Dash v. Barnaby
| Decision Date | 23 June 2020 |
| Docket Number | No. ED 108330,ED 108330 |
| Citation | 604 S.W.3d 326 |
| Parties | Sharon DASH, Angela Simmons and Bill Blacksher, as Trustees of Riverwood Estates Homeowners Association, Respondents, v. Mark BARNABY, Appellant. |
| Court | Missouri Court of Appeals |
James A. Beckemeier, The Beckemeier Law Firm, LC, 13421 Manchester Rd., Suite 103, St. Louis, MO 63131, for appellant.
Timothy J. Phillips, Law Office of Timothy J. Phillips, 305 Main Street, Fenton, MO 63026, for respondents.
Mark Barnaby ("Appellant") appeals the judgment entered in favor of Sharon Dash, Angela Simmons and Bill Blacksher, as trustees of the Riverwood Estates Homeowners Association ("Association"). We affirm.
Appellant is the owner of a residence located in the Riverwood Estates subdivision, which is bound by the Riverwood Estates Declaration of Residential Covenants and Restrictions ("Covenants"). The Covenants prohibit open storage of trash receptacles on a lot, except on the day of trash pick up from sunrise until sunset. The Covenants also prohibit any commercial activity and signs or advertising structures to be maintained or displayed on a lot. Appellant violated these requirements on numerous occasions and received written notices requiring his compliance with the Covenants. He would briefly comply, but then violate them again. Consequently, the Association filed a petition for preliminary and permanent injunction, declaratory relief, damages, and legal expenses seeking relief against Appellant for violating the Covenants.
This was not the Association's first legal rodeo with Appellant over these issues. The Association originally brought a similar lawsuit against Appellant in 2016, seeking to enjoin him from openly storing his trash cans. The Association voluntarily dismissed the lawsuit after Appellant promised to store his trash cans in his garage. However, within months, his promise proved worthless and he repeatedly violated the Covenants.
Similar to 2016, the Association attempted to amicably resolve this lawsuit by sending Appellant a proposed settlement judgment stating that he agreed to pay fees and costs incurred to date related to the lawsuit as well as court costs for the filing fee. However, this time the settlement included a provision that Appellant agree to an injunction allowing the Association to fine him an automatic fee of $200 for any future violation. Appellant disagreed with the permanent injunction terms and the case proceeded to trial.
The trial court entered its judgment in favor the Association, enjoining and restraining Appellant from openly storing trash receptacles on his lot except between sunrise and sundown on the day of trash pick up and from parking any commercial van with signage on his lot between the hours of midnight and 7:00 a.m. In addition, the trial court awarded attorney fees and costs to the Association in the total amount of $7,341.03.
This appeal follows.
In his sole point an appeal, Appellant alleges the trial court erred in granting the Association's petition for a permanent injunction and in awarding attorney fees because the Covenants do not allow the Association to bring a legal action to enjoin a violation.1
Our review of an action in equity, such as an action seeking an injunction, is governed by Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976). Gray v. White, 26 S.W.3d 806, 814–15 (Mo. App. E.D. 1999). Accordingly, we will affirm the trial court's judgment 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. Id. at 815. In reviewing a court-tried case, we review the evidence in a manner favorable to the judgment, disregarding contradictory evidence, and we defer to the trial court's credibility determinations. Apted-Hulling Inc. v. L & S Properties, Ltd. , 234 S.W.3d 486, 489 (Mo. App. E.D. 2007) ; Day v. Hupp , 528 S.W.3d 400, 412 (Mo. App. E.D. 2017).
Appellant contends the trial court erred in granting the Association's petition because it misapplied the law and issued a judgment contrary to established law. Specifically, Appellant claims he complied with the Covenants immediately after he was notified of the underlying lawsuit, and offered to pay more than the actual fees and costs the Association had incurred. He further asserts the Covenants do not allow the Association to seek to enjoin a future violation, only an active or threatened violation.
Generally, a restrictive covenant is a private contractual obligation governed by the same rules of construction applicable to any covenant or contract; thus, we apply the principles of contract law apply when interpreting an indenture. Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace, LLC , 585 S.W.3d 269, 280 (Mo. banc 2019). In interpreting indentures, contract terms are read as a whole to determine the intention of parties and give the words of the contract their natural, ordinary, and common sense meaning.
Id. Restrictive covenants will not be extended by implication to include anything not clearly expressed in them and, this principle should never be applied in a manner that would defeat the plain and obvious purpose and intent of the restriction. Lake at Twelve Oaks Home Ass'n, Inc. v. Hausman , 488 S.W.3d 190, 197 (Mo. App. W.D. 2016).
Article VI, Section J of the Covenants forbids trash cans or receptacles to be openly stored on a lot, except between sunrise and sundown on designated trash pick-up days. Additionally, Sections C and G of Article VI prohibit commercial activity of any kind and signs, billboards, or advertising structures to be erected maintained or displayed on any lot. Article IX of the Covenants permits the Association "to enforce , by any proceeding at law or in equity , any of the covenants, conditions, restrictions and provisions hereof, either to restrain or enjoin a violation or threatened violation or to recover damages." (emphasis added).
Appellant argues that the plain and ordinary reading of this provision only allows the Association to enjoin a lot owner who is actively violating or is threatening to violate the Covenants. Appellant contends the trial court erred in granting injunctive relief to the Association because he was compliant with the Covenants. As a result, he claims the Association's only damages were the fees and costs incurred to bring him into compliance. We disagree.
"The purpose of an injunction is to prevent actual or threatened acts that constitute real injury." Zoological Park Subdistrict of the Metro. Park Museum Dist. v. Smith , 561 S.W.3d 893, 896 (Mo. App. E.D. 2018). "A request for injunctive relief must be based on a real apprehension that future acts are not only threatened but will in all probability be committed." Beavers v. Recreation Ass'n of Lake Shore Estates, Inc. , 130 S.W.3d 702, 716 (Mo. App. S.D. 2004) (internal quotations omitted).
Appellant's conduct unequivocally demonstrates his chronic refusal to comply with the Covenants, even after the Association voluntarily dismissed the 2016 litigation upon Appellant's promised compliance. The record supports that Appellant subsequently violated Article...
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