J. William Winney, Jr. v. Michael Troy Jerup

                IN THE SUPREME COURT, STATE OF WYOMING

                                            

                                                                  OCTOBER TERM, A.D. 2023

                                                                        November 28, 2023


J. WILLIAM WINNEY, JR.,

Appellant
(Plaintiff),

v.                                                                      S-23-0075

MICHAEL TROY JERUP,

Appellee
(Defendant).

                       Appeal from the District Court of Sublette County
                           The Honorable Kate G. McKay, Judge

Representing Appellant:
      Clark Stith, Rock Springs, Wyoming.

Representing Appellee:
      Stuart R. Day and Erica R. Day, Williams, Porter, Day & Neville, P.C. Casper,
      Wyoming. Argument by Ms. Day.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX, C.J., delivers the opinion of the Court; FENN, J., files an opinion concurring in
part and dissenting in part.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FOX, Chief Justice.

[¶1] J. William Winney, Jr. sued neighboring property owner, Michael Troy Jerup,
claiming Mr. Jerup constructed an outbuilding in violation of setback requirements
governing their properties. The district court found the building violated the setback
requirements but denied Mr. Winney’s request for an order requiring that the structure be
removed or relocated. We affirm.

                                            ISSUES

[¶2]   This appeal presents three issues:

              1. Did the district court err in denying Mr. Winney’s request
              for an injunction on the ground that it was untimely?

              2. Did the district court err in ruling that proof of an injury
              was an element of Mr. Winney’s request for an order
              enjoining Mr. Jerup’s violation of the protective covenants?

              3. Did the district court err in denying Mr. Winney’s request
              for an injunction requiring Mr. Jerup to remove or relocate
              the outbuilding he placed in violation of the applicable
              setback requirements?

                                            FACTS

[¶3] Mr. Winney and Mr. Jerup reside on adjoining properties in the Hoback Ranches
subdivision in Sublette County, Wyoming. All of the properties in the subdivision are
subject to protective covenants, which have a stated purpose

              to insure the use of the property for attractive residential
              purposes, to prevent nuisances, to prevent the impairment of
              the attractiveness of the property, to maintain the natural
              environment and protect the ecology of the area, and thereby
              secure to each tract owner the full benefit and enjoyment of
              his respective tract.

[¶4] The covenants contain two provisions governing setbacks. Paragraph 17 specifies
that “[n]o building or any part thereof, including garages and porches, shall be erected on
any tract closer than 100 feet to any edge of said tract.” Paragraph 20 provides in relevant
part:




                                              1
                        There are hereby reserved to grantors, for the purpose
                 of having adequate bridle paths, roadways, and utility
                 easements to serve each tract, a perpetual easement of 33 feet
                 in width along each edge of the herein described tract, for the
                 purpose of erecting, constructing, and maintaining bridle
                 paths, roadways, and public utility facilities, both
                 underground and overhead.

[¶5] In 2018, Mr. Jerup began plans to construct an outbuilding to store his road
maintenance equipment. 1 Based on the topography of his property, he chose the only
remaining site that could accommodate the structure and its intended use. He knew the
site was entirely within the 100-foot setback imposed by the protective covenants, but
unbeknownst to him, a portion of the site also encroached thirteen feet into the 33-foot
setback. 2

[¶6] Because the building site was within the 100-foot setback, Mr. Jerup contacted
Clinton Cragg, the neighbor whose property bordered the proposed building site, and
offered to purchase his property. Mr. Cragg did not wish to sell his property but offered
to execute an encroachment agreement by which he waived any objection to the
encroachment on the 100-foot setback. Mr. Cragg executed the encroachment agreement
on March 29, 2019, and it was recorded on May 1, 2019.

[¶7] In June 2019, Mr. Jerup began clearing ground in preparation for construction of
the outbuilding. By July 8, 2019, the building was framed, and the roof trusses were in
place. Mr. Winney observed the construction activity, and by the second week of July
2019, he knew the structure violated the setback requirements of the protective
covenants.

                 Somewheres around the second week of July, I started
                 looking more closely and I started to see some indication that
                 it was going to be a building, so then the next question I had
                 was if it’s a building, does it comply with the covenants or
                 not. I mean if it complied with the covenants, then end of

1
   Mr. Jerup’s road maintenance equipment was the subject of prior litigation between these parties.
Winney v. Hoback Ranches Prop. Owners Improvement & Serv. Dist., 

, 

(Wyo. 2021). Mr. Winney sued Mr. Jerup claiming that storage of the equipment on his property violated
the protective covenant prohibiting commercial activity in the subdivision. Id. at ¶ 58, 499 P.3d at 269.
The district court ruled in Mr. Jerup’s favor, and we affirmed. Id. at ¶ 74, 499 P.3d at 272.
2
  In addition to the 33-foot setback in the covenants, the subdivision’s plat specified that “[a]ll road right-
of-way widths are 66 feet, 33 feet either side of the shown centerline[.]” Winney, 

, 499
P.3d at 257. Because Vista Ridge Lane, the road on which Mr. Jerup resides, veers away from his
property, his building site did not encroach on the right-of-way for that road.



                                                      2
                issue. Well, it didn’t. And I had to go figure out how to
                ascertain to a factual basis and to satisfy you, as my attorney,
                that, in fact, there was a violation. So I set about measuring
                things and came to realize he not only was well within the
                100[-]foot setback requirements, but he probably was within
                the 33[-]foot.

