2023 UT App 97

THE UTAH COURT OF APPEALS

ARTHUR W. COCKS AND JULIE L. COCKS, 

Appellees, 

v. 

SWAINS CREEK PINES LOT OWNERS ASSOCIATION, 

Appellant. 

Opinion

No. 20200961-CA

Filed August 24, 2023 

Sixth District Court, Kanab Department

The Honorable Marvin D. Bagley

No. 170600114 

Bruce C. Jenkins, Kimball A. Forbes, and 

Kathryn Lusty, Attorneys for Appellant

J. Bryan Jackson, Attorney for Appellees 

JUSTICE JILL M. POHLMAN authored the lead opinion, in which 

JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

1

JUDGE RYAN D. TENNEY authored a concurring opinion, in which 

JUDGE RYAN M. HARRIS concurred.

POHLMAN, Justice: 

¶1 Swains Creek Pines Lot Owners Association appeals the 

district court’s judgment in which it ruled that Arthur and Julie 

Cocks are entitled to continue using their two lots “for RV 

1. Justice Jill M. Pohlman began her work on this case as a member 

of the Utah Court of Appeals. She became a member of the Utah 

Supreme Court thereafter and completed her work on the case 

sitting by special assignment as authorized by law. See generally

Utah R. Jud. Admin. 3-108(4). 
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purposes until such time as there is a change of use.” We reverse, 

vacate, and remand for further proceedings.

BACKGROUND2

¶2 The Cockses, as trustees of the Cocks Family Trust, own 

two lots in the subdivision known as Swains Creek Pines Unit 

No. 3 (the subdivision), located in Kane County, Utah.3 When 

they acquired the lots via warranty deed in July 2014, the lots 

consisted of “undisturbed mountain forest land.” They later 

placed an RV on their lots.

¶3 The Cockses’ interest in the lots is subject to the 

subdivision’s conditions, covenants, reservations, and restrictions 

(the CC&Rs). The Swains Creek Pines Lot Owners Association 

(the Association) is a nonprofit corporation that, through its board 

of directors (the Board), has controlled the enforcement of the 

CC&Rs since 1998. The Association also has adopted written 

guidelines, rules, and regulations applicable to the larger Swains 

Creek Pines community. One of those rules—Rule 16—provides, 

“All structures, including cabins, trailers, garages, sheds, decks, 

stairs, shelters, etc. shall be kept in safe and good repair.”

(Emphases added.)

¶4 Sometime after the Cockses purchased the lots, 

controversy arose among some lot owners over the placement of 

RVs and trailers (collectively, RVs) on the lots in the subdivision. 

2. “On appeal from a bench trial, we view the evidence in a light 

most favorable to the trial court’s findings, and therefore recite the 

facts consistent with that standard.” Grimm v. DxNA LLC, 2018 UT 

App 115, ¶ 2 n.1, 427 P.3d 571 (cleaned up).

3. The Cocks Family Trust is the record owner of the two lots, but 

for simplicity we refer to the Cockses as the owners.
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Some owners used, or supported the placement of, RVs on at least 

some of the lots. Other owners opposed RV use and instead 

supported the use of all lots “for cabins only.” Both sides 

demanded that the Board “take action.”

¶5 In response, the Board enacted a resolution in October 2016 

(the 2016 resolution) stating that the CC&Rs “do not allow for 

placement of RV’s on lots” within the subdivision.4 In support of 

its conclusion, the Board cited paragraph 1 of the CC&Rs, which 

states that the lots “are for single-family residential purposes 

only” and are to be used and “held in such a way as to preserve 

and enhance their pastoral, scenic beauty as mountain cabin 

residential recreational sites.” Notably, paragraph 1 further states, 

“No improvement or structure whatever, other than a first class 

private dwelling house, patio walls, swimming pool, and 

customary outbuildings, garage, carport, servants’ quarters, or 

guest house may be erected, placed, or maintained on any lot in 

[the subdivision].”

¶6 Despite its conclusion that the CC&Rs do not allow for the 

placement of RVs on lots within the subdivision, the Board 

adopted an enforcement policy in the 2016 resolution to address 

the lot owners who had already placed RVs on their lots. 

Specifically, as a “compromise,” the Board resolved that the 

Association would not “pursue enforcement action” against 

current owners of “[p]rior [n]on-conforming [l]ots” and that RVs 

could remain on those lots until their current owners sold the lots 

to someone other than an immediate family member. Thus, under 

4. For purposes of the 2016 resolution, the Board defined a 

“recreational vehicle” or “RV(s)” as “a motor vehicle or trailer 

equipped with living space and amenities found in a home which 

may include a kitchen, bathroom, bedroom, living room, water 

and sewer; including, but not limited to, a camp trailer, motor 

home, travel trailer, fifth wheel trailer, pop up trailer, and slide-in 

camper.”
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the 2016 resolution, the Cockses were allowed to keep the RV 

already placed on their lots, but they could not sell their lots for 

RV use to an unrelated third party.

¶7 In November 2017, the Cockses filed suit against the 

Association, challenging the Board’s interpretation of the CC&Rs 

that led to its adoption of the 2016 resolution.5 Believing that their 

lots were more valuable as lots that allow RV use rather than as 

lots restricted to cabin use, the Cockses sought, among other 

things, a declaratory judgment “construing the CC&Rs” “to allow 

for the use of trailers and RVs.”

