text:
    2004 OK CIV APP 39
    Sheila PRINCE, Administratrix of the Estate of Hubert A. Ballard, Deceased, Plaintiff/Appellant, v. B.F. ASCHER COMPANY, INC., a Kansas Corporation; Menley & James Laboratories, Inc., a subsidiary of Menley and James, Inc., a Delaware Corporation; Stewart Drugs, Inc. d/b/a Stewart & Wood Drug Co., an Oklahoma Corporation; Dennison Labs, Inc.; and Smithkline Beecham, Inc., d/b/a Glaxosmithkline, Defendants/Appellees.
    No. 99,221.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Feb. 17, 2004.

      Kevin E. Krahl, Charles G. Braun, Horn-beek, Krahl, Vitali & Braun, P.L.L.C., Oklahoma City, OK, for Plaintiff/Appellant.
    Thomas E. Steichen, Richard M. Eldridge, Eldridge, Cooper, Steichen & Leach, P.L.L.C., for Defendant/Appellee, B.F. Ascher Company, Inc., a Kansas Corporation.
    Robert D. Baron, Coyle Law Firm, Coyle Law Firm, Oklahoma City, OK, for Defendant/Appellee, Menley & James Laboratories, Inc., a subsidiary of Menley & James, Inc., a Delaware Corporation.
    Robert W. Nelson, Thomas A. Paruolo, Whitten, Nelson, McGuire, Wood, Terry, Ro-selius & Dittrich, Oklahoma City, OK, for Defendant/Appellee, Stewart Drugs, Inc. d/b/a Stewart Wood Drug Co., an Oklahoma Corporation.
    James K. Secrest, II, Jenny R. Ebersole, Don W. Danz, Secrest, Hill & Butler, Tulsa, OK, for Defendant/Appellee, Dennison Labs, Inc.
    Robert H. Alexander, Jr., John J. Love, The Law Office of Robert H. Alexander, Jr., P.C., Oklahoma City, OK, for Defendant/Ap-pellee, SmithKline Beecham Corporation, d/b/a GlaxoSmithKline.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶ 1 On August 1, 1999, decedent Hubert A. Ballard died of acute propylhexedrine intoxication after intravenously injecting the extracted contents of a Benzedrex® nasal inhaler in order to experience a stimulative effect. Propylhexedrine is the active ingredient in Benzedrex®, an over-the counter nasal decongestant. At the time of his death, Ballard had been a habitual abuser of the propylhexedrine in Benzedrex® for well over twenty years. -No other drugs were present in Ballard’s system at the time of his death. Defendant/Appellee GlaxoSmithKline (GSK) manufactured Benzedrex® from 1949 to 1990. GSK sold the product rights to Defendant/Appellee Menley & James Laboratories, Inc. in 1990. Menley & James sold the rights to Defendant/Appellee B.F. Ascher Company, Inc. in 1998. Defendant/Appellee Dennison Laboratories, Inc. assembled the product for both Menley & James and B.F. Ascher. Ballard purchased his last inhaler at a pharmacy owned and operated by Defendant/Appellee Stewart & Wood Drug Co.

¶ 2 Sheila Prince, Ballard’s daughter and administratrix of his estate, filed a wrongful death suit under negligence, failure to warn, breach of warranty, and products liability theories. She alleges Ballard’s misuse of Benzedrex® was foreseeable because, as early as the 1970’s, Appellees were aware — ■ through medical literature, the public media, and direct complaints — of the potential for abuse of their product. Prince further argues that despite knowing their product was addictive and subject to abuse, Appellees continued to sell Benzedrex® in a container easily dismantled by hand. She contends Benzedrex® is a defective and unreasonably dangerous product due to its packaging, potential for abuse, toxicity, arid insufficient warning label.

¶ 3 All five Appellees filed motions for summary judgment. The trial court granted each one. Prince appeals. Her points of error are: (1) summary judgment was improper given Ballard’s foreseeable misuse of the Benzedrex® inhaler; (2) Appellees owed a duty to Ballard under a negligence theory; (3) a question of material fact exists as to whether the warning on the product label was sufficient; and (4) Appellee Dennison Laboratories is a proper party under a products liability theory even though it is a limited assembler, not a manufacturer.

Standard of Review

¶ 4 Whether the trial court’s entry of summary judgment was proper is a question of law we review de novo. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de novo review, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its application of the law and whether a dispute exists as to any genuine issue of material fact. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if a genuine issue of material fact is in dispute. Carmichael v. Better, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. In so doing, we view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Id.

Facts

¶ 5 Benzedrex® is a nasal inhaler designed for the symptomatic treatment of nasal congestion resulting from head colds and hay fever: The federal Food and Drug Administration (FDA) has approved propylhexedrine for use as an active ingredient in topical nasal, decongestants such as Benzedrex®. 21 C.F.R. § 341.20(b)(9). It classifies Benze-drex® a nonnareotic product that may be sold without a prescription. 21 C.F.R. § 1308.22. The FDA has concluded propyl-hexedrine is safe in the dosage ranges rised as a nasal decongestant. 41 Fed.Reg. 38,402 (1976); see also 59 Fed.Reg. 43,386 (1994).

¶6 The .FDA mandates the specific language as to directions for use and warnings that must appear on all Benzedrex® containers. See 59 Fed.Reg. 43,396 (1994) Comment 13; and 59 Fed.Reg. 43,404 (1994) Comment 25. When the FDA published its Tentative Final Monograph for Nasal decongestants it specifically addressed the issue that “certain OTC nasal decongestant products containing propylhexedrine have the capability. of producing a ‘high’ and therefore have a potential for abuse.” 50 Fed.Reg. 2,226 (1984) Comment 12. Acknowledging the reported instances of abuse “among individuals, most of whom had a history of drug abuse, who knowingly misused the drug,” the FDA concluded “[t]he agency believes that propyl-hexedrine should be available as an inhalant nasal decongestant because it is safe and effective, when used as instructed in the labeling.” Id. at 2,227. In establishing the required warnings of OTC inhalant products, the FDA considered and rejected a warning that stated “Caution: Not for use by mouth,” agreeing with a comment that such a warning could potentially incite abuse by stimulating the imagination of consumers and noting that the mandated dosage and directions “clearly indicate that these inhalants are to be used intranasally.” 50 Fed.Reg. 2,234 (1985) Comment 29.

¶ 7 The Benzedrex® label reads as follows:

DIRECTIONS: This product delivers in each 800 milliliters of air 0.40 to 0.50 milligrams of propylhexedrine. Adults and children (6-12 years) with adult supervision: 2 inhalations in each nostril not more often than every 2 hours. Children under 6: consult a physician. This inhaler is effective for a minimum of 3 months after first use. Keep inhaler tightly closed.
DO NOT EXCEED RECOMMENDED DOSAGE. This product may cause temporary discomfort such as burning, stinging, sneezing, or an increase in nasal discharge. The use of this container by more than one person may spread infection. Do not use this product for more than three days. Use only as directed. Frequent or prolonged use may cause nasal congestion to recur or worsen. If symptoms persist, consult a physician. KEEP THIS AND ALL MEDICATION OUT OF THE REACH OF CHILDREN. Ill effects may result if taken internally. In case of accidental overdose or ingestion of contents, seek professional assistance or contact a Poison Control Center immediately. As with any drug, if you are pregnant or nursing a baby, seek the advice of a health professional, before using this product.

At deposition, Prince admitted the warning on Benzedrex® package conveys the product may be poisonous if ingested.

¶ 8 During his initial years of propylhexed-rine abuse, Ballard would dismantle the Ben-zedrex® inhaler’s plastic tube and swallow the cotton pledget inside, which contained the FDA-approved mixture of propylhexed-rine, menthol, and lavender oil. Sometime in the late 1970’s or early 1980’s, Ballard’s stepson showed him how to create a solution using water and a syringe to extract .the propylhexedrine from the cotton pledget, which solution Ballard would inject directly into his bloodstream using a hypodermic needle. This method caused a more immediate “high” while avoiding the foul taste associated with swallowing the cotton-pledget. Ballard continued to abuse propylhexedrine in this way throughout the 1980’s and 1990’s until the date of his death, injecting the extracted contents of as many as three to five Benzedrex® inhalers a day.

¶ 9 Prince maintains Ballard’s addiction did not cause him to suffer any identifiable injury until his death. In support of this claim, she notes Ballard had not been to a doctor once during the ten-year period prior to his fatal overdose and was never diagnosed with any affliction attributable to pro-pylhexedrine abuse.

¶ 10 Prince’s expert conceded Ballard’s injection of the propylhexedrine solution was an abnormal, aberrant use of Benzedrex®. He further declared no scientific evidence exists to show the inhaler is addictive or can cause physical harm when used as directed by the product labeling. Finally, Prince’s expert testified that when Ballard would break apart a Benzedrex® inhaler, remove the cotton pledget, and use water and a needle to extract the propylhexedrine, the solution he created was no longer Benze-drex®.

¶ 11 The evidence further shows those members of Ballard’s family who were aware of his abuse repeatedly told Ballard his behavior could be harmful. Ballard himself acknowledged to his step-son, -a fellow pro-pylhexedrine abuser, that if Ballard did not end his misuse of the drug it could .kill him. Ballard’s step-son testified at deposition that both he and Ballard were aware their misuse of Benzedrex® was wrong. Prince admitted “[t]he extraction of the propylhexedrine from the inhaler , is a misuse of the inhaler.” Ballard’s knowledge in the years prior to his death of risks associated with his propyl-hexedrine abuse is thus without. question.

