Behrick v. Konert Farms Homeowners' Ass'n

• Decision Date: 12 May 2020
• Docket Number: No. ED 108092,ED 108092
• Citation: 601 S.W.3d 567
• Parties: Janet BEHRICK, Plaintiff/Appellant, v. KONERT FARMS HOMEOWNERS’ ASSOCIATION, Defendant/Respondent.
• Court: Missouri Court of Appeals

601 S.W.3d 567

Janet BEHRICK, Plaintiff/Appellant,

v.KONERT FARMS HOMEOWNERS’ ASSOCIATION, Defendant/Respondent.

No. ED 108092

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: May 12, 2020

Drey A. Cooley, Andrew W. Blackwell, 8182 Maryland Ave., 15^th Floor, Clayton, MO 63105, For Plaintiff/Appellant.

Anthony J. Soukenik, Philip C. Graham, Jason C. Schmidt, Katrina L. Smeltzer, 600 Washington Avenue, 15^th Floor, St. Louis, MO 63101, For Defendant/Respondent.

SHERRI B. SULLIVAN, J.

Introduction

Janet Behrick (Appellant) appeals from the trial court's granting of summary judgment in favor of Respondent Konert Farms Homeowners’ Association (HOA) and denying Appellant's motion for summary judgment on Appellant's claims against the HOA for their failure to perform certain duties she alleges are owed under the Declaration of Trust, Covenants, Conditions and Restriction of Konert Farms (Declaration). We affirm the judgment of the trial court.

Factual and Procedural Background

Appellant filed a claim against the HOA for failing to repair and maintain a limestone rock wall in her backyard. Both Appellant and Respondent filed motions for summary judgment, along with exhibits and memoranda of law in support of their respective motions. The trial court held a hearing on the motions and both sides presented evidence. The uncontroverted material facts established the following:

Konert Farms is a subdivision of single-family homes located in Jefferson County, Missouri. Appellant owns a home on Lot 27 of the subdivision. The subdivision was developed by Laredo Development Co., LLC (Laredo). The Declaration and a plat depicting the layout plan for the subdivision (Plat) were recorded in the office of the Recorder of Deeds of Jefferson County, Missouri, in 2006. The HOA's rights and obligations with regard to the subdivision are governed by the Declaration and the incorporated Plat. The Plat shows a scored line running through the backyards of several lots in the subdivision, including Lot 27, labeled "30’ W. Ret. Wall Esmt." According to the HOA, this scored line indicates an easement for the placement and maintenance of a retaining wall Laredo had planned to install where indicated on the Plat. In addition to the Plat, Laredo also produced a site plan (site plan) that depicted Lot 27 and the surrounding area. The site plan shows two lines running parallel through the back of Lot 27 and adjacent lots, one labeled "Rock Wall," and one towards the rear of the lots labeled "Retaining Wall."

In the course of developing the subdivision, the ground in the rear of Lot 27 and adjacent lots was excavated. The excavation cut into limestone bedrock underneath the soil, revealing a rock wall (limestone rock wall), which runs through the rear of Lot 27 and adjacent lots approximately where the site plan shows a "Rock Wall." The limestone rock wall is a sheer and unadorned rock face composed of native limestone bedrock. However, unlike the site plan's depiction, no retaining wall was built behind the limestone rock wall.

After the initial development of the subdivision, the HOA installed a wire mesh over the limestone rock wall to mitigate crumbling and falling rocks. However, the netting began to fail, allowing rock debris to fall into the backyards of Lot 27 and adjacent properties. The HOA removed the failed netting and rock debris but did not replace the netting or install any new measures to prevent crumbling rock debris from the limestone rock wall.

Appellant filed suit against the HOA, alleging the Declaration gives rise to a duty to repair and maintain the limestone rock wall in the rear of Lot 27. The relevant provisions of the Declaration are as follows:

Article VI – Assessments

Section 1. The Declarant, for each Lot it owns within Konert Farms, hereby covenants, and each Owner of any Lot by acceptance of a Deed therefor, whether or not it shall be so expressed in such Deed, is deemed to covenant and agree to pay to the Association based upon a percentage equal to the total amount of Lots owned by each Lot Owner, divided by the total amount of Lots located within Konert Farms, as follows:

* * * * *

c) All assessments which are levied to pay for the cost of illuminating, maintaining, replacing, irrigating, insuring and landscaping the Common Areas, including but not limited to any and all entrance monuments serving Konert Farms, if any, including those located outside of the Development, the detention area, the retaining walls and guard rails installed at the direction of Declarant located within Development including those located within Lots 1-5, 17-27, and in Common Ground located along Konert Hill Drive and Konert Hill Court , the stone revetments and box culverts located within the Development, the private streets and street lights, sidewalks and the islands located in the center of the cul-de-sacs and in the streets in the Development....