¶8 The Cockses also asserted that they were harmed by the 

2016 resolution’s enforcement compromise, preferring that the 

Board adopt a change-in-use standard rather than the standard 

involving a sale to an unrelated third party. Under a change-inuse standard, the Cockses would be able to sell the lots for RV use 

not only to family members but also to third parties. In response 

to the lawsuit, the Association asserted affirmative defenses, 

including that a statutory business judgment rule barred some or 

all of the Cockses’ claims.

¶9 The Association eventually sought summary judgment on 

the ground that the plain language of the CC&Rs did not allow 

for the lots within the subdivision “to be used as RV/trailer lots.” 

The Cockses countered that the Association’s plain language 

argument was undermined by the CC&Rs’ lack of express 

language prohibiting RV use and by the Association’s history of 

permitting the placement of RVs on subdivision lots. The district 

court denied summary judgment and reserved for trial “any 

issues concerning the plain language of the CC&Rs and the 

5. The Cockses also named as defendants the individual members 

of the Board. The Cockses ultimately stipulated to the entry of 

summary judgment dismissing their claims against the board 

members.
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Association’s past course of dealing.” The matter then proceeded 

to a three-day bench trial, after which the court issued a written 

decision.

¶10 As to the question of whether the CC&Rs allow or preclude 

RV use, the district court rejected the Association’s position that 

the CC&Rs unambiguously prohibit RVs in the subdivision. The 

court reasoned that “nothing in the CC&Rs . . . expressly prohibits 

RV use”; rather, the language in the CC&Rs “is ambiguous as to 

whether RV use is prohibited.” It explained that the use of the 

word “cabin” in paragraph 1 of the CC&Rs “does not expressly 

exclude RVs or trailers,” nor does the phrase “first class private 

dwelling house.” Indeed, “[t]he words ‘RV’ or ‘trailer’ are not 

even used . . . in paragraph 1.” The court also deemed it significant 

that “such words were not included in the sentence which 

prohibits what can ‘be erected, placed or permitted or maintained’ 

in the subdivision.”

¶11 The district court then turned its attention to the evidence 

presented at trial regarding the historical use of RVs on lots in the 

subdivision. The court noted that the Cockses presented 

testimony from association members who had placed RVs on 

their lots since the 1970s. Those members testified that they did so 

“for long periods of time . . . without ever being told or confronted 

by board members that they could not make such use of their 

property.” Further, some members recounted that “they had 

specifically been told by realtors, contractors, association 

members and board members[] that RV use was allowed.” In 

contrast, the Association presented testimony from other 

members “who were insistent they had been told by everyone 

concerned that all lots in [the subdivision] were limited to cabin 

development,” which they understood as “stick built structures 

from the ground up, placed on a foundation.” The court 

ultimately found that buyers and owners “were told what they 

wanted to hear” relative to RV use in the subdivision. It also found 

that the Association “was fully aware” of these conflicting 
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messages and that the Association’s position was the CC&Rs 

“allowed RV use on lots owned by lot owners who supported RV 

use” and the CC&Rs “prohibited RV use on lots owned by lot 

owners opposed to RV use.”

¶12 Regarding enforcement, the district court noted that some 

former board members testified that the Association “took no 

action to prevent the use of lots for RV purposes.” The court found 

that “this lack of enforcement action” was “consistent with the 

interpretation that the CC&Rs allow RV use.” The court further 

reasoned that the Association’s “inconsistency” regarding 

whether the CC&Rs prohibited or allowed RV use “supports the 

Court’s finding of ambiguity” in paragraph 1 of the CC&Rs.

¶13 With this evidence in mind, the court next addressed the 

Cockses’ contention that the Association had waived any right it 

may have had to enforce the CC&Rs to preclude RV use. In 

response to that argument, the Association had insisted that the 

court could not find waiver because there was no evidence that 

the Association had intentionally chosen not to enforce the RV 

prohibition. The Association also cited an antiwaiver clause in

paragraph 22 of the CC&Rs, which provides that the Association

has the right to compel compliance with the CC&Rs but that “[n]o 

delay or omission on the part of the [Association] . . . in exercising 

any rights, power, or remedy herein provided, in the event of any 

breach of [the CC&Rs] . . . , shall be construed as a waiver thereof 

or acquiescence therein.”6

6. More precisely, the antiwaiver clause provides that the 

“reversionary owner”—the original developer—has the right to 

compel compliance. Evidence was presented at trial, and the 

parties appear to agree, that before the relevant events in this case, 

the original developer assigned its reversionary-owner rights to 

the Association.
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¶14 Without addressing the antiwaiver clause, the district 

court rejected the Association’s counterargument on the grounds

that “it comes too late” and that the Cockses “were entitled to rely 

upon the interpretation of the CC&Rs the association adopted 

prior to the adoption of the . . . 2016 resolution.” The court 

explained that ever since the Cockses purchased their lots, they

had been allowed to place an RV on them and could have “sold 

their property, for RV use, to someone outside their immediate 

family,” but that the Association is “taking those rights away” 

under a “new interpretation of the CC&Rs.” The court determined 

that the Association “cannot now change horses in mid stream to 

deprive [the Cockses] of the full use of their property.”