Products Liability

¶ 12 Oklahoma adopted the theory of manufacturers’ products liability in Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353. To maintain a products liability action, a plaintiff must prove: (1) .the-product was the cause of the injury; (2) the defect existed in the product at the time it left the manufacturer’s possession and control (if the action is against the manufacturer) or at the time of sale for public use (if the action is against the retailer or supplier); and (3) the defect made the article “unreasonably dangerous” to plaintiff or his property, meaning dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product with -the ordinary knowledge common to the community as to its characteristics. Id., ¶¶ 26, 29-31, 521 P.2d at 1362-63. The burden on the plaintiff in a products liability action is “a large and heavy one .... for he. must prove that his injury has been caused not necessarily by the negligence of the Defendant but by reason of a defect ‘built in’ and existing at the time of injury.” Id., ¶ 36, 521 P.2d at 1364.

¶ 13 The first question we must address is whether there is a substantial controversy as to whether Benzedrex® caused Ballard’s death. We find there is not. An extracted ingredient is not the legal equivalent of the parent product. As Prince’s expert acknowledged, the substance Ballard injected was not Benzedrex®, but a solution Ballard created from the extracted active ingredient in Benzedrex®: propylhexedrine. See e.g., United States v. Youngblood, 949 F.2d 1065, 1066 (10th Cir.1991) (holding under Oklahoma law that methamphetamine remains a Schedule II controlled substance even though the FDA has approved for over-the-counter sale both Rynal and Vicks nasal inhalers, which contain a combination of ingredients including diluted methamphetamine isomers); United States v. Viernes, 763 F.Supp. 1068 (D.C.Hawai’i, 1991) (holding government decriminalization of desox-yephedrine when used in limited quantities and in ■ concert with. other ingredients in Vicks Inhalers does not imply decriminalization of the drug when not mixed into a Vicks Inhaler; in other words, although desox-yephedrine is a methamphetamine, it does not follow that desoxyphedrine is Vicks Inhaler); State v. Erban, 429 N.W.2d 408, 411 (N.D.1988) (holding desoxyephedrine to be a controlled substance despite the fact that it is available in small amounts on an over-the-counter basis as part of the approved preparation in Vicks nasal inhalers); Accordingly, there is no substantial controversy that the product Benzedrex® used as a nasal inhaler did not cause Ballard’s death; the extracted propylhexedrine used as a stimulant did.

¶ 14 Turning to the second prong of the products liability analysis, Oklahoma law recognizes a consumer’s subsequent material alteration precludes recovery because the product cannot be said to have been defective when it left the manufacturer’s control. See Dutsch v. Sea Ray Boats, Inc., 1992 OK, 155, ¶ 18, 845 P.2d 187, 191 (refusing to hold manufacturer liable where subsequent modifications of boat caused injuries); Clark v. Continental Tank Co., 1987 OK 93, ¶ 23, 744 P.2d 949, 954 (affirming jury verdict for manufacturer where heater/treater was equipped with safety devices when it left manufacturer’s control but devices were later removed in the field causing flash fire); Stuckey v. Young Exploration Co., 1978 OK 128, ¶22, 586 P.2d 726, 731 (affirming summary judgment in favor of manufacturer where cab and chassis of truck had twice undergone substantial modification- after leaving manufacturer’s control); Kimbrell v. Zenith Radio Corp., 1976 OK 134, ¶¶8, 11, 13, 555 P.2d 590, 592 (affirming trial court’s directed verdict for manufacturer of television set where crimped wire that caused subsequent fire could have occurred during repair of set years after purchase). That Ballard broke apart Benzedrex® inhalers after purchasing them in order to extract the active ingredient to obtain a stimulant effect , is undisputed. Such a subsequent material alteration precludes liability on the part of the -manufacturer or seller.

¶ 15 We also may deem a product defective if a manufacturer fails to give directions or warnings on the container as to its use. See Smith v. U.S. Gypsum Co., 1980 OK 33, ¶ 9, 612 P.2d 251, 253. “If the warnings are unclear or inadequate to apprise the consumer of the inherent danger, the product may be defective, particularly where a manufacturer has reason to anticipate danger may result from the use of his product.” Steele v. Daisy Mfg. Co., 1987 OK CIV APP 64, ¶ 11, 743 P.2d 1107, 1109. Manufacturers, however, are not required to foresee that consumers will fail to read the product’s warnings and then use the product in a manner that the instructions expressly warn against. Hutchins v. Silicone Specialties, Inc., 1993 OK 70, ¶20, 881 P.2d 64, 67; see also Restatement (Second) of TORTS ,§ 402A, cmt. j (1965). “Only where the seller has reason to anticipate that danger may result from a particular use, may he be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition.” Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, ¶ 4, 833 P.2d 284, 286. “If a plaintiff is using the product for some purpose for which it was not intended and is consequently injured, he should not recover.” Kirkland, ¶ 45, 521 P.2d at 1366.

¶ 16 “The plaintiff must establish that the failure to warn was a proximate, producing cause of the injuries received.” Duane, ¶4, 833 P.2d at 286. “Where the danger or potentiality of danger is known or should be known to the user,, the duty to warn does not attach.” Id., ¶ 6, 833 P.2d at 287; see also, Atkins v. Arlans Dept. Store of Norman, Inc., 1974 OK 62, 522 P.2d 1020 (holding although it may be foreseeable that a child-may throw a lawn dart at another person, the product was not designed with such misuse in mind, thus alleged .design defect was not the proximate cause of .the injury and manufacturer not liable).

¶ 17 That Ballard knew of the danger posed by abusing the propylhexedrine in Benzedrex® is uncontroverted. He ignored the directions on the container by breaking apart the inhaler and extracting and injecting the active ingredient. He did not use Benze-drex® for its intended purpose as a nasal inhaler but as an illegal stimulant. FDA regulations specify the particular warnings that must appear oh Benzedrex® containers. Prince admits the warnings on the package clearly conveyed the contents could be poisonous if taken internally. Had Ballard heeded the product warnings and instructions for use, there is no evidentiary material that the product would have been incapable of causing him any harm. There is also no evidence demonstrating Benzedrex® was de-' fective when it left Appellees’ control. Rather, the product became dangerous only as a result of Ballard’s after-purchase modifications thereto and knowing, aberrant misuse thereof. Summary judgment was thus properly granted on the products liability claims. - ■

Negligence

¶ 18 The elements of negligence are: “(1) the existence of a duty on part of defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom.” Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, ¶ 7, 725 P.2d 300, 302. “The existence of a duty is an essential element of a negligence claim; without it the claim must fail.” Hen ry v. Merck and Co., Inc., 877 F.2d 1489, 1492 (10th Cir.1989) (citing Oklahoma law). “Just because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable.” Nicholson v. Tacker, 1973 OK 75, ¶ 11, 512 P.2d 156, 158. Indeed, “[bjecause duty and liability are matters of public policy they are subject to the changing attitudes and needs of society.” Brigance, ¶ 12, 725 P.2d 300, 303. Accordingly, “[wjhether a duty exists is a legal question to be determined by the court.” Henry, 877 F.2d at 1492.

¶ 19 For example, the Supreme Court has held a tavern owner has no liability to an intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injuries (to himself) as a result of his intoxication. Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, ¶ 20, 813 P.2d 508, 512. “[A]s á matter of public policy drunken persons who harm themselves are responsible for their condition, and should not prevail either under a common law or statutory basis.” Ohio Cas., ¶ 14, 813 P.2d at 511. In concluding the legal system should not reward inebriates for their immoderation, the Ohio Cas. court concurred with the following view enunciated in Kindt v. Kauffman, 57 Cal. App.3d 845, 129 Cal.Rptr. 603, 610 (1976):

When the restraint of reason and the ability to care for one’s self are' perverted by a conscious, self-indulgent act of voluntary intoxication which temporarily casts off those powers, no societal or personal wrong, nor violation of public or social policy is accomplished or violated if the actor is alone held answerable for his inju-ry_Governmental paternalism protecting people from their own conscious folly fosters individual irresponsibility and is normally to be discouraged.... To go yet another step and allow monetary recovery to one who knowingly becomes intoxicated and thereby injures himself is in our view morally indefensible.

Ohio Cas., ¶ 15, 813 P.2d at 511-12. If public policy does not condone a cause of action by inebriates suing for injuries caused by their own intoxication, we see no reason why it should permit addicts to recover for injuries stemming from their illicit drug use.

¶ 20 Furthermore, “[t]he general rule is that, absent Special circumstances, no duty is imposed on a party to anticipate and prevent the intentional or criminal acts of a third party. Oklahoma follows that rule.” Henry, 877 F.2d at 1492, (citing Joyce v. M & M Gas Co., 1983 OK 110, ¶ 7, 672 P.2d 1172, 1173). “Normally the actor has much less reason to anticipate intentional misconduct than he has to anticipate negligence, particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law.” Joyce, ¶ 5, 672 P.2d at 1174 (citing Restatement (Second) of TORTS, § 302B cmt. d (1965)). Oklahoma recognizes two types of special circumstances that create a duty to anticipate and prevent the illegal acts of a third party: “where the actor is under a special responsibility toward the one who suffers the harm or where the actor’s .own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.” Joyce, ¶ 5, 672 P.2d at 1174. Prince-has failed to show that such special circumstances creating a duty to foresee criminal acts existed between Ballard and Appellees.

¶21 We also conclude the trial court was correct in granting Appellees’ motions for summary judgment on the alternate ground that Ballard’s criminal use of the propylhexedrine in the Benzedrex® inhaler as a stimulant was the supervening cause of his death. The law in Oklahoma is clear that before a defendant will be liable for a plaintiffs injuries, the plaintiff must prove that his injuries resulted directly and proximately from the defendant’s negligence. Woodward v. Kinchen, 1968 OK 152, ¶ 10, 446 P.2d 375, 377. “The law does not charge a person with all possible consequences of his acts. Rather, the law ignores the remote cause and looks for the proximate cause of the injury.” Henry, 877 F.2d at 1494. “The proximate cause of an event must be that which in a natural and continuous sequence, unbroken by an independent cause, produces the event and without which the event would not have occurred.” Gaines v. Providence Apartments, 1987 OK 129, ¶ 4, 750 P.2d 125, 126-27. “Where the negligence complained of only creates a condition which thereafter reacts with a subsequent, independent, unforeseeable, distinct agency and produces an injury, the original negligence is the remote rather than the proximate cause thereof.” Id., ¶ 4, 750 P.2d at 127.