[¶8] On August 17, 2019, Mr. Jerup learned of Mr. Winney’s objection to his
outbuilding’s location. 3 On August 21, Mr. Winney’s attorney sent an email to Mr.
Jerup’s attorney asserting the outbuilding violated the 33-foot setback and demanding
that Mr. Jerup cease construction and remove the building. On August 23, Mr. Winney’s
attorney sent a second email notifying Mr. Jerup’s attorney that if construction continued,
“the Winneys will likely be forced to seek an injunction to stop construction.” On
September 23, 2019, Mr. Winney’s attorney sent a third email adding that the building
violated the 100-foot setback.

[¶9] When Mr. Jerup learned of Mr. Winney’s objection, the building was fully framed,
had rafters and its front beam in place, and was about to have plywood put on it. It was
substantially completed in the fall of 2019, and as completed, it measured thirty feet wide
by thirty-six feet long by nineteen feet high. 4

[¶10] On November 8, 2019, Mr. Winney sued Mr. Jerup; he alleged Mr. Jerup’s
outbuilding violated the 33 and 100-foot setbacks and requested an order directing Mr.
Jerup to remove, or demolish and remove, the building from any location within the 100-
foot setback. He also requested an award of attorney fees and costs. In support of the
relief requested, Mr. Winney cited the enforcement provision of the protective covenants,
which provides:

                       If the owner of any tract conveyed by Hoback
                Ranches, or their heirs, or assigns shall violate any of the
                covenants or conditions hereinabove set forth, it shall be
                lawful for the grantor or any other person owning a tract
                conveyed by Hoback Ranches to prosecute any proceedings
                at law or in equity against the person or persons violating any
                of the covenants or conditions, and either to prevent him from
                doing so, or to recover damages, including costs and
                reasonable attorney fees, for such violation, or both.


3
 The record does not indicate how Mr. Jerup learned of the objection on that date.
4
 As originally constructed, the building had a dirt floor, but in the summer of 2020, Mr. Jerup completed
additional work on it, which included pouring a concrete floor.



                                                   3
[¶11] The parties filed cross-motions for summary judgment, and the district court
granted Mr. Winney’s motion only as to the question of whether Mr. Jerup’s outbuilding
violated the 100 and 33-foot setbacks. It denied Mr. Winney’s motion for summary
judgment on his demand for injunctive relief and Mr. Jerup’s motion on his affirmative
defenses of laches and abandonment.

[¶12] Following a bench trial, the district court ruled in favor of Mr. Jerup. It found Mr.
Winney unreasonably delayed commencing his action and that his delay prejudiced Mr.
Jerup because he was unable to cure the setback violations, other than to remove or
demolish the completed building. It further found that Mr. Winney failed to prove
damages. After the court entered judgment, Mr. Winney timely appealed to this Court.

                                STANDARD OF REVIEW

[¶13] Injunctions are “requests for equitable relief which are not granted as a matter of
right but are within the lower court’s equitable discretion.” Olsen v. Kilpatrick, 

, 

 (Wyo. 2007) (quoting Polo Ranch Co. v. City of Cheyenne,

, 

 (Wyo. 2003)); see also EME Wyo., LLC v. BRW
E., LLC, 

, 

, 990 (Wyo. 2021) (“Requests for equitable
relief are matters over which the district court exercises broad discretion.”) (quoting
Harber v. Jensen, 

, 

 (Wyo. 2004)). We thus review the
court’s decision for an abuse of discretion. Operation Save Am. v. City of Jackson, 

, 

 (Wyo. 2012) (citing In re Kite Ranch, LLC v. Powell
Fam. of Yakima, LLC, 

, 

 (Wyo. 2008)).

[¶14] “Judicial discretion is a composite of many things, among which are conclusions
drawn from objective criteria; it means exercising sound judgment with regard to what is
right under the circumstances and without doing so arbitrarily or capriciously.” Evans v.
Sharpe, 

, 

 (Wyo. 2023) (quoting Johnson v. Clifford,

, ¶ 8, 

 (Wyo. 2018)).

                      A district court does not abuse its discretion if it could
              reasonably conclude as it did. To determine whether the
              district court’s decision was reasonable, we consider the
              evidence in the light most favorable to the district court’s
              decision, affording every favorable inference to the prevailing
              party and omitting from our consideration the conflicting
              evidence. This Court may not reweigh the evidence.

, 

 (cleaned up); see also Olsen, 

,

 (court’s exercise of equitable discretion in enforcing restrictive covenant
“will not be reversed absent a strong showing of abuse”).



                                              4
[¶15] “After a bench trial, we review the district court’s findings of fact for clear error
and legal conclusions de novo.” Aimone v. Aimone, 

, 

(Wyo. 2023), rehearing denied; (citing Lyman v. Childs, 

, 

 (Wyo. 2023)). Mr. Winney challenges the district court’s legal conclusions and
exercise of discretion, but he does not challenge any finding of fact we consider relevant
to the court’s exercise of its discretion.

                                       DISCUSSION

[¶16] In its decision letter, the district court summarized its ruling as follows:

              32) The Covenants authorize Winney to prosecute
              “proceedings at law or in equity against the person or persons
              violating any of the covenants or conditions, . . . to prevent
              him from doing so . . ..” Jerup has proven that Winney
              unreasonably delayed commencing this action beyond a point
              where doing so could prevent Jerup from violating the
              easements or setbacks. This unreasonable delay caused
              prejudice and disadvantage to Jerup because he was unable to
              cure any easement or setback violations other than to remove
              or to demolish the completed Building.

