Countess v. Strunk
| Decision Date | 02 March 1982 |
| Docket Number | No. WD,WD |
| Citation | 630 S.W.2d 246 |
| Parties | Arthur E. COUNTESS and June M. Countess, Plaintiffs-Appellants-Respondents, v. Neal E. STRUNK and Pamela A. Strunk, Respondents-Appellants, v. Elvin MALONEY and Paul Owings, Third-Party Respondents. 32067. |
| Court | Missouri Court of Appeals |
Tom R. Williams, C. B. Fitzgerald, Warrensburg, for plaintiffs-appellants-respondents.
Mary Ann Young, Holden, for respondents-appellants.
Leonard K. Breon, Warrensburg, for third-party respondent Elvin Maloney.
Andrew J. Gelbach, Warrensburg, for third-party respondent Paul Owings.
Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.
Plaintiffs as purchasers of a tract of land brought this action against defendants Strunk, the sellers, contending that Strunks On the declaratory judgment aspect of the case, the trial court held that plaintiffs could not erect a commercial structure on the property unless they obtained advance approval as required by the plat dedication. The damage claim was tried to a jury which returned a verdict against the Strunks and in favor of plaintiffs for $60,183.19. The jury also found against the Strunks on the counterclaim which they had filed against plaintiffs and on third-party claims filed against third-party defendants Maloney and Owings. 1 Post-trial motions by defendant Neal E. Strunk were overruled and judgment was entered against him. As to defendant Pamela A. Strunk, however, a motion for judgment notwithstanding the verdict was sustained on the ground that plaintiffs had failed "to prove a basis for a cause of action of fraud and misrepresentation." Plaintiffs and the Strunks appeal. 2
had misrepresented to them permitted commercial use of the property which proved unavailable after the purchase was completed. On this account, plaintiffs sought damages. The petition also asked a declaratory judgment defining permissible uses under the restrictions of a plat dedication and named eleven defendants in addition to the Strunks, all of whom were owners of lots in the subdivision.
Points dispositive of this appeal are the contention by Neal Strunk that error was committed in the content of plaintiffs' verdict directing instruction and plaintiffs' contention that the court erred in entering judgment for Pamela Strunk notwithstanding the verdict of the jury. We conclude that plaintiffs' verdict directing instruction failed to postulate the elements of plaintiffs' case and was not supported by the evidence. As a consequence, it is not only necessary to reverse the judgment against Neal Strunk but the judgment in favor of Pamela Strunk also because the evidence has demonstrated the prospect that a submissible case may be made against both Strunks on an appropriate theory of submission.
With the exception of a disputed exchange between the plaintiffs and Neal Strunk at a meeting preliminary to signing the real estate sale contract, the material facts in the case were uncontroverted. Plaintiffs had contacted defendant Maloney, proprietor of Action Realty Co., and Owings, his salesman, for the purpose of buying land on which to locate an automobile repair business. After looking at a number of properties, plaintiffs settled on a lot in the Fox Fire North subdivision which had been platted by the Strunks. At that time, in June 1976, the subdivision consisted of sixty acres of undeveloped farm land located in Johnson County four miles north of Highway 50 on Highway 13.
