Mandatory Good‑Faith View Consideration in HOA Covenants and Merger of Preliminary Injunction Orders: Commentary on Waddell v. Studer, 2025 MT 269

Mandatory Good‑Faith View Consideration in HOA Covenants and Merger of Preliminary Injunction Orders
Commentary on Waddell v. Studer, 2025 MT 269 (Mont. Sup. Ct.)

Court: Supreme Court of Montana

Case: Waddell v. Studer, DA 24‑0632, 2025 MT 269

Date: November 25, 2025

Author of Majority Opinion: Justice Ingrid Gustafson

Separate Opinion: Justice Jim Rice, concurring in part and dissenting in part (joined by Chief Justice Swanson)

I. Introduction

Waddell v. Studer sits at the intersection of property law, homeowners’ association (HOA) governance, contract interpretation, and appellate procedure. The dispute arose in the Summer Ridge Subdivision in Gallatin County, Montana, where Russell Waddell and Casey Magan objected to neighbors Paul and Rachael Studer’s planned home construction on an adjacent lot. The central substantive question: do the subdivision’s protective covenants impose any enforceable duty to preserve or meaningfully consider a neighbor’s mountain views?

The case also raises an important procedural issue: when a district court has denied preliminary injunctive relief and later enters final judgment on the merits, must the Montana Supreme Court separately review the preliminary‑injunction rulings on appeal, or are they effectively absorbed into the review of the final judgment?

The litigation history is extensive: a denied temporary restraining order (TRO), a denied preliminary injunction, multi‑year discovery and motion practice, construction of the disputed home, summary judgment for the defendants (the Studers and the Summer Ridge Homeowners’ Association), and a substantial prevailing‑party attorney fee award exceeding $417,000. On appeal, the Supreme Court reverses the core rulings and remands for trial, significantly clarifying Montana law in two areas:

  1. Procedural doctrine: Adoption of a “merger” approach under which denials of preliminary injunctive relief are effectively subsumed into the final judgment and reviewed via the appeal of that judgment, rather than as freestanding issues.
  2. Substantive property/contract doctrine: Interpretation of HOA covenants stating that building “placement should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains,” and that approval of size and height “shall take into consideration . . . blocking views.” The Court holds this language creates mandatory, enforceable duties of good‑faith consideration—though not a full‑blown view easement.

The decision thus shapes how Montana courts will read similar covenants, how HOAs must conduct architectural review, and how litigants should think about appealing preliminary injunction denials.

II. Summary of the Opinion

A. Parties and Background

  • Plaintiffs/Appellants: Russell Waddell and Casey Magan (“the Waddells”), owners of Lot 7 in the Summer Ridge Subdivision since 2004. Their home, on the southern portion of Lot 7, enjoys views toward the Bridger Mountains.
  • Defendants/Appellees:
    • Paul and Rachael Studer (“the Studers”), who purchased neighboring Lot 6 in 2018 and sought to build on its northern portion; and
    • Summer Ridge Homeowners’ Association (SRHOA), a Montana non‑profit, acting through its Design Review Committee (DRC) and Board.

The subdivision is subject to recorded “Declaration of Protective Covenants and Restrictions.” Among other things, these covenants:

  • Specify numeric setbacks (front, side, rear);
  • Impose minimum home sizes and height limits; and
  • Address “building orientation,” stating that building placement “should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains,” and that approval of size and height “shall take into consideration unusual designs, blocking views, and solar effects of existing dwellings.”

The DRC initially approved the Studers’ plans without depicting the existing Waddell residence on the drawings. After the Waddells objected that their Bridger views would be blocked, the SRHOA Board—at first—rescinded approval, expressly citing failure to consider the impact on the Waddells’ “view shed,” and demanded a revised plan showing the Lot 7 home. The Board eventually reversed course, withdrew that demand, reinstated approval, and told the parties to work it out between themselves. The Studers built in the originally planned location.

