Maue v. Fiedler Acres Subdivision

• Decision Date: 08 December 2020
• Docket Number: No. ED 108696,ED 108696
• Citation: 614 S.W.3d 601
• Parties: David MAUE, Appellant, v. FIEDLER ACRES SUBDIVISION, et al., Respondents.
• Court: Missouri Court of Appeals

614 S.W.3d 601

David MAUE, Appellant,

v.FIEDLER ACRES SUBDIVISION, et al., Respondents.

No. ED 108696

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: December 8, 2020

FOR APPELLANT: James M. Kreitler, 455 Maple Street, Hillsboro, MO 63050.

FOR RESPONDENTS FIEDLER ACRES SUBDIVISION AND ROSEMANN: Martin J. Buckley, Daniel J. Sullivan, Graham J. Spence, 800 Market St., Ste. 2900, St. Louis, MO 63101, Steven M. Davis, 4139 Jeffco Blvd., Arnold, MO 63010.

FOR RESPONDENT DAVID T. WALLEN AND EMMA WALLEN: Timothy R. Nickless, 321 Main Street, Hillsboro, MO 63050.

FOR RESPONDENTS SWEENEYS: Daniel E. Wilke, 2708 Olive St., St. Louis, MO 63103.

FOR RESPONDENTS RANDS: Daniel E. Wilke, Kathy M. Wilke, Kent W. Zschoche, 2708 Olive St., St. Louis, Mo 63103, Ellen J. Brooke, Katherine M. Smith, Olivia G. Findley, 500 N. Broadway, Ste. 1550, St. Louis, MO 63102.

FOR RESPONDENTS BAXTER AND SAEOU: Thomas A. Spoon, 2901 Dougherty Ferry Rd., Ste. 100, St. Louis, MO 63122.

FOR RESPONDENTS MORGANS, JAMES, HALILOVICS, COOKS, JUNGEWAELTERS AND ROSEMANN FAMILY TRUST: Steven M. Davis, 4139 Jeffco Blvd., Arnold, MO 63010.

ATTORNEY FOR FISCHERS: Alfred J. Rathert, 334 Skinker Lane, Fenton, MO 63026.

ATTORNEY FOR SCHNEIDER: Daniel J. McNamee, 2000 South Hanley Rd., St. Louis, MO 63144.

ATTORNEY FOR GREEVERS: Scott M. McKinnis, 12801 Flushing Meadows Dr., Ste. 101, St. Louis, MO 63131.

RESPONDENTS ACTING PRO SE: John S. Wood, Diana M. Wood, Matthew Guckes, Kara R. Guckes, Diane K. Williams, Omar Garcia, Tiffany Garcia, Richard J. Hoelzer, Kathleen A. Hoelzer, Joseph Holycross, Kelly Thies, Cuttler Properties, LLC, Alexander J. Maldonado, Owen D. Neill, Angela M. Foppe, Chris E. Davis, Janet D. Davis, Neal Family Trust, Daniel Hudson, Kristin Hudson, Vernon Miller, Rita J. Miller, Gruttke Living Trust, Benjamin F. Ashmore, Terri J. Ashmore, William Morgan, Denise Morgan.

ROBERT M. CLAYTON III, Judge

David Maue ("Plaintiff") appeals the trial court's judgment dismissing Count V of his first amended petition, a road maintenance action filed under section 228.369 RSMo 2016¹ (" section 228.369" or "the statute") against individually named defendants, for failure to state a claim upon which relief can be granted.² The roadway maintenance action in Count V of Plaintiff's first amended petition seeks a court order establishing a plan of road maintenance for a roadway adjacent to Fiedler Acres Subdivision ("Subdivision") that is known as Fiedler Lane/Morgan Woods Drive ("Roadway").

The individually named defendants who are parties to Count V can be grouped into three categories: (1) individuals who own property located on the Roadway, whose property is in the Subdivision, and who are subject to Subdivision covenants ("Subdivision Owners"); (2) individuals who own property located on the Roadway, but whose property is not in the Subdivision, and who are not subject to Subdivision covenants ("Benefitted Owners"); and (3) Georgia Rosemann in her capacity as Trustee ("Trustee") of the Subdivision (collectively "all individually named Defendants").

On appeal, Plaintiff only argues the trial court erred in dismissing Count V as to Subdivision Owners and Benefitted Owners.^{3 ,4} Because Plaintiff does not argue on appeal that the trial court erred in dismissing Count V as to defendant Trustee, we affirm the portion of the judgment dismissing Trustee from Count V. And because we agree with Plaintiff that the trial court erred in dismissing Count V as to defendants Subdivision Owners and Benefitted Owners, we reverse the portion of the judgment dismissing Count V as to Subdivision Owners and Benefitted Owners, and we remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Relevant Allegations in Plaintiff's First Amended Petition

Because this appeal involves a dismissal by the trial court for failure to state a claim upon which relief can be granted, it is important to initially set out the relevant allegations of Plaintiff's first amended petition. These allegations are as follows.

