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12/27/95 DEBRA GERBER v. MARK HAMILTON AND LANA

December 27, 1995

DEBRA GERBER, RUSSELL GERBER, ALBERT GALLAY, AND ALBERTA GALLAY, PLAINTIFFS-APPELLANTS,
v.
MARK HAMILTON AND LANA HAMILTON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 94-CH-177. Honorable David Herndon, Judge, presiding. This Opinion Substituted by the Court for Withdrawn Opinion of December 21, 1995, Previously

The Honorable Justice Welch delivered the opinion of the court: Chapman, J., concurs. Justice Rarick, dissenting:

The opinion of the court was delivered by: Welch

ORDER

This cause has been considered on the court's own motion, and the court being fully advised finds:

That on December 21, 1995, this court filed a unanimous opinion in this cause;

That the clerk's office inadvertently omitted Justice Rarick's dissent;

That the court desires to withdraw the previous opinion; and hold it for naught; and

That the court desires to substitute a new opinion consisting of a majority and a dissent.

IT IS THEREFORE ORDERED that the opinion previously filed in this cause on December 21, 1995, shall be and the same is hereby, VACATED AND HELD FOR NAUGHT.

IT IS FURTHER ORDERED that the opinion being filed today, consisting of a majority and a dissent, shall stand as the decision of this court.

IT IS FURTHER ORDERED that the period for filing a petition for rehearing shall commence today.

The Honorable Justice WELCH delivered the opinion of the court:

Plaintiffs brought an action in the circuit court of Madison County seeking to enjoin the defendants from continuing the operation of a beauty salon in their home. Plaintiffs, neighbors of the defendants, allege that defendants' operation of a beauty salon violates the restrictive covenants incorporated into the deed of the lots within their subdivision, Whispering Oaks. The circuit court held that the defendants' operation of a beauty salon did not violate the restrictive covenants. We reverse and remand with directions.

The deed to the lots in the Whispering Oaks subdivision contains numerous covenants and restrictions. One provided:

"1. Said restricted lots shall be used for residential purposes only for the construction thereon of not more than one single-family dwelling house not exceeding two (2) stories in height and ...


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