Court of Appeals of Missouri, Eastern District, Third Division
PATRICK W. BELLINGER, Appellant,
KEITH LINDSEY and OLIVIA LINDSEY, Respondents
from the Circuit Court of Lincoln County. 11L6-AC00511-01.
Honorable Christine K. Mennemeyer.
Elliot, Troy, MO, for appellant.
A. Lindsey, Moscow Mills, MO, for respondents.
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
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).
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.
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.
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.
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 ...