Weber v. Les Petite Academies, Inc.

Decision Date09 January 1973
Docket NumberNo. 34602,34602
Citation490 S.W.2d 278
PartiesMr. and Mrs. Richard A. WEBER, Plaintiffs-Appellants, v. LES PETITE ACADEMIES, INC., and National Homes Construction Corporation, Defendants-Respondents. . Louis District, Division One
CourtMissouri Court of Appeals

Donald S. Hilleary, Clayton, for plaintiffs-appellants.

Ziercher, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, Schoenbeck & LaTourette, St. Louis, for defendants-respondents.

McMILLIAN, Judge.

This is an appeal by plaintiffs from a judgment of the Circuit Court of St. Louis County sustaining defendants' separate motions for summary judgment. The plaintiffs brought suit seeking an injunction to compel defendants to remove a certain structure from a parcel of land owned by defendant, Les Petite Academics, Inc., and to enjoin defendants from using said parcel of land as a day nursery and in the alternative seeking an injunction and damages for the breach of either a negative easement or a reciprocal servitude.

The plaintiffs are the owners of real estate and improvements known as Lot 23 located in Marietta Plat 3, a fully developed residential subdivision near the intersection of New Halls Ferry Road and Highway 140 in St. Louis County. Defendant, Les Petite Academies, Inc., is the onwer of a plat immediately adjacent to Lot 23 designated as Lot A. Defendant Les Petite Academies, Inc., through defendant, National Homes Construction Corporation was, at the time the original suit was filed, erecting a structure on Lot A to be used as a day nursery.

Subsequently plaintiffs filed an amended petition in two counts: Count I sought an injunction ordering the removal of the structure on Lot A and further an injunction prohibiting the defendant from using Lot A as a day nursery in violation of the restrictive covenants on Lot A. Count II alleged that plaintiffs were entitled to damages and an injunction ordering the removal of the structure on Lot A and were further entitled to an injunction prohibiting the defendants from using Lot A as a day nursery since such use was a breach of the negative easement or implied reciprocal servitude plaintiffs has acquired in defendants land, Lot A.

Both defendants filed separate answers to plaintiff's amended petition and re-filed their motions for summary judgment. On January 27, 1972, the court sustained defendants' motions for summary judgment.

On February 10, 1972, the plaintiffs filed a motion for new trial and to amend their petition. Both requests were denied.

As this court pointed out in Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, which cited Cooper v. Finke, Mo., 376 S.W.2d 225, 229, 'a summary judgment, as its name indicates, is an extreme and drastic remedy and great care should be exercised in utilizing the procedure. It may be rendered when, but only when, the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the moving party is entitled to a judgment as a matter of law. Civil Rule 74.04(c), V.A.M.R.; Swink v. Swink, Mo., 367 S.W.2d 575; Brown v. Prudential Insurance Co. of America, Mo.App., 375 S.W.2d 623.'

Plaintiffs contend that the trial court erred in granting defendants' motions for summary judgment since the defendants failed to offer unassailable evidence that there were no genuine issues of fact in dispute as alleged in Counts I and II of plaintiffs' petition. To be sure, the burden of proof rests upon the movants, in this instance upon defendants, to show by 'unassailable proof' (Civil Rule 74.04(h), V.A.M.R.) that there are no genuine issues of fact, Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251. In this instance, defendants properly filed separate motions for summary judgment pursuant to Civil Rule 74.04 along with supporting affidavits and exhibits.

Our duty on appeal is to review the record in the light most favorable to the party against whom the motion was filed and sustained and to determine if a genuine issue of fact does exist. Wood v. James B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 253.

'* * * 'A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts. '' Maddock v. Lewis, Mo., 386 S.W.2d 406, 409, cert. den. 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Elliott v. Harris, Mo., 423 S.W.2d 831, 835; cited Pagan, supra.

Plaintiffs assert that the record, when favorably considered conclusively shows that there are at least two genuine issues of fact in dispute. First, plaintiffs argue that Count I of their petition presents a genuine issue of material fact as to whether or not Lot A is restricted to residential dwelling homes by reason of the written restrictions on Marietta Plat 3. Plaintiffs rely on the following restrictions which appear on the plat to support their contention that the subdivision is restricted to residential dwelling homes:

'All dwellings to consist of a minimum of 80% masonry exterior facing.

'Any addition to present home must be attached to same--not a separate dwelling.