¶15 Finally, the court addressed the Association’s business 

judgment rule defense rooted in Utah Code section 57-8a-213. The 

court determined that the statute provides the Association “with 

the authority it claims for prospective application of the board’s 

interpretation” of the CC&Rs. But the court determined that the 

statute “does not provide the authority to adversely affect the 

rights [the Cockses] have enjoyed (with the [A]ssociation’s tacit 

approval) since they purchased their property.” It concluded that 

the Cockses’ rights were “established” under the Association’s 

earlier interpretation of the governing documents that RV use was 

allowed. And based on the court’s determination that the 2016 

resolution “constitutes a change to the governing documents,” it

determined that, in enacting the resolution, the Board “was not 

using its best judgment to determine whether to pursue 

enforcement” against the Cockses. Thus, the court ruled that the 

Board’s enforcement of its interpretation of paragraph 1 of the 

CC&Rs “going forward is a reasonable exercise of business 

judgment” but that the Board’s reversal of its prior position 

adversely impacted the Cockses’ rights and so was “arbitrary, 

capricious and against public policy” as it relates to them.

¶16 The district court ultimately entered a judgment and 

decree, which included two orders. First, it ordered that the 
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Cockses are entitled to continue to use their lots in the subdivision 

“for RV purposes until such time as there is a change of use.” 

Second, it authorized the recording of the 2016 resolution “to give 

notice to future interest holders of the Association’s interpretation 

of its governing documents including the CC&Rs, for 

[prospective] application and imparting notice to current and 

future lot owners, board members, realtors and contractors of the 

same for the future.”

¶17 The Association appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 The Association first contends that the district court erred 

in determining that the CC&Rs are ambiguous about whether RVs 

are allowed to be placed on lots in the subdivision. “The 

determination as to whether a written instrument is ambiguous is 

a question of law . . . .” Equine Holdings LLC v. Auburn Woods LLC, 

2021 UT App 14, ¶ 25, 482 P.3d 880 (cleaned up), cert. denied, 496 

P.3d 715 (Utah 2021). We thus review the district court’s decision 

on ambiguity for correctness. See Brady v. Park, 2019 UT 16, ¶ 57, 

445 P.3d 395.7

¶19 Next, the Association argues that the district court erred in 

its application of the business judgment rule by failing to presume 

that the Board acted reasonably in adopting the 2016 resolution 

regarding enforcement of the CC&Rs’ prohibition against RV use.

7. The Association also contends that “the clear weight of the 

extensive evidence at trial supported finding the intent of the 

contracting parties was to prohibit RVs in” the subdivision. We 

need not reach this argument, however, because based in part on 

the Cockses’ view that RVs are “structures” within the meaning 

of paragraph 1 of the CC&Rs, see infra ¶ 28, we agree with the 

Association that the CC&Rs unambiguously prohibit RV use.
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We review the court’s decision for correctness. See Fort Pierce 

Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 

28, ¶¶ 15, 26 & n.12, 27, 379 P.3d 1218.

¶20 Last, the Association asserts that the district court’s waiver 

analysis is flawed. “Whether the district court applied the correct 

legal standard is a question of law, which we review for 

correctness.” KB Squared LLC v. Memorial Bldg. LLC, 2019 UT App 

61, ¶ 18, 442 P.3d 1168 (cleaned up). 

ANALYSIS

I. Ambiguity

¶21 The Association challenges the district court’s 

determination that the CC&Rs are ambiguous, arguing that the 

plain language of the CC&Rs unambiguously prohibits RV use on 

subdivision lots. Pointing to paragraph 1 of the CC&Rs, the 

Association argues that an RV is “not one of the permitted 

structures.” In its view, because the paragraph “prohibits any 

improvement or structure except for those” listed and because 

“an RV is not in that list,” paragraph 1 “unambiguously prohibits 

RVs from being placed on any lot in” the subdivision. It also 

complains that the district court “improperly allowed extrinsic 

evidence to find ambiguity.”

¶22 The Cockses respond that the district court “was correct to 

find the CC&Rs ambiguous.” Pointing out that RVs “are not 

found in the express wording of the CC&Rs,” they assert that the 

CC&Rs therefore do “not attempt to exclude RVs” from the 

permitted “structures such as patios, carports, or guesthouses.”

They also suggest that the term “first class private dwelling 

house” should be construed to “not exclud[e]” RVs because that 

term “is not defined” in the CC&Rs. The Cockses further assert 
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that “extrinsic evidence,” including Rule 16, “supports [their]

interpretation.”

¶23 “Restrictive covenants are a method of effectuating private 

residential developmental schemes and give property owners in 

such developments the right to enforce those covenants against 

others in the development.” Fort Pierce Indus. Park Phases II, III 

& IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 19, 379 P.3d 1218 

(cleaned up). To this end, restrictive covenants “form a contract 

between subdivision property owners as a whole and individual 

lot owners.” Swenson v. Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807. 

Thus, the interpretation of restrictive covenants is “governed by 

the same rules of construction as those used to interpret 

contracts,” and “generally, unambiguous restrictive covenants 

should be enforced as written.” Fort Pierce, 2016 UT 28, ¶ 19 

(cleaned up); accord Equine Holdings LLC v. Auburn Woods LLC, 

2021 UT App 14, ¶¶ 21, 25, 482 P.3d 880, cert. denied, 496 P.3d 715 

(Utah 2021); UDAK Props. LLC v. Canyon Creek Com. Center LLC, 

2021 UT App 16, ¶ 14, 482 P.3d 841, cert. denied, 509 P.3d 768 (Utah 

2022).

