Murphy v. Timber Trace Ass'n

• Decision Date: 12 September 1989
• Docket Number: No. WD,WD
• Citation: 779 S.W.2d 603
• Parties: Stephen P. MURPHY and Mary E. Murphy, Appellants, v. TIMBER TRACE ASSOCIATION, Respondent. 41248.
• Court: Missouri Court of Appeals

Page 603

779 S.W.2d 603

Stephen P. MURPHY and Mary E. Murphy, Appellants, v. TIMBER TRACE ASSOCIATION, Respondent.

No. WD 41248.

Missouri Court of Appeals,

Western District.

Sept. 12, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 31, 1989.

Application to Transfer Denied Dec. 12, 1989.

J. Courtney Bowlin, Overland Park, Kan., for appellants.

John M. Lilla, Kansas City, Mo., for respondent.

Before SHANGLER, P.J., and TURNAGE and KENNEDY, JJ.

SHANGLER, Presiding Judge.

The plaintiffs Murphy are owners of a residence in the Timber Trace subdivision of Kansas City. The property is subject to a Declaration of Covenants, Conditions and Restrictions that limit the display of yard signs offering the residence for sale or lease Saturday and Sunday afternoons between the hours of 1:00 p.m. to 5:00 p.m. The plaintiffs engaged a realtor who placed signs in the front yard to assist in the sale of their property, but at times and for durations prohibited by the restrictions. The signs were removed by the Timber Trace Association.

The plaintiffs brought a petition to enjoin the Timber Trace Association from the removal of the real estate sale signs and for a declaratory judgment of the rights and duties of the parties under Article IX, Section 4 of the Declaration. ¹ The trial court denied injunction and refused the declaration of the invalidity of the restrictions as sought by the petition, and entered judgment for Timber Trace Association. The plaintiffs appeal from that judgment.

The petition alleged as the actual controversy under the Declaration of Covenants, Conditions and Restrictions that the plaintiffs claim the right to display a for sale sign on their property 24 hours a day until the residence is sold, whereas the defendant seeks to enforce the Article IX, Section 4 restriction of the Declaration that a single sign may be displayed for that purpose, but "only on Saturday and Sunday afternoons, during the hours of 1:00 p.m. and 5:00 p.m." The petition alleged also that the Timber Trace Association had not consistently enforced the for sale sign restrictive covenant and so waived its effect as to the plaintiffs.

The petition sought the judicial declarations that the prohibition of Section 4 is void as contrary to the public policy expressed in § 67.317, RSMo 1986, and that the Association had in any event waived its right to enforce the prohibition against the plaintiffs. The petition also sought the order of the court to enjoin the Association from entry onto the property of the plaintiffs without their permission to remove the for sale signs placed there. ² The case for the petition was made out by the testimony of plaintiff Stephen P. Murphy, himself an attorney, and by a number of exhibits. That for the defendant was made out by Asel and Green, directors of the Timber Trace Association. The evidence was responsive and confined to those grounds pleaded for redress. That is to say, there was no enlargement of issues by consent.

On this appeal, the plaintiffs raise five points of error: (1) the enforcement of the sign restrictions covenant was a violation of public policy; (2) the enforcement of the sign restrictions covenant was state action which infringed the plaintiffs' constitutional right of free speech under the first and fourteenth Amendments; (3) the enforcement of the sign restrictions covenant was erroneous because the plaintiffs had the right to place the signs upon the city owned fee where they were placed; (4) the finding that the Association did not trespass was erroneous in that the Association had no right or easement to come upon the property of the plaintiffs without permission to remove the signs; (5) the finding that the Association had not waived any noncompliance by selective enforcement of the restrictions was erroneous.

We refuse review to points (2) and (3) tendered by the plaintiffs on this appeal because neither was raised or preserved as settled procedure requires.

Point (2) attempts the presentation of constitutional error. It is the sense of that contention that, the sign restrictions although otherwise valid limitations when carried out by voluntary action, become infringements of the constitutional right of free speech when enforced by state action--judicial decree. The limitations the covenants impose on the real estate signs, the plaintiffs assert, constitute "nearly complete prohibition of commercial speech", and as such are not entitled to enforcement by the courts. The argument cites Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) and other cases of that genre. ³ To engage adjudication and then review of a constitutional question, however, the issue must be presented at the earliest moment that good pleading and orderly procedure admit under the circumstances of the case; otherwise, it is waived. Century 21 v. City of Jennings, 700 S.W.2d 809, 810[1, 2] (Mo. banc 1985); In re $29,000 In U.S. Currency, 682 S.W.2d 68, 72[1, 2] (Mo.App.1984).

