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Evers v. Choate

Court of Appeals of Missouri, Eastern District, Second Division

November 19, 2019

GREGORY J. EVERS, AS TRUSTEE OF THE EVERS TRUST DATED 5/19/2016, ET AL., Respondents,
v.
CHRISTOPHER CHOATE AND JANET CHOATE, Appellants.

          Appeal from the Circuit Court of Jefferson County Honorable Mark T. Stoll

          KURT S. ODENWALD, JUDGE

         Introduction

         Christopher and Janet Choate (the "Choates") appeal from the trial court's judgment establishing a road maintenance agreement in a residential subdivision. The Choates raise two points on appeal. First, the Choates claim that the trial court erred in appointing property owners abutting the road as trustees of the newly formed association for road maintenance (the "Rim Road Association"), because Section 228.369.3[1] only provides for the appointment of disinterested commissioners. The Choates further allege that the trial court erred by imposing an annual assessment of four hundred dollars on the property owners because the amount was against the weight of the evidence or unsupported by substantial evidence. Because the trial court did not appoint commissioners in the course of establishing the road maintenance plan, Section 228.369.3's requirement that the commissioners be disinterested does not apply. Because the parties presented evidence at trial regarding the road's repair and maintenance needs as well as the past and present abilities of the property owners to pay, the trial court's annual assessment of four hundred dollars was supported by the evidence. Accordingly, we affirm the judgment of the trial court.

         Factual and Procedural History

         This action concerns a private road ("Rim Road") located in a subdivision in Jefferson County. In November 2017, Gregory J. Evers ("Evers"), on behalf of the Gregory J. Evers Trust, and other property owners (collectively, "Respondents") petitioned to establish a road maintenance agreement for the subdivision to address the poor condition of Rim Road and the impact on ingress and egress. During the pendency of the case, the Choates purchased property abutting Rim Road, while Evers has since sold the trust property. Evers is one often respondents; the nineteen parties in the underlying case own real property in the subdivision bordering Rim Road. Prior to trial, Respondents submitted a proposed plan of maintenance, which called for the formation of the Rim Road Association and appointment of initial trustees.

         The case proceeded to trial on September 18, 2018. Five property owners, including Evers, Patricia Moore ("Moore"), and Christopher Choate, testified about the poor condition of Rim Road. None of the parties disputed that Rim Road was in a state of disrepair or that a road maintenance plan was needed. Evers and Moore testified regarding the impact of Rim Road's poor condition on the subdivision as well as concerns about access and safety by emergency and postal services. Moore testified that during the 1970s and 1980s, owners paid an annual assessment of approximately $180.00 to maintain Rim Road. Evers testified about voluntary efforts to establish a road maintenance agreement that never materialized. Various bids to repair the road were submitted into evidence, and Evers further testified that estimates ranged between sixty-five thousand and seventy-five thousand dollars. Another property owner testified regarding the inability of some property owners to pay a large single special assessment, and suggested the payment of smaller amounts to improve the road. Christopher Choate testified about his expertise in road construction and maintenance, some work he did on the road, and the need for fair and knowledgeable management of any association formed for purposes of maintaining Rim Road.

         The trial court entered judgment granting Evers's petition to establish a road maintenance plan for Rim Road on December 4, 2018. The trial court's judgment stated that all property owners were responsible for the maintenance and upkeep of Rim Road, including snow and ice removal, sealing, repair, repaving, and clearing debris. The trial court ordered all property owners to pay an annual assessment of four hundred dollars. The trial court then directed the parties to form the Rim Road Association and appointed three property owners to initially serve as president, secretary, and treasurer, respectively, to be followed thereafter by an election process. Among the initial trustee appointments, the trial court appointed Moore as president and Christopher Choate as treasurer. The Choates now appeal.

         Points on Appeal

         The Choates raise two points on appeal. In Point One, the Choates contend that the trial court erred in appointing the abutting property owners as trustees of the Rim Road Association because they are not disinterested commissioners as required under Section 228.369. In Point Two, the Choates argue that the trial court erred in requiring all property owners to pay an annual assessment of four hundred dollars because the judgment was against the weight of the evidence or unsupported by substantial evidence in that no evidence was presented to support the assessed amount.

         Standard of Review

         We review a court-tried case for whether the judgment is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Stieren v. Grothaus. 559 S.W.3d 70, 72 (Mo. App. E.D. 2018) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court's judgment on findings of fact, even where the evidence could support a different conclusion. Id. We further "defer to the trial court's ability to view the witnesses and determine credibility, keeping in mind that the trial court is free to believe or disbelieve all, part, or none of the testimony of any witness." Anderson v. Mantel 171 S.W.3d 774, 777 (Mo. App. S.D. 2005) (internal citation omitted). However, we review de novo issues of statutory interpretation, which present questions of law. Short v. S. Union Co., 372 S.W.3d 520, 532 (Mo. App. W.D. 2012).

         Discussion

         I.Point One-Appointment of Trustees to the Rim Road ...


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