¶24 “When we interpret a contract, we start with its plain 

language.” Willow Creek Assocs. of Grantsville LLC v. Hy Barr Inc., 

2021 UT App 116, ¶ 41, 501 P.3d 1179 (cleaned up). And “our 

analysis is guided by the ordinary and usual meaning of the 

words.” Id. ¶ 42 (cleaned up).

¶25 Like a contractual provision, a restrictive covenant is 

ambiguous if it is “capable of more than one reasonable 

interpretation because of uncertain meanings of terms, missing 

terms, or other facial deficiencies.” See Brady v. Park, 2019 UT 16, 

¶ 54, 445 P.3d 395 (cleaned up). “[A] reasonable interpretation is 

an interpretation that cannot be ruled out, after considering the 

natural meaning of the words in the . . . provision [at issue] in 

context of the [writing] as a whole, as one the parties could have 

reasonably intended.” See id. ¶ 55.
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¶26 “Crucially, ambiguity is present only if both proffered 

interpretations of the [writing’s] language are tenable and in 

keeping with the [writing’s] language.” See Ocean 18 LLC v. 

Overage Refund Specialists LLC (In re Excess Proceeds from Foreclosure 

of 1107 Snowberry St.), 2020 UT App 54, ¶ 23, 474 P.3d 481 (cleaned 

up). “Terms are not ambiguous simply because one party seeks to 

endow them with a different interpretation according to his or her 

own interests.” Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 

2016 UT 6, ¶ 24, 367 P.3d 994 (cleaned up).

¶27 The resolution of the ambiguity question here turns on 

paragraph 1 of the CC&Rs, which provides as follows:

1. RESIDENTIAL USE. Each and all of said lots are 

for single-family residential purposes only and are 

not subject to further subdivision or partition by

sale; said lots to be used, built upon, improved and 

held in such a way as to preserve and enhance their 

pastoral, scenic beauty as mountain cabin 

residential recreational sites free from unsightly 

neglect or abuse. No building or structure intended 

for or adapted to business purposes, and no 

apartment house, double house, lodging house, 

rooming house, hospital, sanatorium or doctor’s 

office or other multiple-family dwelling shall be 

erected, placed, permitted, or maintained on such 

premises, or on any part thereof. No improvement 

or structure whatever, other than a first class private 

dwelling house, patio walls, swimming pool, and 

customary outbuildings, garage, carport, servants’ 

quarters, or guest house may be erected, placed, or 

maintained on any lot in [the subdivision].

The district court determined that paragraph 1 of the CC&Rs is

ambiguous, that is, that it may be interpreted in two reasonable 

ways. On this record and given the positions the parties have 
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taken during this litigation, we disagree with the court’s 

determination.

¶28 To begin, both sides agree that RVs are “structures” within 

the meaning of paragraph 1. The Association acknowledges that 

“linguistically, an RV can be a structure” and asserts that an RV is 

“not one of the permitted structures” under paragraph 1. And the 

Cockses similarly accept that RVs qualify as structures as that 

term is used in the CC&Rs, asserting that because the phrase “first

class private dwelling house” in context “does not attempt to 

exclude RVs or trailers from structures such as patios, carports, or 

guesthouses,” the “only exclusion found in this paragraph 

pertains to buildings and structures intended for or adapted to 

business purposes.” This position is consistent with the Cockses’

insistence throughout this dispute that Rule 16’s definition of 

permissible “structures”—a definition that includes “trailers”—

provides extrinsic support for their proffered interpretation of 

paragraph 1. See supra ¶ 3. Based on the parties’ shared 

understanding, RVs fall within the scope of the structures 

addressed in paragraph 1.8

¶29 On the one hand, we first conclude that the Association’s

interpretation of paragraph 1—a reading that prohibits RV use—

is reasonable. As the Association correctly points out, RVs are not 

expressly listed as one of the improvements or structures that may 

be placed on subdivision lots. The most pertinent language of 

paragraph 1 states, “No improvement or structure whatever, 

other than a first class private dwelling house, patio walls, 

swimming pool, and customary outbuildings, garage, carport, 

servants’ quarters, or guest house may be erected, placed, or 

maintained on any lot in such premises.”

8. By holding the parties to their agreement in this regard, we do 

not—as a strictly linguistic matter—necessarily endorse that 

interpretation of “structures.”
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¶30 Put more simply, this key last sentence provides that “[n]o

. . . structure whatever, other than” several listed things, may be 

“erected, placed, or maintained” on a lot in the subdivision. 

“Other than” means “except for.” Other than, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/other%20than

[https://perma.cc/664T-G528]. Again, the parties agree that RVs 

qualify as structures. Because no structures are allowed except for 

the listed things and because RVs are not listed, we thus agree 

with the Association that the CC&Rs can reasonably be read to

exclude RVs as a permissible use.

¶31 On the other hand, we next conclude that—given their 

position that RVs qualify as structures—the Cockses have not

proposed a tenable alternative interpretation of the language of 

the CC&Rs. Rather, like the district court, the Cockses focus on 

how RVs “are not found in the express wording of the CC&Rs,” 

and they infer from this omission that the CC&Rs do not exclude 

RV use in the subdivision. But we agree with the Association that 

the failure in paragraph 1 “to prohibit RVs by name . . . is not the 

same thing as allowing RVs.” Indeed, the Cockses’ proposed 

reading overlooks that the omission of RVs from paragraph 1’s 

last sentence of allowed structures cuts against their position. 