¶22 Generally, the question of proximate cause is one for the jury. Thompson v. Presbyterian Hosp., Inc. 1982 OK 87, ¶ 12, 652 P.2d 260, 263. The question becomes an issue of law when there is no evidence from which a jury could reasonably find the required proximate, causal nexus between the careless act and the resulting injuries. Smith v. Davis, 1967 OK 161, ¶ 5, 430 P.2d 799, 800. In that circumstance, it is for the court to determine as a matter of law whether the evidence is sufficient to show intervening factors broke the causal nexus between the original actor’s careless behavior and the resulting injury. Thompson, ¶ 13, 652 P.2d at 264. “An intervening factor sufficient to break the causal nexus is a supervening cause.” Henry, 877 F.2d at 1495. When an intervening cause is found to be supervening, “the original negligence may be said to undergo a legal metamorphosis into a remote cause or ‘mere condition.’ ” Thompson, ¶ 15, 652 P.2d at 264.

¶ 23 In Oklahoma, the test to determine whether a cause is supervening is whether it is: “(1) independent of the original act; (2) adequate of itself to bring about the result; and (3) one whose occurrence was not reasonably foreseeable.” Brigance, ¶ 21, 725 P.2d at 305; Strong v. Allen, 1989 OK 17, ¶ 9, 768 P.2d 369, 371; Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, ¶ 15, 652 P.2d 260, 264. “When the intervening act is intentionally tortious or criminal, it is more likely to be considered independent.” Henry, 877 F.2d at 1495, (citing Restatement (Second) of TORTS, § 302B, cmt. d (1965)); see also Lefthand v. City of Okmulgee, 1998 OK 97, ¶¶ 9-10, 968 P.2d 1224, 1226 (holding police officer’s decision to delay pulling vehicle over until after vehicle left restaurant merely furnished a condition by which injury was possible, but it was criminal act of driver in fleeing officer that was the supervening cause of the driver crashing his vehicle into a nearby house; the driver’s flight was independent of the officer’s timing of the traffic stop and adequate by itself to bring about passenger’s injury).

¶ 24 Ballard’s injection into his veins of a solution made from the propylhexedrine he extracted from Benzedrex® was certainly independent of Appellees’ manufacture and sale of the product as a nasal inhaler, and unquestionably sufficient in and of itself to bring about Ballard’s death. In addition, as discussed above, Appellees were not required to anticipate Ballard’s criminal acts in this regard. Accordingly, Prince cannot overcome Appellees’ supervening cause defense and her negligence claim fails as a matter of law. Summary judgment was properly granted on these claims as well.

¶ 25 AFFIRMED.

HANSEN, J., and JOPLIN, J., concur.

      . Ballard was found dead on his bathroom floor with a syringe stuck in his leg and a disassembled Benzedrex® nasal inhaler nearby.

      . Price failed to defend her breach of warranty claim against Appellees' motions for summary judgment and such theory of liability does not form the basis of any of Prince’s grounds for appeal herein.

      . This appeal from the trial court's decision sustaining Appellees' motions for summary judgment is submitted without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 O.S.2001, Ch 15, App.

      . 63 O.S.2001 § 465.20 prohibits consumption of substances (excluding liquor) to achieve an intox- ' icating effect, unless done under the direction or prescription of a doctor.

      . Evidence that a product could be made "safer” does not establish that it was less safe than would be expected by the ordinary consumer. Woods v. Fruehauf, 1988 OK 105, ¶ 17, 765 P.2d 770, 775.

      . Because we find Prince's products liability claim fails, we need not address her additional contention that Appellee Dennison Labs, Inc. was a proper party defendant as a limited assembler of Benzedrex® under a products liability theory.


source: Caselaw Access Project

author: JACKSON, Judge:

license: Public Domain

text:
    2004 UT App 104
    The VIEW CONDOMINIUM OWNERS ASSOCIATION, a Utah condominium association, Plaintiff and Appellant, v. MSICO, L.L.C., a Utah limited liability company; The Town of Alta, a political subdivision of the State of Utah; and John Does 1 through 10, Defendants and Appellees.
    No. 20020746-CA.
    Court of Appeals of Utah.
    April 8, 2004.

      Robert E. Mansfield and Stephen Chris-tiansen, Van Cott Bagley Cornwall & McCarthy, Salt Lake City, for Appellant.
    William H. Christensen and Lawrence B. Dingivan, Callister Nebeker & McCullough, Salt Lake City, for Appellees.
    Before Judges BENCH, DAVIS, and JACKSON.
   OPINION

JACKSON, Judge:

¶ 1 The View Condominium Owners Association (The View) challenges the district court’s denial of its motion for summary judgment and the district court’s grant of summary judgment to MSICO, L.L.C. (MSI-CO) and the Town of Alta (Alta). We affirm in part and reverse and remand in part.

BACKGROUND

1Í 2 The Sugarplum Planned Unit Development (Sugarplum PUD) comprises approximately 25 acres in Alta near the top of Little Cottonwood Canyon. On August 12, 1983, Sorenson Resources Company (Sorenson) recorded a plat of the Sugarplum PUD in the Salt Lake County Recorder’s Office preliminary to developing the property. Sorenson simultaneously recorded a “Master Declaration of Covenants, Conditions, and Restrictions of Sugarplum, a Planned Unit Development” (the Declaration). In the “Recitals” section of the Declaration, Sorenson declared that “the Project shall be held, sold, conveyed ... and used subject to the following Declaration as to ... covenants, servitudes, restrictions, limitations, conditions and uses ... hereby specifying that such Declaration shall operate for the mutual benefit of all Owners of the Project and shall constitute covenants to run with, the land.” (Emphasis added.)

¶ 3 Under the terms of section 1.25 of the Declaration, the Sugarplum PUD was divided into nine separate lots, “as shown on that certain map entitled ‘SUGARPLUM, A PLANNED UNIT DEVELOPMENT’ filed concurrently herewith in the office of .the Salt Lake County Recorder, as the same may be amended from time to time.” (Emphasis added.) The amendment power referred to in section 1.25 was expounded upon in Article XIII of the Declaration. Section 13.1 accordingly states that, “[until] sale of the first Lot or Unit[,] Declarant shall have the right to amend this Declaration.” Section 13.2 then states that, even after sale of the first lot, “Declarant shall have the sole authority at any time to amend this Declaration, and the Map, if necessary, for the purpose of allocating density to Lots owned by Declarant or changing the configuration, size or location of Lots owned by Declarant.” (Emphasis added.) •

¶ 4 Article III of the Declaration sets forth the “Use Restrictions” for the Sugarplum PUD. Under the terms of section 3.1, “[e]x-cept as otherwise provided herein, each Lot may be used in any manner consistent with the requirements of applicable zoning.... Nevertheless, ... Lot 5 shall be reserved for and improved with a parking facility for the owners of Lot 4 and Lots 6-9 and the Units constructed thereon.” (Emphasis added.)

¶ 5 On November 26, 1984, Sorenson recorded an Amended Sugarplum Plat (the Amended Plat). Under the terms of the Amended Plat, the configuration, size, and spatial relationships of the nine lots were significantly altered. Under the terms of the Amended Plat, the land previously designated as Lot 5 was now subsumed into the reconfigured Lots 6, 8, and 9. Significantly, approximately two-thirds of the land that had previously been recorded as Lot 5 was now included in the property allocated to the reconfigured Lot 8. As a result, Lot 5 was reconstituted across the street from Lots 6, 7, 8, and 9 using land that had previously been part of Lot 4. Finally, the Amended Plat omitted the prior references to Lot 5 as a site for “parking and commercial development.”

¶ 6 The View’s predecessor in interest purchased Lot 8 of the Sugarplum PUD on January 4, 1985. ■ MSICO purchased Lots 4, 5, and 9 on December 31,1988.

¶ 7 Due to the high volume of snow that falls in the area each year, the town of Alta requires snow storage plans from property owners before building permits are issued. Preliminary to receiving approval for the Sugarplum PUD (and prior to the sale of any of the lots), Sorenson representative Walter Plumb (Plumb) sent a letter to the town of Alta to clarify Sorenson’s

intent with regard to snow storage at the [Sugarplum] project. During development of Lots 6 and 8 ... snow shall be stored in appropriate areas. Should there be any excess snow, it may be stored on Lot 9 as recorded. We recognize that storage areas may change as to utilize several alternatives .... that exist. Any changes shall be submitted at such time as we make applications for development in addition to our first one hundred units.

Alta subsequently reviewed the proposed snow storage plan and requested changes. On March 5,1985, Alta informed the developer of The View that it had approved Lot 8 for development. This approval was predicated on the “understanding that. adequate snow storage/removal has been addressed only for the first 100 units of the P.U.D. ... with substantial storage planned for Lot 9.” On April 27,1985, Alta approved a snow removal plan for Lot 8. Under the terms of this plan, Lot 9 was expressly designated as overflow snow storage for The View. Since 1985, The View has continuously used Lot 9 for snow storage.

¶8 In 1988, Sorenson filed suit against Plumb alleging that Plumb had fraudulently failed to disclose to Sorenson that he had granted the use of Lot 9 for overflow snow storage. In a subsequent settlement of this action, Plumb agreed to “cooperate fully with and assist Sorenson with the removal of the snow storage designation of Lot 9.”