              33) The Covenants authorize Winney to prosecute
              “proceedings at law or in equity against the person or persons
              violating any of the covenants or conditions, . . . to recover
              damages, including costs and reasonable attorney fees, for
              such violation . . ..” Winney admits that he can prove no
              damages, and based upon the testimony and evidence at Trial,
              he has failed to prove that he has suffered damages by the
              presence of the Building in violation of any easements or
              setbacks.

[¶17] The district court’s judgment included a finding that “Plaintiff failed to prove the
elements of his claim against Defendant in trial, including that, without an injunction
requiring demolition of the outbuilding at issue, he would suffer an injury.” We conclude
the court erred in denying injunctive relief as a matter of law based on Mr. Winney’s
delay in objecting and his lack of damages. Although the court’s rationale for denying
injunctive relief was error, we will affirm on alternative grounds.

[¶18] We will first address the error in the district court’s rationale. We will then turn to
a weighing of the equities of injunctive relief, which provides an alternative basis for
affirming the court’s denial of the requested relief.



                                              5
I.     The district court erred in denying Mr. Winney’s request for an injunction on
       the ground that it was untimely.

[¶19] Mr. Winney asserts the district court incorrectly construed the covenants to require
him to commence legal action early enough to “prevent” Mr. Jerup’s setback violation.
Mr. Jerup responds that the district court imposed no such requirement and instead
correctly ruled that Mr. Winney’s action was barred by laches. We disagree that the
district court found Mr. Winney’s action was barred by laches.

[¶20] The district court concluded Mr. Winney’s delay in commencing his action barred
injunctive relief, but in so holding, the court did not reference laches or conduct a laches
analysis. Moreover, the crux of a laches defense is a party’s detrimental reliance on
another’s delay. See Tram Tower Townhouse Ass’n v. Weiner, 

, 

, 368 (Wyo. 2022) (“We have said ‘the party asserting the doctrine of laches
must show that he relied upon the plaintiff’s actions and changed his position in reliance
thereon to his prejudice.’”) (quoting Hammond v. Hammond, 

 (Wyo.
2000)). The court made no finding that Mr. Jerup relied on Mr. Winney’s delay to his
detriment. Nor would the record have supported such a finding; there is no evidence that
Mr. Jerup continued construction of his outbuilding based on Mr. Winney’s silence or a
mistaken belief that Mr. Winney would acquiesce in his setback violations. The record is
instead clear that Mr. Jerup knowingly built within the 100-foot setback based on his
belief that his agreement with Mr. Cragg resolved any problem with the encroachment.
Thus, while the court found Mr. Winney’s delay significant, we cannot conclude it found,
or could have found, his action was barred by laches.

[¶21] Although the district court’s ruling is not entirely clear, it appears, as Mr. Winney
contends, that the court found the covenants’ use of the term “prevent” required that an
enforcement action be brought before a violation is complete. The court’s interpretation
finds no support in the plain meaning of the term “prevent.”

[¶22] “Covenants are contractual in nature and we therefore interpret them as we would
a contract.” Sweetwater Station, LLC v. Pedri, 

, 

(Wyo. 2022) (quoting Winney, 

, 499 P.3d at 266). “Our goal is ‘to
determine and effectuate the intention of the parties, especially the grantor or declarant.’”

 (quoting Reichert v. Daugherty, 

, ¶ 15, 

 (Wyo. 2018)).
“The words used in the covenant are afforded the plain meaning that a reasonable person
would give to them.” 

, 

 (quoting Winney, 

, 499 P.3d at 266).

[¶23] The protective covenants for the Hoback Ranches subdivision authorize any
landowner in the subdivision “to prosecute any proceedings at law or in equity against the
person or persons violating any of the covenants or conditions, and either to prevent him
from doing so, or to recover damages, including costs and reasonable attorney fees, for


                                             6
such violation, or both.” A request for an injunction is a proceeding in equity, and an
injunction may be prohibitory or mandatory. 42 Am. Jur. 2d Injunctions § 6 (May 2023
update). A prohibitory injunction maintains the status quo by restraining an act. Id. In
contrast, “[a] mandatory injunction . . . does not maintain the status quo but rather
compels the performance of an affirmative act.” Id. (footnote omitted). “Mandatory
injunctions are commonly issued to compel, among other things . . . the removal of
encroachments[.]” Id. (footnote omitted).

[¶24] The covenants authorize an action in equity to prevent a violation. The plain
meaning of the term “prevent” is “to keep from happening or existing.” Prevent,
Merriam-Webster https://www.merriam-webster.com/dictionary/prevent (last visited Oct.
1, 2023). A prohibitory injunction would keep a covenant violation from happening,
whereas a mandatory injunction would keep a violation from existing. We thus conclude,
based on the plain meaning of the term “prevent,” that the grantor intended to authorize
both types of relief. It is not a term that was intended to restrict the timing of an action in
equity, and the district court erred in ruling otherwise.

II.    The district court erred in ruling that proof of an injury was an element of Mr.
       Winney’s request for an order enjoining Mr. Jerup’s violation of the protective
       covenants.

[¶25] Generally, a party seeking an injunction must show “the potential harm is
irreparable and there is no adequate remedy at law to compensate for the harm.” In re
Kite Ranch, 

, 

 (citing Weiss v. Pedersen, 

 (Wyo. 1997), abrogated on other grounds by White v. Allen, 

, 

 (Wyo. 2003). The rule is different, however, in the case of an action to enforce
protective covenants. We have held that “[a] covenant can be enforced without regard to
the amount of damages which would result from a breach and even if there is no
substantial monetary damage. [An injunction] is proper even in the absence of a showing
of irreparable harm or uncompensable injury.” Morris v. Kadrmas, 

(Wyo. 1991) (citing Dice v. Cent. Natrona Cnty. Improvement & Serv. Dist., 

 (Wyo. 1989)); see also Persimmon Hill First Homes Ass’n v. Lonsdale, 

 (Kan. Ct. App. 2003) (“In the context of the substantive law of restrictive covenants,
courts have generally recognized that damages are irrelevant to enforceability.”). The
district court thus erred in holding that a showing of harm was an element of Mr.
Winney’s action for injunctive relief.