* * * * *

Article VIII – Exterior Maintenance

Section 1. Each Lot located in the Development must be maintained at all times in accordance with the terms set forth in this Declaration and in a clear, neat and attractive manner. The retaining walls and guard rails installed at the direction of Declarant located within the Development including those located within Lots 1-5, 17-27, and on Common Ground located along Konert Hill Drive and Konert Hill Court, shall be maintained by the [HOA], as provided for in Article XIII, below, however, the fences installed on top of the retaining walls, if any, are to maintained [sic] by the Lot Owners, in accordance with the terms of this Declaration. Theses [sic] fences, if any, shall be maintained in a clear and orderly manner, uniform in color, shape, size and in material at all times.

* * * * *

Article X – Easements

Section 11. At all times while this Declaration is in effect, the [HOA], its directors, officers, agents and employees, are hereby granted an easement to enter upon any Lot, any part of the Common Areas or any part of the Development, in order to install, illuminate, maintain, repair, landscape, and replace:

* * * * *

(b) exterior walls (stone, masonry or retaining) and guard rails, which exterior walls and guard rails were installed by the Declarant, and are shown on the record plat of Konert Farms including those located within Lots 1-5, 17-27, and in Common Ground located along Konert Hill Drive and Konert Hill Court....

* * * * *

Article XIII – Powers and Duties of the [HOA]

The [HOA] shall have the following rights, powers, duties and obligations:

* * * * *

Section 2. To exercise such control over all easements, Common Areas located in Konert Farms, including but not limited to entrance monuments for Konert Farms, exterior walls (stone, masonry or retaining) and guard rails, which exterior walls and guard rails were installed by the Declarant, and are shown on the record plat of Konert Farms including those located within Lots 1-5, 17-27, and in Common Ground located along Konert Hill Drive and Konert Hill Court , all detention areas located within the Development, the stone revetments and box culverts located within the Development, the private streets and street lights, sidewalks and the islands located in the center of the cul-de-sacs and in the streets in the Development (except for those easements, private streets and roads, sidewalks and streetlights which are now or may hereafter be dedicated to and accepted by public bodies or agencies for maintenance purposes), shrubbery, storm water sewers, sanitary sewer trunks and lateral lines, pipes and disposal and treatment facilities, if any and as may be shown on any recorded plat of the Development as is necessary to maintain, repair, rebuild, supervise and insure the proper use of said easements, private streets and private roads, and all Common Areas by the necessary public utilities and others, including the right (to itself and other to whom it may grant permission) to construct, operate and maintain on, under and over all said easements and streets, sewers, street lights, pipes, poles, wires and other facilities and public utilities for service to the Lots shown on said plats, and the right to establish traffic rules and regulations for the usage of driveways, private streets and sidewalks, if any, located in Konert Farms.

* * * * *

Section 8. To maintain, repair and replace all improvements located in the Common Areas, and do exterior maintenance upon each Lot as set forth in Article VIII above, and the retaining walls and guard rails, which retaining walls and guard rails were installed by the Declarant, and are shown on the record plat of Konert Farms including those located within Lots 1-5, 17-27, and in Common Ground located along Konert Hill Drive and Konert Hill Court.

* * * * *

Section 14. The Association will repair, maintain, replace and restore the retaining walls and guard rails installed at the direction of the Declarant located within the Development including those located within Lots 1-5, 17-27, and in Common Ground located along Konert Hill Drive and Konert Hill Court, together with any other retaining walls located in the Development that are installed by the Declarant and depicted on the plat of the Development, whether located on Lots, Common Areas and an easement for access to and on any Lot is hereby granted and reserved to complete any of the foregoing. Fences installed by the Declarant on top of the retaining walls (if any) are to be maintained in accordance with the terms of this Declaration, by the Owners of the Lots where the fences are located, and all other exterior walls which are ornamental shall be maintained by the Lot Owner.

(all emphasis added).

Appellant claimed the language in the Declaration directing the HOA to repair, maintain, and replace retaining walls and fences installed by the Declarant in the subdivision meant the HOA is obligated to repair and maintain the limestone rock wall in her backyard. The HOA maintained that the plain...