Evers v. Choate
| Decision Date | 19 November 2019 |
| Docket Number | No. ED 107523,ED 107523 |
| Citation | 589 S.W.3d 717 |
| Parties | Gregory J. EVERS, AS TRUSTEE OF the EVERS TRUST DATED 5/19/2016, et al., Respondents, v. Christopher CHOATE and Janet Choate, Appellants. |
| Court | Missouri Court of Appeals |
For Appellants: Julie K. Ostrom, 3500 Magnolia Ave., St. Louis, MO 63118.
For Respondents: James M. Kreitler, 455 Maple St., P.O. Box 740, Hillsboro, MO 63050.
Christopher and Janet Choate (the "Choates") appeal from the trial court’s judgment establishing a road maintenance agreement in a residential subdivision. The Choates raise two points on appeal. First, the Choates claim that the trial court erred in appointing property owners abutting the road as trustees of the newly formed association for road maintenance (the "Rim Road Association"), because Section 228.369.31 only provides for the appointment of disinterested commissioners. The Choates further allege that the trial court erred by imposing an annual assessment of four hundred dollars on the property owners because the amount was against the weight of the evidence or unsupported by substantial evidence. Because the trial court did not appoint commissioners in the course of establishing the road maintenance plan, Section 228.369.3’s requirement that the commissioners be disinterested does not apply. Because the parties presented evidence at trial regarding the road’s repair and maintenance needs as well as the past and present abilities of the property owners to pay, the trial court’s annual assessment of four hundred dollars was supported by the evidence. Accordingly, we affirm the judgment of the trial court.
This action concerns a private road ("Rim Road") located in a subdivision in Jefferson County. In November 2017, Gregory J. Evers ("Evers"), on behalf of the Gregory J. Evers Trust, and other property owners (collectively, "Respondents") petitioned to establish a road maintenance agreement for the subdivision to address the poor condition of Rim Road and the impact on ingress and egress. During the pendency of the case, the Choates purchased property abutting Rim Road, while Evers has since sold the trust property. Evers is one of ten respondents; the nineteen parties in the underlying case own real property in the subdivision bordering Rim Road. Prior to trial, Respondents submitted a proposed plan of maintenance, which called for the formation of the Rim Road Association and appointment of initial trustees.
The case proceeded to trial on September 18, 2018. Five property owners, including Evers, Patricia Moore ("Moore"), and Christopher Choate, testified about the poor condition of Rim Road. None of the parties disputed that Rim Road was in a state of disrepair or that a road maintenance plan was needed. Evers and Moore testified regarding the impact of Rim Road’s poor condition on the subdivision as well as concerns about access and safety by emergency and postal services. Moore testified that during the 1970s and 1980s, owners paid an annual assessment of approximately $180.00 to maintain Rim Road. Evers testified about voluntary efforts to establish a road maintenance agreement that never materialized. Various bids to repair the road were submitted into evidence, and Evers further testified that estimates ranged between sixty-five thousand and seventy-five thousand dollars. Another property owner testified regarding the inability of some property owners to pay a large single special assessment, and suggested the payment of smaller amounts to improve the road. Christopher Choate testified about his expertise in road construction and maintenance, some work he did on the road, and the need for fair and knowledgeable management of any association formed for purposes of maintaining Rim Road.
The trial court entered judgment granting Evers’s petition to establish a road maintenance plan for Rim Road on December 4, 2018. The trial court’s judgment stated that all property owners were responsible for the maintenance and upkeep of Rim Road, including snow and ice removal, sealing, repair, repaving, and clearing debris. The trial court ordered all property owners to pay an annual assessment of four hundred dollars. The trial court then directed the parties to form the Rim Road Association and appointed three property owners to initially serve as president, secretary, and treasurer, respectively, to be followed thereafter by an election process. Among the initial trustee appointments, the trial court appointed Moore as president and Christopher Choate as treasurer. The Choates now appeal.