The Waddells sued, seeking injunctive relief, declaratory relief, and enforcement of the covenants. The district court:

  • Denied a TRO and preliminary injunction;
  • Ultimately granted summary judgment to both the Studers and SRHOA, holding the covenants did not create any enforceable duty to preserve views, but merely encouraged neighbors to be “good neighbors”; and
  • Awarded the defendants over $417,000 in attorney fees and costs as prevailing parties under the covenants’ fee‑shifting clause.

The Waddells appealed both the merits and the fee awards.

B. Issues on Appeal

The Supreme Court restated the issues as:
  1. Should the Court review the Waddells’ challenges to the orders denying a TRO and preliminary injunction, given that the district court has since issued final judgment?
  2. Did the district court err in granting summary judgment to the Studers and SRHOA?
  3. Did the district court abuse its discretion in awarding attorney fees to the Studers and SRHOA?

C. Holdings

  1. Merger of preliminary relief into final judgment. The Court holds that where the case has proceeded to a final judgment on the merits, interlocutory orders denying preliminary injunctive relief are effectively merged into the final judgment. The Court will review the underlying legal analysis through the appeal from summary judgment rather than separately revisit the preliminary injunction rulings.
  2. Reversal of summary judgment. The district court misinterpreted the covenants by treating the “views and solar gains” language as aspirational only. Properly read as a whole, the covenants impose mandatory obligations of good‑faith consideration on both the builder and the HOA, though they do not grant a full‑fledged view easement. Genuine issues of material fact exist regarding whether the Studers and the SRHOA satisfied these obligations; summary judgment was improper.
  3. Reversal of attorney fee awards. Because the summary judgments are reversed and no party presently qualifies as the “prevailing party” under the covenants, the substantial attorney fee awards must be vacated. Prevailing‑party status will depend on the outcome after remand.

Justice Rice concurred in the merger holding (Issue 1) but dissented on Issues 2 and 3. He would affirm summary judgment and the attorney fee awards, reading the covenants as imposing only a duty to “take into consideration” neighbors’ views (which he finds satisfied on the undisputed record), and not as creating any justiciable view‑protection obligation beyond that.

III. Detailed Analysis

A. Procedural Doctrine: Merger of Preliminary Injunction Orders into Final Judgment

1. The Court’s approach

The Waddells challenged the district court’s denial of their TRO and preliminary injunction, arguing that the court prematurely decided the merits of covenant interpretation at that stage. The defendants countered that:

  • The Waddells did not take an immediate interlocutory appeal, although permitted by M. R. App. P. 6(3)(e) (authorizing appeals from orders “refusing to grant . . . an injunction”); and
  • Construction of the Studers’ home and the entry of final judgment had rendered preliminary‑injunction issues moot.

The Supreme Court rejected a formal mootness approach and instead adopted a merger doctrine, drawing heavily from federal practice. Citing Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000), and SEC v. Mount Vernon Memorial Park, 664 F.2d 1358 (9th Cir. 1982), the Court reasoned:

“One of the considerations in entry of a preliminary injunction is the probability of the plaintiffs’ success on the merits. Yet on final decision, the district court has decided the merits. To attempt to review the district court’s advance assessment of probabilities . . . when the district court has now found in favor of [a party] on the merits seems a futile exercise. Good sense dictates that review of the decision on the merits would be more meaningful.” (quoting Mount Vernon, which in turn quoted United States v. Chicago, 534 F.2d 708 (7th Cir. 1976))

Accordingly, the Court held it was unnecessary to separately address whether the TRO and preliminary injunction were properly denied. Instead, it would review the same legal analysis—the interpretation of the covenants—through the appeal of the summary judgment. The preliminary rulings are “necessarily subsumed” in the final merits decision.

2. Context: purpose of preliminary injunctions

Citing Flora v. Clearman, 2016 MT 290, ¶ 21, 385 Mont. 341, 384 P.3d 448, the Court reiterated that:

“The purpose of a preliminary injunction is to prevent further injury or irreparable harm pending an adjudication on the merits.”

