Mary A. Baska Revocable Trust v. Hoehn Park Homes Ass'n, Inc.

• Decision Date: 14 December 2012
• Docket Number: No. 107,827.,107,827.
• Citation: Mary A. Baska Revocable Trust v. Hoehn Park Homes Ass'n, Inc., 290 P.3d 686 (Kan. App. 2012)
• Parties: MARY A. BASKA REVOCABLE TRUST and Edward L. Baska Revocable Trust, Appellants, v. HOEHN PARK HOMES ASSOCIATION, INC., et al., Defendants, (Brian L. Smith and Cary L. Smith, Bill J. McCollum and Betty L. McCollum), Appellees.
• Court: Kansas Court of Appeals

290 P.3d 686

MARY A. BASKA REVOCABLE TRUST and Edward L. Baska Revocable Trust, Appellants,

v. HOEHN PARK HOMES ASSOCIATION, INC., et al., Defendants,(Brian L. Smith and Cary L. Smith, Bill J. McCollum and Betty L. McCollum), Appellees.

No. 107,827.

Court of Appeals of Kansas.

Dec. 14, 2012.

Appeal from Johnson District Court; James F. Vano, Judge.

Wilson E. Speer, of Speer & Holliday, L.L.P., of Olathe, for appellants.

Christopher F. Pickering, of The Smith Law Group, P.C., of Shawnee, for appellees.

Betty L. and Bill J. McCollum, appellees pro se.

Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.

MEMORANDUM OPINION

PER CURIAM.

When the trusts established by Mary A. Baska and Edward L. Baska attempted to sell land they owned in a platted residential subdivision to a neighboring church for a parking lot, the title company alerted them to a land use restriction associated with the title that limited the development of the lots to single family residences. They brought a quiet title action in an attempt to clear the restriction on the title. The district court held that the property was narrowly restricted to the development of residential homes instead of the broader residential land use restriction imposed by the local zoning ordinance, primarily due to language on the recorded plat. Under the heading “Restrictions,” the plat stated that “[t]he housing classification shall be class ‘A.’ “ The district court found this language was a clear indication of a restriction for residential housing. Because we find that there was substantial competent evidence in the record to support the district court's ultimate finding and because we agree with its legal conclusion that the property is so restricted, we affirm.

Factual and Procedural History

Mary and Edward Baska owned real estate in Lenexa, Kansas, at approximately 87th and Lackman Road. The property had been a crop farm in the 1940's owned by Mary's parents, the Hoehns. In the early 1990's, they started selling off portions of the farm. A portion was sold to the Lenexa Baptist Church for construction of a church on the property and a portion to Semper Development Ltd. (Semper) for commercial development. In June 1996, they entered into an agreement with Semper to sell the remaining 20 acres, which included their 2 1/2 acre homestead. The agreement had a lease back provision, allowing the Baskas to remain in their existing home for as long as either lived, free of rent. However, the Baskas determined they were not comfortable with that arrangement and in March 1997, the Baskas bought back their 2 1/2 acre homestead from Semper.

By the time of the buy back, Semper had already filed a preliminary plat with the City of Lenexa which designated the 2 1/2 acres as lots 4 through 7 of a residential development they had named Hadler Park (later changed to Hoehn Park). The property was sold back to the Baskas subject to, among other things, “the homeowners association and related documents; and ... building setback lines and covenants and restrictions appropriate for residential use.” In addition, the Baskas agreed to join in the final plat and the homeowners association. These same restrictions were listed in the subsequent warranty deed.

When it was time to close on the lots a month later, Semper had sold its interest to Reliance Development Company, L.L.C. (Reliance). In addition, the Baskas had created the Mary E. Baska Revocable Trust and the Edward L. Baska Revocable Trust, which became the owners of the property. (The separate Baska trusts are not essential to our discussion of this case, so we will continue to refer to both trusts collectively as the Baskas.) The closing agreement, which was filed with the Register of Deeds, stated that Reliance had sold to the Baskas certain real estate in Lenexa, Kansas-lots 4 through 7. The closing agreement further stated: “[T]he Baska Property and other land will be subdivided into residential single family home sites....” In addition, the Baskas agreed to join in the plat of the residential property and the “creation of any restrictions or other matters that may be included on the Plat.” And finally, the Baskas acknowledged that the property would become four separate lots as shown on the plat. Reliance then sold the remaining property to Four Star Development, L.L.C. (Four Star).

