Hills v. Greenfield Village Homes Ass'n, Inc., s. WD

• Decision Date: 21 October 1997
• Docket Number: Nos. WD,s. WD
• Citation: 956 S.W.2d 344
• Parties: Beatrice HILLS, Appellant, v. GREENFIELD VILLAGE HOMES ASSOCIATION, INC., Respondent. 52878, WD 52886.
• Court: Missouri Court of Appeals

Page 344

956 S.W.2d 344

Beatrice HILLS, Appellant, v. GREENFIELD VILLAGE HOMES ASSOCIATION, INC., Respondent.

Nos. WD 52878, WD 52886.

Missouri Court of Appeals Western District.

Oct. 21, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 25, 1997.

Application to Transfer Denied

Dec. 23, 1997.

Sidney L. Willens, Kansas City, for Appellant.

James H. Ensz, Kansas City, for Respondent.

Before EDWIN H. SMITH, P.J., and SPINDEN and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

Beatrice Hills appeals the judgment of the circuit court entered on her claim for breach of covenant against Greenfield Village Homes Association, Inc., respondent, for its alleged failure to provide exterior maintenance and repair for her condominium as required by the Declaration of Covenants, Conditions and Restrictions, hereinafter the agreement, which governed the condominiums in Greenfield Village, including appellant's.

Appellant raises two points on appeal. In Point I she claims that the judgment on her claim was against the weight of the evidence, and that the trial court erroneously declared and applied the law in entering it. In Point II, she claims that the trial court "improperly" denied her claim for consequential damages to her condominium.

Respondent cross-appeals the trial court's judgment on its counterclaim for payment of delinquent association member assessments from appellant and late fees or charges thereon, as well as attorney's fees incurred in its attempt to collect the delinquent assessments. In its sole point on its cross-appeal, respondent claims that the trial court erroneously declared and applied the law in failing to award it any amounts for attorney's fees and/or late fees or charges.

We affirm in part and reverse and remand in part.

Facts

Beatrice Hills, appellant, is the owner of a condominium unit in the Greenfield Village Subdivision located in Grandview, Missouri. Her unit is located in the middle of nine contiguous units of wood frame construction which share a single roof. When appellant purchased her unit on August 7, 1978, she automatically became a member of Greenfield Village Homes Association, respondent, which is a non-profit organization governed by the Declaration of Covenants, Conditions and Restrictions, the agreement. Article VI of the agreement requires member residents to pay annual and special assessments to the respondent to promote recreation, health, safety, and the welfare of the residents, for the improvement and maintenance of the properties, and for the "maintenance, repair and services listed in Article IX". Article IX of the agreement provides that the respondent will provide exterior maintenance and repair to the common area and each property.

Beginning on July 26, 1982, appellant began complaining of termites invading her unit. The respondent took no action in response to appellant's initial complaints. In the summer of 1994, termite damage to appellant's condominium was confirmed by an expert examination. Appellant requested respondent to provide protection against the termites, as well as repairing the damage to her unit. Respondent refused to provide protection from the termites, claiming that Article IX of the agreement did not encompass termite prevention services or repair for termite damage. In response to respondent's refusal to provide termite protection for her condominium, appellant withheld her annual assessments which she was required to pay by Article VI of the agreement.

As a result of the termite infestation, appellant claimed that her unit sustained damage to the wood structure, as well as consequential damages to the interior as a result of a leaky roof caused by the termites.

Procedural Background

On November 26, 1990, respondent obtained a default money judgment against appellant for $1,594.85 for delinquent assessments. On March 4, 1991, respondent terminated appellant's water service based on her refusal to pay the November 26th judgment. On April 1, 1991, appellant paid $845.70 to respondent, and her water service was restored. On January 15, 1992, respondent filed a second lawsuit to recover $1,554.88 in assessments which appellant refused to pay. On June 29, 1992, respondent obtained a second default judgment of $1,829.57 for delinquent assessments plus attorney's fees incurred and late charges accrued. On September 8, 1992, respondent garnished appellant's checking account and received $1,043.98 which partially satisfied the judgments. On May 16, 1994, respondent again terminated appellant's water service for her refusal to pay $1,554.88 in assessments due, attorney's fees incurred, and late charges accrued. On May 27, 1994, the trial court, upon appellant's posting of a $1,000 cash bond, issued a Temporary Restraining Order in favor of appellant which prevented termination of her water service. Appellant then filed an application for an injunction to prevent respondent from terminating her water service.