Once the case reaches an actual merits adjudication (here, via summary judgment), the preliminary predictions about likelihood of success and interim harm lose independent significance. The appellate focus shifts to whether the final legal rulings were correct.

3. Practical implications

  • Immediate appeal still permitted, but not required. Parties remain free to take an interlocutory appeal from the denial of a preliminary injunction under M. R. App. P. 6(3)(e), especially where immediate relief is crucial. But if they do not, they can still challenge the underlying legal reasoning later, via appeal from final judgment.
  • No “double review” of the same legal issue. Appellants should not expect the Supreme Court to separately review the preliminary‑injunction denial on top of reviewing the same legal questions in the summary judgment context.
  • Strategic considerations. If the harm the injunction sought to prevent has already occurred (e.g., the house gets built), appealing the preliminary denial may offer little practical relief. However, where timing or settlement leverage matters, an interlocutory appeal might still be valuable.

In Montana, Waddell now squarely situates denial‑of‑injunction rulings within the larger arc of the case: they are important in real time, but once the case is decided on the merits, the appellate court’s task is to review the final merits decision, not to second‑guess earlier provisional risk assessments in isolation.

B. Substantive Doctrine: Interpretation of the Summer Ridge Protective Covenants

1. Governing interpretive principles

The Court treats restrictive covenants as it treats contracts. Key authorities include:

  • Lewis & Clark Cnty. v. Wirth, 2022 MT 105, ¶ 14, 409 Mont. 1, 510 P.3d 1206. Interpretation of a restrictive covenant is a conclusion of law reviewed for correctness.
  • Larsen v. Sayers, 2025 MT 24, ¶¶ 18–19, 420 Mont. 270, 563 P.3d 269. Courts apply contract law to covenants, reading them as a whole to ascertain intent, and giving effect to each part if reasonably possible.
  • Craig Tracts Homeowners’ Ass’n v. Brown Drake, LLC, 2020 MT 305, ¶ 9, 402 Mont. 223, 477 P.3d 283. If language is clear and explicit, it is applied as written, using ordinary and popular meaning.
  • Creveling v. Ingold, 2006 MT 57, 331 Mont. 322, 132 P.3d 531. Covenant terms should be understood in their ordinary and popular sense.
  • Statutes:
    • § 28‑3‑202, MCA: contract provisions must be read together, “each clause helping to interpret the others.”
    • § 28‑3‑307, MCA: specific clauses are subordinate to the general intent of the contract.
    • § 1‑4‑101, MCA: courts must ascertain and declare what is in the instrument and must not “insert what has been omitted or omit what has been inserted.”

The covenants here explicitly state their overall purpose is “maintaining a uniform and stable value, character, architectural design, use, and development of the premises.” This purpose colors the reading of individual clauses.

2. The key provisions

Three covenant provisions are central:

  1. Numeric setbacks (Site Covenants § 1):
    • Minimum 50‑foot front setback from roadway easement;
    • Minimum 30‑foot side setback from side property line; and
    • Minimum 50‑foot rear setback.
  2. Building orientation (Site Covenants § 2):
    “Placement should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains.”
  3. Size and height, with additional considerations (Architecture Covenants § 2):
    • Minimum square footage and maximum height limits (e.g., two stories; 35‑foot cap for dwellings, 24 feet for other structures); and
    • Additional review criterion:
      “Approval of size and height shall take into consideration unusual designs, blocking views, and solar effects of existing dwellings.”

The district court essentially treated the numeric setbacks and height/size limits as the only binding restrictions, characterizing the view‑related language as hortatory—“encouraging” but not obligating any particular conduct. The Supreme Court rejects that reading.

3. The meaning of “should” and “take into consideration”

The majority focuses on the phrase “Placement should take into consideration . . . with allowance for views and solar gains.” The district court read “should” as merely expressing propriety without creating an obligation. The Supreme Court disagrees.