Neither the district court nor the Cockses grappled with the 

Association’s interpretation or provided a textual analysis to 

explain why paragraph 1 does not exclude RVs from permissible 

uses.

¶32 Instead, the Cockses suggest that a “first class private 

dwelling house,” which is an allowed structure under 

paragraph 1, encompasses any non-business structure, including

RVs. But they offer no basis for us to conclude that the natural 

meaning of the words “first class private dwelling house” 

includes an RV. A “house” is generally understood to refer to “a 

building in which something is sheltered or stored” or “a building 

that serves as living quarters for one or a few families.” House, 

Merriam-Webster, https://www.merriam-webster.com/dictionar
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y/house [https://perma.cc/WVN6-XMEF]. In contrast, an RV is a 

recreational vehicle—it is not a building. Thus, even if RVs 

provide shelter and living quarters like a house does, we fail to 

see how the term “first class private dwelling house” would be 

intended to include vehicles like an RV.9 As a result, and given 

their acknowledgment that RVs are structures, the Cockses have 

not shown an alternative interpretation of the CC&Rs that is both 

reasonable and “in keeping with the [writing’s] language.” See 

Ocean 18 LLC, 2020 UT App 54, ¶ 23. Where only one party’s 

interpretation of a writing is reasonable, the writing is not 

ambiguous. See Equine Holdings, 2021 UT App 14, ¶ 26. That is the 

case here. The district court therefore erred in determining that 

the CC&Rs are ambiguous.

¶33 Still, the Cockses assert that “extrinsic evidence supports 

[their] interpretation” that RVs are permitted. The district court 

similarly relied on extrinsic evidence to bolster its conclusion that 

the CC&Rs were ambiguous. When a writing is ambiguous, “the 

ambiguity must be resolved by considering extrinsic evidence of 

the parties’ intent.” Brady, 2019 UT 16, ¶ 53. But “if a [writing] 

contains no ambiguity, the court will not consider extrinsic 

evidence and will enforce the [writing] according to its terms.” See 

Brodkin v. Tuhaye Golf, LLC, 2015 UT App 165, ¶ 18, 355 P.3d 224 

(cleaned up). Because we agree with the Association that the 

9. These definitions, and our conclusion, are consistent with Mr. 

Cocks’s understanding of the plain meaning of the relevant terms. 

Mr. Cocks testified during his deposition that a “house,” as that 

term is used in the CC&Rs, is “[a] permanent structure on a 

foundation” and that an RV “wouldn’t be a house . . . because it’s 

not a permanent structure on a foundation.” Mr. Cocks also 

testified to his belief that an RV would not have been considered 

a “first class private dwelling house” when the CC&Rs were 

drafted in 1977.
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CC&Rs are not ambiguous, we further agree with the Association 

that the court had no need to consider extrinsic evidence.10 See id.

¶34 In short, we agree with the Association that the CC&Rs are 

unambiguous because, given the language of the CC&Rs and the 

parties’ agreement that RVs are structures, the CC&Rs are not 

“susceptible to two . . . reasonable interpretations” about whether 

they allow for the placement of RVs on lots in the subdivision. See

Swenson, 2000 UT 16, ¶ 11. Accordingly, we agree with the 

Association’s position that the CC&Rs unambiguously prohibit 

RV use. We thus reverse the district court’s judgment and order, 

and we remand for further proceedings. 

II. Business Judgment Rule

¶35 Next, the Association contends the district court erred in 

analyzing the business judgment rule. Utah Code section 57-8a213, the source for the business judgment rule asserted here, 

provides that the board of a homeowner association “shall use its 

reasonable judgment to determine whether to exercise the 

association’s powers to impose sanctions or pursue legal action 

for a violation of the governing documents,” including “whether 

to compromise a claim made by or against the board or the 

association.” Utah Code § 57-8a-213(1)(a)(i). It further states, in 

relevant part, that “[t]he association may not be required to take 

enforcement action if the board determines, after fair review and 

acting in good faith and without conflict of interest, that under the 

particular circumstances” “a technical violation has or may have 

10. “But if a party contends that an apparently unambiguous 

[writing] contains a latent ambiguity, as opposed to a facial 

ambiguity, the court will consider extrinsic evidence to determine 

whether the [writing] contains a latent ambiguity.” See Grove Bus. 

Park LC v. Sealsource Int’l LLC, 2019 UT App 76, ¶ 17 n.3, 443 P.3d 

764 (cleaned up). Here, the parties do not contend that the CC&Rs 

contain a latent ambiguity, rendering this exception inapposite.
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occurred” and “the violation is not material as to a reasonable 

person or does not justify expending the association’s resources,” 

or if the board determines that “it is not in the association’s best 

interests to pursue an enforcement action, based upon hardship, 

expense, or other reasonable criteria.” Id. § 57-8a-213(1)(b)(iii)–

(iv). And “in taking or not taking enforcement action,” the board’s 

decision “may not be arbitrary, capricious, or against public 

policy.” Id. § 57-8a-213(3).

