Barker v. City of Springfield

403 S.W.3d 600, 2011 WL 4795627, 2011 Mo. App. LEXIS 1333
CourtMissouri Court of Appeals
DecidedOctober 11, 2011
DocketNo. SD 31004
StatusPublished

This text of 403 S.W.3d 600 (Barker v. City of Springfield) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barker v. City of Springfield, 403 S.W.3d 600, 2011 WL 4795627, 2011 Mo. App. LEXIS 1333 (Mo. Ct. App. 2011).

Opinions

GARY W. LYNCH, Judge.

The City of Springfield (“City”) appeals a declaratory judgment in favor of Harvey Duane Barker, as Trustee under the Joint Revocable Trust Agreement of Harvey Duane Barker and Rose Marie Barker, dated December 15, 1993 (the “Barker Trust”); Paul G. Nahon, Sr., and Sharon Nahon, husband and wife; Farris Nahon, Jr., and Nancy Nahon, husband and wife; and Paul G. Nahon, as Trustee under Paul G. Nahon Revocable Living Trust Agreement, dated December 4, 1969 (the “Nahon Trust”) (collectively “Property Owners”). The judgment declared that because Property Owners’ two adjoining tracts of land were separate tracts at the time City first enacted its subdivision regulations, the regulations were not applicable to them. City contends that the trial court erred because two of the legal grounds expressed in the judgment — testamentary division and voluntary partition — were not supported by substantial evidence.1 Finding that the third ground mentioned in the judgment — subdivision by definition — is supported by substantial evidence, we affirm.

Factual and Procedural Background

“When reviewing findings of fact in a declaratory judgment action, we view the evidence and any concomitant reasonable inferences in the light most favorable to the prevailing party, disregarding evidence presented by the losing party unless it is favorable to the prevailing party” Transamerica Ins. Co. v. Pennsylvania Nat’l Ins. Cos., 908 S.W.2d 173, 175 (Mo.App. 1995). In that light, the following facts were adduced.

Lewis and Mary Luster, as husband and wife, owned a parcel of real estate at the northeast corner of St. Louis Street and Kickapoo Street. On May 14, 1948, Lewis and Mary Luster executed their individual Last Wills and Testaments, both of which included the following provision:’

I own or have an interest in several pieces of real estate. In most cases, my [spouse] and I each own an undivided one-half interest and it is planned eventually by our respective wills when both of us are deceased, that the same trustee or trustees will hold both trust estates. The net income from rented property at this time is very satisfactory and the income is now better than from any other available investment and I suggest that the trustee or trustees retain these properties in the estate as long as the income therefrom produces a fair return. I do not make any positive restrictions against the sale of real estate production income because conditions may arise where it will become [602]*602advisable to dispose of at least one or more of the properties.

Lewis Luster died sometime between the execution of his Last Will and Testament and November 1948. On November 16, 1948, Mary Luster, as Executrix of Lewis Luster’s estate, filed an “Inventory and Appraisement for the Estate of Lewis.” In Exhibit A of that document, Mary Luster included the following legal description:

An undivided one-half interest in property described as beginning at the Northeast corner of the intersection of St. Louis Street and Kiekapoo Avenue, formerly Willard Street, running thence East along the North line of St. Louis Street, 315.5 feet more or less to the West Line of the right of way of the Chadwick Branch of the St. Louis and San Francisco Railway Company, thence in a Northwesterly direction along the West line of said right of way to the point where the West line of said right of way of said railway Company intersects with the East line of said Kiekapoo Avenue thence South along the East line of Kiekapoo Avenue to the point of beginning, including all the improvements on said property belonging to the grantors, said one-half interest being appraised at $9,000.00.

On November 17, 1948, Mary Luster filed an “Affidavit to Demand Against the Estate,” which stated,

Claimant states that the above estate is indebted to her on account of rents collected on properties owned by deceased and this claimant, each owning an undivided one-half interest, in the amount of $1,664.70, as shown by the attached statement. Claimant states that it has been the custom in the past for the deceased to collect the rent on the said properties and pay for all repairs and taxes on the property and also pay the income taxes of the claimant and at the end of the year make an accounting with her and pay her the balance due her; that this claim represents the net amount due her for the year 1948 up to the date of the death of decedent. Therefore claimant prays the court to allow her said claim against the above estate in the amount of $1,664.70.

Mary Luster also listed rents received from “1301 St. Louis Street” and “1313 St. Louis Street[,]” both of which were encompassed in the above legal description. Annual settlements filed for the years 1948 through 1951 continued to list rents received from each of these addresses. The “Final Settlement” for Lewis Luster’s estate was entered by the Probate Division of the Circuit Court of Greene County in 1951.

During the pendency of Lewis Luster’s estate in probate, Herman Lumber Company paid rent to Mary Luster for 1301 St. Louis Street, and Roy Scrivner paid rent for 1313 St. Louis Street. The former ran a lumberyard while the latter operated the Fisher Hi-Boy Drive In.

On March 26, 1956, City enacted by ordinance its subdivision regulations, which went into effect 20 days later. Section 6 of the regulations, entitled “Application of Regulations,” provided, “No person shall subdivide a tract of land which is located within the City except in conformity with the provisions of this ordinance.” Subsection (1) defined “subdivision” as

the division of a parcel of land into two (2) or more lots or parcels for the purpose of transfer of ownership or building development, or, if a new street is involved, any division of a parcel of land; provided that division of land which may be ordered or approved by a court or effected by testamentary or intestate provisions, or a division of land into lots or parcels of five (5) acres or more and [603]*603not involving a new street or easements of access shall not be deemed a subdivision. The term includes resubdivision and when appropriate to the context, shall relate to the process of subdividing or to the land subdivided.

The subdivision regulations further required that all plats of subdivisions be recorded in the county recorder’s office and proscribed the sale or transfer of any land located within a subdivision unless that subdivision has been approved and so recorded.

Mary Luster died on January 22, 1980. The Probate Division of the Circuit Court of Greene County approved a final settlement and ordered distribution of her estate on April 26, 1983. The Order of Distribution included Mary Luster’s undivided one-half interest in the parcels at issue with separate tax descriptions, names for each of the separate tracts, and a different lessee for each tract at 1301 and 1313 St. Louis Street.

On June 13, 1990, Boatmen’s National Bank, Nancy Farthing, and Ruth Amis Hulston — trustees of the Last Wills and Testaments of Lewis and Mary Luster— conveyed each estate’s undivided one-half interest in 1313 St. Louis Street to Timothy and Barbara Murphy.

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Cite This Page — Counsel Stack

Bluebook (online)
403 S.W.3d 600, 2011 WL 4795627, 2011 Mo. App. LEXIS 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-city-of-springfield-moctapp-2011.