The Court acknowledges that:

  • “Should” often expresses moral or practical propriety rather than compulsion.
  • Black’s Law Dictionary (5th ed. 1979) defines “should” as the past tense of “shall,” “ordinarily implying duty or obligation” but “usually no more than an obligation of propriety or expediency.”
  • Garner’s Dictionary of Legal Usage notes that “should,” like “may,” sometimes functions in legal drafting to create mandatory standards.

But the Court emphasizes context. Here:

  • The covenants explicitly aim to maintain uniform value and character.
  • The phrase “with allowance for views and solar gains” qualifies and constrains the “take into consideration” directive.
  • There is parallel language that approval “shall take into consideration . . . blocking views,” which clearly imposes duties on the HOA’s approval process.

Reading the covenants as a whole, and applying § 1‑4‑101, MCA (which forbids ignoring text that has been inserted), the Court concludes:

  • The covenants do not create a binding “view easement” in the sense of guaranteeing unobstructed views; but
  • They do create a mandatory obligation of good‑faith consideration for both:
    • the homebuilder (in siting/orientation); and
    • the SRHOA (in its plan approval process).

The majority articulates this dual obligation explicitly (¶ 24):

“Here, the Covenants provide requirement on the home builder with regard to building placement—‘should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains’—and requirement on the SRHOA—that ‘Approval of size and height shall take into consideration unusual designs, blocking views, and solar effects of existing dwellings’ in determining whether to approve the overall design and location of the proposed construction. Read as a whole, both the homebuilder and the SRHOA are required to in good faith consider the impact on neighboring homeowners’ views and solar gains in the size and location of proposed building construction.”

In effect, “should take into consideration . . . with allowance for views” is read as a process‑oriented duty: decision‑makers must actually and genuinely weigh the effect on existing neighbors’ views and solar exposure when siting and approving a home, even though the ultimate outcome need not fully preserve those views.

4. The dissent’s competing reading

Justice Rice agrees that the covenants are unambiguous but draws the opposite interpretive conclusion:

  • He emphasizes the structural distinction between specific numeric, mandatory requirements (setbacks, height limits) and general, non‑specific “consideration” directives.
  • He treats “should” as non‑mandatory and “take into consideration” as requiring only that the matter be thought about—not that it influence the outcome.
  • He argues that the covenants do not “establish a view shed easement or . . . a duty or obligation . . . [to protect] view sheds” and contends the majority effectively creates a new, undefined standard for how much consideration is enough.

He analogizes to GBSB Holding, LLC v. Flathead Cnty. Bd. of Cnty. Comm’rs, 2025 MT 22, 420 Mont. 237, 564 P.3d 29, where the Court held a district court had “taken into consideration” a prior finding by accurately summarizing it, even though it reached a different conclusion. For Justice Rice, “take into consideration” requires thought and recognition, not any specific substantive outcome.

Thus, the interpretive divide is clear:

  • Majority: “Should . . . with allowance for views” plus “shall take into consideration . . . blocking views” create enforceable, mandatory good‑faith consideration duties for both builder and HOA.
  • Dissent: Same words create only a duty of minimal process—to be aware of and think about views—without any enforceable standard about the sufficiency or genuineness of that consideration.

C. Summary Judgment and the “Sufficiency” of Consideration as a Fact Question

1. Summary judgment standards

The Court reviews summary judgment de novo under M. R. Civ. P. 56, relying on:

  • Mullee v. Winter Sports, Inc., 2025 MT 113, ¶ 9, 422 Mont. 180, 569 P.3d 594;
  • CB1 v. Hove, 2025 MT 36, ¶ 9, 420 Mont. 380, 564 P.3d 434.

Summary judgment is appropriate only if:

  • There is no genuine dispute of material fact; and
  • The moving party is entitled to judgment as a matter of law.

A “material” fact is one involving an element of the claim or defense to an extent that requires resolution by the fact‑finder. See Arnold v. Yellowstone Mt. Club, LLC, 2004 MT 284, ¶ 15, 323 Mont. 295, 100 P.3d 137 (quoting Mt. W. Bank, N.A. v. Mine & Mill Hydraulics, Inc., 2003 MT 35, ¶ 28, 314 Mont. 248, 64 P.3d 1048).