¶ 9 In September 1996, MSICO filed suit against Alta. Among the causes of action listed in that suit were causes arising out of Alta’s refusal to allow MSICO to develop Lot 9. On November 17, 1998, Alta sent a letter to the owners of The View to apprise them of the status of this litigation. In that letter, Alta stated that

“Lot 9” was designated by the developers of “The View” as the snow storage area for “Lot 8.” The Town granted construction approvals for The View based upon a snow storage plan designating “Lot 9” to receive snow from “Lot 8.” ...
[MSICO] is taking the position in the litigation against the Town that “Lot 9” has not been validly designated as snow storage for snow removed from “Lot 8” .... If [MSICO] succeeds in its claim that The View’s snow storage plan is invalid insofar as it designated “Lot 9” to receive snow from “Lot 8,” such a result would have major implications for The View home owners.
Snow storage is a life-safety issue in Alta. The Town has no choice but to require snow not be pushed into streets or impair emergency access or traffic. If the View Condominium Owner’s Association were to lose its ability to store snow on sites approved in its snow storage plan, the Town would have little choice but to take legal action to protect the public safety and welfare. That action might even include an injunction precluding occupancy of The View or portions thereof during snow periods.
The Town vigorously disputes [MSI-CO]’s allegations that “Lot 9” is not validly dedicated as snow storage for “Lot 8,” The View.

(First, third, and fourth emphases added.)

¶ 10 Pursuant to the litigation with MSI-CO, Alta filed a summary judgment motion, in which it argued that “[MSICO] cannot deny that its predecessor [Sorenson] sold Lot 9 to [MSICO] knowing that Lot 9 had been designated as snow storage.” In a deposition in that case, Alta’s Mayor testified that “Lot 9 was dedicated to snow storage by Walt Plumb in agreement with the planning commission.” At a November 1999 town hearing arising out of the dispute, Alta’s legal counsel testified that MSICO “knew there was a problem [arising out of the Lot 9 snow storage designation] as of 1988.”

¶ 11 MSICO and Alta settled their dispute on November 9, 2000. As part of this settlement, Alta and MSICO purported to remove the designation of Lot 9 for The View’s snow storage. Anticipating that The View would seek judicial enforcement of its snow storage rights, MSICO and Alta agreed that MSICO would defend and indemnify Alta from “assertions or claims that may be brought by owners of units in Lots 6, 7, or 8 of the Sugarplum PUD ... concerning a prior snow storage designation of Lot 9.” Further, as part of the settlement agreement, Alta purportedly approved a new snow storage plan for Lot 9 which would largely eliminate the use of Lot 9 as a snow depository site.

¶ 12 On December 13, 2000, The View filed its complaint, alleging six causes of action against MSICO and Alta. In its complaint, The View sought to enforce what it believed to be a restrictive covenant guaranteeing its occupants the right to use the reconstituted Lot 5 as a parking facility. The View also sought to enforce its right to use Lot 9 as overflow snow storage. It predicated this assertion on four different legal theories: first, The View argued that it had a contract with MSICO and Alta allowing it to use Lot 9 as overflow snow storage; second, The View argued that principles of estoppel should be applied to prevent MSICO or Alta from contesting The View’s right to store snow on Lot 9; third, The View argued that Alta’s efforts to deprive it of its snow storage right on Lot 9 constitute a compensable taking; fourth, The View argued that MSICO had granted it an enforceable snow storage easement.

¶ 13 Following preliminary motions and discovery, The View filed a motion for summary judgment on the Lot 5 parking claim. MSICO/Alta responded with their own motion for summary judgment on all claims before the court. Following briefing and oral argument, the district court denied The View’s summary judgment motion and granted MSICO/Alta’s motion for summary judgment. The View now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Summary judgment is appropriate only if there is no genuine issue of material fact and, given the facts, the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(e). “We review the trial court’s decision to grant summary judgment for correctness, viewing the facts in the light most favorable to the losing party. • We-also review the trial court’s determinations of law for correctness.” Fink v. Miller, 896 P.2d 649, 652 (Utah Ct.App.1995) (quotations and citations omitted).

ANALYSIS

I. The View’s Right to Enforce the Lot 5 Parking Agreement

¶ 15 The View first argues that the district court was incorrect in ruling that there was no enforceable covenant guaranteeing The View parking rights on the reconfigured Lot 5. We disagree.

¶ 16 It is well-established that, if recorded, the documents setting forth the plat designations for general plan developments can have the effect of creating restrictive covenants that are binding on all subsequent development.- See Restatement (Third) of Property: Servitudes § 2.1 cmt. c (2000) (“Real-estate developments involving multiple parcels or units almost always include easements and covenants. Typically, the servitudes are set out in a separate document, often labeled a declaration.”). However, “[r]eeording a declaration or plat setting out servitudes does not, by itself, create ser-vitudes. So long as all the property covered by the declaration is in á single ownership, no servitude can arise. Only when the developer conveys a parcel subject to the declaration do the servitudes become effective.” Id.; see also id. at § 2.14 cmt. a; 20 Am. Jur.2d Covenants § 163 (1995).' Further, although subsequent purchasers may not have had an interest in the property at the time that the general plan was enacted, the law holds that those purchasers are entitled to enforce any covenants that may have-been validly created. See Fink v. Miller, 896 P.2d 649, 652 (Utah Ct.App.1995) (“As a general proposition, property owners who have purchased land in a subdivision, subject to a recorded set of restrictive covenants and conditions, have the right to enforce such restrictions ....”); see also Restatement (Third) of Property: Servitudes § 1.7 cmt. a.

¶ 17 Under Utah law, “[a] covenant that runs with the land must have the following characteristics: (1) The covenant must (touch and concern’ the land; (2) the covenanting parties must intend the covenant to run with the land; and (3) there must be privity of estate.” Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 622-23 (Utah 1989). (footnote omitted). “Although the touch-and-concern and intent requirements are somewhat interrelated, the absence of any one of the requirements prevents a covenant from running with the land.” Id. Further, “ ‘Restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property.’ ” Dansie v. Hi-Country Estates Homeoumers Assoc., 1999 UT 62,- ¶ 14, 987 P.2d 30 (quoting St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 198 (Utah 1991)).

¶ 18 There is no dispute in the present case as to whether the purported parking covenant touches and concerns the land, nor is there is a dispute as to whether privity of estate exists. Instead, the sole dispute is whether Sorenson intended Lot 5’s designation as a parking space for Lot 4 and Lots 6, 7, 8, and 9 to act as a covenant that would run with the land. The district court ruled that there was no.such intent. We agree.

¶ 19 Explaining the intent prong of the analysis, our supreme court has stated that “the original parties to the covenant must have intended that the covenant run with the land” in order for the covenant to be deemed binding on successive generations. Flying Diamond Oil Corp., 776 P.2d at 627. Though “[a]n express statement in the document creating the covenant that the parties intend to create a covenant running with the land is usually dispositive of the intent issue[,][t]he parties’ intent may also be implied by the nature of the covenant itself.” Id. (emphasis added). “Generally, unambiguous restrictive covenants should be enforced as written. However, where restrictive covenants are susceptible to two or more reasonable interpretations, the intention of the parties is controlling.” Swenson v. Erickson, 2000 UT 16,¶ 11, 998 P.2d 807. In eases of textual ambiguity, “interpretation of the covenants is governed by the same rules of construction as those used to interpret contracts.” Id. Thus,

[i]n the determination of the intention of the parties, the entire context of the covenant is to be considered. In construing the words of the covenant, the court is not limited to dictionary definitions, but the meaning of [the] words used is governed by the intention of the parties, to be determined upon the same rules of evidence as are other questions of intention.

20 Am.Jur.2d Covenants § 171.

¶ 20 The View first argues that the language of the Declaration was unambiguous and that the district court’s reliance on extrinsic evidence in its examination of intent was therefore legal error. The relevant portions of the Declaration are: (1) section 3.1, which states that “Lot 6 shall be reserved for and improved with a parking facility for the owners of Lot 4 and Lots 6-9 and the Units constructed thereon”; (2) the Recitals section, which states that the terms of the Declaration “shall operate for the mutual benefit of all Owners of the Project and shall constitute covenants to run with the land” (emphasis added); and (3) section 13.2, which states that the “Declarant shall have the sole authority at any time to amend this Declaration, and the Map, if necessary, for the purpose of allocating density to Lots owned by Declarant or changing the configuration, size or location of Lots owned by Declarant.”

¶21 Reading these three portions of the Declaration together, we see at least three different, equally plausible interpretations as to the scope and meaning of the Lot 5 parking agreement. First, one could plausibly read these provisions and conclude that, insofar as section 3.1 “reserves” Lot 5 as a parking lot for the occupants of Lot 4 and Lots 6, 7, 8, and 9, the amendment power reserved to Sorenson under section 13.2 was subject to the intra-contraetual mandate that Lot 5 remain viable as a parking lot for the occupants of Lot 4 and Lots 6, 7, 8, and 9. Thus, section 13.2’s general amendment power would be held subordinate to the parking agreement of section 3.1.

¶ 22 Second, one could plausibly read these provisions as MSICO does and conclude that Sorenson’s reservation of the power to amend the “configuration, size[,] or location” of the Lot 6 designations clearly evidences an intent for the designation of Lot 5 as a parking lot to be a temporary designation, changeable by Sorenson at will. Under this reading, section 3.1’s parking designation is thus subordinate to section 13.2’s amendment power, thereby indicating that the parking agreement was an agreement that was at all times subject to extinguishment by the reserved amendment powers held by Sorenson.

¶ 23 Third, one could plausibly read these provisions as The View reads them and thus conclude that, because Sorenson retained the right to amend the “configuration, size[,] or location” of the respective lots, the covenant that Lot 6 be used as a “parking facility” for the other lots must mean that the right for the occupants of those other lots attaches to the most recent configuration of “Lot 5,” regardless of whether its “configuration, size[,] or location” has been changed. In this manner, the various provisions of the contract would ostensibly be harmonized.

