Bates v. Webber

• Decision Date: 26 June 2008
• Docket Number: No. 28768.,28768.
• Parties: Rick BATES and Lana Bates, Husband and Wife, et al., Appellants, v. May Margaret WEBBER, and Daniel Webber, Respondents.
• Court: Missouri Court of Appeals

257 S.W.3d 632

Rick BATES and Lana Bates, Husband and Wife, et al., Appellants, v. May Margaret WEBBER, and Daniel Webber, Respondents.

No. 28768.

Missouri Court of Appeals, Southern District, Division II.

June 26, 2008.

Jason J. Higdon, Spencer, Scott & Dwyer, P.C., Joplin, MO, for appellants.

Charles S. Genisio, Dominguez, Genisio, Parrish, Cross & Hawkins, Joplin, MO, for respondents.

ROBERT S. BARNEY, Presiding Judge.

Appellants Rick Bates ("Mr. Bates") and Lana Bates (collectively "the Bateses") appeal the trial court's judgment in favor of May Margaret Webber ("Ms. Webber") and her son, Daniel Webber ("Mr. Webber"), in which the trial court denied Appellants' request for a permanent injunction and declaratory relief based on the interpretation of deed restrictions.¹ Appellants posit three points of trial court error.

Viewing the evidence in the light most favorable to the trial court's judgment, Wallace v. Grasso, 119 S.W.3d 567, 572 (Mo.App.2003), the record reveals Appellants and Ms. Webber all own property in a subdivision ("the Subdivision") located in an unincorporated portion of Jasper County, Missouri. The Subdivision was originally developed and platted by Jerry Merrill ("Mr. Merrill"), who purchased the rectangular, 80-acre tract of land in the 1970's. At some point in time, Mr. Merrill divided the land into 5-acre lots and built a private road ("County Road 208") down the center of the subdivision with the 5-acre lots abutting both sides of the road. County Road 208, which is paved, ends in a cul-de-sac. At the time he created the Subdivision, Mr. Merrill also placed a deed restriction on the tracts. The deed restriction, which was recorded in 1991, sets out that: "[a]bove property being subject to the following restrictions: residential use only; no mobile homes or modular homes and this restriction is to run with the land."

In 2000, the Bateses purchased a tract of land in the Subdivision with an existing home on it. The tract they purchased is the next to last tract at the end of County Road 208. In 2001, Ms. Webber purchased an undeveloped lot for investment purposes north of and adjacent to the Bates' tract. Ms. Webber's lot contains half of the cul-de-sac and is the termination point for County Road 208. Further, Mr. Webber, Ms. Webber's son, owns a tract of land which adjoins her tract to the east ("the Adjacent Tract"), but Mr. Webber's property is not part of the Subdivision.² As best we discern, Mr. Webber resides on the Adjacent Tract, which is landlocked and inaccessible by any existing roads.

In 2005, Ms. Webber contacted the Bateses about having their adjoining property line surveyed so that she could clear and construct a fence line. The Bateses requested Ms. Webber clear the land farther back from their property line, but did not suggest any measurements regarding the width or breadth of the clearing. Ms. Webber later informed the Bateses she was building a private road across her land so that her son could have a means of ingress and egress from the Adjacent Tract. Thereafter, Ms. Webber cleared her property in a fifty-foot-wide strip ("the Road") beginning at the cul-de-sac and terminating at the Adjacent Tract. The Road is located fifty to seventy-five feet from the corner of the Bates' home and is located entirely on Ms. Webber's property.

On April 5, 2006, Appellants filed their "Petition" in this matter and a "Second Amended Petition" was filed on March 9, 2007. Appellants' petition requested the following remedies: Count I a permanent injunction prohibiting Respondents from "constructing, maintaining, or using ..." the Road; Count II enforcement of the aforementioned restrictive deed covenant requiring the Subdivision tracts to be used for "residential use only;" Count III for negligence in constructing the Road "too close" to the Bates' property; Count IV for nuisance in interfering with the Bates' "enjoyment of their property" and for diminishing the value of the Bates' property by $67,000.00; and Count V for a declaratory judgment to determine "the interpretation and enforcement of the restrictive [deed] language...."³