2. The factual record on “consideration”

The majority accepts there is some evidence that the Studers and SRHOA thought about the Waddells’ views:

  • The Waddells’ October 2020 letters to the Board and DRC objecting to the plan and asking for rescission;
  • The Board’s initial rescission letters acknowledging failure to “consider the impact” on the viewshed;
  • The Studers’ November 12, 2020 letter offering to move the proposed home 20 feet south if the HOA paid the $1,000 re‑staking cost, expressly stating they had “considered the new concerns” about views;
  • The Board’s later letter reinstating approval “upon further deliberation” and telling the parties to resolve their disagreement.

But the majority highlights a competing set of facts suggesting the consideration may have been perfunctory or inadequate under the covenants:

  • The original plan for Lot 6 included the home on Lot 5 but not the existing Waddell home on Lot 7—arguably a failure to recognize and analyze the actual impact on that dwelling.
  • After the Waddells objected, the Board rescinded approval three times, explicitly stating that the plan failed to consider the impact on the Lot 7 viewshed, and demanded a revised plan by November 15, 2020, showing the Lot 7 residence to “help evaluate the existing views.”
  • The Studers never submitted such a revised plan and ultimately built in the original location.
  • The Board, after its deadline had passed and without ever reviewing a plan that depicted the Lot 7 home, reinstated approval, explaining it now believed “the wisest approach” was to “leave this issue for the two parties to work out between yourselves.”
  • This reinstatement letter paired “upon further deliberation” with a clear statement that the Board was withdrawing its demand for a revised plan and essentially stepping aside from enforcing the view‑related covenants.

The majority views these facts as raising a genuine dispute about whether the defendants truly complied with the covenants’ good‑faith consideration standard:

“The factual record of this case demonstrates there may have been some consideration of the Waddells’ view when the Studers built their new home, but whether that consideration was sufficient is beyond the scope of the summary judgment record and best left for a jury to determine.” (¶ 27)

Similarly, as to the SRHOA, the majority suggests a jury could reasonably find that:

  • The Board’s initial rescissions and demands for revised plans show it understood the covenants to require concrete assessment of view impacts; but
  • Its ultimate decision to “leave this issue for the two parties to work out” and reinstate approval without the requested plans may reflect a failure to perform its own duty under the covenants to assess and enforce view considerations.

That dispute over whether the HOA engaged in genuine, good‑faith consideration—especially after expressly recasting a covenant‑compliance question as a mere “disagreement” between neighbors—is, in the majority’s view, quintessentially for a jury.

3. The dissent’s view: law, not fact

Justice Rice insists that:

  • Both sides essentially agree on the historical facts; there are no material factual disputes about what happened.
  • The dispute is purely interpretive—what level of “consideration” the covenants require—and thus a question of law.
  • Once the legal standard is defined, the undisputed facts show compliance: the Studers and HOA demonstrably thought about the views and negotiated; nothing more was required.

He criticizes the majority for asking a jury to define what “sufficient consideration” is:

“The question of what a contract or covenant requires, specifically here—the amount or kind of ‘consideration’ of viewshed that is required—is a threshold interpretational question, a matter of law to be reviewed de novo. . . . Once a court interprets the document as a matter of law . . . then the factual record is reviewed to determine whether there was a breach.” (¶ 35)

On his reading of the covenants, the obligation is procedural only: did the builder and HOA take views into account in good faith? The letters and back‑and‑forth communications, for him, definitively show that they did; he would therefore affirm summary judgment for the defendants.

4. The Court’s ultimate conclusion

The majority:

  • Construed the covenants to impose mandatory good‑faith consideration duties;
  • Held that whether those duties were met is a material factual question; and
  • Found genuine disputes in the record regarding the seriousness and adequacy of the Studers’ and SRHOA’s consideration of the Waddells’ views and solar gains.

Thus, summary judgment was improper. The case must be tried to a jury on whether there was a breach of the covenants as interpreted.