¶36 A dispute over the business judgment rule arose when the 

Association invoked it defensively, asserting that the 2016 

resolution was “a valid exercise of business judgment.” The 2016 

resolution declared that although the CC&Rs “do not allow for 

placement of RV’s on” subdivision lots, the Association would not

“pursue enforcement action” against “[p]rior [n]on-conforming 

[l]ots” and that RVs could remain on those lots until their current 

owners sold the lots to someone other than an immediate family 

member.

¶37 The district court ruled that the Board’s action “going 

forward is a reasonable exercise of business judgment” but that 

the Board’s action vis-à-vis the Cockses was “arbitrary, capricious 

and against public policy.” It reasoned that the Board’s position 

as stated in the 2016 resolution was improper because it reflected 

“a change to the governing documents” that adversely impacted 

the Cockses’ rights. 

¶38 On appeal, the Association contends that the district court 

misapplied the business judgment rule by “not afford[ing] the 

Board the appropriate level of deference to its judgment in 

enforcing the CC&Rs.” According to the Association, the 2016 

resolution “did not change the CC&Rs” but, instead, “simply 

put[] the Board back into a posture of enforcing the CC&Rs as 

written.” And by adopting the 2016 resolution, “the Board used 

its business judgment to forgo enforcement of the RV prohibition 

in the CC&Rs against current owners with RVs on their lots until 
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the Resolution’s triggering event [of] an owner’s sale of a lot to 

[an] unrelated third party . . . and to enforce the RV prohibition 

against future owners.”11 The Association asserts that the court 

erred by substituting its judgment for the Board’s “by replacing 

the triggering event” with a change of use, which means “that the 

Cockses are allowed an RV until they or a future owner, related 

or not, stop placing RVs” on their two lots. The Cockses respond 

that the court “has not acted arbitrarily or capriciously,” arguing 

that the exercise of the business judgment rule “does not justify 

changing the CC&Rs.”

¶39 We reverse the district court’s determination that the 

Board’s adoption of the 2016 resolution was “arbitrary, capricious 

and against public policy” as enforced against the Cockses. The 

court’s decision relative to the business judgment rule was based 

on its view that the 2016 resolution “constitutes a change to the 

governing documents.” In other words, the court’s ruling 

regarding the 2016 resolution was premised on its conclusion that 

the CC&Rs were ambiguous and did not, on their face, restrict RV 

use. Because we have reached the opposite conclusion—we 

have determined, based on the language of the CC&Rs and 

the parties’ arguments, that the CC&Rs unambiguously prohibit 

the placement of RVs on the subdivision lots—the 2016 

resolution did not constitute a change to the governing 

documents; rather, it simply reflected the Board’s interpretation 

of existing language in the CC&Rs. Thus, the court’s ruling was 

built on a flawed premise, and the court erred in concluding that 

11. In fact, the Cockses benefited, in part, from the 2016 resolution 

because the resolution declared that the Association would excuse 

the Cockses’ own noncompliance with the RV restriction in the 

CC&Rs.
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the Board violated the business judgment rule in adopting the 

2016 resolution.12

III. Waiver

¶40 Finally, the Association alleges errors in the district court’s 

analysis of waiver. 

¶41 The waiver issue arose when the Cockses argued to the 

district court that the Association had waived any right it may 

have had to enforce the CC&Rs to preclude the placement of RVs

on their lots. In response, the district court explained that the 

Cockses always have been allowed to place RVs on their lots and 

could have “sold their property, for RV use, to someone outside 

their immediate family” but that the Association is “taking those 

rights away” under a “new interpretation of the CC&Rs.” The 

district court then concluded that the Association “cannot now 

change horses in mid stream to deprive [the Cockses] of the full 

use of their property.”

¶42 On appeal, the Association contends that the district 

court’s waiver analysis was “legally incorrect” on the ground that 

the court’s “rationale more closely followed an estoppel analysis” 

but that even then, the court “failed to apply the legal framework 

for estoppel.” The Association also asserts that the court erred in 

failing to consider the Association’s defense based on the CC&Rs’

antiwaiver clause. The Cockses acknowledge that the district 

court “did not address the anti-waiver provision directly,” but 

12. Given that the 2016 resolution did not amend but, instead, 

simply interpreted the CC&Rs, if the court were to conclude on 

remand that the Board waived its right to enforce paragraph 1 of 

the CC&Rs against the Cockses, see infra ¶ 47, the scope of that 

waiver—not the 2016 resolution—would dictate whether the 

Association will be able to enforce the provision absent a change 

of use.
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they maintain that the “evidence supported its finding that the 

right to exclude RVs and trailers was relinquished.”13

¶43 “A party may establish waiver only where there is an 

intentional relinquishment of a known right.” Mounteer Enters., 

Inc. v. Homeowners Ass’n for the Colony at White Pine Canyon, 2018 

UT 23, ¶ 17, 422 P.3d 809 (cleaned up). “Courts do not lightly 

consider a contract provision waived, however,” id., and “waiver 

is a highly fact-sensitive issue,” Chen v. Stewart, 2004 UT 82, ¶ 81 

n.14, 100 P.3d 1177, abrogated on other grounds by State v. Nielsen, 

2014 UT 10, 326 P.3d 645.

¶44 Because we have concluded that, in this case, the CC&Rs 

unambiguously prohibit the placement of RVs on subdivision 

lots, the district court should revisit its analysis of the waiver 

arguments (including the antiwaiver clause of the CC&Rs),

starting with the understanding that the CC&Rs disallow such 

placement. Further, we agree with the Association that the legal 

framework that the court employed on this subject was somewhat 

unclear, appearing to invoke estoppel principles rather than 

waiver. 

