White v. Rpm Management, Inc.

• Decision Date: 27 March 2006
• Docket Number: No. 26948.,26948.
• Citation: 186 S.W.3d 497
• Parties: Vernon WHITE, Plaintiff-Respondent, v. RPM MANAGEMENT, INC., and Sunterra Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

186 S.W.3d 497

Vernon WHITE, Plaintiff-Respondent, v. RPM MANAGEMENT, INC., and Sunterra Corporation, Defendants-Appellants.

No. 26948.

Missouri Court of Appeals, Southern District, Division Two.

March 27, 2006.

Jonathan D. Cope, The Styron Law Firm, Ozark, for appellant.

Jeffery L. Love, Millington, Glass & Love, Springfield, for respondents.

PHILLIP R. GARRISON, Judge.

Sunterra Corporation ("Sunterra") and RPM Management, Inc., ("RPM") (collectively referred to as "Defendants") appeal from the trial court's judgment finding that Vernon White ("Plaintiff") was not a member of Fall Creek Resort and therefore was not required to pay resort maintenance fees to Defendants. For reasons specified below we dismiss the appeal.

This action surrounds certain provisions of declarations recorded with the Taney County Recorder of Deeds pertaining to membership in Fall Creek Resort. The first of these declarations, filed on February 28, 1989, by Treasure Resorts, Inc, titled "Declaration as to Covenants and Restrictions as to Use and Occupancy," ("Declaration A"), provides no legal description of the real property subject to its terms. Declaration A was later amended to subject the following property to its terms:

Lots 1-67, FALL CREEK R-V ESTATES, Phase I, a subdivision per the recorded plat thereof, Plat Book 23, page 53 of the Taney County Recorder's Office.

Lots 1-15, FALL CREEK R-V ESTATES, Phase II, a subdivision per the recorded plat thereof, Plat Book 23, page 87 of the Taney County Recorder's Office.

On March 23, 1992, Fall Creek Development, Inc., recorded its "Declaration as to Covenants and Restrictions as to Use and Occupancy" ("Declaration B"), while providing no legal description of property subject to that declaration. Declaration B set forth substantially the same provisions as Declaration A with the exception that Declaration B refers to and defines membership in "Fall Creek Resorts" rather than "Treasurer Resorts, Inc."

Plaintiff purchased his first lot in the Fall Creek R-V Estates on June 14, 2001. He later purchased three additional lots, the last of which occurred on May 8, 2003. In early 2003, RPM mailed to Plaintiff a "Fall Creek Resort 2003 Assessment Billing and Collection Policy," which set forth procedures that would be followed to collect unpaid assessments from its members. Plaintiff, under the impression that he was not a member of Fall Creek Resort, went immediately to the recorder of deed's office, and reviewed the declarations on file covering his lots.

Plaintiff then filed a petition for declaratory judgment in the circuit court of Taney County, requesting that the court enter a declaratory judgment finding that: (1) he is not a member of Fall Creek Resort solely by virtue of the declaration; (2) Defendants have no right to assess, bill and collect dues from him for Fall Creek Resort membership solely by virtue of the declaration; (3) Defendants have no right to act in any respect as Successor Declarant under the declaration; and (4) Defendants have no right to enforce any of the affirmative covenants and restrictions contained in the declaration. The case, consisting of the petition as well as Defendants' answer and counterclaim, was tried by the court and resulted in a judgment for Plaintiff.

Defendants filed a "Motion for New Trial, to Reopen Judgment, to Take Additional Testimony, to Make New Findings and Enter New Judgment Pursuant to Missouri Rule of Court 78.01." The court sustained the motion "only to the extent of setting aside the original Judgment, and requiring the submission of a new Judgment containing findings of fact and conclusions of law, and disposing of all claims, including those raised in Defendants' Counterclaim." The amended judgment states in pertinent part:

2. Neither the language of the Declarations, nor any other evidence presented, impose upon the Plaintiff an affirmative covenant that runs with the Lots requiring Plaintiff's mandatory membership in and to any resort facilities and amenities, including those presently known as Fall Creek Resort.

3. Neither the language of the Declarations, nor any other evidence presented, provide the Defendants, individually or jointly, with any authority or right to determine, assess, bill and/or collect from the Plaintiff any fees or dues for a mandatory membership in and to any resort facilities and amenities, including those presently known as Fall Creek Resort.

4. Neither the language of the Declarations, nor any other evidence presented, provide the Defendants, individually or jointly, with the right to act in any respect as successor to the original declarants under the Declarations.

5. Neither the language of the Declarations, nor any other evidence presented, confer upon the Defendants, individually or jointly, any right to administer and enforce the declarations.

6. The language of the Declarations is vague and ambiguous relative to the issues presented, and neither the language of the Declarations, nor any other evidence presented, entitle the Defendants to the relief they seek, individually or jointly, in the Defendants' Counterclaim.

Defendants now appeal.

Defendants present four points relied on in their brief. In order to assist in explaining the dismissal of Defendants' appeal, we set out each point verbatim:

I. The trial court erred in applying the law, declaring that neither the language of the Declarations, nor any other evidence presented, impose upon the Plaintiff an affirmative covenant that runs with the lots requiring Plaintiff's mandatory membership in and to any resort facilities and amenities including those presently known as Fall Creek Resort. The trial court failed to properly apply contract law to determine whether the Declarations impose an implied contract requirement that [Plaintiff] be a member of Fall Creek Resort. The trial court's conclusion of law is contrary to the express terms of each Declaration requiring mandatory membership and nullifies Article III, Section I, of each Declaration which expressly states that fee site ownership is indivisible from the membership in the resort. Furthermore, the covenant runs with the land without a declaration to that effect.

II. The trial court erred in applying the law, declaring that neither the language of the declarations, nor any other evidence presented, provide [Defendants] with any authority to assess and collect from [Plaintiff] any fees for a mandatory membership in and to any resort facilities and amenities, including...