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Wagner v. Nolan

Court of Appeals of Missouri, Western District, Second Division

March 13, 2018

GEORGE R WAGNER AND LILA CECILIA WAGNER, Appellant-Respondents,
v.
BARRY L NOLAN, Respondent-Appellant.

         Appeal from the Circuit Court of Johnson County, Missouri The Honorable William B Collins, Judge

          Before James Edward Welsh, Presiding Judge, Alok Ahuja, Judge, Anthony Rex Gabbert, Judge

          OPINION

          Anthony Rex Gabbert, Judge

         Appellant-Respondents George R. and Lila Cecilia Wagner ("Wagners") appeal the trial court's denial of reimbursement for costs related to enforcement of a subdivision's restrictive covenants. They raise two points on appeal.[1] First, they argue the covenants require Respondent-Appellant Barry Nolan ("Nolan") to reimburse them for gravel costs related to road maintenance. Second, they argue the covenants require Nolan to reimburse them for attorney fees arising from litigation. Nolan appeals the trial court's grant of injunctive relief enjoining Nolan from conducting a tow truck business from his residence. He argues the trial court erred, because the Wagners waived the right to enforce the covenants' prohibition against commercial development. We affirm.

         Background

         The Wagners and Nolan reside in a Kingsville, Missouri subdivision created for single-family residential development. Attached to the subdivision are restrictive covenants enforcing, inter alia, the subdivision's residential schema and road maintenance agreement. The Wagners testify they relied on the covenants when purchasing their lot in 2000. Nolan purchased his lot in 2003.

         Despite the covenants' prohibition against commercial use of the property, Nolan operated a tow truck service from his Kingsville home. At first, the Wagners were unaware of Nolan's occupation, but they discovered within a few months of Nolan's arrival he owned a tow service. Beginning two or three years ago, noise and traffic from the business increased to a level dramatically different from when Nolan first moved to the subdivision. The Wagners complain multiple vehicles would be parked in Nolan's driveway or at the shop, and round-the-clock noise from the business became a nuisance.

         The covenants also require the roads to be proportionately maintained by the subdivision's seventeen homeowners. In 2015, gravel was delivered for road maintenance four times. Each homeowner's share came to $148.04. While the other homeowners each paid for their allotted share, the Wagners also paid Nolan's share. In May 2015, Ms. Wagner delivered to Nolan a letter seeking reimbursement for the $148.04. Nolan responded he would not pay for the gravel because he did not order it. He had previously stated any gravel ordered for him required his prior consent.

         On March 2, 2016, the Wagners filed their petitions for injunctive relief and reimbursement of expenses, alleging Nolan's commercial use of his property and failure to pay for the gravel violated the terms of the restrictive covenants. On September 30, 2016, the trial court found Nolan had violated the covenants by operating his tow service from his property and by maintaining unlicensed vehicles on the property for more than ten days. While Nolan was enjoined from continuing those activities, the court held the covenants do not provide for the recovery of the gravel expenses or attorney fees arising from litigation. This appeal follows.

         Standard of Review

         We review the trial court's judgment under the standard established by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Blue Ridge Bank and Trust Co. v. Trosen, 309 S.W.3d 812, 815 (Mo. App. 2010):

Accordingly, the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court's judgment, and we disregard all contrary evidence and inferences.

(Citations and quotes omitted.) The same standard applies to court-tried equity actions. Cook v. McElwain, 432 S.W.3d 286, 289 (Mo. App. 2014).

         The ...


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