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January 14, 2000

Record No. 990164






Present: All the Justices

William R. Shelton, Judge

A. Dale Smith and Richard M. Allen appeal the
trial court’s judgment sustaining a demurrer dismissing their
bill of complaint seeking to have a restrictive covenant declared
null and void. Finding that the pleadings were sufficient to
state a cause of action, we will reverse the judgment of the
trial court.

In 1979, Allen owned approximately 5.5 acres of
land on the north side of Centralia Road at its intersection with
State Route 10 in Chesterfield County. He sought and obtained a
rezoning of the parcel to Agricultural (A) with a conditional use
permit to build an office complex. Ernest P. Gates and Virginia
Y. Gates (the Gates) owned a 5.5-acre tract on the south side of
Centralia Road at that intersection. The Gates’ home, known as
"Wrexham," was located on their property.

On July 14, 1980, Allen and the Gates executed
a restrictive covenant affecting Allen’s property. Under the
covenant, Allen’s land was to be "used only for the purposes
mentioned and allowed by the Special Conditional Use Permit
granted by the Board of Supervisors on November 28, 1979, in case
#79S101A for an office complex as reflected in the official
minutes of the meeting." The covenant was to run with the
land for a period of sixty years from the date of the covenant
and it was recorded in the land records of Chesterfield County.

The Wrexham structure subsequently was
relocated, the Gates’ property was rezoned to
"Commercial" use, a portion was sold to Chesterfield
Meadows Shopping Center Associates, L.P., and Ukrop’s Super
Markets, Inc. (collectively "Chesterfield"), and the
Chesterfield Meadows Shopping Center was constructed on the
property. Allen’s property was subsequently rezoned from
Agricultural (A) to "Neighborhood Business" and a
portion of the tract was sold to Smith.

On June 24, 1998, Smith and Allen filed a bill
of complaint in the court below, pursuant to Code ? 55-153,
seeking to have the restrictive covenant declared void.
Chesterfield filed a demurrer, which the trial court sustained by
order entered on October 1, 1998. Smith and Allen were given 21
days from the date of entry of the order to amend their bill of
complaint. On October 29, Allen and Smith filed a motion for
nonsuit which the trial court granted on November 2, 1998.
Chesterfield filed a motion to vacate the court’s order of
nonsuit, which was granted on November 23, 1998, based on the
court’s finding that it "lost jurisdiction on October 22,
1998 because no Amended Bill of Complaint had been filed or other
Order entered." We awarded Smith and Allen this appeal.

Smith and Allen argue that the trial court
erred in sustaining Chesterfield’s demurrer because their bill of
complaint adequately stated a cause of action. In a cause of
action to have a restrictive covenant declared void, a party must
prove that changed conditions have defeated the purpose of the
restrictions, and the change must be "so radical as
practically to destroy the essential objects and purposes of the
agreement." Booker v. Old Dominion Land Co., 188 Va.
143, 148, 49 S.E.2d 314, 317 (1948). Smith and Allen assert that
the allegations contained in the bill of complaint that
"[t]he restriction was intended to protect the historical
nature of Wrexham," that the Wrexham structure had been
relocated, and that the entire property upon which Wrexham was
located is now zoned commercial and a shopping center has been
built on the property, were sufficient to state a cause of action
for declaring a restrictive covenant void.

Chesterfield responds first that our holding in
Ward’s Equipment, Inc. v. New Holland North America, Inc.,
254 Va. 379, 493 S.E.2d 516 (1997), bars consideration of Smith
and Allen’s allegations that the purpose of the restrictive
covenant was to protect the Wrexham structure. In Ward’s
, we held that factual allegations contradicted by
the terms of authentic, unambiguous documents that are a part of
the pleading may be disregarded by a court in considering a
demurrer. Id. at 382, 493 S.E.2d 518. Chesterfield argues
that the restrictive covenant, which was attached to the
pleading, stated that "it is the desire of the parties
hereto to restrict the land containing 5.523 acres in accordance
with conditions imposed by the Board of Supervisors of
Chesterfield County in case #79S101A." This statement,
according to Chesterfield, is an unambiguous statement of the
purpose of the restrictive covenant. Therefore, Chesterfield
contends, Smith and Allen’s argument that the purpose of the
covenant was to preserve the Wrexham structure is a factual
allegation in contradiction of the unambiguous covenant document,
and is barred by the doctrine recognized by Ward’s Equipment.
We disagree.

The language quoted above from the restrictive
covenant does not address the purpose of the covenant. Rather,
the language describes the actual restriction that was imposed
upon the land. The purpose of the covenant, namely, the reason
why the parties chose to impose the restriction on the land, is
not set forth in the document itself. Because the document is
silent as to the purpose of the restrictive covenant, the rule in
Ward’s Equipment does not prohibit the introduction of
evidence on that subject, since such evidence would not be
considered a factual allegation contradicted by the terms of the

Next, relying on Hechler Chevrolet v.
General Motors Corp.
, 230 Va. 396, 337 S.E.2d 744 (1985),
Chesterfield asserts that the introduction of evidence that the
covenant was created to protect the Wrexham structure is barred
by the parol evidence rule. In Hechler, parol evidence was
not allowed to show prior dealings between the parties because
there was no allegation that the contract in question was
incomplete or ambiguous. Id. at 403, 337 S.E.2d at 749. In
the instant case, Smith and Allen allege that the purpose of the
restrictive covenant was not contained within the document, and
that extrinsic evidence is needed to determine the reason for
imposing restrictions on the land. In light of these allegations,
we hold that the parol evidence rule does not bar extrinsic
evidence of the purpose of the covenant in this case.

Finally, Chesterfield argues that the bill of
complaint fails to allege sufficiently changed circumstances to
support nullification of the restrictive covenant. According to
Chesterfield, allegations that an historical house has been
relocated and a shopping center has been constructed in its place
alone are insufficient to establish the type of change which
would "destroy the essential objects and purposes" of
the restrictive covenant.

Considering these allegations in the light most
favorable to the plaintiffs, which we must when considering a
demurrer, W.S. Carnes, Inc. v. Chesterfield County, 252
Va. 377, 384, 478 S.E.2d 295, 300 (1996), we cannot say they are
insufficient as a matter of law. The fact that the pleadings
discuss changes to only a single property does not defeat the
cause of action at the demurrer stage in the proceedings.

For the above reasons, we conclude that Smith
and Allen’s bill of complaint stated a cause of action.
Accordingly, we will reverse the trial court’s order sustaining
the demurrer and remand the case for further proceedings.

Reversed and remanded.



[1] Because we are reversing the
trial court’s order sustaining the demurrer, we do not reach the
remaining assignments of error pertaining to nonsuit.