Metropolitan St. Louis Sewer Dist. v. Zykan

• Decision Date: 14 May 1973
• Docket Number: No. 1,No. 56130,56130,1
• Citation: 495 S.W.2d 643
• Parties: The METROPOLITAN ST. LOUIS SEWER DISTRICT, a municipal corporation, et al., Respondents, v. Frank E. ZYKAN 1 et al., Appellants
• Court: Missouri Supreme Court

Page 643

495 S.W.2d 643

The METROPOLITAN ST. LOUIS SEWER DISTRICT, a municipal corporation, et al., Respondents, v. Frank E. ZYKAN ¹ et al., Appellants No. 56130.

Supreme Court of Missouri, Division No. 1.

May 14, 1973.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 11, 1973.

Charles B. Kaiser, Jr., Edward G. Wiegers, St. Louis, Gerald A. Rimmel, Susman, Willer & Rimmel, St. Louis, for plaintiffs-respondents.

David G. Dempsey, Richard B. Dempsey, Dempsey, Dempsey & McCarthy, Clayton, for defendants-appellants.

HIGGINS, Commissioner.

Action in three counts to cause defendants to construct a drainage channel pursuant to terms of real estate sales contracts, and for damages to two improved tracts of real estate resulting from failure to construct the channel. The judgment and decree ordered defendants to construct the channel improvement in accordance with plans submitted by them to plaintiff The Metropolitan St. Louis Sewer District, and awarded $1,400 damages to plaintiffs Fischer and $1,450 damages to plaintiffs Kuhlmann and Scott. Present cost of the required construction was estimated at $50,000. (Appeal taken prior to January 1, 1972.)

In Count I, The Metropolitan Sewer District alleged its constitutional power to control and regulate drainage and sewer facilities within its boundaries and enactment of two ordinances in exercise of such power establishing rules and regulations pertaining to such facilities; that defendant Frank E. Zykan, Inc., was the builder and developer of Midland Valley Estates, Plats 1, 2, 3, 4, and 5 in St. Louis County Missouri; that Zykan, Inc., submitted plans for contruction of drainage facilities in Plats 2 and 3, and, after approval of the plans by MSD, secured permits for piping of storm water through sewers and drains to be so constructed; that Zykan, Inc., failed to secure a permit for the planned channel improvement and failed to construct the storm water channel between Midland Boulevard and Pebble Beach from Fox Hills Drive and Chaucer Avenue as provided by its submitted plan; that the failure to complete the channel improvement has interfered with drainage through the channel, has caused ponding and pooling of water in the channel, has caused undermining of banks and bed of the watercourse and eroding of banks to the hazard and danger of property, all of which creates a public nuisance and hazard and danger to the peace, safety, health, and general welfare of the public; that Zykan, Inc., has failed and refused to comply with the request of MSD to complete the planned drainage channel improvement; that MSD's suit is in behalf of the citizens of St. Louis County, The Metropolitan Sewer District, and the State of Missouri, and it has no adequate remedy at law. The prayer sought an order compelling Zykan, Inc., to commence and complete construction of the drainage channel through Midland Valley Estates, Plats 2 and 3, in accordance with plans submitted by Zykan, Inc., to MSD and approved by MSD, and in compliance with Ordinances 44 and 353 of MSD.

In Count II plaintiffs Fischer, husband and wife, alleged that defendant Frank E. Zykan is the principal officer and director of, and dominates and controls each of the corporate defendants; that he and the corporations together were the developers of Midland Valley Estates, Plat 3; that defendant Frank E. Zykan Realty Company was the real estate agent for all defendants and sold the lots and improvements in Midland Valley Estates, Plat 3, to the Fischers and others; that on April 1, 1961, the Fischers entered into a written contract with defendant Valley Construction Company as seller and defendant Frank E. Zykan Realty Company as agent for seller for purchase of Lot 75, Midland Valley Estates, Plat 3, together with improvements known as and numbered 10025 Pebble Beach Drive, for $25,000, and the contract provided, among other things: 'drainage ditch in rear to be completed by developer in accordance with plans approved by and on file with The Metropolitan St. Louis Sewer District'; that on April 17, 1961, the contract was consummated by execution and delivery of a general warranty deed by defendant Ure Construction Company to the Fischers; that despite the submission and approval of plans and issuance of permits for construction, improvement, and completion of the drainage ditch in Midland Valley Estates, Plat 3, defendants have failed so to do, and plaintiffs are without adequate remedy at law and without protection unless equity protects their rights and orders construction and completion of the ditch; that plaintiffs, in consummating the sale, relied upon defendants' representations that the improvement would be made in accordance with their submitted and approved plans; that defendants' failure has created a nuisance and health hazard resulting in diminution of value damages of $25,000 and punitive damages of $10,000. Fischers also prayed for an order compelling defendants to construct and complete the drainage channel, and for the alleged actual and punitive damages.