D. Attorney Fees and the “Prevailing Party” Concept

1. The contractual fee‑shifting clause

Montana generally follows the American Rule: each party bears its own attorney fees absent statute or contract. See:

  • Mlekush v. Farmers Ins. Exch., 2015 MT 302, ¶ 10, 381 Mont. 292, 358 P.3d 913;
  • Winter v. State Farm Mut. Auto. Ins. Co., 2014 MT 168, ¶ 31, 375 Mont. 351, 328 P.3d 665.

Fee‑shifting clauses are a recognized contractual exception. See Houden v. Todd, 2014 MT 113, ¶ 41, 375 Mont. 1, 324 P.3d 1157.

Here, the covenants provide:

“In the event of any action to enforce these covenants, the prevailing party shall be entitled to costs and reasonable attorney’s fees to be set by the court.”

On the assumption that the defendants had prevailed by obtaining summary judgment on all claims, the district court awarded:

  • To SRHOA: $305,143.50 in attorney fees and $13,492.91 in costs; and
  • To the Studers: $98,765.96 in attorney fees and $206.06 in costs.

2. Effect of reversing summary judgment

Once the Supreme Court reversed the underlying judgments and remanded, there was no longer a “prevailing party.” The Court therefore held:

  • The contractual basis for the fee awards has evaporated.
  • The fee awards (totaling about $417,608) must be reversed.
  • The question of who, if anyone, will ultimately be entitled to fees must await the outcome of the trial on remand.

The decision underscores that “prevailing party” status in fee‑shifting covenants is tied to the ultimate merits outcome. Interim victories—even substantial ones like summary judgment—do not cement fee entitlements if they are subsequently overturned on appeal.

E. Precedents Cited and Their Role

1. Restrictive covenant and contract interpretation

  • Larsen v. Sayers, 2025 MT 24. Reaffirms that covenants are interpreted under contract principles, with focus on intent and reading instruments as a whole.
  • Lewis & Clark Cnty. v. Wirth, 2022 MT 105. Establishes interpretive rules: covenants construed as a whole; particular clauses subordinate to general intent (§ 28‑3‑307, MCA).
  • Craig Tracts, Creveling, Fox Farm Estates, Hillcrest. Provide background on using plain meaning and reading all provisions in harmony.
  • Montco v. Simonich, 285 Mont. 280, 947 P.2d 1047 (1997). Clarifies that “shall” and “must” are mandatory; the majority uses this as a backdrop to discuss how “should” sometimes operates in legal drafting.

2. Summary judgment and factual disputes

  • Arnold v. Yellowstone Mt. Club, LLC, 2004 MT 284. Defines “material fact” and emphasizes that speculation or conclusory statements are insufficient to defeat summary judgment.
  • Mt. W. Bank v. Mine & Mill Hydraulics, 2003 MT 35; Klock v. Town of Cascade, 284 Mont. 167, 943 P.2d 1262 (1997). Supporting precedent on summary judgment criteria.
  • Kilby Butte Colony, Inc. v. State Farm, 2017 MT 246; Hajenga v. Schwein, 2007 MT 80. Cited to emphasize that even cross‑motions for summary judgment don’t automatically eliminate factual disputes; each motion must be evaluated on its own merits.

3. Attorney fees

  • Mlekush I, Winter, Houden. Provide the doctrinal framework for the American Rule and contractual fee‑shifting.
  • Peters v. Hubbard, 2020 MT 282; James Talcott Constr., Inc. v. P. & D. Land Enters., 2006 MT 188; Friedel, LLC v. Lindeen, 2017 MT 65. Establish the standard of review for fee awards (“abuse of discretion”).

4. Preliminary injunctions and merger

  • Flora v. Clearman, 2016 MT 290. Describes the purpose of preliminary injunctions as preventing irreparable harm pending merits adjudication.
  • Federal precedents: Worldwide Church of God, SEC v. Mount Vernon Memorial Park, United States v. Chicago. These are used to import the merger logic into Montana practice.