¶ 24 There are various strengths and weaknesses to each of these approaches. At the very least, however, the threshold plausibility of such disparate readings indicates that the parking agreement contained in the Declaration was ambiguous as to its scope and duration. As such, The View’s argument that the district court erred by considering parol evidence in its determination of intent is simply incorrect.

¶ 25 Because of the intra-contraetual ambiguity regarding the proper reconciliation of these various contractual provisions, the district court necessarily examined the evidence before it to determine whether, in the context of a summary judgment motion, it could determine that the parties intended the permanent covenant language set forth in the Recitals section to apply to the parking agreement set forth in section 3.1 of the Declaration. The district court ruled that the evidence indisputably showed that the permanent covenant language was not meant to apply to the parking agreement and accordingly granted summary judgment on this issue. We agree.

¶26 To overcome a summary judgment motion, a party must present some direct evidence that would support its position. See Thurston v. Workers Comp. Fund, 2003 UT App 438,¶ 16, 83 P.3d 391. Here, the only direct evidence that was presented below regarding the application of the permanent covenant language to the parking agreement was the testimony of Walter' Plumb. As discussed above, Plumb testified that Soren-son did not intend for the Lot 5 parking designation to be permanent. Given Plumb’s direct, personal involvement in* this project, this evidence was highly probative and directly on point to the question at hand. As noted by the district court, The View has failed to provide any testimony from any witness who was similarly involved in the events that would rebut Plumb’s testimony regarding Sorenson’s intent, nor has The View offered any direct testimony or evidence of its own that would support a contrary position. In the absence of any proof to the contrary, Plumb’s unrebutted testimony regarding the proper application of the permanent covenant language to the parking agreement is by itself sufficient to support the district court’s conclusion that there is no genuine question of material fact on this issue.

¶27 Even were we to look beyond the direct evidence, however, the result would still be the same. As noted by the district court, the evidence indicates that The View’s predecessors in interest purchased Lot 8 after Sorenson had created and recorded the Amended Plat. The changes made in the Amended Plat altered the boundaries, dimensions, and spatial relationships of the various lots, and virtually all of the changes support the conclusion that Lot 5’s .prior designation as a parking lot was now obsolete. For example, the property that had been designated as “Lot 5” in the original Declaration was parceled out in the Amended Plat so as to be completely subsumed, into various other lots. The reconfigured Lot 8 received almost two-thirds of the land that had once been designated as Lot 5, allowing the owners of the reconfigured Lot 8 to use that land for whatever purpose, parking or otherwise, that they deemed optimal. Given that the land comprising the old Lot 5 had been absorbed by the other lots, an entirely new Lot 5 was created in the Amended Plat. Importantly, the new Lot 5 was now located across the street from the reconfigured Lots 6, 7, 8, and 9, thus reducing its usefulness .as a parking space for the occupants of Lots 6, 7, 8, and 9. Finally, in contrast to the original plans set forth in the Declaration, the Amended Plat contained no references to Lot 6 as a parking facility.

¶ 28 These changes, both individually and collectively, are consistent with the district court’s conclusion that the new Lot 5 was not meant to serve as a subservient parking lot for Lot 4 and Lots 6, 7, 8, and 9, but that it was instead intended for its own future development. In contrast, The View has not offered anything in rebuttal which would support the conclusion that, in spite of these massive changes to the plat designations, the new Lot 5 was still intended to be reserved as a parking lot for the use of the various other lots.

¶ 29 In sum, The View’s entire argument on this issue is predicated on its own reconciliation of the various provisions contained in the Declaration. The questionable, patently ambiguous internal interplay between the competing contractual provisions, however, mitigates any probative impact that the individual provisions, might have otherwise had. As a result, the district court correctly examined the extrinsic evidence, both direct and circumstantial, regarding Sorenson’s actual intent with respect to the proper duration of the parking agreement. Insofar as this evidence uniformly and irrebutably supports the conclusion that the parking agreement was meant to be temporary, we conclude that the district court correctly granted summary judgment on this issue.

II. The Lot 9 Snow Storage Agreement

¶ 30 The View next argues that the district court erred in granting summary judgment to MSICO and Alta on The View’s claims that Lot 9 should have been reserved for snow storage. In its complaint, The View argued that relief was proper under principles of contract, easement, estoppel, and takings law. The district court dismissed each of these claims.

¶31 The View’s contract claim is easily disposed of. There is no evidence in the record showing that any consideration was exchanged as part of the alleged contract between The View and Alta or MSICO regarding the Lot 9 snow storage. This alone is fatal to The View’s assertion of contractual rights, see Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413-14 (Utah 1998), and the district court therefore did not err in dismissing this claim.

¶ 32 However, The View’s easement, takings, and estoppel claims warrant more serious examination. The district court offered only one explanation for dismissing The View’s easement claim,- holding that “[i]t is undisputed that no recorded dedication or easement affects Lot 9 reserving it for snow storage for the benefit of Lot 8.” Assuming arguendo that this statement is true, it is nevertheless clear that a failure to record is not necessarily fatal to an easement claim. Under well accepted principles of law, non-reeorded easements may be binding upon subsequent purchasers if the purchasers are under constructive notice that the easements exist. See Johnson v. Higley, 1999 UT App 278,¶¶ 24-28, 989 P.2d 61. Thus, insofar as the district court’s dismissal of The View’s easement claim was based solely on an incorrect legal conclusion, that dismissal must be overturned.

¶33 We also conclude that the district court erred in dismissing The View’s estoppel claim.

The elements essential to invoke equitable estoppel are: (1) a statement, admission, act, or failure to act by one party inconsistent with a claim later asserted; (2) reasonable action or inaction by the other party taken on the basis of the first party’s statement, admission, act, or failure to act; and (3) injury to the second party that would result from allowing the first party to contradict or repudiate such statement, admission, act, or failure to act.

Eldredge v. Utah State Ret. Bd., 795 P.2d 671, 675 (Utah Ct.App.1990).

¶ 34 Here, viewing the evidence in the light most favorable to the non-moving party, we conclude that there was sufficient evidence brought forward to raise a question of material fact as to each of the estoppel elements. The first element — whether Alta made a statement that was “inconsistent ... with a claim later asserted” — is amply supported by (i) the designation of Lot 9 .as overflow storage by Alta in April 1985 and (ii) the numerous statements made by Alta to The View during its own litigation with MSL CO, in which Alta repeatedly asserted that Lot 9 had been validly dedicated as snow storage. Further, evidence presented below also indicates that these official statements were relied upon by The View in its longstanding use of Lot 9 as a storage space for its excess snow during the winter months. Viewed in the light most favorable to The View, this evidence raises a question of material fact as to the second estoppel factor. Finally, the evidence presented below indicating that The View’s costs for snow storage are likely to increase if Lot 9 is no longer available for that purpose raises a question of material fact as to whether The View would suffer an “injury” if Alta is allowed to contradict its prior statements as required by the third estoppel factor. Thus, viewing the facts presented below in the' light most favorable to The View, we conclude that the estop-pel claim should not have been dismissed.

¶ 35 Finally, we conclude that the district court erred in dismissing The View’s takings claim. Under Utah law, “the takings analysis has two principal steps. First, the claimant must demonstrate some protectible interest in property. If the claimant possesses a protectible property interest, the claimant must then 'show that the interest has been taken or damaged by government action.” ' Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870, 877 (Utah 1996) (quotations and citations omitted). Thus, a taking is “any substantial interference with private property which destroys or materially lessens its value, or by which the owner’s right to its use and enjoyment is in any substantial degree abridged or destroyed.” Id. (quotations and citations omitted).

¶ 36 Here, there is no dispute as to The View’s property interest in the continued use and development of Lot 8, thus satisfying the first prong of the takings analysis. The question then becomes whether that interest has been “taken or damaged by government action.” Id. Viewing the facts in the light most favorable to The View and drawing all reasonable inferences in its favor, we think that this prong has been satisfied. Alta has previously asserted that removal of the Lot 9 snow storage designation would force it to initiate legal action against The View. In the November 17, 1998, letter that was sent to The View, Alta stated that, if the Lot 9 snow storage designation were removed, “the Town would have little choice but-to take legal action to protect the public safety and welfare. That action might even include an injunction precluding occupancy of the View or portions thereof during snow periods.” There is also conflicting evidence as to the validity and cost-impact of the revised snow storage plan approved as part of the November 2000 settlement between Alta and MSI-CO. Viewing this evidence in the light most favorable to The View, however, we are obligated to conclude that The View would be damaged by the removal of the Lot 9 snow storage designation. Accordingly, we conclude that The View did present sufficient evidence to raise questions of material fact, and the district court’s dismissal of the takings claim must therefore be overturned.

III. The View’s Standing

¶37 Finally, in its responsive brief, MSICO and Alta assert that The View lacks standing to assert its claims. MSICO and Alta concede, however, that these claims were not raised below. “As a general rule, appellate courts will not consider an issue ... raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.” State v. Brown, 856 P.2d 358, 359-60 (Utah Ct.App.1993). MSICO and Alta have not argued nor provided us with any authority suggesting that the standing issue qualifies under either exception. Accordingly, we decline to address the merits of this argument.

CONCLUSION

¶ 38 For the foregoing reasons, we affirm the district court’s dismissal of The View’s claim regarding the existence of a Lot 5 parking covenant. We also affirm the district court’s dismissal of The View’s contract claim regarding the Lot 9 snow storage right. However, we reverse the district court’s dismissal of the easement, estoppel, and takings claims regarding the Lot 9 snow storage right, and remand this case to the district court for further proceedings consistent with this opinion.

¶ 39 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and JAMES Z. DAVIS, Judge.