In Count III plaintiffs Kuhlmann and Scott (Mrs. Scott is Mrs. Kuhlmann's mother) made allegations similar to those of the Fischers but with respect to Lot 113, Midland Valley Estates, Plat 3, 10029 Pebble Beach Drive, which they acquired by deed from defendant Valley Construction Company September 28, 1962, for $26,650. Their sales contract of August 31, 1962, provided: 'The drainage ditch at rear of property to be concreted in accordance with plans and specifications on file with and approved by The St. Louis Metropolitan Sewer District.' Their prayer also sought the order compelling defendants to construct and complete the drainage channel and sought $25,000 actual and $25,000 punitive damages.

Defendants answered, admitting their failure to construct the drainage improvement and their execution of the sales contracts, and alleging misjoinder of parties and actions, and defenses of plaintiffs' laches and impossibility of performance.

By Request for Admission of Facts and Genuineness of Documents, plaintiffs secured the following admissions: That the sales contracts and wrranty deeds between plaintiffs and defendants were genuine; that defendant Frank E. Zykan or his straw party or nominee is the majority stockholder of each of the defendant corporations; that none of the defendants have secured a permit for the channel improvement described in plaintiffs' petition; that no channel improvements have been commenced, undertaken, or constructed by defendants for the storm water channel between Midland Boulevard and Pebble Beach from Fox Hills Drive and Chaucer Avenue, St. Louis County, in Midland Valley Estates, Plats 2 and 3; that the drainage ditch in the rear of the Fischer property has not been completed or improved by defendants in accordance with plans approved by and on file with The Metropolitan St. Louis Sewer District; that the drainage ditch at the rear of Kuhlmanns' property has not been concreted nor any work undertaken by defendants in accordance with plans and specifications on file with and approved by MSD; that defendant Frank E. Zykan, Inc., in submission of plans for improvement and construction of drainage facilities in Midland Valley Estates, Plat 3, was acting for itself and on behalf of and as agent for all defendants; that defendant Frank E. Zykan Realty Company was the real estate agent for all defendants in the two sales to plaintiffs; that none of the work provided for in the two sales contracts has been commenced or undertaken by defendants; that the drainage ditch to the rear of the individual plaintiffs' properties has widened and deepened and its banks have eroded and crumbled since plaintiffs purchased their properties; and, '12. That at all times herein involved the defendant corporations were and are the alter ego of defendant Frank E. Zykan.'

Upon commencement of trial April 1, 1969, defendants orally moved to strike admission 12 on the ground it 'calls for a conclusion of law, and that the matters requested to be admitted therein are immaterial, irrelevant to the issues * * * and further, are at variance with the actual pleadings of the plaintiffs * * *.' Plaintiffs' objection that defendants' motion was out of time and without merit was sustained and the admissions were before the court for its consideration.

In 1959 Frank E. Zykan commenced development of Midland Valley Estates, a residential subdivision in Overland, St. Louis County, Missouri. He recorded the subdivision in three plats, Plats 1, 2, and 3, the latter of which included the Fischer and Kuhlmann homes. It also represented and included the majority of the lots between Pebble Beach Drive on the south, Midland Boulevard on the north, Fox Hills Drive on the west, and Chaucer Avenue on the east, except for five lots on the east side. It also contains the entire length of subject drainage ditch.

All three plats were prepared by Joyce Company, surveyors and engineers, upon the order of Frank E. Zykan, and Plat 3 shows a 'Drainage Right-of-way (50 wide)' running eastwardly from Fox Hills Drive on the west to Chaucer Avenue on the east, lying between Pebble Beach Drive and Midland Boulevard. Plat 3 bore this legend: 'The undersigned owners * * * have caused said tract to be surveyed and subdivided in the manner shown on the above plat and * * * (All streets, 50 feet wide) are hereby dedicated to public use forever. The easements shown * * * are hereby granted to the City of Overland for the purpose of installing and maintaining public utilities, in, under, and over said strips, and The Metropolitan St. Louis Sewer District as their interests may appear for sewer purposes * * * .'

This dedication was executed by Frank E. Zykan as president and Tex McClintock as secretary, for and on behalf of Frank E. Zykan, Inc., and was acknowledged by Frank E. Zykan as president of Frank E. Zykan, Inc., May 7, 1960, before Jimmie Stuart,...