Baker v. Biancavilla, s. WD
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | ULRICH |
| Citation | 961 S.W.2d 123 |
| Parties | Elizabeth Diane BAKER, Appellant/Respondent, v. BIANCAVILLA, Francesco and Linda, Respondent/Appellant. 53416, WD 53473. |
| Docket Number | Nos. WD,s. WD |
| Decision Date | 10 February 1998 |
Page 123
v.
BIANCAVILLA, Francesco and Linda, Respondent/Appellant.
Western District.
Page 124
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.
ULRICH, Chief Judge.
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, "Roofs shall be covered with wood shingles. No built-up, asphalt, compositions, rolled or other type of roofing except wood shingles shall be used." 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,...
To continue reading
Request your trial
-
Arnold v. American Family Mut. Ins. Co., WD
...as this, the parties are entitled to notice that the court will be treating the motion as one for summary judgment. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo.App.1998); Johnson v. Raban, 702 S.W.2d 134, 136 Here, the court's order does not state that it is granting summary judgment, but......
-
Crede v. City of Oak Grove, WD
...presented to and not excluded by the court, the motion to dismiss shall be treated as one for summary judgment. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo.App. W.D.1998). To consider matters outside of the pleadings and treat a motion to dismiss as one for summary judgment, a court must ......
-
Anderson v. Village of Jacksonville, WD 61389.
...only consider the pleadings. L.C. Dev. Co., v. Lincoln County, 26 S.W.3d 336, 339 (Mo. App. E.D.2000) (quoting Baker v. Biancavilla, 961 S.W.2d 123, 126 (Mo.App. W.D. 1998)). The Village was not required to attach an affidavit to its motion. In reviewing a motion to dismiss, moreover, the c......
-
Shouse v. RFB Construction Co. Inc.
...as one for summary judgment when information outside the pleadings is presented to and not excluded by the court. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo. App. 1998). In its appellate brief, RFB argues that "the trial court clearly considered matters outside the pleadings, including b......