                                              7
III.    A weighing of the equities does not support issuance of a mandatory injunction
        requiring the destruction of Mr. Jerup’s outbuilding, and we may affirm the
        district court’s ruling on that alternate basis. 5

[¶26] There is no question Mr. Jerup violated the covenants establishing the 100 and 33-
foot setbacks. The district court found the violations, and Mr. Jerup has not challenged
those findings on appeal. That of course does not end the inquiry. Bd. of Cnty. Comm’rs
of Teton Cnty. v. Crow, 

, 

 (Wyo. 2006) (Crow II)
(the fact of a violation alone does not necessarily require issuance of an injunction). 6
Even when an injunction is authorized by contract or statute, the decision whether to
grant such relief remains committed to the district court’s discretion. CBM Geosolutions,
Inc. v. Gas Sensing Tech. Corp., 

, 

 (Wyo. 2009)
(recognizing fact that contract contemplates injunctive relief is only a factor in weighing
of equities); Bjork v. Draper, 

 (Ill. App. Ct. 2010) (rejecting
argument that failure to order removal of offending structure renders easement provision
meaningless).

[¶27] Whether an injunction will be issued depends on a weighing of the equities. Crow
II, 

, 

 (court’s denial of injunction or other enforcement
mechanism must be based on a balancing of equities); Keller v. Branton, 

 (Wyo. 1983) (upholding denial of injunction based on weighing of equities);
Woodland Trails N. Cmty. Improvement Ass’n v. Grider, 

 (Tex.
App. 1983) (“The court was empowered, indeed required, to balance the equities . . . in
deciding whether injunctive relief should be granted.”). Although the district court erred
in denying injunctive relief as a matter of law based on Mr. Winney’s delay and lack of
damages, these are both factors that may be considered in weighing the equities. See 42
Am. Jur. 2d Injunctions § 15 (May 2023 update) (factors to consider include gravity and

5
  Mr. Jerup contends the record supports the district court’s ruling that the setback requirements were
abandoned, and the court’s decision should be upheld on that basis. We disagree. First, we do not read the
court’s decision as concluding the setback requirements were abandoned through acquiescence in their
violation. Though the court found the subdivision landowners’ failure to act on numerous setback
violations was circumstantial evidence of abandonment, it did not address whether the permitted setback
violations were “so substantial as to support a finding that the usefulness of the covenant has been
destroyed, or that the covenant has become valueless and onerous to the property owners.” Winney, 

, 499 P.3d at 268 (outlining test to determine abandonment) (quoting Steiger v. Happy
Valley Homeowners Ass’n, 

, 

 (Wyo. 2010)). Second, we have
reviewed the record and found no evidence that the permitted setback violations were so widespread that
they have rendered the setback covenants valueless. Abandonment is therefore not a basis on which to
affirm the court’s decision.
6
  In this opinion, we reference our decisions in Crow II and Crow III. Crow I addressed whether the
development regulations at issue in that case violated the defendant’s substantive due process rights and is
not relevant to our discussion. See Bd. of Cnty. Comm’rs of Teton Cnty. v. Crow, 

, 

 (Wyo. 2003).



                                                     8
willfulness of violation, delay in asserting one’s rights, and discrepancy between costs
and benefits of an injunction); see also Bd. of Cnty. Comm’rs of Teton Cnty. v. Crow,

, 

 (Wyo. 2007) (Crow III) (egregiousness and
seriousness of violation considered against benefit of abatement); Keller, 

(upholding denial of injunction where cost of constructing carport and cost of its removal
outweighed harm to appellees); Honeycutt v. Brookings, 

 (La. Ct.
App. 2008) (“The trial court fashioned the most equitable remedy possible under the
circumstances of this case, without requiring costly demolition of the outbuilding.”);
Wimberly v. Caravello, 

 (Wash. Ct. App. 2006) (factors may
include bad faith, willfulness, or indifference of offender, nature of harm, and cost versus
benefit of injunction); Perel v. Brannan, 

 (Va. 2004) (footnotes
omitted) (“A defendant may avoid imposition of the remedy requested if such a remedy
would create a hardship or injustice that is out of proportion to the relief sought[.]”).

[¶28] It is generally the district court that weighs the equities in the first instance. Crow
II, 

, 

 (remanding for specific findings on equities);
Wilson v. Lucerne Canal & Power Co., 

, 

 (Wyo.
2003) (“Where injunctive relief is sought, it is the trial court that grants or denies it, based
upon the facts—not the appellate court[.]”) (quoting Polo Ranch, 

, 

. It is not without precedent, however, for this Court to determine the
propriety of an injunction without remanding.

[¶29] For example, in Morris, the district court found a landowner lacked authority to
challenge a violation of restrictive covenants and thus denied an injunction to remove the
alleged offending structure. Morris, 

. This Court held the district court
erred in so ruling, but it did not remand for a weighing of the equities. 

. It
instead reversed, ordered that an injunction be entered, and detailed the terms of the
injunction. 

.

[¶30] In this case, the district court did not explicitly weigh the equities of ordering an
injunction, but we have recognized that we may affirm a district court decision on any
basis supported by the record.