Five months later, the Baskas signed the Hoehn Park plat which included the Baskas' lots 4 though 7. Among other things, the plat stated, “[t]he housing classification shall be class ‘A.’ “ This reference is apparently to the City of Lenexa dwelling size classifications. The Lenexa City Code provides that before a preliminary plat is approved for a residential subdivision, a minimum lot dwelling size must be established. Classification A sets minimum dwelling floor area at 1,250 to 2,400 square feet depending on the house configuration. Lenexa City Code Section 4–2–C–6.

The following month, a Declaration of Restrictions was recorded by Four Star. The Declaration of Restrictions was not signed by either of the Baskas. The Declaration of Restrictions specifically places a land use restriction for single family housing on all of the platted lots in Hoehn Park.

Nine years later, after the Baskas had both died, the trustee attempted to sell the property to the adjoining Lenexa Baptist Church to use as a parking lot, but the title report indicated that there were deed restrictions on the property that needed to be resolved before the church could purchase the land. After unsuccessful attempts to get the restrictions removed by releases, the Baskas filed a quiet title action against Hoehn Park Homes Association, Inc., Four Star Development, L.L.C., Brian L. and Cary L. Smith, and Billy J. and Betty L. McCollum, as well as numerous other named defendantsprimarily other subdivision homeowners and their mortgage companies. In the petition, the Baskas asserted that the Declaration of Restrictions was inapplicable to the Baskas' lots and that the restrictions placed a cloud on the Baskas' title which was impeding the sale of their lots.

Following a bench trial, where the only witness was Linda Baska-the Baskas' daughter and successor trustee under both trust agreements-the district court held that the Declaration of Restrictions and the homes association documents did not apply to the Baskas' property because the Baskas did not sign or approve the documents before they were recorded. However, because the plat, which was signed by the Baskas, indicated that “[t]he housing classification shall be class ‘A,’ “ the district court determined that the property was restricted to residential single family use. The district court had in evidence the plat, as well as the Semper buy back agreement, and the Reliance closing agreement.

Several months later, following a dispute over the journal entry, the Baskas filed a motion to alter or amend the judgment asserting that the ambiguity of the district court's prior journal entry continued to cloud the title of the property. The Baskas argued that the ambiguity arises from the question of whether the language in the plat—“[t]he housing classification shall be class ‘A’ “—refers to land use restrictions or whether it merely designates that any houses built in the subdivision must meet a particular square footage requirement. The district court denied the motion, determining that the plat was not ambiguous and that the City of Lenexa's application of its residential zoning ordinances had no bearing on the case.

The Baskas filed a timely notice of appeal.

Analysis

Standard of Review

This is a quiet title action. A quiet title action is brought to remove a cloud from the title to real property. See Ford v. Sewell, 188 Kan. 767, 771, 366 P.2d 285 (1961). K.S.A. 60–1002 authorizes one claiming title to or an interest in real property to maintain an action to quiet the title against any person who claims an adverse estate or interest. Beams v. Werth, 200 Kan. 532, 545, 438 P.2d 957 (1968). The plaintiff has the burden to establish his title. Ford v. Willits, 9 Kan.App.2d 735, 745, 688 P.2d 1230 (1984), aff'd237 Kan. 13, 697 P.2d 834 (1985). The standard of review for a court-tried quiet title action is the same as for other court-tried actions. On appeal, we examine whether the trial court's findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). “Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” 275 Kan. at 318.

In addition, to the extent that our review in this case involves contract interpretation, the question of whether a written instrument is ambiguous is a question of law subject to de novo review. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 264, 225 P.3d 707 (2010). And finally, the enforceability of a restrictive covenant contained in a written deed raises a question of law, reviewable de novo by an appellate court. Jeremiah 29:11, Inc. v. Seifert, 284 Kan. 468, 472, 161 P.3d 750 (2007).

There was substantial competent evidence to support the district court's conclusion that the Baska property was encumbered by a restriction limiting its use to single family housing.

In this case the Baskas were alerted to a cloud on their title when the title company found the recorded Declaration of Restrictions that limited the property to single family housing. They brought this quiet title action focusing on the fact that they never signed the Declaration of Restrictions or any homes association documents, so the property was not encumbered by them. The district court agreed, but found instead that the Baskas had restricted the property to single family housing through their signatures...