Fox v. Smidt, WD
| Decision Date | 08 February 1994 |
| Docket Number | No. WD,WD |
| Citation | 869 S.W.2d 904 |
| Parties | Donald C. and Eileen G. FOX, Respondents, v. Mike and Kandi SMIDT, Appellants. 48325. |
| Court | Missouri Court of Appeals |
Robert E. Harris, Warrensburg, for appellants.
John Henry Edmiston, Warrensburg, for respondents.
Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.
The defendants, Mike and Kandi Smidt, purchased lots 12 and 13 in Green Acres, located approximately one mile south of Warrensburg in Johnson County, Missouri. There are about 64 houses in the subdivision. The purchase of the lots was subject to a recorded restrictive covenant agreement. The defendants live in a residence on lot 12. This lawsuit commenced when they started construction of a building on lot 13. The defendants had the concrete foundation of the structure poured. The structure was to be 32 feet wide and 80 feet long and used to store carpet, although it was to have the exterior appearance of a house.
The defendant Mike Smidt appeared at a Green Acres homeowners meeting and announced his intention to build an 80 foot shed for the storage of carpet. He was told that he would be in violation of the restrictive covenants if he constructed a unit for that purpose. It is understood that carpet would be delivered to the unit through the use of a "box van" and pick-up trucks. It is possible that some carpet will be delivered from tractor-trailers pulled into the neighborhood.
The plaintiffs, Donald and Eileen Fox, live across the street from the defendants and filed suit in July 1993, requesting a temporary and permanent injunction prohibiting the defendants from building a shed, warehouse, or any building other than a residential unit. The case was tried to the court and it found that the defendants were constructing the building for the primary purpose of storing carpet and not as a single family dwelling. The court found that the defendants actions offended subparagraph (a) of the restrictive covenant agreement and permanently enjoined them from continuing the construction of the building except for the purpose of a single family dwelling. The defendants appeal. Our review is according to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).
The defendants raise two points on appeal. First, they claim that subparagraph (a) of the restrictive covenant limits the exterior appearance of the structure only and not the use of the structure. The defendants argue that their unit complies with that provision. The relevant provision is subparagraph (a), which reads as follows:
a. All Lots hereinabove described shall be known and described as residential Lots, and no structures shall be erected, altered or placed or permitted to remain on any of said Lots other than one detached single-family dwellings (sic) and a private garage for not more than 2 cars.
The defendants argue that the words used in subparagraph (a) apply to the appearance and not to the use of the structure, citing Maull v. Community Living For the Handicapped, Inc., 813 S.W.2d 90, 92 (Mo.App.1991) and Blevins v. Barry-Lawrence County Assn. For Retarded Citizens, 707 S.W.2d 407, 410 (Mo. banc 1986).
To interpret the meaning of the restrictive covenants in the agreement, we look at the plain and obvious purpose of the restriction and give the terms their ordinary and usual meaning in the connection in which they are used. Feely v. Birenbaum, 554 S.W.2d 432, 435 (Mo.App.1977).
The court in Blevins was concerned with the operation of a group home for eight unrelated mentally retarded persons. The court held that the restrictive covenant that prohibited the erecting, altering, placing or permitting to remain any building, "other than single or double family dwellings not to exceed two and one-half stories in height and private garages for not more than two cars" did not prohibit the intended use because it was not a restriction on its use. Blevins, 707 S.W.2d at 410. Since the restrictive covenant did not define "family," the court reasoned that family did not necessarily exclude a group of unrelated persons. Id.
This is not the situation in this case. The Blevins courts definition of family is not applicable when the issue is the permissibility of the use of a structure to store carpets, which will be shipped in and out of the residential neighborhood by trucks. We are not dealing with the...
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...This court utilized the Supreme Court's definition of "residential purposes," as used in a restrictive covenant, in Fox v. Smidt, 869 S.W.2d 904, 906 (Mo.App.1994). In Fox, this court determined whether a restrictive covenant providing that "[a]ll Lots hereinabove described shall be known a......
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