              An appellate court may affirm a trial court ruling, even
              though the trial court’s legal reasoning for the ruling was
              erroneous, if (1) the facts in the record are sufficient to
              support a proffered alternative basis, (2) the trial court’s
              ruling is consistent with the view of the evidence under the
              alternative basis, and (3) the record is materially the same as
              would have been developed had the prevailing party raised
              the alternative basis for affirmance below.




                                               9
Hanft v. City of Laramie, 

, 

, 381 (Wyo. 2021) (quoting
Prancing Antelope I, LLC v. Saratoga Inn Overlook Homeowners Ass’n, Inc., 

, 

 (Wyo. 2021)); see also Tram Tower, 

,
509 P.3d at 366-67 (affirming on equitable basis not reached by district court).

[¶31] Although the district court did not explicitly rule that a weighing of the equities
precluded injunctive relief, the parties argued the equities to the district court, and to this
Court. Moreover, at trial, the court asked questions of Mr. Jerup that reflected an inquiry
into the equities, such as Mr. Jerup’s reason for continuing construction after he learned
of Mr. Winney’s objection and his reason for pouring a concrete pad in the structure
while litigation over it was pending. Additionally, the court’s decision letter is replete
with findings relevant to a balancing of the equities. While we prefer that a district court
weigh the equities of injunctive relief in the first instance, under these circumstances, and
in the interests of judicial economy, we will do so based on the record before us.

Gravity and Willfulness of the Violation

[¶32] Under this factor, we consider the severity of the violation and the extent to which
Mr. Jerup knowingly began and continued construction with a disregard for the protective
covenants.

[¶33] As to the gravity of Mr. Jerup’s violations, his violation of the 100-foot setback
was substantial in that the entire structure sits within the setback. The violation of the 33-
foot setback was less substantial; only one corner of the building encroaches thirteen feet
into the setback.

[¶34] As to the violation of the 100-foot setback, Mr. Jerup testified that he consulted
with his builder and built on the only available site given the topography of his property.
He also testified he knew of the topography of his property when he purchased it, and
that the topography and setbacks might limit his building space, but he had learned that in
those circumstances landowners could use encroachment agreements. He knew his
building was located entirely within the 100-foot setback but believed he had resolved
that concern by obtaining the encroachment agreement from Clinton Cragg. William
Conley, a landowner in the subdivision and former chairman of Hoback Ranches
Improvement and Service District, testified that he knew of other setback encroachments
in the subdivision that were handled similarly.

[¶35] As to the willfulness of his violations, Mr. Jerup knew of the 33-foot setback, but
he did not knowingly encroach on it. He testified:

                     I knew it was gonna be close, but we tried to get it 33
              feet back, that was from my builder. Obviously we should
              have paid for the surveyor, but he had a phone with the GPS


                                              10
             and he marked out the property line and he shortened the
             building and he was like we’re right here, we’re good.

[¶36] The district court also questioned Mr. Jerup’s decision to continue construction
after he learned of Mr. Winney’s objection to the setback violations. Mr. Jerup testified:

                     Yeah, I mean I kept going because at first I’m like –
             well, I feel like I got a building permit, I got an encroachment
             agreement with the guy that I thought I would be, you know,
             encroaching on, I thought I did things right, and I had already
             paid a guy $15,000 to do this, and it doesn’t make sense to
             have him stop. Is that letter a bluff, is it – I didn’t know what
             to do, honestly, so I just wanted to get the roof on it and see
             what happened. I didn’t know what to do. I already invested
             all that money in it and it would be – I didn’t want it sitting
             there like this for three years, you know, waiting to decide if
             it needs to be there or not.

[¶37] As to his decision to pour a concrete floor in the summer of 2020, Mr. Jerup
testified that the building had design flaws in the types of doors it called for and in its
snow load, and the concrete floor was poured to help address those concerns. The district
court questioned Mr. Jerup’s decision to do that while the litigation was pending, and he
testified:

             COURT:      And then you put in this concrete floor in the
             summer of 2020 after the suit was filed. Why did you do that?

             THE WITNESS:          I did that, like I said, just to finish the
             building as far as to keep the construction of it up because it
             was not built with enough snow load, and the cement and
             more brace inside to hold the thing up and some more big, old
             trusses that support the roof and all this stuff. That’s where it
             ended up just being to get it finished and have it actually hold
             up, that’s where the cement come in and the foam, all this
             stuff to help hold it up – hold it together, basically. There’s a
             engineering on it that gives it like a 22[-]pound snow load
             which for that area I think they recommended 150 pounds, so
             I’m sure one winter it would have just fell in. So that first
             year I just braced it all up and all that stuff and it stayed up,
             you know, and the next year I finished it, put the foam on it
             and the concrete.




                                            11
                COURT:        Well, the winter of 2019 and 2020 you didn’t
                lose any portion of the building due to structural failure, did
                you?

                WITNESS: No. 2019 was the only year that it stayed up
                before the cement and the reinforcements that are in there
                now, but it was also supported off the ground with more
                beams and stuff like that. I could only use two bays of it, just
                the center, the rest of it was just holding it up until I could get
                it supported to hold itself up. They ended up coming back and
                putting another – two-by-sixes in there. It was spaced every
                two foot, now they’re every one foot, and there’s a big beam
                that supports it now, stuff that wasn’t ever there before.

