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Bellinger v. Lindsey

Court of Appeals of Missouri, Eastern District, Third Division

April 28, 2015

PATRICK W. BELLINGER, Appellant,
v.
KEITH LINDSEY and OLIVIA LINDSEY, Respondents

          Appeal from the Circuit Court of Lincoln County. 11L6-AC00511-01. Honorable Christine K. Mennemeyer.

         Lee R. Elliot, Troy, MO, for appellant.

         Keith A. Lindsey, Moscow Mills, MO, for respondents.

          OPINION

Page 346

          Gary M. Gaertner, Jr., Judge.

          Patrick W. Bellinger (Bellinger) appeals from the trial court's judgment denying his petition for declaratory judgment, permanent injunction, abatement of nuisances, removal of encroachments, and damages against Keith and Olivia Lindsey (the Lindseys). He asserts the trial court erred in ruling the restrictive covenants were invalid and in finding no trespass occurred. Because there is no final, appealable judgment, Bellinger's appeal is dismissed.[1]

         Background

         Bellinger was the majority owner of the lots within the Highland Trails subdivision, located in Lincoln County, Missouri. In 2011, Bellinger filed a petition for declaratory judgment and permanent injunction against the Lindseys, the owners of Lot 12 of the Highland Trails subdivision, alleging numerous violations of the subdivision's covenants, conditions, and restrictions (restrictive covenants). The Lindseys denied all of the allegations and filed a counterclaim for quantum meruit, seeking $80,082.00 for the value of performing maintenance work on Bellinger's property, Bellinger then filed an amended four-count petition raising multiple claims, some addressing violations of the restrictive covenants and some addressing other actions by the Lindseys. Specifically, he sought an order declaring that the Lindseys had violated the restrictive covenants (Count I); permanent injunction, abatement of nuisances, and removal of encroachments stemming both from violations of the restrictive covenants and from the construction of buildings and structures on Bellinger's land and the subdivision's common grounds (Count II); actual and punitive damages for damage to the dam, lake, and common grounds (Count III); and actual and punitive damages for trespass and conversion from the Lindseys' construction of buildings and structures on Bellinger's property and the subdivision's common grounds (Count IV).

         At a bench trial on the parties' claims, Bellinger introduced photographs showing multiple alleged violations of the restrictive covenants by the Lindseys. He testified the Lindseys had caused " well over" $150,000 in damages to the lake and dam. For his nuisance claim, he asserted the Lindseys had a large pile of debris, including asbestos and plastic, in a burn pile on their property, which was unattractive and would cause pollution. For his trespass, conversion, and encroachment claims, he testified he had hired a surveyor to come to the property, and the survey showed the Lindseys had placed or built a trailer, a four-wheel ATV off-road vehicle, a motor boat, a fuel tank, " metal stuff," two outbuildings, a chicken coop, and a pig enclosure on Bellinger's property.

Page 347

          Bellinger asserted these ongoing violations, nuisances, and encroachments diminished the value of his surrounding properties in the subdivision, and had hindered his ability to move forward with developing the rest of the subdivision. He requested the court order the Lindseys to remove the encroaching buildings, abate the nuisances, and stop the existing violations of the restrictive covenants; and he requested actual and punitive damages.

         Keith Lindsey (Mr. Lindsey) conceded various actions that constituted violations of the restrictive covenants and conceded he had a burn pile, but denied damaging the lake or dam. To rebut the charges of trespass and conversion, the Lindseys' counsel showed Mr. Lindsey Plaintiff's Exhibit 12, a series of photographs purporting to show trespasses onto Bellinger's property. Mr. Lindsey identified the pictures as of two of his sheds, his lawn mower, his son's motor boat, his son's barbeque pit, and his son's camper. He then testified the motor boat, barbeque pit, and camper had been removed. Olivia Lindsey testified the two sheds were affixed to the land, in that they were bolted to cinder blocks buried in the ground. The Lindseys did not deny that the sheds were on Bellinger's property. The trial court denied Bellinger's petition, concluding the restrictive covenants were invalid and unenforceable because the document neither included an accurate legal description for the subdivision nor attached a plat describing the property, and thus a subsequent purchaser could not reference them. Without enforceable restrictive covenants, the trial court denied all of Bellinger's claimed damages. As well, the trial court denied the Lindseys' counterclaim for quantum meruit.

         Bellinger filed a motion for rehearing, arguing the trial court's judgment did not dispose of his claims for trespass, conversion, damage to the lake, and nuisance, which were independent from his claims regarding the restrictive covenants. The trial court denied Bellinger's motion. The court stated it had not addressed Bellinger's claims of trespass in the judgment because Bellinger had not proved trespass at trial, in that the restrictive covenants, while invalid, and the plat gave the Lindseys the belief they could use the lake and common areas. Thus, the Lindseys " would not be trespassing by doing the actions described at trial." Last, the court ...


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