Baker v. Biancavilla, s. WD
| Decision Date | 10 February 1998 |
| Docket Number | Nos. WD,s. WD |
| Parties | Elizabeth Diane BAKER, Appellant/Respondent, v. BIANCAVILLA, Francesco and Linda, Respondent/Appellant. 53416, WD 53473. |
| Court | Missouri Court of Appeals |
James W. Fletcher, Kansas City, for Appellant-Respondent.
David V. Kenner, Kansas City, for Respondent-Appellant.
Before ULRICH, C.J, and SPINDEN and HOWARD, JJ.
Elizabeth Baker appeals the trial court's dismissal of her petition for injunctive relief against Francesco and Linda Biancavilla. Ms. Baker sought to enjoin the Biancavillas from installing a tile roof on the home they were constructing in violation of Article VII, Section 9 of the recorded restrictions governing the subdivision. The Biancavillas appeal the trial court's failure to award them their attorney's fees incurred in defending the action as requested in their motion to dismiss. 1 The judgment of the trial court dismissing Ms. Baker's petition is reversed, and the case is remanded to the court for further proceedings.
Francesco and Linda Biancavilla own a lot in Carriage Hill Estates, First Plat, a residential subdivision in Clay County. In September 1995, they began building a home on the lot. In June 1996, when neighbor, Elizabeth Baker, noticed that the Biancavillas were installing a cement tile roof on the house, she contacted Mr. Biancavilla regarding the installation of the roof and the subdivision's restrictive covenants. She claimed that the tile roof violated Article VII, Section 9 of the Declaration of Covenants, Conditions and Restrictions of the subdivision filed in the Clay County Recorder of Deeds office and requested voluntary compliance with the covenant. Article VII, Section 9 provided, On July 3, 1996, Ms. Baker hand-delivered a letter to the Biancavillas again informing them of the subdivision's restrictive covenants and threatening suit if they did not comply with the covenants.
After receiving no response to her July 3, 1996 letter, Ms. Baker filed a Petition for Injunction and Temporary Restraining Order on July 19, 1996, seeking enforcement of Article VII, Section 9. The trial court issued a temporary restraining order the same day and set a hearing for injunctive relief on July 24, 1996. Following the hearing, the trial court issued a preliminary injunction enjoining the Biancavillas from constructing a roof not made of wood shingles. A hearing for permanent injunctive relief was set for September 5, 1996.
On August 13, 1996, the Biancavillas filed a motion to dismiss the petition. They claimed that the issue was rendered moot by the August 12, 1996 decision of the Homeowners Association's Board of Directors approving the Biancavillas' application to install a tile roof that was filed after issuance of the preliminary injunction. They also requested the trial court to award them their attorney's fees and expenses reasonably incurred in defending the suit. The Biancavillas attached to their motion to dismiss various exhibits and affidavits revealing the following facts. Following the entry of the preliminary injunction, the Biancavillas, through their attorney, sent a letter to the attorney of J.A. Peterson Investment Company, the subdivision's developer, requesting the developer to grant its consent to the installation of cement The trial court granted the Biancavillas' motion to dismiss and ordered the previously entered preliminary injunction terminated based on the Board's subsequent approval of the tile roof. This appeal followed.
tiles for the roof of their house and waive the wood shingles requirement. The developer declined to rule on the Biancavillas' request and deferred the decision to the Association's Board of Directors. On August 12, 1996, the Board, by resolution, approved the application.
On appeal, Ms. Baker claims that the trial court erred in dismissing her petition for permanent injunctive relief and dissolving the preliminary injunction based on the allegations contained in the Biancavilla's motion to dismiss that the Board approved of their application to install a tile roof. She contends that (1) the evidence considered by the trial court regarding the approval by the Board was merely unverified claims and allegations, and (2) if the Board did, in fact, approve the tile roof, it abused its authority in light of the subdivision's restrictive covenants.
In sustaining the Biancavillas' motion to dismiss, the record evinces that the trial court necessarily considered matters outside of the pleadings. The pleadings did not reveal the Board's approval of the Biancavillas' application to install a tile roof. The Biancavillas admit that the application and approval of the application did not occur until after the preliminary injunction was issued. The Board's approval, on which the court relied in dismissing the petition, did not come to the attention of the court until the motion to dismiss with attachments was filed.
Rule 55.27, governing motions for judgment on the pleadings,...
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