5. Dissent’s authorities

Justice Rice’s concurrence/dissent relies on:
  • Brandt v. R&R Mountain Escapes, LLC, 2025 MT 155. Reaffirms that contract interpretation is a question of law.
  • GBSB Holding, LLC v. Flathead Cnty. Bd. of Cnty. Comm’rs, 2025 MT 22. Used to illustrate what “take into consideration” can mean in practice—thoughtful review even if the final conclusion differs.
  • Newlon v. Teck Am., Inc., 2015 MT 317, and Arrowhead Sch. Dist. v. Klyap, 2003 MT 294. Stress giving effect to the parties’ agreement rather than creating new obligations.
  • Broadwater Dev., LLC v. Nelson, 2009 MT 317. States that when material facts are undisputed, the court applies the law and determines who prevails.

F. Simplifying Key Legal Concepts

1. TRO and preliminary injunction

  • A TRO (temporary restraining order) is short‑term emergency relief, often granted without full briefing, to freeze the status quo for days or weeks.
  • A preliminary injunction is longer‑lasting interim relief, issued after notice and a hearing, intended to prevent irreparable harm until the case can be fully decided.
  • Courts typically consider factors like:
    • Likelihood of success on the merits;
    • Whether the plaintiff faces irreparable harm;
    • Balance of equities; and
    • Public interest.

2. Merger doctrine for interlocutory orders

The merger doctrine means that certain non‑final decisions (like preliminary injunction denials) are treated as merged into the final judgment once the case concludes. On appeal, the legal reasoning behind those earlier decisions is reviewed through the lens of the final judgment, rather than through a separate, free‑standing appeal issue.

3. Restrictive covenants and HOAs

Restrictive covenants are recorded promises that limit how property may be used or developed—common in subdivisions. Membership in an HOA generally means:

  • You are bound by these covenants;
  • You have rights to insist others comply; and
  • The HOA Board/DRC has duties to enforce them and review new construction plans.

4. View easement vs. view‑consideration covenant

  • A view easement is a specific legal right to an unobstructed view, often created expressly (e.g., “no structure may be built above X height in this corridor”).
  • A view‑consideration covenant (like in Waddell) does not guarantee any particular view, but requires those designing and approving buildings to give real, good‑faith attention to how new structures will affect existing views and solar gains.
  • Waddell makes clear that Summer Ridge’s covenants fall into the second category.

5. “Good‑faith consideration”

While not spelled out as a separate doctrine, the majority’s analysis effectively reads “take into consideration . . . with allowance for views” to mean:

  • You must actually analyze how your plan affects neighbors’ views and solar exposure;
  • You must be honest and reasonable in that analysis; and
  • Simply saying “we thought about it” without any concrete step or meaningful review may not suffice.

Whether such consideration has occurred is context‑dependent and, per the majority, often a question for the jury.

6. Summary judgment

Summary judgment is a way to resolve cases without trial when:

  • All material facts are undisputed (or treated as such for purposes of the motion); and
  • The court can apply the law to those facts and decide who wins as a matter of law.

If reasonable people could disagree about important facts—for example, about the nature or sincerity of the parties’ conduct—summary judgment is generally improper and the case must go to trial.

7. “Prevailing party” and attorney fees

A prevailing party is the side that achieves a favorable final judgment on the main issues. In fee‑shifting covenants like Summer Ridge’s, the prevailing party is entitled to reasonable attorney fees and costs. But:

  • If the underlying judgment is reversed on appeal, the fee award falls with it.
  • On remand, a new prevailing party determination may be made at the end of the case.

IV. Impact and Significance

A. For Montana HOAs and subdivision governance

Waddell significantly affects how HOAs and design review committees should approach covenants that mention views, solar gains, privacy, or similar qualitative factors.