The Choates raise two points on appeal. In Point One, the Choates contend that the trial court erred in appointing the abutting property owners as trustees of the Rim Road Association because they are not disinterested commissioners as required under Section 228.369. In Point Two, the Choates argue that the trial court erred in requiring all property owners to pay an annual assessment of four hundred dollars because the judgment was against the weight of the evidence or unsupported by substantial evidence in that no evidence was presented to support the assessed amount.
We review a court-tried case for whether the judgment is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Stieren v. Grothaus, 559 S.W.3d 70, 72 (Mo. App. E.D. 2018) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ). We defer to the trial court’s judgment on findings of fact, even where the evidence could support a different conclusion. Id. We further "defer to the trial court’s ability to view the witnesses and determine credibility, keeping in mind that the trial court is free to believe or disbelieve all, part, or none of the testimony of any witness." Anderson v. Mantel, 171 S.W.3d 774, 777 (Mo. App. S.D. 2005) (internal citation omitted). However, we review de novo issues of statutory interpretation, which present questions of law. Short v. S. Union Co., 372 S.W.3d 520, 532 (Mo. App. W.D. 2012).
Missouri law expressly allows one or more owners of a private road to petition the circuit court to judicially establish a plan of road maintenance. Section 228.369.1. Among the procedural tools available to the trial court to facilitate the litigation process is an option under Section 228.369.3. Under this provision, the trial court may, but is not required to, appoint a disinterested three-person commission of fact-finders from the community at large to assess the road status and submit a report for a recommended plan prior to judgment:
The court may implement the same procedures to order and subsequently determine a plan of maintenance for a private road as provided in this chapter for establishing or widening a private road, including the appointment and compensation of disinterested commissioners to determine the plan and the apportionment of costs.
Section 228.369.3; see also Sections 228.355 (), .358 (outlining the procedures for reviewing a commission’s report and how parties may challenge it).
The statutory interpretation of the word "disinterested" in Section 228.369.3 is at issue in the Choates’s point on appeal. Specifically, the Choates posit that the trial court erred in appointing property owners as trustees of the Rim Road Association because the property owners are parties having an interest in the lawsuit and in the ongoing repair and maintenance of the road. In contrast, Respondents contend that the statutory guidelines for appointing a commission—including requiring its commissioners to be disinterested—do not apply to actions seeking a road maintenance plan because a trial court is authorized to appoint a commission only in actions for establishing or widening a road.
The Choates’s first point on appeal fails because the trial court’s authority to review and consider a petition seeking the establishment of a plan of road maintenance is not constrained by its discretionary authority to appoint disinterested commissioners under Section 228.369.3. In reviewing this point, we first look to the plain meaning Section 228.369.3 and consider its relevance. See Short, 372 S.W.3d at 532 (internal citation omitted) ("The primary rule of statutory construction is to ascertain the intent of the legislature by construing words used in the statute in their plain and ordinary meaning unless the legislature has defined particular words or phrases."). Critically, the trial court did not appoint commissioners in this case—nor was the trial court required to do so. In determining a plan of maintenance for Rim Road under Section 228.369, subsection 3 allows the trial court to appoint commissioners similar to how the court is required to do for the initial establishment of a private road or widening of a private road under Section 228.355. However, the record shows that the trial court did not appoint commissioners to review the road maintenance plan and apportion costs; nor was the trial court statutorily required to do so.
Notably, the mandatory language of Section 228.35—that "the court shall appoint three disinterested citizens ... as commissioners" upon an order to establish or widen an existing private road—is not repeated in Section 228.369.3 which reads "[t]he court may implement the same procedures ... including the appointment and compensation of disinterested commissioners[.]" (emphases added). Simply stated, the trial court is not required to, and did not exercise the option to, appoint disinterested commissioners to assess the road and report its recommendations for the parties to review (and, if necessary, challenge) prior to judgment. Instead, the property owners presented evidence...
To continue reading
Request your trial