Before contracting to purchase a lot in the Fox Fire subdivision, plaintiffs met with Owings, Maloney and Neal Strunk at the Action Realty office to discuss the transaction. Plaintiffs announced their purpose to be the construction of a commercial garage and their attention was directed to the restrictions contained in a dedication which accompanied the subdivision plat. That dedication, critical to the issues in the case and with certain portions emphasized, is as follows:
PLANS MUST BE FILED WITH AND APPROVED BY THE PROPRIETOR BEFORE THE CONSTRUCTION OF ANY BUILDINGS. NO MORE THAN ONE RESIDENCE SHALL BE CONSTRUCTED ON ANY LOT. BUILDINGS MUST SET BACK A MINIMUM OF 50 FEET FROM THE PROPERTY LINE OF THE STREET IT FRONTS WITH A MINIMUM SIDE CLEARANCE OF 20 FEET. ANY DWELLING SHALL HAVE A MINIMUM USEABLE LIVING AREA OF 1100 SQUARE FEET. NO TRAILER, CAPPED BASEMENT, TENT, SHACK, GARAGES, BARN OR OTHER OUT-BUILDING SHALL AT ANY TIME BE USED AS A DWELLING TEMPORARILY OR PERMANENTLY. ALL LOTS SHALL PRESENT A NEAT APPEARANCE AT ALL TIMES. VACANT LOTS SHALL BE MOWED AT LEAST ONCE A YEAR. ALL BARNS AND OTHER OUT-BUILDINGS WILL HAVE A NEAT APPEARANCE AND BE LOCATED SO AS NOT TO DETRACT FROM NEIGHBORING PROPERTY AND BE SUBJECT TO THE APPROVAL OF THE SELLER AND THE "FOX FIRE NORTH HOMEOWNERS ASSOCIATION". THE NUMBER OF HEAD OF LIVESTOCK SHALL BE LIMITED TO A REASONABLE NUMBER SO AS NOT TO BE A NUISANCE OR UNSIGHTLY.
Evidence as to details of the conversations at this meeting conflicted. Plaintiffs testified that their intention to build and operate a three-bay commercial garage was conveyed to Neal Strunk who agreed the use would be authorized provided a separate driveway giving direct access to Highway 13 were constructed. The sale contract includes provision for such a driveway but makes no express reference to any commercial usage. Strunk disputed plaintiffs' version of the conversation and testified that to his knowledge plaintiffs intended to build a residence with a three-car detached garage. Strunk did confirm his advance knowledge that plaintiffs intended to use the garage to repair automobiles and that customers would be charged for the service. Maloney and Owings testified for plaintiffs and confirmed that Strunk was told before the sale contract was signed that plaintiffs expected to build and operate a commercial garage and that Strunk agreed the necessary permission to build the structure would be given.
The sale transaction was closed and plaintiffs promptly employed an excavator who commenced preparation of the property for a driveway from Highway 13, as the sale contract had required, and for installation of a 50 X 75 foot steel building ordered by plaintiffs. Signs were erected by plaintiffs advertising that a commercial automobile repair business would soon open at the location. Soon after the signs appeared, Neal Strunk telephoned the plaintiffs and ordered them to stop work informing them that a commercial garage could not be operated on the property. Although plans for the building were submitted to Strunk and his inspection of a similar building already erected was invited, he informed plaintiffs that restrictions on the lots prohibited commercial activity. Plaintiffs then ceased work on the project and commenced this suit.
Strunk's appeal contends, inter alia, that the court erred in giving plaintiffs' verdict directing instruction because the instruction did not submit essential elements and was not supported by the evidence. Plaintiffs' points include the claim that entry of judgment for Pamela Strunk notwithstanding the verdict was error because the proof made a submissible case as to that defendant. Both contentions are meritorious and require that the judgments be reversed and the cause retried, although for reasons somewhat at variance with the arguments fielded by the parties.
The difficulty in this case throughout has been an apparent misconception by the parties that the dedication of the Fox Fire plat restricted use of the lots to residential purposes. Strunk has contended that he could have made no actionable misrepresentation to plaintiffs regarding commercial usage of the property they purchased because such use was governed by the dedication and not by any subsequent act within his control. Strunk and plaintiffs also appear to assume that if plaintiffs were to proceed with construction of the garage and operation of the repair business, it would first have been necessary to secure the approval of the other purchasers to whom Strunk had sold Fox Fire lots. Indeed, a meeting of lot owners was convened after plaintiffs had commenced the excavation work and plaintiffs' request for a "waiver of the restrictions" was rejected. The issue as the parties have joined in argument here and as it was framed in the plaintiffs' verdict directing instruction turned on whether Strunk led plaintiffs to believe he controlled enforcement of the dedication restrictions, but in fact knew he had no such control or was uninformed one way or the other.
Examination of the dedication reveals no prohibition against erection of business buildings nor any restriction against commercial activity on any land in the subdivision. 3 If the intent of the Strunks was to create a residential area, as indicated by some provisions in the dedication, the document failed to limit...
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