Cnty. of Boone v. Reynolds

• Decision Date: 23 April 2019
• Docket Number: WD 82353
• Citation: 573 S.W.3d 696
• Parties: COUNTY OF BOONE, Respondent, v. Seth REYNOLDS, Appellant.
• Court: Missouri Court of Appeals

573 S.W.3d 696

COUNTY OF BOONE, Respondent,

v.Seth REYNOLDS, Appellant.

WD 82353

Missouri Court of Appeals, Western District.

OPINION FILED: April 23, 2019

Charles J. Dykhouse and Ronald N. Sweet, Boone County Counselors, Columbia, MO, Attorneys for Respondent.

Thomas M. Schneider, Columbia, MO, Attorney for Appellant.

Before Special Division: Edward R. Ardini, Jr., Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges

Mark D. Pfeiffer, Judge

Mr. Seth Reynolds ("Reynolds") appeals from a civil contempt ruling of the Circuit Court of Boone County, Missouri ("circuit court"), due to his failure to comply with the requirements of a judgment of permanent injunction against him entered May 18, 2017, which called for the removal of a building, fence, and satellite dish "all in violation of plaintiff Boone County’s Ordinances and which all unlawfully encroach on the 25-foot setback area established by the Boone County Zoning Regulations and upon [Boone County’s] right of way abutting North Creasy Springs Road in front of [Reynolds’s] property." Reynolds raises three points on appeal, the first two arguing that the contempt ruling, which concluded that Reynolds was presently able to purge his contempt, was not supported by substantial evidence or, alternatively, was against the weight of the evidence. In his third point on appeal, Reynolds argues that the circuit court’s denial of his Rule 74.06¹ motion to correct the May 18, 2017 judgment was an erroneous application of the law. We affirm.

Factual and Procedural Background²

Sometime before June 21, 2013, without first obtaining a building permit, Reynolds began construction on a detached accessory building, near his home on Creasy Springs Road in Boone County, Missouri. The accessory building sat approximately eighteen to twenty feet off the edge of the paved road. After he had installed the footings and piers for the structure, his builders expressed concern about the location of a nearby power line and its potential interference with continued construction. Consequently, Reynolds contacted Boone Electric to see about having the power line relocated. When a representative from Boone Electric showed up, he advised Reynolds that, in order to obtain a permit to relocate the power line, Reynolds first needed a building permit for the accessory building. Accordingly, Reynolds contacted representatives of the County of Boone ("County") and requested and received a building permit.

Four days after Reynolds received the building permit, Mr. Uriah Mach, a land-use planner for County, sent Reynolds an email, advising Reynolds that the accessory building was located too close to Creasy Springs Road and that Reynolds would need to apply to the Board of Adjustment for a variance before proceeding any further. The structure both encroached on the public right-of-way for Creasy Springs Road and violated the twenty-five-foot building setback requirement under zoning regulations.³

After not hearing back from Reynolds, Mach followed up the email with two letters, dated July 9, 2013, and July 24, 2013. In both letters, Mach repeated the warnings contained in his previous email to Reynolds. Reynolds ignored the letters and the corresponding warnings contained therein and proceeded with the completion of the accessory building.

After completion of his building project, sometime in 2015, Reynolds finally applied for a variance for the setback violations with the Board of Adjustment. The Board unanimously declined Reynolds’s request. Thereafter, County demanded that Reynolds take action to bring his property into compliance with both the right-of-way and the zoning regulations, but Reynolds refused. County then filed a petition for permanent injunction against Reynolds, alleging that Reynolds’s property "denied [County] the access to th[e] right-of-way ..., together with the land-use authority statutorily granted to [County] to establish, promulgate, and enforce zoning regulations, thereby causing [County] irreparable harm," and that Reynolds’s actions were "perpetual, and so [County] has no adequate remedy at law." County sought a permanent injunction, "mandating that [Reynolds] comply with Boone County, Missouri zoning regulations, and that he remove the accessory building, the fence, and the satellite dish from ... the right of way area, ... the setback area, ... [and] the area in front of the main building."

