Lakeshore Estates Recreational Area, Inc. v. Turner

• Decision Date: 03 April 1972
• Docket Number: No. 25741,25741
• Parties: LAKESHORE ESTATES RECREATIONAL AREA, INC., a Corporation, Respondent, v. Katherine C. TURNER et al., Appellants.
• Court: Missouri Court of Appeals

Page 572

481 S.W.2d 572

LAKESHORE ESTATES RECREATIONAL AREA, INC., a Corporation, Respondent, v. Katherine C. TURNER et al., Appellants.

No. 25741.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 11, 1972.

Application to Transfer Denied July 17, 1972.

Terence C. Porter, John M. Cleaveland, Columbia (Porter & Cleaveland, Columbia, of counsel), for appellants.

Larry M. Woods, Columbia (Sapp, Woods, Dannov & Orr, Columbia, of counsel), for respondent.

DIXON, Judge.

Defendants appeal from a judgment of the trial court declaring a modification of a land use restriction invalid and enjoining defendants from any use of their land inconsistent with the court's decree. The facts are by stipulation of the parties.

Defendant, Katherine C. Turner, is the record owner of the west 125 feet of Lot 2 of a Subdivision of Lot 24 of Lakeshore Estates Subdivision in Columbia, Missouri. Defendant, Southland Corporation, is the holder of a building permit to erect a grocery store on the Katherine C. Turner land; the defendant, Paul A. Medley, Inc., is a contractor engaged in site preparation for the proposed use of the land. The determination of the issues of the appeal as to the defendant Turner will be determinative of the issues as to all defendants, and for simplicity, we will treat the matter as if she were the sole defendant.

Plaintiff, Lakeshore Estates Recreational Area, Inc., is a not-for-profit corporation and claims to own certain lots which are operated as recreational areas for the benefit of the balance of the lot owners. Because of the similarity of the corporate name of this plaintiff and the corporation which developed the land in question, the plaintiff corporation will be referred to as Recreational Area, Inc.

All of the land in the subdivision was developed as a residential area by Lakeshore Estates, Inc. At the time of the original platting and development, a restriction agreement was placed of record by Lakeshore Estates, Inc., the development corporation which then owned all the lots. The pertinent portions of this restrictive agreement are:

'1. No lot shall be used except for residential purposes.

16. Any of the foregoing agreements or covenants may be abrogated or modified upon the written consent of the owners of two-thirds (2/3) of the lots in said subdivision.

17. These agreements are to run with the land and shall be binding upon all parties and all persons claiming under them for a period of fifty (50) years from the date these covenants are record, after which time said agreements shall be automatically extended for successive periods of ten (10) years, unless an instrument signed by two-thirds (2/3) of the owners of the lots has been recorded agreeing to change said agreements in whole or in part.'

On July 6, 1964 Lakeshore Estates, the development corporation, executed a document entitled 'Modification of Restrictions,' the relevant portion of which states:

'1. No lot shall be used except for residential purposes except for Lot No 24 where any use will be permitted that is now permitted under a C--1 Classification as set out in the Zoning Ordinances of the City of Columbia, Boone County, Missouri.'

This will hereafter be referred to as the 'first modification.'

Prior to the date of the first modification, Lakeshore Estates, the developer, still owned 77 of the total of 111 platted lots and thus over two-thirds of all lots.

The trial court entered a judgment declaring that a justiciable controversy existed and that the modification permitting the use of defendant Turner's land for purposes other than residential was invalid. An injunctive order was entered prohibiting the defendants from making any use of the land other than for residential purposes.

Defendant, Katherine C. Turner, asserts that the judgment of the trial court is in error by her statement of point in the brief, viz.:

'The Trial Court erred in Declaring Invalid the Modification of Restrictions Executed on July 6, 1964 Permitting Commercial Development of Lot 24 of the Lakeshore Estates Subdivision and Further Erred in Enjoining the Defendants from Constructing a Grocery Store on the Lot.'

This assertion of error does not comply with Rule 83.05(e), V.A.M.R. since it does not set forth 'briefly and concisely . . . why it is contended the Court was wrong.' This is no more than the bare assertion...