Sheets v. Thomann, s. 30337

Decision Date21 June 1960
Docket NumberNos. 30337,30338,s. 30337
PartiesMartin E. SHEETS, Plaintiff-Respondent v. Robert A. THOMANN et al., etc., Defendants, Robert A. Thomann, William Schneider and Lee H. Nolte, Trustees of Hi-Pointe Subdivision, and William Schneider, Robert A. Thomann, Mercedes Thomann and Lee H. Nolte, as individuals, Defendants-Appellants.
CourtMissouri Court of Appeals

Gentry, Bryant & Sheppard, Arnot L. Sheppard, Martin E. Sheets, Jr., St. Louis, for plaintiff-respondent.

Robert Kratky, Frank Lee, Robert A. Thomann, St. Louis, for defendants-appellants.

BRADY, Commissioner.

This action began its odyssey upon December 30, 1954, when the petition was filed. It was tried in February of 1958, Notice of Appeal was filed on February 25, 1959, and after requests for extension of time and resetting, made by counsel, were granted, the case came on for argument in March of this year. In his petition, the respondent alleged that he was the owner of certain real estate in the subdivision here involved; that the subdivision was created by a trust indenture recorded January 18, 1918, filed in the office of the Recorder of Deeds of both the City of St. Louis and St. Louis County; that the trust indenture restricts the use of many of the lots in the subdivision for various purposes depending upon the lot locations, defines the powers, authority, duties and qualifications of the trustees, provides for the life of the restrictions until January 1, 1950, and further provides for extension of any one or more of the restrictions by written instrument evidencing the consent of the owners of three-fourths of the total number of front feet embraced in the indenture, and containing in effect paragraph 21 of the original trust agreement. That paragraph reads as follows:

'All or any of the foregoing provisions and restrictions may be modified, amended, released or extinguished at any time by written instrument executed, acknowledged and recorded as required by law for instruments affecting Real Estate by the owners of three-fourths of the total number of front feet embraced in this Indenture, and for this purpose the frontage shall be determined as set out in paragraph Third of this Instrument.'

The appellants are the trustees of the subdivision, and are also lot owners therein. Attached to the petition was a document entitled, 'Deed Modifying and Extending The Hi-Pointe Subdivision Restrictions' dated October 14, 1959 which is recorded in the offices of the Recorder of Deeds of both the City of St. Louis and the County of St. Louis. By that document, certain of the purported restrictions found in the original trust indenture are purported to be extended to December 31, 1999, and other restrictions are purportedly modified, others purportedly released, and some restrictions purportedly created. The petition alleges the provisions of this document are void, and assigns as reasons therefor: that it was not executed by the owners of three-fourths of the total number of front feet embraced in the original indenture; that the document, by extinguishing or changing the restrictions as to certain lots and not as to others created 'monopoly and inequity'; that the changes as to the use of certain lots for business purposes is conditioned upon the consent of the trustees and 75% of all of the lot owners in Block E of the subdivision, but not as to any other block, and no change upon any such basis is contained in the original trust agreement; that the document attempts to delegate authority to permit the use of certain lots for business purposes to the trustees, and so violated the original trust indenture requiring any extension, modification, release or amendment to be made by the owners of three-fourths of the total number of front feet embraced in the indenture; that the changes in the restrictions are not authorized by the original trust indenture and are therefore void. It was further stated that the original agreement never intended to, and did not, create a first-class residential subdivision, and in connection therewith the plaintiff alleged that the situation immediately in and surrounding the subdivision makes any restrictions upon the use of lots therein unreasonable and inequitable; that by allowing various and sundry lots to be used for years past for business purposes regardless of the restrictions, the appellants and other residents of the subdivision have waived, lost and abandoned any claim to enforce the restrictions and as an example urges that since the defendants, from 1922, have acquiesced in the building and maintenance of a filling station on a plot dedicated in the original agreement as a park for the public use forever, they are now estopped to contend the restrictions are valid. The respondent further alleged that the extension, if allowed until 1999, was so long as to be inequitable. The petition further alleges that the extension agreement imposes an unlawful burden upon each lot in the subdivision; that he brought the action on behalf of himself and other owners of lots similarly situated and that when the existence of his action was made known to the other lot owners, a meeting was held by a 'large number' thereof and those in attendance determined that appellants' counsel should be employed on behalf of that group to conduct the defense of respondent's action; that there are 245 lots involved, with 237 owners or groups of owners, and the attempted extension involves questions of law common to all of them; that their large number makes it impractical to bring all of them in; that this action will fully and adequately determine those questions common to all of the lot owners; and that the presence of only appellants, being either owners of lots, or trustees, or both, insures fair and adequate representation of all the owners of lots who oppose respondent's position. The usual necessary allegation as to no adequate remedy at law was also made. The petition prayed that the trial court declare the new indenture null and void in toto, and enjoin the appellants from acting as trustees and from enforcing the restrictions contained in either restrictive document.

