzel ,
584 N.W.2d 20, 24-25 (Minn. App. 1998), rev. denied (Minn. Nov. 24, 1998). And this
unadopted provision is further unpersuasive because the right to enforce the covenants does
not give the Association the power to insert itself into the place of Declarants for purposes

4 The Association argues that th is result is harmful to Windcliff because it is illogical for
persons with no further connection to the community to have the power to approve or deny
construction projects. It further contends th at the Breyfogles conc eded that they were
required to submit plans to the Association because they did submit plans in April 2019.
But our task is to enforce the plain language of the second covenant without regard to
extrinsic evidence. Am. Bank of St. Paul v. Coating Specialties, Inc., 787 N.W.2d 202, 205
(Minn. App. 2010), rev. denied (Minn. Oct. 27, 2010).
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of the second covenant. In sum, the district court properly granted summary judgment to
the Breyfogles on the Association’s claim of breach of the second covenant.
III. The award of attorn ey fees was premature.
Finally, the Association argue s that the district court prematurely granted the
Breyfogles’ motion for attorney fees. Parties may only recover attorn ey fees if they are
authorized to do so by a statute or a contract, and we wi ll not reverse a decision to award
attorney fees unless the district court abused its discretion. Bolander v. Bolander ,
703 N.W.2d 529, 548 (Minn. App. 2005), rev. dismissed (Minn. Oct. 28, 2005).
Here, a third provision in the Declaration states: “The Declarants or any other future
Owners of a Lot shall have the right to enforce the [covenants] . . . and the prevailing party
shall be awarded reasonable attorneys fees and court costs in connection therewith.” In its
order, the district court concluded that the Breyfogles were entitled to attorney fees because
it reasoned that they were the “prevailing pa rty” upon successfully moving for summary
judgment. Because we reverse a portion of the summary judgment order, the “prevailing
party” remains yet to be determined. Accordin gly, we reverse the award of attorney fees
as premature.5
Affirmed in part, reversed in part, and remanded.

5 The Breyfogles urge us to reach an issue not decided by the district court: whether the
Association proved that it has suffered irreparable harm from the Breyfogles’ garage. But
we generally do not address issu es presented to but not deci ded by the district court and
decline to do so here. Singelman v. St. Francis Med. Ctr. , 777 N.W.2d 540, 543 (Minn.
App. 2010).