A trial was held on August 30, 2007. At the close of all the evidence, the trial court took the matter under advisement. On August 31, 2007, the trial court entered its "Findings of Fact, Conclusions of Law, and Judgment." In its findings, the trial court found that Ms. Webber has cleared fifty feet of "brush, trees and other growth ..." from her property to provide road access to her son's adjoining property; that Ms. Webber has no "immediate plans to build on her real property" nor to enhance the Road except to "put gravel down ..." in the future; and that the Road on Ms. Webber's property does not reduce the value of the Bates' home. The trial court went on to find that "Missouri law does not look favorably on deed restrictions and as such the restrictions will not be extended to include anything not clearly expressed in them. If there are any doubts as to the restrictions they are to be resolved in favor of the free use of the property." Additionally, the court found that "when a restriction states for `residential use' and describes what type of residential use can or [cannot] be placed on the property then that restriction does not prohibit having a road constructed on the property." As a result, the trial court ruled in favor of Respondents "on Count[s] I, II, and V of [Appellants'] Amended Petition." The trial court also ordered Appellants to pay court costs. This appeal followed.

"Issuance of an injunction is an equitable remedy. Similarly, although a declaratory judgment action is sui generis, its `historical affinity is equitable and such actions are governed by equitable principles.'" Inman v. Missouri Dept. of Corrections, 139 S.W.3d 180, 185 (Mo.App.2004) (quoting Preferred Physicians Mut. Mgmt. Group, Inc. v. Preferred Physicians Mut. Risk Retention Group, 916 S.W.2d 821, 823 (Mo.App.1995)) (internal citation omitted). In reviewing a court-tried equitable action, "the trial court's judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or unless it erroneously applies the law." Systematic Bus. Servs., Inc. v. Bratten, 162 S.W.3d 41, 46 (Mo.App.2005); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When setting aside a judgment on the ground that it is against the weight of the evidence, appellate courts should proceed with caution. Murphy, 536 S.W.2d at 32. An appellate court should set aside a decree or judgment on the ground that it is against the weight of the evidence only if it has a firm belief that the decree or judgment is wrong. Id. "When reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences." Ortmann v. Dace Homes, Inc., 86 S.W.3d 86, 88 (Mo. App.2002). "We defer to the trial court's determinations as to the credibility of witnesses." Id.

Appellants' first point relied on asserts the trial court erred in failing to award them a permanent injunction because "there was no substantial evidence to support the [t]rial [c]ourt decision that there was no reduction in the value of [the Bates'] property caused by the [R]oad...." Specifically, Appellants challenge Respondents' expert's determination that the Road had no net effect on the value of the Bates' property and the expert's finding that the Road had converted the Bates' property into a corner lot, thereby enhancing the value of the property. Appellants maintain the trial court's decision was contrary to the weight of the evidence in that their expert testified that the proximity of the Road to the Bates' home necessarily altered their ability to use and enjoy the property as they did before the Road existed, and their expert testified that the Road negated the primary purpose of a cul-de-sac, which is to provide security and reduce traffic.

"The purpose of an injunction is to restrain actual or threatened acts that constitute a real injury." Metmor Financial, Inc. v. Landoll Corp., 976 S.W.2d 454, 463 (Mo.App.1998). "A permanent injunction should be granted sparingly in clear cases only, and the decree should be framed to afford relief to which complainant is entitled and not to interfere with legitimate and proper action by those against whom it is directed." Id. at 463. "A permanent injunction acts as a final disposition of the merits of a case." Id.

At trial, Mr. Bates testified that he and his wife paid $238,000.00 for their property in 2001 and they added approximately $8,000.00 in improvements to the home since that time. Bob Hunter ("Mr. Hunter"), a real estate appraiser who testified for Appellants, explained that he was asked by Appellants to prepare a "before-and-after opinion of value based on the ..." construction of the Road on Ms. Webber's property. Mr. Hunter stated that in his opinion the Bates' property was worth $350,000.00 prior to construction of the Road, but it was valued at $67,000.00 less after construction of the Road. He related that because the Road does not abut the Bates' property line he would not consider their property to be a corner lot. He also related developers often use roads with cul-de-sacs on them as a traffic control solution to provide more of a sense of neighborhood and for security purposes. He stated the addition of the Road on Ms. Webber's land defeats the purpose of the County Road 208 cul-de-sac. He also stated he had viewed a 1998 appraisal provided to him by the Bateses which appraised their property at $250,000.00.

On the other hand, Respondents' real estate appraiser, Galen Carter ("Mr. Carter"), testified that he viewed the properties at issue and compiled a summary report regarding the estimated market value of the Bates' property. He testified the value of the Bates' property was...