Court of Appeals of Missouri, Eastern District, Third Division
April 28, 2015
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 noted its judgment had not
itemized damages to Bellinger's property or lake, because
the court had found Bellinger did not prove those damages.
This appeal follows.
we consider the merits of a case, we must first, sua
sponte, determine whether we have the authority to
decide the case. Cooling v. Mo. Dep't of Soc. Servs.,
Family Support Div., 446 S.W.3d 283, 285-86 (Mo. App.
E.D. 2014). Without a final judgment, we do not have
authority to hear this case. A final judgment is one that
disposes of all parties and issues in a case. Id.;
Rule 74.01(b). " [A] judgment that resolves fewer than
all legal issues as to any single 'claim for relief is
not final, regardless of the trial court's
designation." Buemi v. Kerckhoff, 359 S.W.3d
16, 21-22 (Mo. banc 2011). Each claim that requires proof of
different facts and the application of distinguishable law
must be addressed separately. See id. at 22 (citing Comm.
for Educ. Equality v. State, 878 S.W.2d 446, 451 (Mo.
Missouri Rule of Civil Procedure 74.01(b) allows an exception
to the final judgment requirement in cases involving several
claims for relief, stating " the court may enter a
judgment as to one or more
but fewer than all of the claims or parties only upon an
express determination that there is no just reason for
delay." Mo. R. Civ. P. 74.01(b); Blackwell v. CSF
Properties 2 LLC, 443 S.W.3d 711, 715 (Mo. App. E.D.
2014). Here, however, the trial court did not certify the
partial judgment for appeal under Rule 74.01(b).
trial court's judgment here is not a final judgment,
because it did not resolve at least one claim for relief. See
Blackwell, 443 S.W.3d at 715. In Counts I and III, Bellinger
sought injunctive relief and damages based on violations of
the restrictive covenants, and harm to the dam, lake, and
common areas, which the trial court disposed of. In Counts II
and IV, however, Bellinger also sought relief for claims of
nuisance, trespass onto his property, and conversion. The
trial court did not address these claims.
Count II, Bellinger sought a permanent injunction, abatement
of nuisances, and removal of encroachments stemming
both from violations of the restrictive covenants
and from the construction of " buildings or other
structures ... outside their property lines so as to encroach
on [Bellinger's] lands and the subdivision common
areas." At trial, Bellinger testified and introduced
photograph evidence demonstrating the Lindseys had built two
sheds, a chicken coop, and a pig enclosure on his property.
The Lindseys did not contradict this testimony. Moreover,
Bellinger testified, and Mr. Lindsey agreed, he had a large
bum pile on his property.
trial court did not make factual findings on Bellinger's
claims for trespass onto his property, conversion, or
nuisance, and the court did not grant or deny the requested
relief. We note that while the court's order denying the
motion for rehearing tangentially addressed the issue of
trespass, finding none on the lake and common grounds, it did
not address the alleged encroachments onto properties owned
by Bellinger. While we can characterize a judgment as final
where a decision on one claim implicitly disposes of the
other claim, see First Community Credit Union v.
Levison, 395 S.W.3d 571, 577 (Mo. App. E.D. 2013), that
is not the case here. Bellinger's claims for a permanent
injunction, abatement of nuisances, and removal of
encroachments arose from different facts. The claims for a
permanent injunction arose from violations of the restrictive
covenants, but the request for abatement of nuisance arose
from the Lindseys' burn pile and the request for removal
of encroachments arose from the construction of buildings and
structures on both the common grounds and on his
property. See Buemi, 359 S.W.3d at 21-22 (claims requiring
different proof of fact and law must be addressed
separately). The trial court's judgment did not dispose
of all issues raised in the pleadings and at trial.
in Count IV, Bellinger sought actual and punitive damages
from the asserted encroachments, contending the Lindseys'
actions against and onto his property constituted both
trespass and conversion of his property for their use, which
interfered with his exclusive right to the quiet enjoyment of
his property. The trial court denied damages, finding the
Lindseys did not trespass on the lake or common grounds
because they believed they had the right to use
we note that the trial court did not address Bellinger's
allegations of trespass and conversion stemming from the
Lindseys' actions of constructing buildings and
structures on his property, as opposed to on the subdivision
common grounds. With these issues unresolved, there is no
final appealable judgment from which to appeal.
appeal is dismissed for lack of a final, appealable judgment.
Odenwald, P.J., concurs.Robert G. Dowd, Jr., J., concurs.
Appellant's motion to dismiss
Respondent's brief on appeal is denied.
While we do not have authority to hear this
appeal, we note for the parties' information that "
liability for trespass exists 'whether or not [the
trespass was] done in good faith and with reasonable care, in
ignorance, or under mistake of law or fact.'"
Grossman v. St. John, 323 S.W.3d 831, 834 (Mo. App.
W.D. 2010). When trespass has occurred, the law presumes that
damages resulted. While the plaintiff must prove actual
damages, the plaintiff may still recover nominal damages even
without proof of actual damages, simply upon proof of