[¶38] Mr. Jerup’s violation of the 100-foot setback was substantial, which weighs in
favor of an injunction. However, the uncontroverted evidence concerning his decision to
locate his outbuilding within the setbacks, and to continue construction after Mr.
Winney’s objection and lawsuit, does not reflect bad faith or an intentional disregard of
the protective covenants. The lack of willfulness in his violations weighs against an
injunction. 7

Mr. Winney’s Delay in Objecting

[¶39] As we observed, the record does not support a laches defense. However, aside
from laches, a delay in asserting one’s rights is a relevant factor in weighing the equities
of injunctive relief. 42 Am. Jur. 2d Injunctions § 15 (May 2023 update).

[¶40] The record shows that Mr. Jerup’s outbuilding was framed by July 8, 2019, and
Mr. Winney suspected the setback violations by mid-July. Mr. Winney did not notify Mr.
Jerup of his objection until about a month later, on August 17. While this delay seems to
indicate a puzzling lack of urgency, we do not give it much weight. One month is not so
long that it belies Mr. Winney’s asserted concern for his viewshed. Additionally, it is
7
  Mr. Winney contends that Mr. Jerup’s testimony that he did not ask his permission knowing Mr.
Winney would say no should weigh in favor of granting an injunction. Mr. Jerup also testified, however,
that he did not ask Mr. Winney’s permission because he did not think he needed it when he had
permission from the neighbor affected by his encroachment. In reviewing the reasonableness of the
district court’s decision, “we consider the evidence in the light most favorable to the district court’s
decision, ‘affording every favorable inference to the prevailing party[.]’” Evans, 

, 

 (quoting Bishop v. Bishop, 

, 

, 176 (Wyo. 2017)). Viewed in
that light, we must give weight to the entirety of Mr. Jerup’s explanation. Given the parties’ history, he no
doubt believed Mr. Winney would not approve of his project, but it was also his understanding that Mr.
Winney’s permission was not necessary. We thus see no bad faith in his failure to seek Mr. Winney’s
permission.



                                                    12
apparent from Mr. Jerup’s testimony that he felt he had a right to build on his chosen site
because of his encroachment agreement with Clinton Cragg. There is no evidence to
suggest that had Mr. Winney approached him earlier with his concerns, he would have
ceased construction. Mr. Winney’s delay therefore has little bearing on the equities of
injunctive relief.

Costs Versus Benefits of an Injunction

[¶41] While the lack of harm to a plaintiff is not a bar to injunctive relief, it is a proper
consideration in weighing the equities of an injunction when the cost of the injunction to
the defendant is disproportionate to any benefit to the plaintiff. See Crow III, 

, 

; Keller, 

; Kleist v. Stern, 

 (N.Y. App. Div. 2020); Bjork, 

; Honeycutt, 

;
Wimberly, 

; Woodland Trails, 

. As one court
explained:

              Where the removal or destruction of a building is the object
              of an injunction, the courts will generally exercise caution in
              granting such relief, and will generally not do so unless there
              is a substantial benefit to be gained by the plaintiff.

Sunrise Plaza Assocs., L.P. v. Int’l Summit Equities, 

 (N.Y. App.
Div. 2001).

[¶42] Mr. Jerup testified he invested approximately $50,000 in his outbuilding. He
further testified that there was no other place on his property that would accommodate the
structure, and he could not afford to move it even if there were another location.

[¶43] On the other side of the equation, Mr. Winney claims an injury to his viewshed.
Specifically, he claims that when he “stands in his front yard facing east,” and “turns left
to look north, he should not see a 30 foot to 35 foot, 19[-]foot[-]tall building within 100
feet of [the] eastern boundary property line running north-south.” The difficulty with Mr.
Winney’s claimed injury is that the evidence showed that if the outbuilding were
removed, Mr. Jerup’s road maintenance equipment would be exposed in that same
location, which Mr. Winney found equally objectionable. Additionally, if the building
were torn down, the evidence showed two additional structures on neighboring properties
that would be within Mr. Winney’s viewshed.

[¶44] Thus, if an injunction were issued to remove Mr. Jerup’s outbuilding, that
injunction would cost him his $50,000 investment, and the use of the building, while the
benefit to Mr. Winney would be minimal. Mr. Winney acknowledges the harm to Mr.
Jerup, but he contends we should disregard this imbalance because any harm to Mr. Jerup



                                             13
was the result of his knowingly building within the required setbacks. Our precedent does
not support such an approach.

[¶45] Some jurisdictions will not consider the relative hardships of an injunction if the
offending party knowingly violates a restriction. See, e.g., Carter v. Done, 

 (Utah Ct. App. 2012); Perel, 

; Seagrove Owners Ass’n v. Smith,

 (Or. Ct. App. 1992); Bogardus v. Zinkevicz, 

(N.H. 1991). That has not been our approach.

[¶46] For example, in Keller, the defendant knowingly built a fence and carport in
violation of protective covenants. 

. The district court nonetheless denied
an injunction to remove the carport, and we upheld that decision. 

. We
observed: “The court disposed of this matter in a sensible way. It determined that the cost
of constructing the carport and the cost of its removal outweighed the harm resulting to
appellees.” 

[¶47] Similarly, in Crow, the district court found the defendants’ violation “was
deliberate, premeditated and egregious,” but it denied an injunction requiring removal of
the residential improvements based on a weighing of the equities, including the lack of
benefit to be gained by their removal. Crow III, 

, 

. We
upheld the denial as a reasoned decision. Id. at ¶ 13, 

.

[¶48] The fact that Mr. Jerup knowingly built within the 100-foot setback therefore does
not preclude our consideration of the relative hardships of the requested injunction. And
given the high cost of a mandatory injunction to Mr. Jerup and the minimal benefit to Mr.
Winney, we must conclude this factor weighs against injunctive relief. When considered
with the other factors, the district court’s denial of Mr. Winney’s request for injunctive
relief was warranted by a weighing of the equities.