'Each dwelling must have a minimum living area of 1,150 square feet, plus a two (2) car attached garage.

'Only chain link type fencing may be used. Fencing may be installed only in the back yard of each lot, not on sides or front of dwelling.'

Plaintiff argues that a close reading of the restrictions, particularly the last paragraph, clearly indicates that the only structures permitted on those lots are residential dwellings.

The determinative issue on the plaintiffs' allegation of error as to Count I is whether a question of law or fact is raised by the plaintiffs' contention that the restrictions on the plat prohibit the construction of a day nursery upon Lot A. Clearly, there is no dispute of fact as to the actual wording of the restrictions. Both parties agree that the restrictions stated above appear on the plat. The only dispute that exists is whether or not those restrictions prohibit the construction of a day nursery on Lot A. This dispute does not involve any question of fact. The dispute involves only a construction of the restrictions on the plat as to whether or not a nursery can be built on Lot A.

The dispute was properly resolved by a judicial determination that the pleadings and deposition together with the affidavits filed failed to show a genuine issue as to any material fact and that the prevailing party was entitled to a judgment as a matter of law. Civil Rule 74.04, V.A.M.R.; Cooper v. Finke, supra; Brown v. Prudential Ins. Co. of America, supra; Pallme v. Rott, Mo.App., 440 S.W.2d 184. Therefore, we affirm the trial court's ruling of a summary judgment on Count I of plaintiffs' petition.

Next, plaintiffs allege that the trial court erred in granting defendants' motion for summary judgment for the reason that the defendants failed to show that a genuine issue of material fact did not exist under Count II of plaintiffs' amended petition. Count II alleges that Lot A was part of the subdivision Marietta Plat 3 and was developed by a common grantor under a common plan or scheme and as a result plaintiffs acquired an equitable right in the form of a reciprocal negative easement or implied reciprocal servitude which prevented the use of Lot A for any purpose other than a single family dwelling.

Plaintiffs' Count II is based on a legal theory advanced by the plaintiff in Campbell v. Stout, Mo.App., 408 S.W. 585.

In the Campbell case plaintiff argued that:

'* * * when a common grantor develops a tract of land for sale pursuant to a general plan or scheme of improvement, and sells a substantial number of lots subject to restrictions of benefit to the land retained, then the grantees acquire an equitable right, variously called a reciprocal negative easement or implied reciprocal servitude, to enforce a similar restriction against the purchaser of the unrestricted lots who has actual or constructive notice of the restrictions 1

* * * the intent to make such restrictions mutual and binding may be inferred from...

To continue reading

Request your trial
12 cases
  • Otto v. Farmers Ins. Co.
    • United States
    • Missouri Court of Appeals
    • 8 Agosto 1977
    ...B. Nutter & Co., 416 S.W.2d 635, 636 (Mo.1967); O'Leary v. McCarty, 492 S.W.2d 124, 129 (Mo.App.1973); and Weber v. Les Petite Academies, Inc., 490 S.W.2d 278, 280 (Mo.App.1973). The various pleadings, depositions, admissions and affidavits on file form a reservoir of facts which must be ex......
  • O'Leary v. McCarty
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 1973
    ...Ins. Co. of America, Mo.App., 375 S.W.2d 623. . . .' Our duty on appeal, as stated by this court in the recent case of Weber v. Les Petitie Academies, Inc., 490 S.W.2d 278 handed down January 9, 1973, 'is to review the record in the light most favorable to the party against whom the motion ......
  • Seliga Shoe Stores, Inc. v. City of Maplewood
    • United States
    • Missouri Court of Appeals
    • 4 Octubre 1977
    ...Cameron Mut. Ins. Co., 526 S.W.2d 340 (Mo.App.1975). Summary judgment is an extreme and drastic remedy, e. g., Weber v. Les Petite Academies, Inc., 490 S.W.2d 278 (Mo.App.1973) and should be granted only when the pleadings, depositions and admissions on file, together with affidavits, if an......
  • Phegley v. Porter-DeWitt Const. Co., Inc., PORTER-D
    • United States
    • Missouri Court of Appeals
    • 25 Octubre 1973
    ...35 A.L.R.3d 834; E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., 417 S.W.2d 936, 938 (Mo.1967); Weber v. Les Petite Academies, Inc., 490 S.W.2d 278, 279(2) (Mo.App.1973)); "(a) genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest do......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT