Edmunds v. Sigma Chapter of Alpha Kappa

Decision Date22 October 2002
Docket NumberNo. WD 60510.,WD 60510.
Citation87 S.W.3d 21
PartiesThomas R. EDMUNDS and Rhonda Edmunds, Respondents, v. SIGMA CHAPTER OF ALPHA KAPPA LAMBDA FRATERNITY, INC., Appellant.
CourtMissouri Court of Appeals

Douglas Dean Silvius, Kansas City, MO, for Appellant.

Bruce A. Bailey, Warrensburg, MO, for Respondent.

Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.

JAMES M. SMART, JR., Judge.

This is an appeal of a judgment finding that the use of the appellant's rural land for fraternity social events constituted a nuisance and imposing injunctive relief concerning the use of the property. Because we determine that the trial court had jurisdiction to proceed with adjudicating the matter and that the trial court did not err in the remedy imposed, we affirm the judgment.

The evidence is considered in a light favorable to the decision of the trial court. Sigma Chapter is the local chapter at Central Missouri State University of the Alpha Kappa Lambda national fraternity. The local chapter is an unincorporated association of students. Sigma Chapter of Alpha Kappa Lambda, Inc., is a Missouri not-for-profit corporation formed for the sole purpose of owning property and making it available for student use. The corporation bought the land in this case on April 15, 1976. The land is rural land located on State Route BB outside the city limits of Warrensburg. Although the record is not explicit, it appears from the exhibits that the land consists of a relatively small amount of acreage. We gather from the record that the land has approximately 200 or 250 feet of highway frontage and extends approximately 1,200 feet deep in a rectangular configuration. The land is undeveloped except for a shelter house or pavilion. The corporation bought the land for the use of the local chapter of Alpha Kappa Lambda at Central Missouri State University. The corporation makes the land available to the local chapter on the conditions that: 1) no firearms are to be used or discharged at the property; 2) the local chapter is to maintain the property; and 3) the local chapter is to pay for any utilities (the shelter house has electrical service). There is no lease or other conveyance of any interest in the land to the unincorporated local chapter. The local chapter uses the land simply by permissive license.

In 1995, Plaintiff Rhonda Edmunds (then Rhonda Belshe) began residing on adjacent property. Her husband, Plaintiff Thomas Edmunds, has resided there with her since their marriage in 1998. Their house is approximately sixty-five feet from the property line of the corporation's property. The record does not indicate the distance of the Edmunds' house from the shelter house on the corporation's property.

The Edmunds became unhappy with fraternity social events occurring on the property. Sometimes the events included large, unruly crowds of students who were bussed to the property from the campus. The Edmunds determined from courthouse records who owned the property. They contacted the corporation by correspondence concerning the nature of their complaints. Receiving no satisfaction, the Edmunds brought an action against the corporation in July 1999, alleging nuisance and seeking an injunction restricting the use of the property. As part of its response, the corporation filed a motion to dismiss the petition on the grounds that the plaintiffs failed to join a necessary party. The corporation argued that the suit should be dismissed because neither the individuals comprising the local chapter nor the officers of the local chapter were joined as party defendants. The trial court denied the motion.

At trial, Rhonda Edmunds testified about the effect of the student parties on the Edmunds' use and enjoyment of their property. She testified concerning numerous occasions that social events on the adjacent property interfered with her ability to sleep and to enjoy the peaceful utilization of her property. She also testified concerning particular events that were especially noisy. She stated, for example, that on one occasion in November 1997, bus loads of people began arriving in late afternoon and the buses ran continuously every fifteen to twenty minutes until about 3:00 a.m. or 4:00 a.m. Her testimony was that throughout most of that time there were approximately six to seven hundred individuals present. She testified she was unable to sleep because of the noise. She testified that two college-aged young men came onto her property and tried to remove a steel fence post. She testified that later in the evening, more than a hundred young people were in her front yard screaming.