At trial, the circuit court received testimony from Reynolds, Mach, and a surveyor describing the location of the right-of-way boundaries, the setback boundary, and the location of Reynold’s physical structures in violation of County’s zoning regulations and right-of-way. After hearing the evidence, the circuit court found that

[Reynolds] has unlawfully constructed and maintains on his property an unlawful accessory building abutting North Creasy Springs Road, together with a fence and a satellite television receiver dish between that building and North Creasy Springs Road, all in violation of plaintiff Boone County’s Ordinances and which all unlawfully encroach on the 25-foot setback area established by the Boone County Zoning Regulations and upon the Plaintiff’s right of way abutting North Creasy Springs Road in front of that property.

The circuit court issued its judgment entering a permanent injunction ("Injunction Judgment") on May 18, 2017, requiring Reynolds to:

remove in its entirety that building, that fence, and that satellite receiver dish from the Boone County setback area and Boone County’s North Creasy Springs Road Right of Way within 60 days of the date of th[e] Judgment and ... permanently restrained and enjoined [Reynolds] from building or maintaining any structures in that setback area or in that right of way in the future.

Reynolds appealed, this Court affirmed the Injunction Judgment in April of 2018, and the Missouri Supreme Court denied transfer on July 3, 2018.

Thereafter, County filed a motion for contempt because Reynolds refused to remove the physical structures that were ordered to be removed by the Injunction Judgment. The first hearing on County’s motion for contempt was held September 17, 2018, and Reynolds testified as to his efforts to comply with the Injunction Judgment. Reynolds claimed that he made numerous phone calls to get demolition bids, but only one responded with a bid and Reynolds claimed that the demolition bid was almost as much as he had spent on building the structures in question and, aside from the exorbitant expense, they would not be able to begin any demolition work for approximately six months. After hearing Reynolds’s representations, the circuit court stated it was

hearing and seeing ... very little effort on the defendant’s part in pursuing the demolition of the building....

....

I'm not hearing ... that he’s doing anything to try to accomplish this other than making a few phone calls and getting what he acknowledges is an unrealistic bid financially for himself and unrealistically proposed start date wise as far as the plaintiff goes and as far as it complies with the judgment that was entered in the case.

The circuit court then found Reynolds failed to comply with the judgment and was thus in contempt, but instead of sanctioning Reynolds at that time, the circuit court continued the matter to October 15, 2018, allowing Reynolds additional time to purge himself of his contempt.

At the October 15 hearing, Reynolds appeared and indicated that he had made additional phone calls to different entities but could not produce a single demolition bid to the circuit court. And, although Reynolds admitted that he paid cash of $ 30,000 to build the structures violating the Injunction Judgment, Reynolds also represented to the circuit court—a representation he later admitted was false —that he was presently in a financially precarious position because he owed monthly mortgage payments of $ 1,100 on his home to a bank. Hearing of this financial strain, the circuit court again set the cause over to November 12, 2018, for further consideration, to allow yet more time for Reynolds to explore alternative options to come into compliance with the judgment, in a further attempt to avoid having to impose contempt sanctions.

At the November 2018 hearing, it was evident that Reynolds had falsely represented to the circuit court in October 2018 that his real property—which Reynolds valued at $ 174,499—was subject to a mortgage. Instead of throwing himself at the mercy of the circuit court for his blatant misrepresentations to the circuit court, Reynolds first criticized the scope of the building removal ruling in the Injunction Judgment via a purported "motion to correct" the Injunction Judgment pursuant to Rule 74.06. Then, Reynolds claimed he had acted in good faith towards purging himself of contempt since the October 2018 hearing by running a four-day classified advertisement in the newspaper for demolition proposals and "listing" his real property for sale on a national website (i.e., Zillow.com). It is clear from the record that the circuit court was not amused with Reynolds’s previous false representations about his financial wherewithal to purge himself of contempt nor his lack of credible attempts to remove the offending physical structures on his real property. The circuit court denied Reynolds’s "motion to correct" the Injunction Judgment, finding the motion to be an improper collateral attack on the Injunction Judgment; then, the circuit court gave Reynolds one last chance to purge himself of contempt, the failing of which would result in contempt sanctions, including jail time. The circuit court set the cause over for a status contempt hearing on December 3, 2018.

On December 3, 2018, Reynolds represented that "he’s done about everything that he’s able to do to try to get this building removed" but that he could not afford it and simply did not possess the financial means to purge himself of contempt. The circuit court disagreed, noting...