Scott v. Ranch Roy-L, Inc., ED 85787.

• Decision Date: 06 December 2005
• Docket Number: No. ED 85787.,ED 85787.
• Citation: 182 S.W.3d 627
• Parties: James SCOTT, et al., Plaintiffs/Appellants, v. RANCH ROY-L, INC., et al., Defendants/Respondents.
• Court: Missouri Court of Appeals

182 S.W.3d 627

James SCOTT, et al., Plaintiffs/Appellants, v. RANCH ROY-L, INC., et al., Defendants/Respondents.

No. ED 85787.

Missouri Court of Appeals, Eastern District, Division One.

December 6, 2005.

COPYRIGHT MATERIAL OMITTED

Donald U. Beimdiek, Louis, MO, for appellants.

JoAnn T. Sandifer, St. Louis, MO, Vincent L. Johnson, St. Peters, MO, for respondents.

CLIFFORD H. AHRENS, Judge.

James Scott ("Scott"), John Kuhlmann ("Kuhlmann"), and the Golden Eagle Reserve Association ("the Association"), collectively referred to as "plaintiffs", appeal from the trial court's grant of summary judgment in favor of Ranch Roy-L and the Schaeffers, collectively referred to as "defendants". The plaintiffs contend that the trial court erred in granting summary judgment in favor of Ranch Roy-L because it relied on affidavits that were not competent, admissible evidence. Plaintiffs also argue that the trial court erred in its grant of summary judgment in favor of Ranch Roy-L because it was contrary to the undisputed facts and applicable law, which established that Ranch Roy-L was not the successor developer to Roy Longstreet and additionally did not have the right to subdivide a particular out-lot. We affirm in part and reverse and remand in part.

The Association was incorporated on April 6, 1966 by Roy Longstreet, William Longstreet, James Longstreet, and Edward Young, Jr., thus predating the Golden Eagle Reserve subdivision ("Subdivision"), which was created by Roy Longstreet on July 18, 1966. At the first meeting of the Association, it adopted By-Laws, which were neither dated nor recorded, which defined "Developer" in Section 4 as "Roy W. Longstreet and his heirs, representative or assigns, including any corporation to which he may sell or assign the land which is being developed as Golden Eagle Reserve."

On July 18, 1966, Roy Longstreet recorded a plat of the Subdivision, which encompassed approximately 307 acres, and an instrument entitled "Declaration of Covenants and Restrictions of Golden Eagle Reserve" ("Declaration") with the recorder of deeds of Montgomery County, Missouri. The Declaration referred to Roy Longstreet as the "Developer." Article II, section 2 of the Declaration states as follows:

The Developer, its heir and assigns, shall in the future have the right to bring within the scheme of this declaration additional property, or properties, provided that such additions are in accord with a general plan of development prepared prior to the sale of any lot in any such new development and made known to every purchaser prior to the sale.

Article VIII(1) is a restriction on all lots on the property described in Article II, which states, among other things, that "[n]o lot may be subdivided, but more than one lot may be purchased and combined to make one lot." Article VII addresses out-lots. Section 3 of Article VII states that notwithstanding any other restrictions in the Declaration, "Developer, for himself and his heirs and assigns, reserves the right to resubdivide out-lots G and H[.]" No mention is made about subdividing out-lot F.

On October 13, 1972, Roy Longstreet and his sons, James and William, all of whom had been among the incorporators of the Association, incorporated Ranch Roy-L. On November 16, 1972, Roy Longstreet and his wife deeded real property to Ranch Roy-L, which included all property in the Subdivision, with the noted exceptions of a number of individual lots, and some adjacent property that was not originally a part of the Subdivision. This warranty deed included the standard habendum clause stating that Roy Longstreet and his wife were conveying the real property to Ranch Roy-L to have and to hold "with all and singular the rights, privileges appurtenances and immunities thereto or in anywise appertaining unto the said party of the second part [Ranch Roy-L], and unto its heirs and assigns forever[.]" James Longstreet and William Longstreet also deeded real property to Ranch Roy-L, totaling 200 and 517 acres respectively, located in sections adjoining the real property that was originally part of the Subdivision.

In 1987 and 1988 Ranch Roy-L conveyed real property by quit-claim deeds to the Association, which the latter accepted. On May 3, 1988, Ranch Roy-L subdivided out-lot F, which was not common property of the Subdivision, into ten lots, numbered 113 through 122 by recording a plat of this re-subdivided property with the recorder of deeds. Plaintiffs were property owners in the Subdivision at the time of this resubdivision. On December 31, 2001, Ranch Roy-L purported to add a section of real property to the Subdivision, which it designated as Golden Eagle Reserve Section Three, recording a plat thereof with the recorder of deeds that day. That same day, Ranch Roy-L conveyed that same real property to Gary and Jill Schaeffer ("the Schaeffers"), as well as attempting to convey additional property and an easement within the original boundaries of Golden Eagle Reserve, Section One, which areas had been designated as common ground of Section One in the original plat.

In the fall of 2002, plaintiffs filed a petition, subsequently amended, bringing suit against Ranch Roy-L and the Schaeffers. They sought a declaratory judgment from the trial court that Ranch Roy-L's subdivision of out-lot F into lots 113 through 122 "was unlawful, null and void ab initio and the purported plat [thereof] . . . is void and of no force or effect." Plaintiffs further sought a declaration that the addition of Golden Eagle Reserve, Section Three to the Subdivision by Ranch Roy-L "is unlawful, null and void and the purported plat [thereof] . . . is void[.]" They additionally sought a declaration that the general warranty deed from Ranch Roy-L to the Schaeffers "is unlawful, null and void to the extent that it purports to include the described property in the Golden Eagle Reserve scheme and to the extent that it purports to convey title to a portion of out-lot J to the Schaeffers, and to the extent that it purports to create a road easement on a portion of out-lot D in favor of the Schaeffers." Plaintiffs also sought an order and judgment preventing Ranch Roy-L and the Schaeffers from asserting or exercising rights reserved to the Association and owners of real property in the Subdivision, except to the extent that they are or may become owners of such real property. In their amended petition, plaintiffs and the Association asserted that subdivision of out-lot F was prohibited, and that Roy Longstreet, the developer, never conveyed or assigned to Ranch Roy-L the right to add real property to the Subdivision.

Ranch Roy-L and the Schaeffers filed answers raising a variety of affirmative defenses. Ranch Roy-L also filed a four-count counterclaim seeking declaratory judgment of various issues. Count I sought several declarations, essentially that Ranch Roy-L is the successor Developer to Roy Longstreet with all rights thereto, and that it is not prohibited from dividing property that it owns within the Subdivision, and that its subdivision of out-lot F was lawful. In Count II, Ranch Roy-L sought the enforcement of restrictions promulgated in the Declaration and in regulations adopted by the Association against Scott regarding a modification of a platted property line and the erection of a fence by Scott. Counts III and IV were ultimately dismissed.

Plaintiffs filed a motion for summary judgment on the counts in their First Amended Petition and on Count I of the Counterclaim. Defendants filed responses to this motion, which they amended by leave of court. The amended responses included affidavits of James Longstreet and of Gary Schaeffer. Plaintiffs moved to strike portions of both affidavits. Ranch Roy-L filed its own motion for summary judgment on Count I of the Counterclaim supported by another affidavit from James Longstreet, which plaintiffs moved to strike. The trial court denied the plaintiffs' motions to strike.

On December 21, 2005, the trial court granted partial summary judgment in favor of plaintiffs on their First Amended Petition. The trial court entered judgment in favor of plaintiffs ordering that the general warranty deed from Ranch Roy-L to the Schaeffers is "null and void to the extent that it purports to convey to Defendants Schaeffer (a) a 75-foot roadway and utility easement across Out-Lot D of Golden Eagle Reserve, and (b) any part of Out-Lot J of Golden Eagle Reserve because these are common areas that can only be conveyed with the consent of all lot owners."¹ It denied plaintiffs' motion for summary judgment in all other respects, having found that "numerous material issues of fact remain in dispute regarding Plaintiff's request for Summary Judgment." The trial court granted summary judgment in favor of Ranch Roy-L on Count I of its Counterclaim, having found that there were no uncontroverted issues of material fact as to Count I. The trial court declared that the undisputed facts show "that Ranch Roy-L is the successor Developer of Golden Eagle Reserve Association as defined in the By-Laws of Golden Eagle Reserve Association." It further declared that Ranch Roy-L lawfully subdivided out-lot F "in accordance with the authority vested in Ranch Roy-L, Inc. by the Declarations and according to the specifications within the Declarations." The trial court also declared that Golden Eagle Reserve Section Three was lawfully annexed and added to the Subdivision. It declared that the deed from Ranch Roy-L to the Schaeffers was valid, except as previously set forth in the trial court's order and judgment, and that the Schaeffers were entitled to all rights as owners of real property in the Subdivision. Ranch Roy-L subsequently dismissed Count II of its Counterclaim, which was the only remaining claim raised by the parties, without prejudice, leaving no issues before the trial court. Plaintiffs now appeal.

Our review of a summary judgment is essentially de novo. ITT Commercial...