Nelson v. Brentwood Condominium Ass'n, WD

• Decision Date: 22 December 1987
• Docket Number: No. WD,WD
• Citation: 742 S.W.2d 233
• Parties: Howard NELSON, Jr. and Evelyn Nelson, Respondents, v. BRENTWOOD CONDOMINIUM ASSOCIATION, et al., Appellants. 39037.
• Court: Missouri Court of Appeals

Page 233

742 S.W.2d 233

Howard NELSON, Jr. and Evelyn Nelson, Respondents, v. BRENTWOOD CONDOMINIUM ASSOCIATION, et al., Appellants.

No. WD 39037.

Missouri Court of Appeals Western District.

Dec. 22, 1987.

Karon D. Ramsey, Kansas City, for appellants.

Thomas R. Larson, Kansas City, for respondents.

Before PRITCHARD, P.J., and GAITAN and COVINGTON, JJ.

GAITAN, Judge.

This is a civil action for injunctive relief and damages brought by plaintiffs/respondents Howard Nelson, Jr. and Evelyn Nelson against the defendant/appellant, Brentwood Condominium Association and its board of directors. By this suit, plaintiffs seek to have the roof over their condominium unit replaced and a new drainage system installed. The trial court bifurcated the trial and the sole issue here is the mandatory injunctive relief requested. The trial court granted the plaintiffs' mandatory injunction. The defendant appeals that judgment alleging that: (1) the trial court erred by granting a permanent injunction without notice that the court had consolidated the hearing on the application for a preliminary injunction with a trial on the merits; (2) plaintiff is not entitled to equitable relief as he comes into court with unclean hands; (3) plaintiffs have an existing adequate remedy at law; and (4) the order was unclear, vague and impossible to perform. We reverse.

Plaintiffs purchased a condominium at the Brentwood from its previous owner in 1981. At the time that plaintiffs inspected the property prior to possession, there was evidence of a leak in the upstairs bathroom. The defendant repaired the interior evidence of the leak. A roof membrane system was installed on the lower level of the plaintiffs' unit on October 26, 1981, and a roof membrane system was installed on the upper unit on June 6, 1982.

As early as 1982, evidence of leakage again appeared in the plaintiffs' unit. By October of 1984, continued leakage had caused substantial interior damage. Plaintiffs had the interior portions repaired at their own expense in December, 1984. In February of 1985, substantial leakage had again occurred. Plaintiffs repeatedly complained to the Board's managing agent about the condition of the roof and attempted to get it repaired to no avail. The alleged repairs were not successful and the roof continued to leak. In March, 1985, plaintiff ceased paying for maintenance. That same month, plaintiff, Howard Nelson, personally appeared before the defendant's full board. The Board assured plaintiffs that they intended to hire an independent roofer to give them an opinion about the roof. At no time subsequent to Mr. Nelson's appearance did the Board or its agents advise plaintiffs of obtaining such an independent expert opinion.

Plaintiffs asked two different roofers to give them an evaluation of the roofing systems. By April, 1986, plaintiffs retained an independent expert to assess the exterior common elements and on April 18, 1986, filed a breach of contract and negligence suit (Count II).

Ancillary to the petition, plaintiffs sought a temporary injunction, and the hearing on that was held on May 30, 1986. Howard Nelson testified as did Thomas Langley, the expert who Nelson had retained to investigate the roof. Langley is a civil engineer of more than twenty-five years experience as a consulting engineer. He investigated the cause of the problem and made recommendations. It was Langley's opinion that the only way to remedy the problem was a total tear-off and replacement of the roofing system.

The hearing in the temporary injunction concluded with the court informing the parties that it would postpone making a ruling until defendant had sufficient time to conduct its own investigation into the cause of the leaks. The court stated it would hold the case under advisement until notified as to what further proceedings were desired.

On June 5, 1986, defendant filed its Answer to Plaintiffs' Petition for Injunction and damages.

Apparently an off-the-record conference was held on September 18, 1986, whereupon the defendant advised the court of the result of its investigation. During this conference which is not of record, the defendant allegedly agreed that it would be necessary to replace the roof. No further proceedings, either on or off the record, were held. Thereafter on October 6, 1986, the trial court entered judgment on Count I only of plaintiffs' petition, granting them a mandatory injunction and requiring defendant "... to cause to be constructed, repaired, and maintained of proper material and application, at defendant Association's expense, roofs, drainage systems and all maintenance, repairs and improvements to the exterior portions of the plaintiffs' unit for preventing the leakage of water into plaintiffs' unit." Defendant was to proceed forthwith and complete the court's mandate no later than midnight, October 31, 1986.

On November 18, 1986, Petition For Order To Show Cause was filed and the contempt hearing was noticed for November 25, 1986. At a hearing convened on December 11, 1986, Howard Nelson testified that continued leakage occurred throughout the period from the initial hearing on May 30, 1986 to that date, nearly six months later.

At the conclusion of the evidence (December 12, 1986), the trial court made the following findings and rulings relative to its October 6, 1986 order:

1. A feasible solution to the problem with the leaking roof now...