Court of Appeals of Missouri, Western District, Second Division
GEORGE R WAGNER AND LILA CECILIA WAGNER, Appellant-Respondents,
BARRY L NOLAN, Respondent-Appellant.
from the Circuit Court of Johnson County, Missouri The
Honorable William B Collins, Judge
James Edward Welsh, Presiding Judge, Alok Ahuja, Judge,
Anthony Rex Gabbert, Judge
Anthony Rex Gabbert, Judge
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. 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.
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
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.
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.
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
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).