Colvin v. Carr

799 S.W.2d 153, 1990 Mo. App. LEXIS 1450, 1990 WL 141787
CourtMissouri Court of Appeals
DecidedOctober 2, 1990
DocketNos. 56982, 56989
StatusPublished
Cited by6 cases

This text of 799 S.W.2d 153 (Colvin v. Carr) 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
Colvin v. Carr, 799 S.W.2d 153, 1990 Mo. App. LEXIS 1450, 1990 WL 141787 (Mo. Ct. App. 1990).

Opinion

STEPHAN, Judge.

Plaintiffs, the Colvins and several lot owners in Parkview Subdivision, seek construction of a 1905 Trust Indenture which governs the Parkview Subdivision, a residential area in St. Louis City and St. Louis County. The Indenture gave the trustees the right to assess the lots in Parkview, but not in excess of fifty cents per front foot except for certain special assessments. The Indenture established a trust which was to remain in existence until the last original trustee died. After the trust terminated, the 1905 Indenture granted the “rights, powers, and duties” of the trustees to the lot owners in Parkview. The lot owners were to select “agents” as their representatives. The Parkview agents are the named defendants in this lawsuit.

The trust terminated in 1966 when the last original trustee died. By a vote of 188 to 5, the then lot owners adopted an Agreement (hereinafter the 1966 Agreement), which imposed an assessment of fifty cents per front foot plus $50 per lot. This assessment was effective for the year 1967, and for each year thereafter, until changed by the affirmative vote of the lot owners.

Between 1967 and 1987, the front foot assessment remained at fifty cents per year. During this period, a majority of the lot owners voted to increase the per lot assessment to $75 in 1969-74; $100 in 1975-76; $155 in 1977-80; and to $225 thereafter.

The Colvins became homeowners in Park-view in September, 1985. The Colvins paid the 1986 and 1987 Parkview assessments, as did the other plaintiffs.

On December 28, 1987, in response to his receipt of a Parkview assessment against him for $286 for 1988, Mr. Colvin wrote a letter to the Parkview agents explaining his belief that the 1905 Indenture did not authorize parts of the assessment. He enclosed two checks with this letter. One was in the amount of $31, which he characterized as the maximum general assessment which could be made under the 1905 Indenture. The second check, for $255, he called a “donation.”

The Parkview agents called a meeting of the lot owners in Parkview for February 29, 1988, to vote on an increase in both the per lot assessment and the front foot assessment. On or about February 15, 1988, Mr. Colvin wrote a letter to Parkview residents outlining his belief that the new assessments were unauthorized. Nevertheless, the owners of a majority of the lots voted in favor of the proposed increase in assessments.

On February 29, 1988, Colvin and several other Parkview lot owners sued in the Circuit Court of the City of St. Louis seeking (a) a declaratory judgment stating that the assessments were limited to fifty cents per front foot except for specific projects as provided pursuant to the 1905 Indenture and that the resolution of February 29, 1988, was void; and (b) an injunction restraining the agents from carrying out the terms of the February 29, 1988 resolution.

[155]*155The case was tried upon a stipulation of the parties. The only live testimony was from Mr. Colvin and his wife.

The trial court found that the 1905 Indenture was plain and unambiguous and further found that assessments made by the 1966 Agreement exceeded those authorized by the 1905 Indenture. The trial court, therefore, ruled that the 1966 Agreement was inapplicable to Colvin and the other plaintiffs who had bought lots in Parkview after 1966. The trial court also, however, estopped plaintiff George Ittner and other plaintiffs who were lot owners in 1966 from denying the validity of the 1966 Agreement. For clarity’s sake, we shall identify these pre-1966 lot owners as the Ittner pláintiffs.

The defendants appealed. Both sets of plaintiffs cross-appealed. We issued a show cause order asking the Colvin plaintiffs to explain how they had been aggrieved by the trial court’s decision. The Colvin plaintiffs responded, and we ordered that a determination whether the Colvin plaintiffs are aggrieved by the judgment would be determined by the panel at the time of submission.

On appeal, defendants argue (1) that the 1905 Indenture does not restrict the power of a majority of lot owners to make assessments or, in the alternative, (2) that the trial court erred in failing to exercise its inherent authority to require plaintiffs to bear their equitable share of expenses necessary to preserve Parkview. Defendants also argue that the trial court erred in refusing to estop the Colvin plaintiffs from challenging the power of the majority of the lot owners to impose assessments.

Plaintiffs cross-appealed on the ground that the trial court erred in estopping the Ittner plaintiffs from challenging the assessments.

Preliminarily, we must decide whether the Colvin plaintiffs are entitled to appeal. Only parties who are aggrieved by a judgment may appeal from it. Section 512.020 RSMo 1986. A party is “aggrieved” when a judgment operates prejudicially and directly on his personal or property rights. Harris v. Union Electric Co., 685 S.W.2d 607, 611 (Mo.App.1985). The trial court found that the Colvin plaintiffs are not required to pay those assessments that are not levied by the 1905 Indenture. Therefore, the judgment has financially helped, rather than hurt, the Colvin plaintiffs.

The Colvin plaintiffs argue that, as residential lot owners of Parkview, they have the right to demand that the 1905 Indenture be carried out in all respects in accordance with its terms. They liken their position to a taxpayer challenging the actions of public officials. The Colvin plaintiffs rely on Berghorn v. Reorganized School Districts No. 8, 364 Mo. 121, 260 S.W.2d 573 (1953). In that case, the Missouri Supreme Court held that school district taxpayers could sue the school district for illegally collecting and expending public funds in support of parochial, rather than public, schools. Id., 260 S.W.2d at 581. The court reasoned that a taxpayer is an equitable owner of public funds and is hurt when such funds are illegally used, because the taxpayer will be liable to replenish the deficiency. Id.

In contrast to this, the Colvin plaintiffs have no such liability regarding the Park-view subdivision. The effect of the trial court’s order is that the Colvin plaintiffs will be paying less, not more. Therefore, only the Ittner plaintiffs are aggrieved parties.

Defendants first argue that the trial' court erred in finding that the 1905 Indenture unambiguously restricts the power of a majority of the lot owners to make assessments. Their argument is not well taken. The 1905 Indenture, although complicated, is unambiguous regarding assessments.

Clause E of the 1905 Indenture gives a long list of rights, powers and duties “to be exercised by them as Trustees for the benefit and advantage of each of the ... lots ...” This list of rights, powers and duties ends on page 8, and the Indenture proceeds to the matter of how Parkview is to pay for all these things. The Indenture provides:

[156]

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Bluebook (online)
799 S.W.2d 153, 1990 Mo. App. LEXIS 1450, 1990 WL 141787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colvin-v-carr-moctapp-1990.