  • HOAs cannot simply “punt” enforcement back to the disputing owners. Where covenants require the association to consider view impacts in approving size, height, or orientation, the HOA must:
    • Make a substantive, good‑faith assessment; and
    • Document its reasoning sufficiently to show that it did so.
  • Design review must be substantive, not perfunctory. Approving plans that omit neighboring structures from the drawings, ignoring explicit covenant criteria, or retreating from earlier covenant‑based concerns simply to avoid taking sides may now invite judicial scrutiny.
  • Increased litigation risk. Homeowners who expected their views or solar access to be at least considered now have stronger grounds to insist on enforcement of those clauses in court.

B. For covenant drafting and transactional practice

For lawyers drafting covenants and advising developers or associations:

  • If the intention is to create only aspirational guidance and avoid justiciable obligations, phrases like “should take into consideration . . . with allowance for views” now carry risk. After Waddell, Montana courts may treat such language as imposing enforceable duties of good‑faith consideration.
  • If view protection is truly desired, drafters might:
    • Use explicit “shall not unreasonably obstruct” language and define “unreasonably”; or
    • Create express “view corridors” with clear height and siting limits.
  • Conversely, if there is no desire to create enforceable rights regarding views, drafters could:
    • Clarify that language about views is advisory and does not create any legal right or easement; or
    • Anchor discretion expressly in the HOA’s judgment (e.g., “in the sole discretion of the Board”).

Waddell thus incentivizes clearer drafting about whether and how views, solar gains, privacy, or aesthetics are intended to be judicially enforceable.

C. For litigation strategy and appellate practice

  • Merged review of preliminary injunction denials. Parties denied preliminary relief can be confident that the legal issues underpinning that denial remain reviewable after final judgment, even if they forego an interlocutory appeal.
  • But immediate appeal may still matter in practice. Where the purpose is to stop construction before it becomes a fait accompli, early appellate involvement may still be crucial. The merger doctrine does not restore lost opportunities to prevent irreversible harm; it simply preserves review of the underlying legal analysis.

D. For the line between law and fact in covenant disputes

Waddell illustrates a subtle but important tension:

  • Interpretation of covenants—what “should take into consideration . . . with allowance for views” means—is a question of law.
  • Application of that standard—whether a particular builder/HOA actually satisfied its good‑faith consideration duty—is a question of fact, often for the jury.

The majority’s approach pushes more HOA/covenant disputes into the realm of jury‑decidable fact questions, especially where the duties are process‑oriented and subjective (e.g., sufficiency of “consideration,” reasonableness of enforcement).

E. Possible remedies and future disputes

Because the Studers’ home is already built, remand raises complex remedial questions:

  • If a jury finds breach, what is the appropriate remedy?
    • Injunctive relief (e.g., partial demolition, modifications) may be sought but could be controversial and heavily equitable.
    • Damages (e.g., diminution in value or loss of enjoyment) may be a more practical remedy.
  • Future cases may refine:
    • How far a builder must go in accommodating a neighbor’s views after good‑faith consideration;
    • What documentation suffices to show that an HOA “took into consideration” views and solar gains; and
    • How courts balance competing property interests in densely built or topographically constrained subdivisions.

V. Conclusion

Waddell v. Studer is significant on two fronts:

  1. Procedural: It effectively adopts the federal merger doctrine in Montana for preliminary injunction rulings. Once a case has proceeded to final judgment, the propriety of denying preliminary relief is reviewed only indirectly, via the appeal of the final merits decision, avoiding duplicative review of a trial court’s preliminary risk assessments.
  2. Substantive: It gives real teeth to HOA covenants that speak of “considering” neighbors’ views and solar gains. While stopping short of recognizing a view easement, the Court interprets such language as creating mandatory, enforceable duties of good‑faith consideration for both builders and associations. Whether those duties were fulfilled is a fact question that cannot be resolved by summary judgment on the record presented.

The decision nullifies a very large attorney fee award premised on now‑reversed summary judgments and signals to HOAs, property owners, and drafters that textual references to views and related amenities have legal consequences. How Montana trial courts and juries apply this good‑faith consideration standard on remand—and in future disputes—will further define the balance between individual property development rights and community‑based expectations embedded in modern subdivision covenants.

Case Details

Year: 2025
Court: Supreme Court of Montana

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