Ebert v. Mussett
| Decision Date | 02 March 1974 |
| Docket Number | No. 47063,47063 |
| Citation | 519 P.2d 687,214 Kan. 62 |
| Parties | John W. EBERT et al., Appellants, v. Glen MUSSETT et al., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rules governing the propriety of summary judgments (K.S.A. 60-256) are stated and applied.
2. Summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.
3. Allegations in pleadings will not sustain a genuine issue of fact when opposed by uncontradicted affidavits supporting a motion for summary judgment.
4. The record is examined in an action for mandatory injunction arising out of alleged violations of restrictive covenants and it is held: The trial court did not err in sustaining defendants' motion for summary judgment.
Tom Boone, Leavenworth, argued the cause and was on the brief for the appellants.
Robert E. Davis, Leavenworth, argued the cause and was on the brief for the appellees.
Plaintiffs seek a mandatory injunction restraining defendants from completing and occupying a building and ordering them to remove the building from certain lots in Petherbridge Subdivision in Leavenworth County, Kansas, claiming violation of restrictive covenants. The trial court sustained defendants' motion for summary judgment and plaintiffs appeal.
Plaintiffs allege in their petition they are the owners of certain lots in said subdivision; that all the lots in said subdivision are subject to specific covenants and restrictions; and that said restrictions provide as lot owners they may prosecute any attempt to violate said restrictions by proceedings in law or equity. The petition further alleges:
Paragraphs 8 and 10 of the restrictions read:
* * *
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'No structure shall be moved onto any lot in said subdivision unless it meets with the approval of the OWNERS or the survivors or survivor, and no residence of a temporary character shall be permitted on any lot.'
'Any dwelling erected wholly or partially on any of the lots or part or parts thereof, as shown on the recorded plat, shall cost not less than the amount listed below;
'FIVE THOUSAND DOLLARS
'The above cost refers to the cost of dwelling structure only, including any garage which is an integral part of the house.'
After answering plaintiffs' petition, defendants filed a motion for summary judgment, stating they had obtained the approval of the 'OWNERS' as required by paragraph 8 of the restrictive covenants and that the structure placed on the property exceeded the value of $5,000.00 as required by paragraph 10 of said restrictive covenants. Attached to defendants' motion was the affidavit of Edna Petherbridge which stated in part:
'4. That said permission was granted by affiant's husband, John E. Petherbridge, and your affiant for approval to move a structure onto Lots Seventeen (17) and Eighteen (18), Block Two (2), Petherbridge Subdivision, City of Basehor, Leavenworth County, Kansas. Your affiant states that he personally discussed this matter on the phone with A. K. Mussett and thereafter, confirmed permission in writing by return letter original letter dated from A. K. Mussett January 25th, 1970 '5. Your affiant, at the present time, has a copy of said letter and permission that she signed and affiant states that the letter attached to this affidavit is the letter that she personally signed. Affiant further states that she is personally acquainted with John E. Petherbridge but that John E. Petherbridge, affiant's husband, is now deceased. That prior to his demise, he specifically approved as one of the owners in the dedication of Petherbridge Subdivision, Block Two (2), City of Basehor, Leavenworth County, Kansas, A. K. Mussett moving a structure onto Lots Seventeen (17) and Eighteen (18), in Petherbridge Subdivision, Block Two (2).
An affidavit of defendant A. K. Mussett was filed, which disclosed Edna Petherbridge was the sole survivor of the original owners, John E. Petherbridge, Mary B. Petherbridge, Ripley Petherbridge and Edna Petherbridge. Also attached to the motion was the affidavit of defendants Glen and Linda Mussett, that the cost of the structure was $10,163.87. Plaintiffs filed several affidavits in opposition to defendants' motion for summary judgment, but examination of plaintiffs' affidavits fails to reveal any statement of fact which is contrary to facts disclosed by the affidavits filed by defendants.
At this point in the proceedings the court granted defendants' motion for summary judgment and in its memorandum decision stated:
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