¶45 The court first explained the Association’s defensive 

argument—that because it had not “intentionally chosen not to 

enforce” the RV prohibition, it had not waived “its right to 

interpret the CC&Rs” as prohibiting RVs.14 The court then 

13. Relatedly, the Association also argues that the district court 

clearly erred in finding that the Association took no action to 

enforce “the RV prohibition.” Because we are remanding this case 

for further proceedings and instructing the court to revisit the 

waiver issue and its findings, we do not resolve this argument.

14. As explained above, the position the Association took in the 

2016 resolution was that it would not pursue enforcement action 

(continued...)
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explained that the Association’s argument in this regard “comes 

too late” and that the Cockses “were entitled to rely upon the 

interpretation of the CC&Rs the association adopted prior to the 

adoption of the . . . 2016 resolution.” By saying that the argument

“comes too late,” the court seemed to indicate that the Association 

had waived its defense to the Cockses’ waiver argument. See State 

v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (explaining that 

“waiver, in the context of raising an issue before a court, is 

generally the relinquishment or abandonment of an issue before 

a trial or appellate court” and may be “implied, such as by failing 

to raise an issue or argument at the required time” (cleaned up)). 

But the court’s statement does not necessarily equate to a 

determination that the Association actually waived its legal right 

to enforce the CC&Rs and prohibit RVs.15

¶46 Additionally, by saying that the Cockses “were entitled to 

rely upon the [Association’s previous] interpretation of the 

CC&Rs,” the district court cited reliance as an important fact, thus 

implicating estoppel rather than waiver. See Mounteer, 2018 UT 23, 

¶ 33 (comparing estoppel, which requires a showing that “another 

party was harmed by its reliance on the prior statement or act,”

with waiver, which does not require a showing of reliance or 

prejudice). The court further implicated estoppel in its conclusion 

that the “association cannot now change horses in mid stream to 

deprive [the Cockses] of the full use of their property.”

¶47 Given the nature of the district court’s discussion, we 

cannot say that it necessarily found that the Association waived 

against lot owners who were currently using their lots for RVs. See 

supra ¶¶ 6, 36.

15. Moreover, the Cockses’ argument was directed at the 

Association’s right to enforce the CC&Rs; their argument was not 

that the Association had waived its defense to the Cockses’ waiver 

argument.
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the right to enforce the RV prohibition. Further, the court made 

no findings relevant to the Association’s argument that it did not 

waive the antiwaiver clause.16 Thus, we vacate the court’s decision 

on waiver and remand this case for further proceedings. In so 

doing, we direct the court to revisit the issue in light of our 

reversal of its decision on ambiguity and to clarify the legal basis 

for its waiver analysis. We further direct the court to address the 

Association’s argument based on the antiwaiver clause. The 

court’s factual findings “should be sufficiently detailed and 

include enough subsidiary facts to disclose the steps by which the 

ultimate conclusion on each factual issue was reached.” Armed 

Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned 

up). 

16. Generally, an antiwaiver provision “precludes parties from 

construing certain conduct as a waiver of contractual rights.” See 

Mounteer Enters., Inc. v. Homeowners Ass’n for the Colony at White 

Pine Canyon, 2018 UT 23, ¶ 19, 422 P.3d 809. “Antiwaiver 

provisions aim to give contracting parties flexibility in enforcing 

their rights under the contract . . . without resulting in a complete 

and unintended loss of [those] contract rights if [a party] later 

decides that strict performance is desirable.” Id. (cleaned up). “So 

if the specific language of the antiwaiver clause expressly 

precludes parties from construing certain conduct as a waiver of 

contractual rights, courts must enforce this provision as part of 

the parties’ agreement.” Id.; see also id. ¶ 22 (explaining that an 

antiwaiver provision embodies “an agreement that specifically 

prohibits the mere failure to enforce a contractual right as being 

construed as waiver of that right”). However, “[e]ven an 

antiwaiver provision is subject to waiver.” Id. ¶ 20. Thus, if a party 

asserting waiver in the face of an antiwaiver clause can establish 

“a clear intent to waive both the antiwaiver clause and the 

underlying contract provision,” the court can conclude that the 

parties intended to modify their contract. See id. ¶ 21 (cleaned up).
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CONCLUSION

¶48 Given the parties’ agreement that RVs are “structures,” the 

district court erred in determining that the CC&Rs are ambiguous 

about whether RVs are allowed in the subdivision. We therefore 

conclude that the CC&Rs unambiguously prohibit the placement 

of RVs on subdivision lots. Accordingly, we reverse the court’s 

ambiguity determination; we reverse its determination that the 

2016 resolution was arbitrary, capricious, and against public 

policy; we instruct the court to revisit the waiver issue; and we 

vacate its judgment and remand this matter for further 

proceedings consistent with this opinion.

TENNEY, Judge (concurring):

¶49 I fully concur in the lead opinion. I write separately to 

emphasize one potential question that we are not answering.