Plaintiff is the owner of lot thirteen of the Subdivision located in Jefferson County, Missouri. There are a set of restrictions for the Subdivision that were recorded in 1988 ("1988 Restrictions") with the Jefferson County Recorder of Deeds and attached to the first amended petition as Exhibit A. The 1988 Restrictions provide for the collection of assessments for maintaining the surrounding roads as well as other restrictive covenants. The Roadway at issue in this case, known as Fiedler Lane/Morgan Woods Drive, is allegedly to be maintained by the Subdivision's trustees. Further, the 1988 Restrictions provide in relevant part that "[t]he obligation and expense of ... maintaining the streets [and] roads ... shall be the responsibility of owners of lots in [the Subdivision]."

Plaintiff, Subdivision Owners, and Benefitted Owners are all owners of property located along the Roadway. Plaintiff and Subdivision Owners own property located on the Roadway, whose property is in the Subdivision, and who are subject to Subdivision covenants in the 1988 Restrictions. Benefitted Owners own property located on the Roadway, whose property is not in the Subdivision, and who are not subject to Subdivision covenants in the 1988 Restrictions.

In 2016, the trustees of the Subdivision raised the assessments for homeowners in the Subdivision which were alleged to be excessive, unreasonable, arbitrary, and unnecessary. Additionally, it was alleged the Subdivision's trustees failed to require assessments to be collected from all homeowners of the Subdivision and from all others who used the Roadway.

Plaintiff filed his amended petition consisting of seven total counts. Counts I, II, III, IV, VI, and VII pleaded allegations only against the Subdivision. See footnote 2 of this opinion. Count V was the sole count against all individually named Defendants seeking a court order among all necessary parties for the maintenance of the Roadway pursuant to section 228.369. Specifically, Count V states in relevant part:

41. [All individually named] Defendants are the owners of property located along [ ] [the Roadway, i.e.,] Fiedler Lane, which transitions into Morgan Woods Drive, in Fenton, Missouri.

42. While there are [1988] Restrictions for [the Subdivision], which provide for the maintenance of the streets and roads, including [the Roadway], said Subdivision does not include all necessary parties as some of the owners along said [R]oadway, are not a part of the [S]ubdivision, and therefore, [are] not bound by the [1988] Restrictions to share the costs to maintain and repair the [R]oadway.

43. There is no written agreement between all necessary parties for maintenance of the [R]oadway.

44. The above-referenced [R]oadway is in negligible state of disrepair.

WHEREFORE, Plaintiff requests that this [c]ourt enter an order establishing a plan of maintenance for [the Roadway] to ensure its maintenance, repair, and improvement, that same [o]rder be filed with the Jefferson County Recorder of Deeds, Plaintiff's costs for bringing Count V, and any and all other relief that this [c]ourt deems just and proper under the circumstances.

B. Procedural Posture

After Plaintiff filed his original petition, the Trustee filed a motion to dismiss for failure to state a claim upon which relief can be granted, or in the alternative, a motion to require joinder of necessary parties, on Count V of Plaintiff's petition because Plaintiff failed to include all of the homeowners in the platted Subdivision as defendants, i.e., all Subdivision Owners. The Honorable Mark T. Stoll of the Circuit Court of Jefferson County granted the motion for failure to join all necessary parties and allowed Plaintiff to file an amended petition. On September 18, 2018, Plaintiff filed his first amended petition properly joining all the Subdivision Owners and Benefitted Owners for Count V, named the Trustee as a party to Count V, and explicitly excluded the Subdivision as a party as to that count.

In March 2019, some of the individually named Defendants (Marty and Mary C. Sweeney, James R. Baxter, Jr., and Lyshing and Thipphavanh Saeou) filed three separate motions to dismiss Count V of Plaintiff's first amended petition for failure to state a claim upon which relief can be granted. In April 2019, the Honorable Brenda Stacey of the Circuit Court of Jefferson County ("Judge Stacey") denied the motions to dismiss "certain [d]efendants."⁵ Specifically, Judge Stacey found: (1) "[w]ritten covenants for [the Subdivision] [, i.e., the 1988 Restrictions] contain terms for the maintenance of [the Roadway], however, said provisions do not address [Benefitted Owners, i.e.,] adjoining homeowners who are benefitted by the use of an abutting [Roadway] which are not included in the covenants [found in the 1988 Restrictions][;]" (2) "[t]he agreement [, i.e, the 1988 Restrictions], has not been executed by all necessary homeowners[;]" and (3) "[t]he plain meaning of 228.369.1 RSM[o] (2012) does not apply."

There was then an administrative order dated July 23, 2019, which transferred the case from Judge Stacey to the Honorable Dianna L. Bartels of the Circuit Court of Jefferson County ("the trial court").

In August 2019, Plaintiff filed a motion for partial summary judgment regarding Count V for all individually named Defendants. Later that month, two of the individually named Defendants, Marty and Mary C. Sweeney, filed a motion for rehearing of their motion to dismiss. Various hearing dates were set but it is unclear whether a hearing was held.

In September 2019, some of the individually named Defendants (Munir and Alphea Halilovic; Ward D. and Robynne M. Cook, Galen L. and Nancy James; William K. and Denise M. Morgan, the Rosemann Family Trust, George and Georgia Rosemann, Trustees; and Cameron D. and Brittney S. Jungewaelter) filed a joint motion to dismiss for failure to state a claim upon which relief can be granted as to Count V ("September 2019 motion to...