Lake Development Enterprises, Inc. v. Kojetinsky

• Decision Date: 20 December 1966
• Docket Number: No. 32145,32145
• Citation: 410 S.W.2d 361
• Parties: LAKE DEVELOPMENT ENTERPRISES, INC., a Corporation, Plaintiff-Appellant, v. Alfred F. KOJETINSKY and Mrs. Alfred F. Kojetinsky, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 361

410 S.W.2d 361

LAKE DEVELOPMENT ENTERPRISES, INC., a Corporation, Plaintiff-Appellant, v. Alfred F. KOJETINSKY and Mrs. Alfred F. Kojetinsky Defendants-Respondents.

No. 32145.

St. Louis Court of Appeals, Missouri.

Dec. 20, 1966.

Earl R. Blackwell, Hillsboro, for plaintiff-appellant.

James K. Pendleton, Daniel P. Reardon, John H. Martin, St. Louis, for defendants-respondents.

BRADY, Commissioner.

Plaintiff brought suit to enforce the provisions of a warranty deed granting certain lots in a subdivision to the defendants. The trial court entered judgment for defendants. We will hereafter refer to the defendants in the singular.

The rules of review attendant upon a case of this nature are well known. We are to hear the case de novo, and, giving due deference to the trial court's findings where matters involving the credibility of a witness are involved, reach our own conclusions as to the facts. Selsor v. Shelby, Mo.App., 401 S.W.2d 169.

The petition alleged plaintiff's corporate existence; that both parties owned certain lots in Lake Tishomingo, a subdivision located in Jefferson County, Missouri; the adoption of a general plan of development for said subdivision which led to the insertion in the deed to the defendant and to all purchasers of certain restrictions governing the use of land in the subdivision among which is the provision later set forth; that defendant's property and all the lots in the subdivision were thereby impressed with an 'equitable servitude' for the benefit of the grantees of all the other lots therein; the use of each lot, except defendant's property, in a manner consistent with the restrictions; the violation of the restriction above set out by the defendant; plaintiff's request to the defendant to cease such violation, the defendant's refusal to do so and his threatened continuation of it; plaintiff's threatened irreparable damage and his lack of an adequate remedy at law. Plaintiff prayed for injunctive relief restraining defendant from continuing to maintain this structure on the parkway.

In those parts pertinent to his appeal, defendant's answer alleges that plaintiff acquiesced in the erection of the building and now is estopped from seeking its removal; laches; and that the restrictions have been abandoned by plaintiff's failure to enforce this and other restrictions found in the deed. Defendant also based his defense upon the theory the restrictions were unjustly enforced in a discriminatory manner in that violations by others were allowed while his was made the result of this action.

The provision of the deed specifically involved reads: '3. There will be no restrictions as to cost of any residence but complete architect's plans and specifications must be submitted for the approval of the Lake Development Enterprises Company, Inc., before building operations are started. No residence shall be wholly or partly covered with tar paper, metal or canvas, and no tent house or shack shall be on said lot. No building without a painted or otherwise finished outside surface shall be on said lot unless of log or slab construction. No Auto Trailer or Movable Home or House shall be allowed on said lot. No storage tank shall be above ground on said lot without written consent of the GRANTOR. No building or construction of any kind may be made on the Parkway surrounding said Lake without the written consent of the GRANTOR. All docks for the mooring of boats or other purposes shall be of a standard design that will be furnished by GRANTOR with a building permit.' (Emphasis supplied.)

Other provisions of the warranty deed which are pertinent to this appeal read as follows: '4. No outbuildings shall be built on said lot. Garages shall be attached to or built in as a part of the residence. All rear entrances to residences shall be from the side of the residence where possible * * *.' It also appears that, while it is not so stated in the warranty deed, the plaintiff was responsible for cutting the brush and weeds and general maintenance of the parkway.