The constitutional question the plaintiffs pose was neither the subject of the original pleadings for declaratory judgment as to the validity of sign restrictions nor of the injunction against their enforcement, nor of any subsequent motion to the court before the trial of the issues. It was asserted for the first time in the brief on appeal--and hence does not comport with the practices of good pleading and orderly procedure owed the adjudication of such solemn questions. The plaintiffs say that the testimony of Stephen Murphy satisfies these conditions of constitutional adjudication and presents the first amendment issue. It was recorded during cross-examination of that witness as to whether the builder's signs harmed him. ⁴

I don't think any sign is harming me. I'm not against any sign. I'm in favor of anybody putting up any signs. If you've got a house for sale, put it up. If you want to sell a lot, put it up. I'm for free speech, First Amendment. I'm a big First Amendment man.

The plaintiffs do not explain how this casual, even flippant, response on an issue the petition never posed accords under the circumstances as that "orderly procedure" good practice imposes to present the constitutional question at the "earliest possible moment." Century 21 v. City of Jennings, 700 S.W.2d at 810[1, 2]. It is too late even in a reply for a plaintiff to question the constitutional authority under which the defendant acted. Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497[21-23] (banc 1955). Nor will an agreed stipulation in lieu of a timely pleading do to raise a constitutional question. State ex rel. Eagleton v. Patrick, 370 S.W.2d 254, 260[9, 10] (Mo.1963). Thus, even the principle that issues not raised by the pleadings but tried by the consent of the parties [if, indeed, Rule 55.33(b) is what the plaintiffs mean to invoke] does not avail to save as a constitutional issue a question not pleaded or otherwise presented at the earliest possible moment.

The want of constitutional question pleaded and proved notwithstanding, the Order and Judgment entered by the trial court on the petition for declaratory judgment and injunction declares:

Enforcement of Article IX, Section 4 of the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS of the TIMBER TRACE ASSOCIATION set forth above, does not impinge upon any right of free speech protected by the Constitution of the United States or the Constitution of the State of Missouri.

That aspect of the judgment presumes to adjudicate not only an issue never pleaded and raised for the first time on appeal, but also an issue never raised on appeal. That the enforcement of the sign restrictions infracts the right of free speech protected by the constitution of our state is a ground for relief never asserted by the plaintiffs, even for the first time on this appeal. The powers of a court of equity to adjudicate are broad, but are limited to the claim for relief and issues made by the pleadings. Mills v. Keasler, 395 S.W.2d 111, 118[9-12] (Mo.1965). To the extent that the judgment under review purports to adjudge beyond the issues presented and raised by the pleadings, it is coram non judice and void. Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176, 180[13-16] (banc 1941).

We refuse review also to point (3): the contention on appeal that the enforcement of the sign restrictions was error because the signs were placed upon the city owned fee [street and utility easements] which crosses the plaintiffs' property, and hence not subject to the effect of the restrictions. It was an issue never pleaded, or so deemed as pleaded. Rule 55.33(b).

Enforcement of the For Sale Sign Restrictions As a Violation

of Public Policy

The plaintiffs pleaded, litigated and preserved for review the contention that the enforcement of the for sale sign restrictive covenants violates the public policy expressed by § 67.317, RSMo 1986. That statute provides:

No political subdivision of this state shall enact or enforce any ordinance which forbids or restricts the right of any owner of an interest in real property or his agent from displaying on the property a sign of reasonable dimensions, as may be determined by local ordinance, advertising:

(1) The property interest is for sale, lease or exchange by the owner or his agent;

(2) The owner's or agent's names; and

(3) The owner's or agent's address and telephone number.

The plaintiffs find in the text of the statute the public policy that not only a political subdivision of the state may not enact or enforce an ordinance that forbids or restricts the right of an owner of real estate from the display of a for sale sign on the property, but also the public policy against the enforcement of promises between persons to restrict such a display. In the context of this litigation, the argument assumes that a voluntary association of homeowners may not do by agreement what government is prohibited from doing by statute. That is...