                                     CONCLUSION

[¶49] The district court erred in denying injunctive relief based solely on Mr. Winney’s
delay and lack of injury. We affirm on the alternate basis that the equities did not support
injunctive relief under these circumstances.

[¶50] Affirmed.




                                            14
FENN, J., concurring in part and dissenting in part.

[¶51] I concur with the majority on the first two issues. I agree the district court erred in
denying Mr. Winney’s request for an injunction on the grounds that it was untimely, and
it erred in ruling Mr. Winney was required to prove an injury. However, I respectfully
dissent from the majority’s position on the third issue, and I would find the district court
should have issued the mandatory injunction.

[¶52] The majority is correct that the issuance of a mandatory injunction depends on the
equities between the parties, and it rests in the discretion of the district court. See 20 Am.
Jur. 2d Covenants, Conditions, and Restrictions, § 267 (Oct. 2023 Update). A protective
covenant will not be enforced if it is against public policy, if changes in the character of
the neighborhood have resulted in the discharge of the covenant, or when a covenant has
been abandoned. Winney, 

, 499 P.3d at 268. None of those
circumstances are present in this case.

[¶53] As the majority points out, in some cases “[w]here a great injury will be done to
the defendant, with very little, if any, to the plaintiff, the courts will deny equitable
relief.” 20 Am. Jur. 2d Covenants, Conditions, and Restrictions, § 267. However, “[o]ne
who willfully violates a building-line restriction may be compelled to move the building
to comply with the established line, and he or she cannot complain of the expense which
will thus be imposed.” 20 Am. Jur. 2d Covenants, Conditions, and Restrictions, § 268
(Oct. 2023 Update).

              The “relative-hardship” doctrine is a creature of equity, and it
              follows that seeking the invocation of the doctrine will
              require the possession of clean hands. Thus, the exercise of
              the equitable doctrine of comparative hardship to defeat the
              application of a restrictive covenant is appropriate only when
              the violation is committed innocently or mistakenly.

20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 263 (May 2023 Update); see
also City of Bowie v. Mie Props., Inc., 

 (Md. 2007) (citing Easter v.
Dundalk Holding Co., 

 (Md. 1952)) (“The exercise of [the comparative
hardship] doctrine, however, is appropriate only when the violation is committed
innocently or mistakenly and enforcement of the covenant would visit much greater harm
on the violator compared to the slight amount of harm the beneficiary of the covenant
would experience if the covenant was not enforced.”).

[¶54] Numerous other authorities have recognized that when a defendant’s violation of
the restrictive covenant was willful, the cost of removing the offending structure does not
weigh against granting the mandatory injunction. See 20 Am. Jur. 2d Covenants,
Conditions, and Restrictions § 268; Ingle v. Stubbins, 

 (N.C. 1954)


                                             15
(citations omitted) (“In the case of one who deliberately violates a building restriction, a
mandatory injunction to compel the modification of his building so as to comply with the
restrictions cannot be avoided on the theory that the loss caused by it will be
disproportionate to the good accomplished.”); Seagrove Owners Ass’n., 

(finding a mandatory injunction should be issued to remove a garage where the harm was
caused by a decision “to proceed in knowing violation of the restrictions”);
Hollingsworth v. Szczesiak, 

 (Del. Ch. 1951) (citing Tucker v. Howard,

 (1880); Lee v. Hansberry, 

, 408–09 (Ill. App. 1937);
Morgan v. Veach, 

, 980–81 (Cal. App. 1943); Nechman v. Supplee, 

, 325–26 (Mich. 1926)) (“[W]hen the defendant has gone on wrongfully in a
willful invasion of another’s rights relative to real property, the injured party is entitled to
have the property restored to its original condition, even though the wrongdoer thereby
would suffer great loss.”); Moore v. White, 

 (Okla. 1958) (citing
Sterling Realty Co. v. Tredennick, 

 (Mass. 1946)) (“One who, with
knowledge of building restrictions to which property is subject, has erected a building
thereon which violated such restrictions, may properly be required by mandatory
injunction to remove it.”). Although a mandatory injunction is a drastic remedy and
ought to be applied with caution, it “ought not to be withheld merely for the reason that it
will cause pecuniary loss.” Stewart v. Finkelstone, 

 (Mass. 1910).

[¶55] As discussed in the majority opinion, the district court incorrectly focused on Mr.
Winney’s delay in filing this action and the necessity of proving an injury. It did not
consider whether Mr. Jerup’s violation of the covenants was willful. 8 In other contexts
we have recognized that willful means conduct that was done “purposely, with
knowledge,” or that was “of such a character as to evince a reckless disregard of
consequences.” Shepherd of Valley Care Ctr. v. Fulmer, 

, 

 (Wyo. 2012) (quoting Brebaugh v. Hales, 

 (Wyo. 1990)).
As the majority recognizes, it is generally proper for the district court to weigh the
equities in the first instance. Crow II, 

, 

. However,
because I find the facts demonstrate Mr. Jerup’s actions were willful and the comparative
hardship doctrine is inapplicable, I agree it is not necessary to remand this case to the
district court to make specific findings regarding the balancing of the equities.

