Wallace v. Grasso, ED 80965.

• Decision Date: 28 October 2003
• Docket Number: No. ED 80965.,ED 80965.
• Citation: 119 S.W.3d 567
• Parties: Charlie WALLACE and Karla Wallace, Respondents/Cross-Appellants, v. Michael F. GRASSO and Cynthia Grasso, et al., Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

119 S.W.3d 567

Charlie WALLACE and Karla Wallace, Respondents/Cross-Appellants, v. Michael F. GRASSO and Cynthia Grasso, et al., Appellants/Cross-Respondents.

No. ED 80965.

Missouri Court of Appeals, Eastern District, Division One.

October 28, 2003.

Joseph Burcke, Clayton, MO, for appellant.

David R. Bohm, Danna McKitrick, P.C., St. Louis, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Cynthia and Michael Grasso (collectively referred to as the Grassos) appeal from the trial court's judgment ordering the Grassos to remove a fence which ran in part along the property line of the Grassos and of Charlie and Karla Wallace (collectively referred to as the Wallaces). On appeal, the Grassos argue the trial court erred (1) in finding the Grassos's fence violated Sections 1003.105(3) and (4) of the ordinances of the City of Chesterfield, (2) in finding as a basis for its order enjoining the Grassos's fence the fence's aesthetic appearance, (3) in determining Paragraph 3 of the subdivision indentures provision was not waived by the prior conduct of the subdivision owners, (4) in finding the Grassos's contention that the Wallaces' themselves had unclean hands by building their home without adhering to Paragraph 3 of the indentures unpersuasive, and (5) in declaring that pursuant to Paragraph 16 of the indentures in all subdivision matters, excluding amendment of the subdivision indentures, the number of votes eligible to be cast was to be based on the number of lot owners and not the number of lots. On cross-appeal, the Wallaces argue the trial court erred in holding that it could not award punitive damages on their nuisance claim because no actual damages were found and because nominal damages were neither pleaded nor submitted.¹ We affirm in part and reverse and remand in part.

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. The Wallaces and the Grassos are abutting property owners in the Wildhorse Creek Heights Subdivision located in the City of Chesterfield, St. Louis County, Missouri. The Grassos own approximately nine acres of land on which they have constructed a single-family residence situated approximately in the middle of the parcel of land. In early 1997, the Wallaces purchased six acres of undeveloped land to the east of the Grasso property, sharing a border that runs the length of the eastern portion of the Grasso property and the western portion of the Wallace property. West of the property line lies a natural tree line that runs the length of the common border, leaving a portion of cleared Grasso property between the property line and the trees. This tree line obscures the Grassos' view of the fence in question. The Grasso property had been developed prior to the Wallaces purchasing their parcel. In 1998, the Wallaces erected a single-family residential dwelling on their parcel of property. The Wallace property is located in a cul-de-sac. At the time the Wallaces purchased their property, there was no fencing around the Grasso property.

Prior to the Wallaces' occupying their residence, the Grassos owned two large German Shepherd dogs. On multiple occasions, as Karla Wallace, her children, or guests of the Wallaces walked or ran on the road that leads to their property and which passes in front of the Grasso property, the dogs would run out in the road and frighten them.² As a result of these incidents, the Wallaces asked Mr. Grasso to restrain his dogs, which he initially refused to do indicating the dogs were harmless. After further complaints, Michael Grasso informed Karla Wallace he was going to erect a fence. He stated he would erect a presentable fence along the front of his home and a "crappy" looking fence on the property line the Grassos shared with the Wallaces. The Wallaces warned the Grassos that the fence must be built in compliance with the relevant terms of the subdivision indentures and municipal ordinances.

In September 1999, Michael Grasso erected a fence along the perimeter of his property that included the property line shared with the Wallaces. He employed four different construction materials for the fence: a black aluminum material with the appearance of wrought iron along the front of his property; wood stockade along the first 100 feet of the property line common with the Wallaces; galvanized silver chain link fence for the rest of the common line; and black chain link fencing to join the front fence to the side fence and to serve as the western side of the Grasso property. Appellant Grasso never submitted any construction plans for his fence to any trustee or resident of the subdivision to ensure the fence was of good quality and in harmony with the neighborhood, as prescribed by the indentures. The Wallaces testified that despite the erection of the fence, the Grassos' dogs continued to menace and frighten them and continued to exceed the Grassos' property lines.

