Thomas v. Depaoli

• Decision Date: 25 August 1989
• Docket Number: No. 16035,16035
• Citation: 778 S.W.2d 745
• Parties: Jim THOMAS and Laura Thomas, et al, Plaintiffs-Respondents, v. Lino DEPAOLI and Nola B. Depaoli, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 745

778 S.W.2d 745

Jim THOMAS and Laura Thomas, et al, Plaintiffs-Respondents, v. Lino DEPAOLI and Nola B. Depaoli, Defendants-Appellants.

No. 16035.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 25, 1989 Motion for Rehearing or Transfer to Supreme Court Denied Sept. 15, 1989.

Application to Transfer Denied Nov. 14, 1989.

William A. Wear, Sr., Wear, Karchmer, Nelms & Banning, Bruce K. Kirby, James

R. Sharp, Schmidt & Kirby, Springfield, for defendants-appellants.

G. Michael Baker, Springfield, for plaintiffs-respondents.

HOLSTEIN, Chief Judge.

Defendants Lino and Nola B. Depaoli and plaintiffs Jim and Laura Thomas and John and Virginia Pratt all own residential property in Woodcliffe Subdivision in Greene County. Defendants appeal an adverse judgment ordering the removal and enjoining maintenance of a six-foot high privacy fence constructed closer than sixty feet to the front of a lot they own. The Depaolis claim the trial court's judgment erroneously failed to give strict construction to language in a restrictive covenant. We affirm.

The original owners and developers of the subdivision were Allen and Genevieve Salts. The plat of Woodcliffe Subdivision filed in 1962 contained restrictive covenants. The pertinent part of the third paragraph of restrictive covenants provides:

No dwelling, including porches or paved terraces or any other building, shall be erected on any residential lot in Woodcliffe closer to the front line of any lot than shown by the set back lines on said Plat.

The set back line shown on the plat is sixty feet from the front of the lots. The only specific mention of fences appears in the twelfth restrictive covenant. It states:

No residence or outbuildings may be erected, placed or altered on any lot until the construction plans, specifications and a plan showing the location of the structure have been approved by Salts as to quality of workmanship and materials, harmony of exterior design with existing structures, and as to location with respect to topography and finish-grade elevations. No fence or wall shall be erected, placed or altered on any lot unless similarly approved. The approval or disapproval, as required in these covenants, shall be in writing. In the event the Salts fails to approve or disapprove within thirty (30) days after the plans and specifications have been submitted to Salts, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required; and the related covenant shall be deemed to have been fully complied with.

The sixteenth paragraph of the restrictive covenants provides in part: "These restrictions may be enforced by any owner or owners of any lots in said subdivision...."

The Depaolis are owners of Lots 3 and 8 in Block "B" of Woodcliffe Subdivision. Their residence is on Lot 3 which fronts on Clayhill Street. Lot 8 is to the rear of Lot 3, however the front of Lot 8 is on Woodcliffe Street. The Depaolis have made improvements on Lot 8, including landscaping and construction of a swimming pool. Lot 8 is, in effect, an extension of their back yard. Plaintiffs' residences are on Woodcliffe Street.

In mid May of 1985, the Depaolis commenced construction of a six-foot high solid wood privacy fence. The fence was to completely enclose the defendants' back yard and would extend to within four to five feet from, and run parallel to, Woodcliffe Street. On May 31, 1985, Mr. Pratt hand-delivered a letter to the defendants' fence builder indicating Pratt's objection to the fence. Mrs. Depaoli responded by contacting Mr. Salts.

Salts testified that he had sold all interest in the subdivision in 1972. He admitted he had never given written permission to anyone to build a fence, although several fences had been erected in the neighborhood. When contacted by Mrs. Depaoli, Salts claims to have told her it was not up to him to approve the fence. However, Mrs. Depaoli said he told her he did not care if she built the fence. There was evidence of other similar fences in the subdivision, but no similar privacy fence had been constructed near or adjacent to a street.

Defendants proceeded with construction and on June 4, 1985, this action was filed. The fence was completed prior to trial. Following a trial to the court, judgment was entered which included unrequested findings of fact and conclusions of law. The court found that the restrictive covenant regarding "prior approval of a fence ... ha[d] been abandoned by non-use." However, the court found the "tight and high privacy fence ... [to be] in violation of Restrictive Covenant No. 3." The judgment ordered removal and enjoined maintenance of the fence.