      . Perhaps because of the uncontroverted nature of this evidence, The View urges us to hold that the parking agreement should be held applicable to whatever space of land is currently designated as “Lot 5.” However, we think that reading the Declaration in this manner could potentially create absurd results. For example, instead of creating a new, sizeable Lot 5 across the street from the reconstituted Lot 8, Sorenson clearly could have reconfigured the lots so as -to put Lot 5 on the other side of the development from Lot 8. Such a move would have rendered Lot 5's use as a parking designation for the occupants of Lot 8 impractical. Indeed, under the amendment powers set forth in the Declaration, Sorenson could have gone even further. Sorenson could have chosen to create a "Lot 5” that was the size of a single family dwelling or even the size of a single parking stall. Such a downsizing of “Lot 5” would have rendered the Lot 5 parking agreement virtually meaningless. It is thus clear that, if the Lot 5 parking agreement were held to have applied to whatever form Lot 5 ultimately took, Sorenson would have nevertheless retained the power to render the agreement completely useless by unchallengeable unilateral action. Under The View's own interpretation, then, the parking agreement contained in section 3.1 of the Declaration would have been a manifestly illusory contractual provision, thus rendering it void as a matter of law. See Peirce v. Peirce, 2000 UT 7,¶ 21, 994 P.2d 193 ("When there exists only the facade of a promise, i.e., a statement made in such vague or conditional terms that the person making it commits himself to nothing, the alleged 'promise' is said to be 'illusory.' An illusory promise neither binds the person making it, nor functions as consideration for a return promise.”) (Quotations and citations omitted.). As such, we refuse to read the Declaration in such a manner so as to produce what would manifestly be a legally indefensible result. See id. at ¶ 19 (holding that courts should "endeavor to construe contracts so as not to grant one of the parties an absolute and arbitrary right to terminate a contract”).

      . In response, Alta argues that the estoppel claim is improper because it was asserted against a governmental entity. It is true that, "[a]s a general rule, estoppel may not be invoked against a governmental entity.” Anderson v. Public Serv. Comm’n, 839 P.2d 822, 827 (Utah 1992). However, in Utah, "there is a limited exception to this general principle for unusual circumstances where it is plain that the interests of justice so require.” Id. (quotations and citations omitted). In Anderson, the Utah Supreme Court explained the contours of the "unusual circumstances" exception. Id. There, the court explained that the “unusual circumstances” exception is applicable where there have been "very specific written representations by authorized government entities.” Id. In Celebrity Club, Inc. v. Utah Liquor Control Commission, 602 P.2d 689 (Utah 1979), for example, the Utah Supreme Court held that a letter written by the Liquor Control Commission indicating that a private club was in compliance with applicable zoning regulations was sufficiently specific so as to allow an estoppel claim to proceed. See id. at 691. Similarly, in Eldredge v. Utah State Retirement Bd., 795 P.2d 671 (Utah Ct.App.1990), we held that various oral and written statements by employees of the Utah State Retirement Board regarding another employee’s employment history were specific enough so as to warrant application of the unusual circumstances exception. See id. at 672-73. Here, Alta made numerous written representations to The View indicating that Lot 9 had been reserved for snow storage. These representations were supported by Alta’s active assertion of this position in prior litigation. Due to the specificity of these representations, we conclude that the estoppel claim against Alta cannot be barred based on Alta's status as a governmental entity.

      . Alta argues that The View’s takings claim should be rejected due to The View's lack of a property interest in Lot 9. This argument, however, misses the point of The View's actual takings claim. As discussed above, The View's takings claim is predicated on the damage that it would suffer as the result of possible legal or administrative action that would be taken against its properties on Lot 8 were the snow removal designation of Lot 9 changed. Though the harm to The View’s interest in Lot 8 would naturally stem from the change in status of Lot 9, it is nevertheless clear that the protectible property interest at the heart of the takings claim is the interest that The View asserts in Lot 8 itself. Thus, the fact that The View lacks a distinct property interest in Lot 9 is not fatal to its takings claim.


author: GOLDEN, Justice.

text:
    2004 WY 54
    STATE of Wyoming, By and Through The WYOMING DEPARTMENT OF REVENUE, Appellant (Petitioner), v. POWDER RIVER COAL COMPANY, Appellee (Respondent).
    No. 03-9.
    Supreme Court of Wyoming.
    May 14, 2004.
    Representing Appellant: Patrick J. Crank, Wyoming Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; William F. Russell, Assistant Attorney General. Argument by Mr. Russell.
    Representing Appellee: Lawrence J. Wolfe, P.C., and James R. Belcher, P.C., of Holland & Hart LLP, Cheyenne, Wyoming. Argument by Mr. Belcher.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] Appellant Department of Revenue (Department) imposed sales tax on that portion of Appellee Powder River Coal Company’s (PRCC) revenue collected to pay for another tax, the Leaking Underground Storage Tank tax also known as LUST tax. Following a hearing, the Board of Equalization (Board) reversed the Department, finding no legislative intent to impose sales tax on another tax. The Department contends that the Board erred in this determination and requests reversal of the Board’s decision.

[¶ 2] We affirm the Board’s order.

ISSUES

[¶ 3] The Department presents the following statement of the issues:

1. Did the State Board of Equalization correctly determine that the legislature intended to exclude the LUST tax from the amount subject to sales tax, when the LUST tax is imposed by the fuel tax articles, and Wyo. Stat. § 39 — 15—101(a)(viii) expressly excluded taxes imposed by the federal government or the sales tax article from the amount subject to sales tax, but did not exclude taxes imposed by the fuel tax articles?
2. Did the State Board of Equalization correctly determine that the LUST tax only attaches at the consummation of a sale and, therefore, is not part of the sales price, when Wyo. Stat. § 39-17-204(b) levies the LUST tax on all diesel fuels used, sold, or distributed for sale or use in Wyoming?
3. Did the State Board of Equalization correctly determine that the LUST tax is a separate payment owed by the consumer to the State and, therefore, is not part of the consideration paid by the consumer to the vendor, when Wyo. Stat. § 39-17-207(b) requires a licensed supplier, refiner, or importer to pay the LUST tax to the State?

PRCC states the issue as:

Believing that the law did not require it, [PRCC] did not pay sales tax calculated to include in the sales price the LUST tax on diesel fuel it purchased between February 1, 1996, and January 1, 1999. After an audit, the Department assessed $39,384.41 against PRCC, which represents sales tax on the LUST tax. PRCC appealed, and the State Board of Equalization ruled that the Department improperly assessed sales tax on the LUST tax. The issue before this Court is whether the Wyoming Sales Tax statutes authorize the Department to assess sales tax on LUST tax'

FACTS

[¶ 4] PRCC purchased diesel fuel from Wyoming vendors to use in operating off-road equipment at PRCC’s coal mines in Wyoming’s Powder River Basin. PRCC paid sales tax on the price charged for the diesel fuel and paid a one cent per gallon tax pursuant to § 39 — 17—204(b), known as the LUST tax. PRCC did not pay sales tax on the revenue that had been collected for the purpose of paying the LUST tax. Following an audit of PRCC for the period of February 1, 1996, through January 1, 1999, the Department assessed additional excise taxes, and PRCC filed a notice of appeal with the Board. Following negotiations, the parties agreed that the disputed amount was $39,384.41, and the sole issue was whether sales tax was properly imposed upon the sales price of dyed diesel fuel without deduction for the LUST tax. The Board found that sales tax is not due on LUST tax and reversed the Department’s assessment in the disputed amount. The Department appealed to the district court, which certified the issues to this Court.

DISCUSSION

Standard of Review

[¶ 5] The parties have stipulated to the facts and present questions of statutory interpretation. Statutory interpretation is a question of law and is reviewed de novo. Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996). If an agency did not apply the correct rule of law, or applied it incorrectly, this Court does not defer to the agency’s conclusion biit will correct any errors of law. Id. When interpreting statutes, we follow an established set of guidelines. First, we determine if the statute is ambiguous or unambiguous. A statute is unambiguous if its wording is such that reasonable 'persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. Parker Land & Cattle Co. v. Wyoming Game & Fish Comm’n, 845 P.2d 1040, 1042-43 (Wyo.1993).

Applicable Sales and Fuels Taxation Statutes

[¶ 6] In Wyoming, sales tax is levied upon “[t]he sales price of every retail sale of tangible personal property.” Wyo. Stat. Ann. § 39-15-103(a)(i)(A) (Michie 1998 Supp.). Fuel is taxed under separate statutes. Wyo. Stat. Ann. § 39-6-901 through § 39-6-914 (Michie 1996), recodified as Wyo. Stat. Ann. § 39-17-101 through § 39-17-211 (Michie 1998 Supp.). Nearly all fuel sales were exempt from sales tax; however, for the audit period, dyed diesel fuel was not exempted and was subject to sales tax and the LUST tax. § 39-6-405(iii)(E). The Department contends that before the sales tax is computed, the statutory definition of “sales price” requires that the LUST tax be included as part of the sales price. ‘ That' definition states:

... the consideration paid by the purchaser of tangible personal property ... excluding any taxes imposed by the federal government or this artiele[.]

§ 39-6-402(a)(iv), recodified as § 39-15-101(a)(i)(vi).

[¶ 7] The Board determined that consideration is the amount that a purchaser pays to the vendor and, based on the applicable statute, the Board decided that the purchaser does not pay the LUST tax to the vendor, but pays it to the State of Wyoming. That statute states:

The taxes imposed on motor fuel shall be conclusively presumed to be a direct tax on the ultimate or retail consumer. When taxes are paid by any person other than the ultimate or retail consumer, the payment shall be considered as precollected and as an advance payment for the purpose of convenience and facility to the consumer and shall thereafter be added to the price of the motor fuel and recovered from the ultimate or retail consumer, regardless of where or how the taxable fuel is ultimately consumed.