The facts pertinent to this case show that this subdivision was platted around a lake and that the 'parkway' referred to in Paragraph 3 of the warranty deed is a strip of land surrounding the lake and lying between it and the property line of the lake front lots. Defendant purchased four lots each of which is subject to the restrictions set out in this opinion. The structure here involved is a one-story wood building opening onto a stone covered patio. It is on the parkway at the lake's edge and is adjacent to defendant's dock. There is no dispute in the evidence as to defendant's request for permission to construct this building, and neither is there any dispute as to the refusal of that request by the plaintiff. The only dispute is as to the manner in which that refusal was communicated to the defendant. The plaintiff's evidence on this issue is that the defendant made a verbal request directed to its manager for permission and was told that he could not erect this building on the parkway; that at defendant's request the manager thereafter talked to plaintiff's president concerning the request; that the manager thereafter again informed the defendant that he could not have permission; and that both of these occurrences were prior to the beginning of any construction by the defendant. The defendant's own testimony on this issue is that when he made a verbal request of plaintiff's manager, the manager shook his head in a manner which defendant understood as indicating refusal; that defendant then gave the manager a plan or picture of the project (it is not clear which was given) and after consulting plaintiff's president, the manager again shook his head to indicate refusal. Defendant admitted that he received at least two letters from plaintiff informing him that the building on the parkway was in violation of the restrictions. There was no contention that written permission had ever been given for the erection of this building.

With reference to defendant's affirmative defenses, the evidence was undisputed that the restriction requiring storage tanks to be underground has never been enforced, and neither has the restriction which states that docks shall be of a standard design which will be furnished by the plaintiff. Plaintiff's evidence on this issue is to the effect that it hasn't furnished a standard design for the docks but that it has required some that weren't properly constructed to be rebuilt and in this manner has effected somewhat of a standard design.

The defendant contends that appellant has permitted the erection and maintenance of many temporary utility buildings in violation of the restrictions providing no outbuildings are to be constructed, that no building is to have an outside surface that is not painted or otherwise finished unless it be of log or slab construction, and that no residence should be wholly or partly covered with tar paper, metal or canvas. In his brief, defendant cites eleven exhibits which are pictures of various buildings which he contends are representative of the numerous violations of this restriction. Perusal of these exhibits indicates that three are clear violations in that they are wholly or partly covered with tar paper, and nine indicate the erection of a temporary utility or storage building characterized by defendant as an 'outbuilding'.

Defendant's brief cites twenty-one picture exhibits which he contends show structures maintained by others on the parkway. Some of these exhibits show retaining walls constructed of railroad ties, others show rectangular storage boxes placed upon rollers or upon concrete blocks maintained on the parkway, and still others show metal awnings placed on four metal poles covering patios and open on all four sides. There was no evidence as to whether written permission for any of these had ever been obtained from the plaintiff. None of the exhibits shows a structure similar in permanence or size to the defendant's building. Defendant's other exhibits deal with the accumulation of brush and wood along the parkway. Plaintiff's evidence was that the conditions shown on these pictures have been corrected and that the parkway has for some time been maintained in good condition.

The defendant's contention was that the plaintiff's manager knew of the construction of defendant's building from the very beginning of that construction. His proof on this issue consisted of certain questions and answers reading into evidence from the deposition of Mr. Bastman, plaintiff's president. That portion of the Bastman deposition bearing upon this issue reads as follows:

'Q. Do you regularly make inspections and tour around the Lake?

'A. Mr. Hurd goes around there everyday.

'Q. Hurd does it everyday? A. Yeah.

'Q. So if there was any work going on in the nature of work upon any docks or any buildings in that parkway that you speak of, Mr. Hurd would certainly be familiar with it because he inspects it everyday?

'A. If he would be able to see it from the road he would see it, but he wasn't able to see that from the road.

'Q. I want to make it clear, Mr. Bastman, Mr. Hurd, everyday as you just said, goes on to the lake and looks to see what's going on?

'A. That's right.

'Q. That's part of his work? A. That's correct.

'Q. And does do it? A. Yes. (Indicating)

'Q. Except when the lake is froze or something like that?

'A. He don't go around the lake.' (Emphasis supplied.)

Defendant contends that plaintiff cannot complain to this court concerning the trial court's action for the reason that the issuance or refusal of a mandatory injunction lies within the discretion of the trial court and there is no allegation in the plaintiff's motion for new trial contending that the trial court abused its discretion. We cannot agree. The pertinent effect of the plaintiff's motion for new trial is that the trial court erred in refusing to issue this mandatory injunction. If he did...