The appellants offered no evidence on the merits, for the reason stated in their brief that '* * * the Court was without jurisdiction because this was not a class action.' The trial court made certain findings of fact and conclusions of law, entered its decree in favor of the respondent, and this appeal followed. The appellants present five points upon appeal, but they are actually subdivisions of their basic contention that this was not a class action and therefore the court had no jurisdiction to determine the issues.

An equity proceeding is considered de novo upon appeal, as if it had originated here and was to be heard for the first time. Lins v. Lenhardt, 127 Mo. 271, 29 S.W. 1025, quoted in Ford v. Boyd, Mo.App., 298 S.W.2d 501. We are to reach our own conclusions as to the law and the evidence upon a review of the entire record, and have authority to enter such judgment as we find the trial court ought to have entered in conformity with the law. Sec. 510.310 RSMo 1949, V.A.M.S., Sec. 512.160 RSMo 1949, V.A.M.S.

Upon argument and to a lesser extent, as a subpoint under the general contention that no class action would lie in this case, appellants have attempted to raise a constitutional question. Such a question is not present in this case. This court is a court of general jurisdiction, and the Supreme Court has that jurisdiction specifically conferred upon it by the provisions of Article V, Sec. 3 of the Constitution of Missouri, 1945, V.A.M.S. The provision of that Section and Article grants exclusive appellate jurisdiction to the Supreme Court in all cases involving the construction of the constitution of this State or of the United States. There are several reasons why the jurisdiction of this court is properly invoked.

In the first place, the question of the presence of a point requiring construction of the Constitution (see Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94) must be properly presented and preserved. The steps necessary are well known. The question must be raised at the first available opportunity; the sections of the Constitution claimed violated must be specified or designated; the point must be presented in the motion for new trial; and it must be adequately covered in the briefs. State of Missouri v. Brookshire, Mo., 325 S.W.2d 497; City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372; State v. Becker, Mo.App., 268 S.W.2d 51; City of St. Louis v. Stenson, Mo.App., 333 S.W.2d 529. While the motion for new trial does state specifically the alleged violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, and Section 10, Article I of the Constitution of Missouri, 1945, the answer makes no such statement. Neither does it refer at any place to the Constitution by name, nor to the due process clause, nor any specific designation whereby it could be so pinpointed as to say that the additional citation of Article and Section would be superfluous. Compare State v. Becker, supra, and see City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475. Of course, the reference to the Fifth Amendment of the Constitution of the United States could be of no assistance to the appellants, even if it had been set out at the earliest opportunity. That amendment applies only to offenses against, and trials under, the laws of the United States. State of Missouri v. Brookshire, supra. It is true that the requirement of earliest available opportunity must depend upon the facts of each case, but there is nothing here to show any reason why the motion for new trial was the earliest opportunity available to appellant to raise the point. The point of a violation of constitutional rights, if present in this case at all, was present from the inception of the action since the question...

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