This case was tried on the Wallaces' second amended petition. The petition was in two counts. The first count sought injunctive relief to remedy breach by the Grassos of the subdivision indentures, maintenance of a private nuisance, removal of Michael Grasso from his purported position as subdivision trustee, and declaratory relief requesting the identity of the trustee as well as clarification of the voting power of each property owner in the subdivision according to the indentures.³ The second count sought damages for nuisance and breach of fiduciary duty. The Grassos' sole affirmative defense alleged that the Wallaces should be denied injunctive relief because they had unclean hands as a result of their failure to submit plans to, or seek approval from, the subdivision trustee for construction of their home.

The trial court empanelled an advisory jury to hear the Wallaces' damage claims, with the trial court reserving to itself all equitable issues. The jury found Michael Grasso liable for nuisance arising from construction and maintenance of the fence and awarded the Wallaces 135,000 dollars in actual damages and zero dollars in punitive damages. The jury also found Michael Grasso liable for nuisance arising from his allowing his dogs to roam loose through the neighborhood and awarded the Wallaces zero dollars in actual damages and 75,000 dollars in punitive damages. The trial court issued its findings of fact and conclusions of law in which it stated that the jury was advisory, so that it had no duty to enter judgment on the jury verdict. The trial court granted injunctive relief for violation of the subdivision indentures and the City of Chesterfield zoning ordinance, denied all monetary relief and construed the provisions of the indentures to require election of three trustees, with each property owner to have one vote (regardless of the number of lots owned by said person). This appeal follows.

A court-tried case is reviewed under the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). We must affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. at 32. Because of the trial court's superior ability to determine the credibility of witnesses, we must defer to the trial court's findings of fact. Moore v. Weeks, 85 S.W.3d 709, 716 (Mo.App. W.D.2002). We view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's judgment, while disregarding all contrary evidence and inferences. Id.

The Wild Horse Creek Heights subdivision is within the "NU" district of the City of Chesterfield. The Chesterfield ordinance applicable to the erection of fences is found in Section 1003.105(3)(a) and (b) and (4)(b) of the City of Chesterfield Zoning Code, which states in pertinent part:

(3) Minimum yard requirements; general

(a) Front yard. No structure shall be allowed within fifty (50) feet of any roadway right-of way-line.

(b) Side and rear yard. No structure shall be allowed within twenty (20) feet of any property line other than a roadway right-of-way line.

(4) Specific yard requirements and exceptions.

(b) Boundary walls or fences, six (6) feet or less in height, are allowed within the minimum yard requirement.

The subdivision indentures for Wild Horse Creek Heights Subdivision state, in pertinent part, as follows:

Paragraph 1(c). "Improvements" shall include, but not be limited to all structures, signs, driveways, electrical taps [sic] sanitation facilities, fences, walls, swimming pools, tool sheds, garages, barns, landscaping, fuel tanks, dams, and radio and television aerials and antennae;

Paragraph 3. ARCHITECTURAL CONTROL. No Improvement shall be erected, placed or altered on any Lot until one copy of the construction plans and specifications, showing the location of the Improvements, and landscape design plans showing trees retained and trees to be removed within required front [sic] side and rear yards, have been submitted to the Trustee and approved by it in writing as to the quality of workmanship and materials, harmony of external design and landscaping with existing structures and landscaping, and location of topography and finish grade elevations. Trustee shall retain the copy of all such plans. Trustee shall review any such plans and specifications within forty-five (45) days following receipt thereof in proper form. If the Trustee fails to reject such plans in writing within such period, the plans shall be deemed approved. All approved plans, specifications, and plot plans must be strictly followed and no Improvement may be changed or altered without written approval of Trustee.

Paragraph 4(b). No fence shall be erected or altered on any lot unless approved by Trustee as provided in section 3 hereof. All fences within One Hundred (100) feet or less of any road shall be of wood or ornamental iron and of uniform height, unless Trustee, giving due regard to...