Wyo. Stat. Ann. § 39-6-904(n) (Michie 1997), recodified as § 39-17-203(b)(ii) and § 203(c)(i) (Michie 1998 Supp.). The Board concluded that the LUST tax creates a debt of the purchaser, not the vendor, to the State of Wyoming, and consequently, the LUST tax is not consideration to the vendor and not taxable for sales tax purposes.

[¶ 8] The Department believes that because the LUST tax was not specifically exempted from sales tax in any statutes while several other types of taxes were specifically exempted, the legislature intended that the LUST tax become part of the sales price and the Board’s determination is in error. PRCC contends that the Board correctly ruled that the LUST tax is not part of the consideration between the parties to the sale but, instead, is a separate payment owed by the purchaser to the State of Wyoming upon completion of the sale. PRCC argues that the legislature intended that the LUST tax receive the same treatment as all other fuel taxes, meaning that both the sales and LUST taxes are imposed simultaneously and then added to the sales price and the total amount is then charged to the retail customer.

[¶ 9] To support their arguments, both parties extensively discuss the histoidcal background of the numerous fuel and sales taxation provisions (back to the 1920s), and several decisions from other jurisdictions with the most relevant ones predating 1997 concerning different kinds of taxation statutes to determine if, generally, a tax should be taxed. However, we agree with the Board that the legislature’s adoption of § 39-6-904(n) in 1997, recodified as § 39-17-203(b)(ii) and § 203(c)(i), changed fuel taxes from a tax on wholesalers to a direct tax on the ultimate consumer. The statutory language of § 904(n) plainly states this to be the legislative intent, and effectively requires that motor fuel taxes, including the LUST tax, be “added to the price of the motor fuel.” § 39-6-904(n). The use of the term “added” was deliberate and is intended to mean that the LUST tax is not “included” as part of the price but is meant to be supplementary, meaning that the tax is separately but simultaneously imposed and then added to the base price of the fuel to arrive at the total amount that the ultimate consumer pays. This interpretation is required, first, because the LUST tax is due from the consumer on a per gallon basis after the vendor has set the price and, logically, cannot be part of the sales price and, second, because the legislature has historically exempted fuel sales from sales taxation. 1980 Wyo. Sess. Laws Ch. 12, § l; 1986 Wyo. Sess. Laws Ch. 87, § l.

[¶ 10] Our interpretation is supported by the later recodification of the fuel and sales tax statutes when the legislature completely reorganized and renumbered Title 39 of the Wyoming Statutes. 1998 Wyo. Sess. Laws. Ch. 5. Effective March 6, 1998, the Legislature repealed these articles and recodified Title 39, stating:

This act is intended simply as a recodifi-cation. The Wyoming legislature intends to make no substantive change to prior law including, but not limited to revenue, either increases or decreases, powers, duties, authorities, obligations, definitions, administration, confidentiality, imposition, tax rates, exemptions, licenses, permits, compliance, collection procedures, enforcement, remedies, statutes of limitation or distribution of taxes. This act is not intended to affect the validity of any rule or regulation promulgated prior to the effective date of this act.

1998 Wyo. Sess. Laws Ch. 5, §§ 6, 8.

[¶ 11] Under the recodification, the LUST tax was specifically exempted from sales taxation. Wyo. Stat. Ann. § 39-15-105(a)(v)(C) (Michie 1998 Supp.). Although the Department contends that the Legislature made a mistake and the LUST tax remained subject to sales taxation, we do not see how the plain language of the exemption statutes can be ignored or determined to be a mistake. We think the reasonable view is that the LUST tax was exempted by § 39-6-904(n) before the recodification, the recodifi-cation confirmed that no change to the law was intended, and then, by statute, the LUST tax was specifically exempted. The Board believed that this view was also historically supported by past legislation and interpretations indicating that a tax on a tax is not favored. While we agree that these past interpretations of other taxation legislation are persuasive, we fortunately have specific statutory language requiring that the Board’s decision be affirmed.

[¶ 12] The Board’s order reversing the Department is affirmed.

      . Wyo. Stat. Ann. § 39-6-914(a) (Michie 1996), recodified as § 39-17-204(b) (Michie 1998 Supp.), provides: "In addition to the tax collected pursuant to W.S. § 39-6-909, there is levied and shall be collected a license tax of one cent ($.01) per gallon on all special fuels used, sold, or distributed for sale or used in this state....”

      . Dyed diesel fuel is exempt from the primary fuel tax and subject to sales tax. § 39-6-909(a)(vi), recodified as § 39-17~205(d).

      , The exemption was extended to sales of gasoline taxed under § 39-6-201 through § 39-6-216 and of special fuels taxed under § 39-6-901 through § 39-6-913. Because the LUST tax was governed by § 39-6-914, PRCC was required to pay sales tax and LUST tax on the dyed diesel fuel that it used to operate its equipment.

      . Enacting § 39-6-405 exempting gasoline or gasohol from sales tax.

      . Enacting § 39-6-505(a)(vii) exempting motor vehicle fuel which is subject to taxation under § 39-6-201 through § 39-6-214 or § 39-6-901 through § 39-6-913.

      .Exempts diesel fuels taxed under § 39-17-201 through § 39-17-211 which includes the LUST tax imposed under § 39-17-204.


author: KITE, Justice. GOLDEN, J.,

text:
    2004 WY 63
    Burton STEVENS, Appellant (Defendant), v. ELK RUN HOMEOWNERS’ ASSOCIATION, INC., a Wyoming non-profit corporation, Appellee (Plaintiff).
    No. 03-70.
    Supreme Court of Wyoming.
    June 2, 2004.

      Representing Appellant: Christopher S. Leigh, Jackson, Wyoming.
    Representing Appellee: Frank Hess and Paul E. D’Amours of Hess & Carlman, LLC, Jackson, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Burton Stevens placed a portable hot tub on the exterior deck of his townhouse without the express consent of the management committee of the Elk Run Homeowners’'Association (the Homeowners’ Association). ' The covenants which applied to the townhouse development required approval of the Homeowners’ Association for placement of items' within the common areas. The Homeowners’ Association filed suit against Mr. Stevens seeking to have the hot tub removed. The district court ruled, as a matter of law, that the restrictive covenants encumbering Mr. Stevens’ property prohibited ■ him from placing a portable hot tub on his deck without the Homeowners’ Association’s approval and ordered, him to remove it. We agree that the ■restrictive covenants required Mr. Stevens to obtain consent from the Homeowners’ Association’s management committee prior to placing the hot tub on his deck. Consequently, we affirm. •

ISSUES

[¶ 2]' Mr. Stevens articulates three issues on appeal:

1. When the Covenants, Conditions, and Restrictions of Elk Run Townhouses (Elk Run CCR’s) require Management Committee approval before owners may store, anything in “common areas” except “in a facility specifically designated or approved for their storage,” was the District Court correct in holding as a matter of law that “common areas” included decks which were designated as “Limited Common Area, Deck” on the recorded Elk Run plat[?]
2. When the Covenants, Conditions, and Restrictions of Elk Run Townhouses (Elk Run CCR’s) require Management Committee' approval before owners may store anything in “common areas” except “in a facility specifically designed or approved for their storage,” was the District Court correct in holding as a matter of law that a hot tub did not qualify under the exception for facilities specifically designated or approved for storage[?]
3. Whether the district court correctly interpreted , the Elk Run CCR’s as requiring Management Committee approval before placing a portable hot tub on the deck of appellant Burton Steven’s townhouse, when the CCR’s require Management Committee approval of any “exterior addition to or change or alteration, or improvement” upon the property. Is a portable hot tub an[] addition, change, alteration, or improvement within the meaning of the CCR’s[?3

[¶ 3] The Homeowners’ Association phrases the issues on appeal as follows:

I. Was the District Court correct to rule as a matter of law that limited common area is part of the common area and subject to the restrictive covenant that prohibits owners from placing or storing anything within the common areas without the written approval of the Management Committee?
II. Was the District Court correct to rule as a matter of law that by placing a hot tub on his limited common area deck without the prior written consent of the Management Committee, appellant was in violation of' the restrictive covenant that prohibits owners from placing or storing anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for their storage?
III. Was the District Court correct to fule as a matter of law that by placing a hot. tub on his deck without prior written approval from the Management Committee, appellant altered his deck in violation of the restrictive covenants?
IV. Can the District Court’s grant of summary judgment be affirmed under any other proper legal theory?

FACTS

[¶ 4] In 1993, a developer filed a Declaration of Covenants, Conditions and Restrictions (the covenants) and a plat for the Elk Run Townhouses development in Jackson. The covenants indicated each townhouse was located on a separate lot, allowing for fee simple ownership of each townhouse by an individual owner. The covenants also established the Homeowners’ Association and provided that the individual lot owners were members of it. The members were to elect a management committee to govern the affairs of the association. ■

[¶ 5] The covenants defined “common areas” as areas “designated as such on the applicable plat(s) for the project.” The plat identified decks, entryways, and parking areas as “limited common areas.” Other applicable provisions of the covenants stated:

12. Certain Additional Restrictions. The following additional restrictions are applicable to the lots and common areas. Each reference to “owners” includes their tenants and invitees.
a. Keeping Outside Areas Clean and Sightly. The Owners shall not place or store anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for their storage. All owners shall keep their residences and their lots in a reasonably clean, safe, sightly and tidy condition. No clotheslines will be permitted. Any tires, lawnmower, garden equipment, children’s] toys and other similar items must be stored and appropriately screened from the public view when not in use. No antennas or television “dishes” or other items may be placed in public view or upon any of the common areas or lots without the express written consent of the Management Committee. Refuse, garbage and trash shall be kept at all times in a covered container, and such covered container shall be screened from view at all times other than a specified regular time period for garbage pickup. The parking of recreational vehicles, boats, trailers and inoperative vehicles is prohibited in parking areas, garages and other common areas....
b. Obstructing Common Areas. Owners shall not obstruct common areas, Owners shall not place or store anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for such storage-
g. Architectural Control. Except as otherwise expressly provided herein, no building, fence, wall, driveway, excavation or improvement of any kind shall be commenced, erected or maintained upon the property, nor shall any exterior addition to or change or alteration therein be made (including without limitation any closing in of a porch or balcony) by any owner other than De-clarant, until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing by the Management Committee, as to harmony of external design and location in relation to surrounding structures and topography, and in relationship to the quality and appearance of the project....