On June 7, 1994, respondent filed an answer to appellant's application for injunctive relief and a two-count counterclaim for: (1) recovery of delinquent assessments, attorney's fees, late fees accrued based on its ongoing efforts to collect appellant's delinquent assessments, and costs; and (2) declaratory judgment entitling respondent to cut off appellant's water service. Respondent's claim for attorney's fees and late fees was based upon Article VI, Section 8, of the agreement.

On June 9, 1994, the trial court issued a Preliminary Injunction Order in favor of appellant which prevented termination of her water service. On August 22, 1995, appellant filed her "Second Amended Plaintiff's Application for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, Amended Answer to Defendant's Counterclaim, Declaratory Judgment Action and Plaintiff's Petition for Damages," which included a prayer for a permanent injunction preventing respondent from cutting off appellant's water service again, a petition for breach of the Restriction Agreement for direct structural damage caused by termite infestation and consequential damages resulting from a leak in appellant's roof caused by the termites, and an answer to respondent's counterclaim. On November 22, 1995, respondent filed an answer to appellant's second amended petition, and the case was then heard in the Jackson County Circuit Court.

On May 6, 1996, the trial court entered its "Findings of Fact, Conclusions of Law and Entry of Judgment." In its conclusions of law, the trial court, inter alia, concluded that it was not "unreasonable" for the respondent to interpret the agreement as not requiring it to "repair damage caused by termites or provide termite prevention services" to appellant. It also concluded that the respondent on its counterclaim was not entitled to attorney's fees or late charges as requested.

In its judgment entry, the trial court dissolved the preliminary injunction enjoining the respondent from shutting off appellant's water supply for nonpayment of assessments and declared that respondent was authorized to discontinue water service to her until such time as she was current on her payments. The trial court further entered judgment for respondent on its counterclaim for delinquent assessments in the amount of $4,223.49 and costs and awarded no late fees or charges or attorney's fees as prayed for by respondent. Finally, on appellant's claim, the trial court did not award her any damages as requested, but ordered the respondent to "commence repair and/or replacement of the siding at the front of the building (Building 30) in which [appellant's] unit is located on or before June 15, 1996, and complete such repair or replacement of the siding within a reasonable period of time thereafter."

This appeal follows.

Standard of Review

In a judge-tried case, our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Kirktown Homes Ass'n v. Arey, 812 S.W.2d 198, 199 (Mo.App.1991). We will affirm the judgment of the trial court, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Appellant's Appeal

I.

In her first point, appellant claims in two subpoints that the trial court erred in entering its judgment on her claim against respondent for breach of covenant because: (1) the judgment was against the weight of the evidence; and (2) in entering its judgment, the trial court erroneously declared and applied the law. We will first address the appellant's claim that the trial court erroneously declared and applied the law.

As the basis for her breach of covenant claim, appellant alleged in her amended petition that the respondent failed to take preventive measures to stop termite infestation of her condominium as required under Article IX of the homes association agreement obligating the respondent to provide exterior maintenance, and that as a result she sustained damage which respondent refused to repair, as also required by Article IX. Article IX provides in pertinent part that:

In addition to maintenance upon the Common Area, the Association shall provide exterior maintenance upon each Lot which is subject to assessment hereunder, as follows: paint, repair, replace and care for roofs, gutters, down spouts, exterior building surfaces, trees, shrubs, grass, walks and other exterior improvements. Such exterior maintenance shall not include glass surfaces, screens or patio areas.

Thus, as to appellant's claim, the dispute between the parties centers around the interpretation of the agreement as to whether termite prevention and repair was included in the respondent's obligation to provide exterior maintenance and repair for appellant's condominium.

As to determining whether the respondent was justified in denying a duty under the homes association agreement to provide termite prevention and repair for appellant's unit, ...