Hammarstrom v. Samsel

114 S.W.3d 889, 2003 Mo. App. LEXIS 1531, 2003 WL 22204110
CourtMissouri Court of Appeals
DecidedSeptember 24, 2003
Docket25264
StatusPublished
Cited by7 cases

This text of 114 S.W.3d 889 (Hammarstrom v. Samsel) 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
Hammarstrom v. Samsel, 114 S.W.3d 889, 2003 Mo. App. LEXIS 1531, 2003 WL 22204110 (Mo. Ct. App. 2003).

Opinions

JOHN E. PARRISH, Judge.

Kenneth Hammarstrom, Mary Jane Hammarstrom, Greg McConnell and Kristi McConnell (plaintiffs) brought an action against Rick Samsel (defendant) in which they sought to enjoin defendant from attaching a residential building to property in Scenic Heights, a subdivision in Greene County, Missouri. Plaintiffs contended that moving the building onto and attaching it to the property would violate subdivision restrictions. A temporary injunction was issued. Following trial, permanent injunction was entered restraining and enjoining defendant from attaching or attempting to attach the residential structure to the real estate in question. Defendant was further ordered to remove the residential structure from the lot to which it had been transported. Defendant appeals. This court reverses and remands with directions to enter judgment for defendant.

An action that seeks injunctive relief is an action in equity. River Corp. v. Redpath, 466 S.W.2d 140, 144 (Mo.App.1971). “The trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law.” Speedie Food Mart, Inc. v. Taylor, 809 S.W.2d 126, 129 (Mo.App.1991).

“The rules governing construction of restrictive covenants on realty are generally the same as those applicable to any covenant or contract.” Stolba v. Vesci 909 S.W.2d 706, 708 (Mo.App.1995). Appellate review of contract construction is a question of law; hence it is de novo. Mackey v. Griggs, 61 S.W.3d 312, 316 (Mo.App.2001). Restrictive covenants on realty are strictly construed as the law favors untrammeled use of real estate. Id. The burden of proving that the use being made of real estate is in violation of restrictions [891]*891is on the party seeking to enforce the restrictions. Daniel v. Galloway, 861 S.W.2d 759, 761 (Mo.App.1993). Any reasonable doubt as to the meaning of restrictive covenants is to be resolved in favor of the free use of land. Id.

Plaintiffs own lots in Scenic Heights. The Hammarstroms own Lots 2 and 3. The McConnells own Lot 29. They maintain residences on their respective properties. In 2001, defendant and his wife purchased Lot 32 in Scenic Heights. The following year, defendant moved a residence and garage onto that lot. The residence and garage had been constructed about 1978.

Covenants and Restrictions Affecting Scenic Heights Subdivision, Greene County, Missouri, were recorded in the Greene County Recorder’s Office May 9, 1979. Restriction No. (2), the restrictive covenant plaintiffs sought to enforce, states, “No old house or other building shall be moved and placed upon any lot.”

This case was tried without a jury pursuant to Rule 73.01. The record on appeal reflects no request for a statement of grounds by the trial court for its decision or request for findings of fact as permitted by Rule 73.01(c). There is nothing in the record on appeal denominated as an opinion or statement of grounds for the trial court’s decision, nor is there anything designated as findings of fact. Defendant included in the legal file, however, a copy of a letter dated January 31, 2002, from the trial judge to the parties’ respective trial attorneys. The letter quotes the restrictive covenant that is the subject of the controversy in this appeal. It summarizes arguments of the respective attorneys regarding the issues in dispute and states that the temporary injunction sought by plaintiffs would be granted. The legal file includes a copy of a second letter from the trial judge to the attorneys dated August 29, 2002, stating that, for the same reasons stated in the trial judge’s original letter, the restrictive covenant is enforceable and that the trial court was finding for plaintiffs. The letter directed plaintiffs’ trial attorney to prepare a judgment for the judge’s signature.

In previous cases, this court has questioned whether texts of letters from trial judges to attorneys are matters of record for consideration on appeal. See Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 318-19 (Mo.App.2003); Ibrahim v. Ibrahim, 825 S.W.2d 391, 397 (Mo.App.1992); State v. Magill, 801 S.W.2d 725, 727-28 (Mo.App.1990). Problems with considering letters between trial judges and attorneys as findings or statements of grounds for decisions include no notations identifying such documents as “findings,” or “opinion,” or “grounds for decision.” Other concerns have been the lack of circuit court “date-file stamps” on copies of correspondence and no references on trial court docket sheets to the letters; no indication that copies of the letters were filed or recognized as anything but transmittal letters. Daniel v. Indiana Mills, supra; Ibrahim v. Ibrahim, supra, n. 1; State v. Magill, supra, at 728.

Rule 81.12(a) states that the legal file component of a record on appeal should contain “portions of the trial record previously reduced to written form.” Portions of trial records that are in written form may include documentary evidence that is labeled as exhibits and shown by the transcript to have been admitted in evidence (or if refusal of a tendered exhibit is a question on appeal, the exhibit that has been offered and refused may be included), and documents filed with the court clerk identified with date-file stamps and noted in the court file as having been filed.

[892]*892For the reasons that follow, however, this court concludes that the statements in the trial court’s letters to the trial attorneys may be considered in this appeal as statements of the grounds and findings of the trial court on which the case was decided.1 Docket entries that are part of the legal file reflect on “1/31/02” that “COURT RULES ON TEMPORARY INJUNCTION AND NOTIFIES COUNSEL BY LETTER (FAX),” and on “9/03/02” that “COURT RULES AND NOTIFIES COUNSEL BY LETTER. ATTY WHITE [plaintiffs’ trial counsel] TO PROVIDE A JUDGMENT FOR THE COURT’S SIGNATURE.” Further, plaintiffs, in their respondents’ brief, quote from the January 31, 2002, letter at some length. Arguably, unlike in Magill and Ibrahim, the trial court intended the text in the January 31 letter to be a statement of grounds and findings on which the case was decided.

The text of the January 31, 2002, letter from the trial judge includes:

This case involves construction of a restrictive covenant in a subdivision which provides “no old house or other budding shall be moved and placed upon any lot”. The defendant has moved a house from a previous location which was built in the late 70’s and is roughly the same age as many of the houses existing in the subdivision. For this reason, [defendant’s trial attorney] argues that the house in question is not an “old” house; hence the restriction does not apply.

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Hammarstrom v. Samsel
114 S.W.3d 889 (Missouri Court of Appeals, 2003)

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Bluebook (online)
114 S.W.3d 889, 2003 Mo. App. LEXIS 1531, 2003 WL 22204110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammarstrom-v-samsel-moctapp-2003.