[¶ 6] Mr. Stevens acquired Lot 12 of the Elk Run Townhouses Addition in 1998. His warranty deed stated that the property was subject to “taxes, reservations, covenants, encroachments, conditions, restrictions, rights-of-way and easements of sight and/or record.” After moving into his townhouse, Mr. Stevens placed a portable hot tub on his exterior deck. The Homeowners’ Association requested that Mr. Stevens remove the hot tub from his deck, but he refused.

[¶ 7] On June 13, 2001, the Homeowners’ Association filed a complaint in the district court to enjoin Mr. Stevens from keeping the hot tub on his deck. After filing the complaint, the Homeowners’ Association amended the covenants to specifically prohibit hot tubs on the premises.

[¶8] The parties filed opposing motions for summary judgment. The district court held a hearing, and, subsequently, granted summary judgment in favor of the Homeowners’ Association. The court articulated alternative bases for its decision. First, the district court determined that Mr. Stevens was required to obtain management committee approval for the hot tub under paragraph 12(g) because the deck was an improvement to the townhouse unit and placing a hot tub on the deck amounted to a “change” or “alteration” to the deck.

[¶ 9] The district court also ruled that paragraphs 12(a) and (b) applied to this case because “limited common areas,” including decks, were governed by the provisions pertaining to “common areas.” The court concluded that, under paragraphs 12(a) and (b), management committee approval was required before a hot tub could be placed on a deck. Although the Homeowners’ Association argued that the amended covenants applied to Mr. Stevens, the district court did not address that issue in its decision. Mr. Stevens filed a timely notice of appeal of the district court’s summary judgment order.

DISCUSSION

[¶ 10] Mr. Stevens argues that the district court erred by granting summary judgment in favor of the Homeowners’ Association. He' claims that the district court misinterpreted the covenants as requiring management committee approval prior to the placement of a portable hot tub on an exterior deck.

[¶ 11] Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Owsley v. Robinson, 2003 WY 33, ¶ 7, 65 P.3d 374, ¶ 7 (Wyo.2003). See also, W.R.C.P. 56(e). The court considers the record in the perspective most favorable to the party opposing the motion and gives that party the benefit of all the favorable inferences which may be fairly drawn from the record. Hasvold v. Park County School District No. 6, 2002 WY 65, ¶ 11, 45 P.3d 635, ¶ 11 (Wyo.2002); Anderson v. Solvay Minerals, Inc., 3 P.3d 236, 238 (Wyo.2000).

[¶ 12] This case involves the interpretation of restrictive covenants which control the use of land. Restrictive covenants are contractual in nature and are, therefore, interpreted in accordance with principles of contract law. Goglio v. Star Valley Ranch Association, 2002 WY 94, ¶ 23, 48 P.3d 1072, ¶ 23 (Wyo.2002); Anderson v. Bommer, 926 P.2d 959, 961 (Wyo.1996). When the contractual language is clear and unambiguous, the interpretation and construction of contracts is a matter of law for the courts. We review questions of law de novo without giving any deference to the district court’s determinations. Hasvold, ¶ 11.

[¶ 13] As with all contracts, our goal in interpreting restrictive covenants is to determine and effectuate the intentions of the parties, especially the grantor. When the language of the covenants is clear and unambiguous, we look only to the four corners of the instrument itself to determine the parties’ intent. Goglio, ¶ 26; Anderson, 926 P.2d at 961. The intention of the parties is resolved within the context of the entire instrument, rather than from a single clause. Anderson, 926 P.2d at 961. “Where the language imposing the restrictions is clear and unambiguous, [we] construe it according to its plain and ordinary meaning without reference to attendant facts and circumstances or extrinsic evidence.’.’ , Id. In general, restrictions upon the use of land are not favored and, accordingly, such restrictions will not be extended by implication. Hutchison v. Hill, 3 P.3d 242, 245 (Wyo.2000). Nevertheless, when the parties’ intent is clear from the plain language of the covenants, “the rule of strict construction does not apply.” Anderson, 926 P.2d at 961-62.

[¶ 14] We turn first to Mr. Stevens’ argument that the district court erred by determining that paragraph 12(g) (architectural control) applied to the placement of a portable hot tub on his deck. The district court held that, under paragraph 12(g), Mr. Stevens was required to secure management committee approval before placing the hot tub on his deck because the deck was an improvement to the townhouse unit and placement of the hot tub amounted to a change and alteration of the deck.

[¶ 15] We do not agree with the district court’s conclusion on this issue. When we read paragraph 12(g) in its entirety and within the context of the whole declarations document, we believe that the terms “alteration” and “change” clearly and unambiguously denote a degree of permanence. The declai'ant included “closing in of a porch or balcony” as an example of the type of alterations or changes which fall within the paragraph 12(g). The paragraph also specifically refers to buildings, fences, walls, and driveways. Each of these examples is a permanent and enduring modification to the premises.

[¶ 16] Although, this Court has not addressed the meaning of “alteration” or “change” as those terms apply to modifications to real property, other states have addressed this issue in the context of leases. The Colorado Supreme Court opined:

“[T]he terms ‘alteration’ and ‘change’ are construed to mean any alteration or change which substitutes or varies one thing from one form or state to another; which changes or substitutes in a substantial particular any part of a building; which materially and substantially changes the basic structures; or which varies the structural quality.”

Cohen v. Power Investment Co., 188 Colo. 34, 532 P.2d 731, 732 (1975) quoting Zelinger v. Plisek, 162 Colo. 490, 426 P.2d 957 (1967). See also, Bonan v. Sarni Original Dry Cleaners, Inc., 359 Mass. 217, 268 N.E.2d 366 (1971) (holding that tenant did not violate a lease provision which prohibited alterations without landlord consent when it placed a shirt pressing machine in the front of a dry cleaning store without first obtaining consent from the landlord).

[¶ 17] Placing a portable hot tub on a deck does not affect the structure of the deck or townhouse. The hot tub could be moved by simply unplugging it and draining the water. Consequently, a portable hot tub is not the type of permanent alteration or change addressed by the plain language of paragraph 12(g). The district court’s decision to the contrary was incorrect.

[¶ 18] The district court also relied on paragraphs 12(a) and (b) of the covenants in concluding that management committee approval was required before the hot tub could be placed on the deck. Paragraphs 12(a) and (b) address keeping outside areas clean, sightly, and free of obstructions. Owners are prohibited from placing or storing “anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for their storage.”

[¶ 19] Mr. Stevens claims that paragraphs 12(a) and (b) do not apply because his deck is designated on the plat as a “limited common area” rather than a “common area.” In addition, he argues that, even if the provision does apply to his deck, the hot tub falls within the exception allowing facilities specifically designated or approved for storage because it is used to store water. The plat indicates that decks, entryways, and parking areas are “limited common areas.” The plain and ordinary meaning of the term “limited common area” is an area reserved for an owner’s exclusive use, but subject to observation by others and, consequently, regulation by a homeowner’s association. See e.g., Dunlap v. Bavarian Village Condominium Association, Inc., 780 P.2d 1012, 1013 (Ak.1989). Clearly, the grantor intended to include limited common areas like decks, entryways and parking areas within the regulation of paragraph 12(a) and (b). The obvious purpose of the provisions is to keep any areas that could be observed by the general public and other townhouse owners neat, orderly, and free of obstacles. It would make no sense to direct that tires, lawn mowers, garden equipment, and children’s toys be properly stored and screened from public view if the provision did not apply to areas such as decks, entryways and parking areas. Therefore, we hold that paragraphs 12(a) and (b) apply to decks.

[¶ 20] Under those provisions, management committee approval was required before anything except “facilities specifically designated or approved for storage” could be placed on a deck. Mr. Stevens argues that his hot tub fell within the “storage” exception because it was used to store water. Such an interpretation unduly tortures the language of paragraphs 12(a) and .(b). As correctly recognized by the district court, a hot tub’s primary purpose is for bathing. The storage of water is incidental to the hot tub’s main purpose. Mr. Stevens’ interpretation of the “storage” exception would stretch the meaning of that provision well beyond the grantor’s obvious intent. The district court correctly gave effect to the intent of the restrictive covenants by ruling that Mr. Stevens was required to obtain management committee approval before he placed a hot tub on his deck.

[¶ 21] Finally, the Homeowners’ Association argues that the district court’s decision may be affirmed on the basis that the amendment to the covenants that expressly prohibits hot tubs applied to Mr. Stevens. Our ruling that paragraphs 12(a) and (b) mandated Mr. Stevens to obtain management committee approval before the hot tub could be placed on his deck is dispositive. We do not, therefore, need to delve into the issue pertaining to the validity and applicability of the amendments to the restrictive covenants.

[¶ 22] Affirmed.

GOLDEN, J.,

dissenting.

[¶ 23] I am more persuaded by Mr. Stevens’ argument. Being true to the principle that we strictly read restrictive covenants and do not extend them by implication, I do not see “limited common area” to be a subset of “common area.” The two areas are separate and distinct. Truth be told, the Homeowners Association’s OCR’s simply failed to cover the limited common area and, thus, the hot tub situation. The Association took the correct action by later amending the OCR’s, but that issue is not before us.