[¶56] Mr. Jerup’s property is essentially located in a valley with no flat spots, and he
knew at the time he purchased his property that the topography would make it difficult to
build any structure without expensive dirt work to make the land level. He received a

8
  Mr. Winney never directly argued Mr. Jerup’s actions were “willful.” However, in his summary
judgment motion he asserted Mr. Jerup acted with knowledge of the covenants because Mr. Jerup had
sought strict enforcement of the covenants in the earlier suit. Further, in his proposed findings of fact and
conclusions of law, Mr. Winney asked the district court to find the equities weighed in his favor because
Mr. Jerup’s violation of the covenants was knowing, and he continued with construction after learning of
Mr. Winney’s objection.



                                                    16
copy of the covenants when he purchased his land. He was aware of the 100-foot setback
requirement and the 33-foot roadway easement. Although he knew about the setback
agreement, he had heard from other people he might be able to circumvent the covenants
by entering into encroachment agreements with adjoining landowners. He knew the
location where he planned to construct his building violated the 100-foot setback.
Although he entered into an encroachment agreement with the neighbor whose property
is closest to his building, he did not seek permission or consent from Mr. Winney because
he knew Mr. Winney would say no. He thought he had done everything he needed to
comply with the law by getting the encroachment agreement and a building permit.

[¶57] If the evidence ended there, it might support a finding Mr. Jerup acted innocently
or mistakenly, 9 but it does not. The evidence also shows that although Mr. Jerup received
notice of Mr. Winney’s objection to his building in August 2019, he continued
construction. Mr. Jerup testified he kept going forward with the project because:

                [W]ell, I feel like I got a building permit, I got an
                encroachment agreement with the guy that I thought I would
                be, you know, encroaching on, I thought I did things right,
                and I had already paid a guy $15,000 to do this, it doesn’t
                make sense to have him stop. Is that letter a bluff, is it -- I
                didn’t know what to do honestly, so I just wanted to get the
                roof on it and see what happened. I didn’t know what to do.
                I already invested all that money in it and it would be -- I
                didn’t want it sitting there like this for three years, you
                know, waiting to decide if it needs to be there or not.

Emphasis added. Even after Mr. Winney filed suit, Mr. Jerup continued to make
improvements to the building, taking the project from an initial investment of $15,000 to
a total cost of more than $42,000. These improvements included changing the original
plan by installing rollup doors instead of leaving the entire front of the building open.
Mr. Jerup also finished the building, installed foam insulation, and poured a concrete
floor after this suit had been filed.

[¶58] As argued by Mr. Winney in his brief, these facts show “[t]he prejudice to be
suffered by [Mr.] Jerup from an injunction to remove his Building is, however, all self-
inflicted.” Mr. Jerup knew the district court might ultimately decide he did not have the


9
  “It is well settled that zoning ordinances cannot override, annul, abrogate, or relieve land from building
restrictions or covenants placed upon them.” Wimer v. Cook, 

, 

 (Wyo.
2016) (quoting Anderson v. Bommer, 

 (Wyo. 1996)). Even if Mr. Jerup thought he was
complying with county zoning and building requirements, it did not relieve him of his obligation to
comply with the restrictive covenants.



                                                    17
right to place his building where he did, but he continued with the construction anyway,
greatly increasing the total cost of the project.

             The defendant who pending the suit changes the existing
             condition, as by the erection of a building, does so at his own
             risk that the right may ultimately prove to be in the plaintiff.
             He cannot in such cases claim the advantage that the balance
             of injury might otherwise allow him, because he has acted
             with full notice of the other party’s claim.

Swaggerty v. Petersen, 

 (Or. 1977) (quoting 5 Pomeroy’s Equity
Jurisprudence 4477 (2d ed 1919)). Having continued construction when Mr. Jerup knew
Mr. Winney objected to his violation of the covenants, “[h]e took his chances as to the
effect of his conduct with eyes open to the results which might ensue.” Stewart, 

.

[¶59] Courts in other jurisdictions have issued mandatory injunctions in similar
situations. 

 (citing Codman v. Bradley, 

 (Mass. 1909); Curtis Mfg. Co.
v. Spencer Wire Co., 

, 535–36 (Mass. 1909); Downey v. Hood, 

(Mass. 1909)); see also Ventresca v. Ventresca, 

, 518 (Pa. 1956) (citing
Hamilton v. Foster, 

 (Pa. 1922); Kanefsky v. Dratch Const. Co., 

, 926–27 (Pa. 1954); Weiss v. Greenberg, 

 (Pa. Super. 1930))
(“Where the defendant’s act is tortious or in bad faith or where he intentionally takes a
chance, injunctive relief should be granted.”); Hollingsworth, 

 (“It has
been found that with full knowledge of the restrictions they deliberately attempted to
override them. They took their chances as to the effect of their conduct with their eyes
open to the results which might ensue. They cannot therefore complain if they have
suffered serious damage by reason thereof.”); Wimberly, 

 (citing Hollis v.
Garwall, Inc., 

 (Wash. App. 1997)) (holding a defendant forfeits the
benefit of balancing the relative hardships by proceeding with construction after
receiving notice he was invading the property rights of his neighbors).

[¶60] Mr. Jerup acted purposefully, with knowledge of the covenants and Mr. Winney’s
objection, and his actions evidence a reckless disregard for the consequences. Thus, his
actions were willful. See Shepherd of the Valley Care Ctr., 

, 

 (quoting Brebaugh, 

). Concerns about “considerable
expenditures of money cannot shield premeditated efforts to evade or circumvent legal
obligations from the salutary remedies of equity.” Stewart, 

. Because Mr.
Jerup’s actions were willful, the comparative hardship test does not apply, and he cannot
complain about the cost of removing the building he never should have built. The
mandatory injunction should have been granted.




                                           18