Plaintiffs argue that we should ignore the findings as they do not afford any basis for review. The claim is based on a rule which has been abandoned. The former rule was that voluntary findings of fact and conclusions of law present no question for review other than as a general finding and may not be assigned as error on appeal. Conley v. Crown Coach Co., 348 Mo. 1243, 159 S.W.2d 281, 285 (1942); Wills v. Alcorn, 636 S.W.2d 142, 144 (Mo.App.1982); Prudential Property & Casualty Ins. Co. v. Cole, 586 S.W.2d 433, 435 (Mo.App.1979); Swetnam v. U.S. By-Products Corp., 510 S.W.2d 829, 830 (Mo.App.1974). However, in Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982), the Supreme Court cited the former rule, then said:

We believe that the better rule is that when no request is made of the court in a court-tried case to make specific findings of fact or conclusions of law and they are voluntarily given, such findings and conclusions do form a proper basis for assigning error and should be reviewed. Any holding to the contrary is hereby overruled.

More recent cases cite the old rule. Krausch v. Director of Revenue, 764 S.W.2d 512, 514 (Mo.App.1989); M----D---- v. C----D----, 691 S.W.2d 406, 408 (Mo.App.1985). Nevertheless, we are bound by the most recent controlling decision of the Missouri Supreme Court. Dorman v. Minnich, 336 S.W.2d 500, 509 (Mo. banc 1960).

As with other judgments in court-tried cases, a judgment involving the construction or enforcement of restrictive covenants will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Dierberg v. Wills, 700 S.W.2d 461, 465 (Mo.App.1985).

The question presented in defendants' point relied on is whether the trial court erred in determining "the fence constitutes a building within the language of ... Restrictive Covenant No. 3."

A covenant which is clear and unambiguous on its face is not open to judicial construction. Id. at 468. The initial question to be determined is whether an ambiguity exists. In its broad meaning, the word "building" refers merely to that which is constructed. Winston v. Hartford Fire Ins. Co., 317 S.W.2d 23, 27 (Mo.App.1958); 12 C.J.S. Building, p. 723 (1980). In its narrow sense, "building" means a structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like which encloses a space within its walls and is usually, but not necessarily, covered with a roof. Black's Law Dictionary 176 (5th ed. 1979); 12 C.J.S. Building, p. 724 (1980). We conclude that the use of the word "building" in the restrictive covenant under consideration is ambiguous and requires construction.

An excellent compendium of the rules for construing restrictive covenants was collected by Judge Snyder in Paddock Forest Residents Ass'n v. LaDue Serv. Corp., 613 S.W.2d 474, 477 (Mo.App.1981) (citations omitted):

Restrictive covenants are not favorites of the law and must be strictly construed. Language used in the entire instrument, not just one clause, will be considered. If the restriction is unambiguous it is improper to inquire into the surrounding circumstances for aid in its construction. Principles of construction should not be applied in a way to defeat the plain purpose of the restriction. However, if the meaning of a restriction is in doubt, the court must inquire into the intentions of the parties to the agreement and may inquire into the purpose which the parties sought to accomplish and the circumstances surrounding execution of the contract. Any reasonable doubt as to meaning will be resolved in favor of the free use of the land.

The thrust of defendants' argument is that the rule requiring strict construction of restrictive covenants takes precedence over all other rules of interpretation. That is not the law.

Notwithstanding [the rule of strict construction] greater regard is to be given to the clear intention of the parties than to the words used in attempting to express that intention; that the Agreement should be given a reasonable and natural construction, one that the parties would, as reasonable men, be likely to make, rather than a useless contract resulting in no good to either party. The cardinal rule permeating the entire field of construction is, of course, that the court ascertain the intention of the parties and then give effect to that intent, unless it conflicts with some positive rule of law.

Caniglia v. Nigro Corp., 441 S.W.2d 703, 712 (Mo.1969). Determining the "clear intent" of the covenantors necessarily requires an inquiry into the purposes sought to be accomplished by the restrictive covenant. Berkley v. Conway Partnership, 708 S.W.2d 225, 227 (Mo.App.1986).

We find no Missouri cases specifically discussing the purpose of a restriction prohibiting erection of a building within a specified "set back" distance. Cases from other states are instructive.

It appears obvious that the two main objectives sought to be accomplished by the restriction ... prohibiting the erection of any building on the 30 foot space lying between the building set back line and the front lot line, are as follows:

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