She testified that once a week or so, and sometimes multiple times during the week, one or more vehicles would drive onto the fraternity property, with the "music blaring" and "tires spinning," in the early hours of the morning, which would awaken her. Respondent testified that after these problems began, she began keeping a log of activities related to events taking place on the fraternity's property. Her log was introduced in evidence to demonstrate the activities she had noticed on the property. The log commenced on January 31, 1998, and continued to July 6, 2001. The log consisted of many detailed entries, describing various activities on the property, by date and time, some of which included events during daytime hours and described relatively inconsequential activity. Others set forth activities going into the early morning hours with loud music (apparently with stereo speakers mounted in trees), large crowds, yelling, chanting, and other distracting activity. Mrs. Edmunds testified that occasionally the noise level was so loud that it vibrated glassware within her home. On one occasion, she was running the vacuum cleaner in her home and could still hear the music over the vacuum. She testified that she and her husband were kept awake on numerous occasions until the early morning hours, sometimes as late as 3:00 a.m. or 4:00 a.m.

Mrs. Edmunds also testified that after these gatherings, her property would occasionally be littered with trash. She introduced exhibits showing the condition of her property and the neighboring fraternity property. She also testified concerning gunshots heard coming from the property on one occasion, and described cardboard box targets that had been placed on the fence line between the parties' property. She presented evidence that these cardboard box targets had been fired upon, by introducing photographs of the targets and also introducing one target itself, which clearly showed evidence of bullet holes.

Deputy Sheriff Edwards testified that in the seven and one-half years that he had been with the sheriffs department, he had been dispatched to the fraternity property twenty to thirty times. He testified that eighty percent of the times he went to the property were after 1:00 a.m. One-third of the time he was called back to the same location on the same evening. Deputy Edwards stated that at an event called "mulestock" there were six hundred to seven hundred students being bused in and out of the fraternity property. He testified that when he arrived, he saw between one hundred and one hundred-fifty young people out on State Route BB. He called for additional police units for backup. He stated that his patrol car was pelted with "pieces of brick." He stated that on other occasions when he was dispatched to the property, the size of the groups ranged from thirty to three hundred persons. He testified that often the party would die down after his visit, but on some occasions he had to go to the property more than once on the same night.

Deputy Martin testified that he remembered being called out five or six times to the fraternity property. He investigated complaints about gunshots and discovered a target located in a position where a stray shot could have struck the Edmunds' residence.

Plaintiffs presented the deposition testimony of former neighbors Tom and Leann Willey, who had resided on the other side of the Edmunds' property, away from the fraternity property. They testified concerning loud music coming from the property in the early morning hours and testified that they called the sheriff's department on four separate occasions.

At the request of the plaintiffs, Sergeant Haines of the Johnson County Sheriff's office brought the department's incidents reports and central dispatch logs concerning calls related to the fraternity property. These showed incidents to which officers had responded from April 1999, through April 2001.

The corporation presented the testimony of Matthew Stumm, a corporation officer residing in Lee's Summit. Mr. Stumm testified that the corporation had already instructed the local chapter not to host the parties such as "mulestock" in which other fraternities and sororities are all invited to the land for a major party of six or seven hundred people. He expressed the view that a fence and a gate to the land would not successfully preclude access by unauthorized persons due to vandalism caused by other fraternities.

After hearing the evidence at trial, the trial court found that the conduct of those using the property had appreciably interfered with the Edmunds' ordinary enjoyment of their property; that the nature of use, frequency of use, and effect upon the plaintiffs' lives and their enjoyment of their property were substantial and constituted a significant harm constituting a private nuisance temporary in nature and capable of being abated. The court further held that the defendant fraternity corporation had received notice of the nuisance in the fall of 1997 and failed to exercise reasonable care to prevent the nuisance.

For its remedy, the court directed the corporation to:

... give written notice to the local Alpha Kappa Lambda fraternity chapter of its obligation to comply with the terms of...

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