¶50 In Point I, we conclude that the CC&Rs unambiguously 

prohibit homeowners from placing their RVs on lots in the 

subdivision. As we point out in paragraph 27, this conclusion 

turns on language from the CC&Rs that prohibits the placement 

of any “improvement or structure” that is not included in a 

defined list. As we then explain, the Cockses have not provided a 

plausible reading of the CC&Rs that would allow them to escape 

that list or, by extension, this prohibition. 

¶51 But this all assumes that an RV qualifies as a “structure” in 

the first place. As we point out in paragraph 28, we’re comfortable 

making that assumption because the Cockses have conceded that 

this is so for purposes of these CC&Rs.

¶52 That concession is critically important to my decision to 

join this opinion. “Utah courts have a long history of relying on
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dictionary definitions to determine plain meaning.” Cook v. 

Department of Com., 2015 UT App 64, ¶ 13, 347 P.3d 5 (quotation 

simplified). In relevant part here, Merriam-Webster defines 

“structure” as “the action of building,” or, relatedly, as

“something (such as a building) that is constructed.”17 MerriamWebster then defines “constructed” as “to make or form by 

combining or arranging parts or elements: BUILD,” and it offers 

as an immediate example the phrase “construct a bridge.”18

Black’s Law Dictionary gives a similar definition for “structure,” 

defining it as “[a]ny construction, production, or piece of work 

artificially built up or composed of parts purposefully joined 

together” and then offering as an example the phrase “a building 

is a structure.” Structure, Black’s Law Dictionary (11th ed. 2019). 

¶53 It’s noteworthy that the word “structure” is commonly 

linked to the word “building.” In this sense, the word “structure” 

seems to refer to a manufactured edifice that is in some sense fixed 

in place. But to state the obvious: an RV is not a “building,” nor is 

an RV generally fixed in place. And for what it’s worth, my 

intuitive sense of the word’s ordinary usage suggests that an RV 

is not a “structure” either. If a motorist on the interstate looked 

over and saw an RV in the neighboring lane, I think that her 

passenger would be a little confused if the driver made a 

comment about the “structure” that was driving alongside them. 

After all, an RV is a vehicle, not a structure. To me, anyway, those 

seem to be different things. 

¶54 Indeed, the CC&Rs in question seem consistent with this 

understanding. They state that “[n]o improvement or structure 

. . . may be erected, placed, or maintained” on any lot within the 

17. https://www.merriam-webster.com/dictionary/structure

[https://perma.cc/65KY-AD98] (definitions 1 and 2(a)). 

18. https://www.merriam-webster.com/dictionary/constructed

[https://perma.cc/596V-M2TK].
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subdivision, and they then carve out from this definition “first 

class private dwelling house[s], patio walls, swimming pool[s], 

and customary outbuildings, garage[s], carport[s], servants’ 

quarters, or guest house[s].” All of these things are buildings or 

building-adjacent features that are fixed to the ground (or, in the 

case of an above-ground swimming pool, essentially immovable 

for practical reasons). Given all this, I would have been receptive 

to the argument that a person could reasonably think that an RV 

is not a structure. And if that were so, this would have meant that 

this term is ambiguous with respect to how it’s used in this key 

provision from these CC&Rs.

¶55 But while the Cockses hinted at such an argument in their 

brief, they had seemed to take something of a contrary tack below. 

This was perhaps unclear, though, so to pin things down, several 

members of this court asked the Cockses’ counsel about this at the 

appellate oral argument. In response to those questions, the 

Cockses’ counsel repeatedly told us that an RV does qualify as a 

structure. And while the Association’s attorney initially 

suggested that an RV does not qualify as a structure in response 

to similar questions during his opening argument, he strategically 

saw the light by the time of rebuttal, now agreeing with the 

Cockses’ counsel that an RV can be considered a structure for 

purposes of these CC&Rs.

¶56 The ultimate question in a contract case is what the parties 

meant with respect to the terms used in their contract. Because of 

this, “parties to a contract may define their terms as they please—

a duck may be a goose,” “up may be defined as down, right as 

left, day as night.” Penncro Assocs., Inc. v. Sprint Spectrum, LP, 499 

F.3d 1151, 1152, 1157 (10th Cir. 2007) (quotation simplified). True, 

courts will ordinarily “recognize and give effect to such private 

definitions only where the parties’ intention to deviate from 

common usage is manifest,” meaning that courts will usually look 

for some “textual indicia that the parties intended such a 

departure.” Id. at 1157. But both parties to this contract are now 
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telling us that the term “structure” does indeed include an RV. So 

regardless of how we might ordinarily interpret this term, I think 

we have no choice but to take the parties’ agreed-upon word for 

how to interpret this word for purposes of this case. At bare 

minimum, the Cockses have certainly waived the right to argue 

otherwise. And once it’s locked down that an RV can qualify as a 

structure for purposes of these CC&Rs, the rest of our analysis in 

Point I about what is unambiguously prohibited by the CC&Rs 

naturally follows.

¶57 But even so, this case will of course set precedent that will 

be used as a common law guide for future cases. On the 

admittedly offhand chance that some future case arises that turns 

on whether the term “structure” can include a vehicle like an RV 

that can be driven across the country at high speeds, this opinion 

should not be read as settling that question in either direction as 

a matter of law. Rather, because our answer here starts with the 

parties’ agreement that the term “structure” in this contract can 

include RVs, I regard the question about how to interpret the term 

“structure” elsewhere as remaining open.