Marose v. Deves

697 S.W.2d 279, 1985 Mo. App. LEXIS 3541
CourtMissouri Court of Appeals
DecidedJuly 30, 1985
DocketNos. 13812, 13810
StatusPublished
Cited by6 cases

This text of 697 S.W.2d 279 (Marose v. Deves) 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
Marose v. Deves, 697 S.W.2d 279, 1985 Mo. App. LEXIS 3541 (Mo. Ct. App. 1985).

Opinion

CROW, Judge.

The dispute in these consolidated appeals is whether the owners of four lots in a subdivision in which only single-family residences had previously been constructed may erect six two-family residences on the land comprising the four lots. The trial court said no. We agree.

The assignments of error are easier stated after a synopsis of the evidence. In recounting it, we accept as true the evidence and permissible inferences which may be drawn favorable to the prevailing party and disregard the contradictory testimony, Mills v. Cameron Mutual Insurance Co., 674 S.W.2d 244, 246-47[2] (Mo.App.1984); Lee v. Rolla Speedway, Inc., 668 S.W.2d 200, 205[3] (Mo.App.1984), being mindful that in this court-tried case the trial judge determined the credibility of the witnesses and was free to accept or reject all, part or none of the testimony, Mills, 674 S.W.2d at 246-47[1]; Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139[4] (Mo.App.1980).

So viewed, the evidence establishes that in 1974, David W.B. Marose and Phyllis D. Marose, owners of a tract of land abutting the Lake of the Ozarks in Camden County, filed in the office of the Recorder of Deeds of that county a plat of the tract captioned “Amended Plat To HARBOR HEIGHTS ESTATES.”

The plat subdivided the west portion of the tract into lots numbered 1 through 47. The subdivided portion is situated such that the south, west and north boundaries thereof are shoreline. Beginning at the southeast corner of the subdivided portion and running clockwise around the shoreline, lots 1 through 27 abut the Lake, lot 27 being the one at the northeast corner of the subdivided portion. Access to these lots is by a road that adjoins each on the side opposite the side touching the Lake. That is, the road parallels the shoreline, with lots 1 through 27 lying between the road and the Lake. Lots 28 through 47 are on the other side of the road. These lots were referred to at trial as “second-tier” lots, evidently because they, being on the opposite side of the road from the shoreline lots, do not adjoin the Lake.

The plat contained certain restrictions, including this:

“No building or other structure shall be commenced upon any one lot until the location and the complete plans and specifications have first been submitted and the same approved by the dedicators or assignee.”

This restriction is henceforth referred to as “the building approval restriction.”

About “the first week in August,” 1983, Lawrence M. Deves, a real estate broker and builder, and his wife, Nancy, purchased lots 28, 29, 30 and 31, vacant second-tier lots across the road from lot 26, a shoreline lot on which was situated a single-family residence owned by the Deveses and in which they had lived for several years.

On Thursday, August 11, 1983, Marshall Shefferly, at the request of Lawrence Deves, delivered a “set of plans” to Darrell L. Foster, whose home was on lot 18. Foster described himself as a “member of the architectural committee for Harbor Heights.” That three-member committee, according to Foster, had been chosen by the residents of Harbor Heights to determine whether plans for construction in the subdivision met its “standards.”

Shefferly, a building contractor, was the person from whom the Deveses had purchased lots 28, 29 and 30. The party from whom they had acquired lot 31 is not disclosed. According to Shefferly, he was going to assist Lawrence Deves in the construction of four buildings on the four vacant lots. Shefferly knew Foster was a member of the architectural committee because Shefferly had previously built a home in Harbor Heights and had submitted the plans for that structure to Foster.

[282]*282The plans delivered by Shefferly to Foster on August 11, 1983, could not be found at time of trial. Asked to describe them, Shefferly responded, “[P]robably a floor-plan of both levels and a front ... front view of the home.” Asked whether the plans showed that the buildings would be “duplexes,” or “consist of two family units with two kitchens,” Shefferly answered: “No, the rooms are similar, but it didn’t ah ... I don’t believe they showed two kitchens.”

Foster testified that the plans did not show that the buildings would be “duplexes.” Foster recalled telling Shefferly that “they were looking at four houses, at four lots, and I would need to see plans for four houses.” Foster also remembered saying that he could not see any way that the single floor plan and the single elevation could be approved.

Nothing in the documents delivered to Foster on August 11 showed where any of the proposed structures would be situated on the vacant lots, and there was nothing to indicate that more than four structures would be erected.

Foster understood from Shefferly that construction was to commence Saturday, August 13, 1983.

Lawrence Deves testified he was contacted on August 13 by Foster, who requested “better drawings about what the fronts were going to look like, and so forth.”

In response to Foster’s request, Deves had his son deliver a set of documents to Foster the same day (August 13). These documents (Exhibit 12) consisted of (a) certain specifications regarding materials to be used in construction and (b) drawings of the “front elevation” and “side elevation” of one building. Nothing in Exhibit 12 indicated that the structure was to be a two-family residence, nor was there anything showing where it was to be situated.

Foster testified he phoned Lawrence Deves on Monday morning, August 15, and stated that no plans had been approved and that he (Deves) should postpone construction until approval. Foster recalled telling Deves that the plans were unacceptable to him (Foster) and that the only way Deves could get approval was for the other two committee members, Jerry Yeamans and Bill Schierholz, to approve them. Foster explained that inasmuch as Yeamans and Schierholz were in Lebanon, Missouri, and St. Louis, respectively, there would be a delay of “roughly two weeks.” Foster quoted Deves as saying, “I just can’t afford the time.”

Lawrence Deves testified that about a week later he sent Foster some pictures showing how the exteriors of the buildings would look when finished. These pictures (Exhibit E-l) consisted of three pages of colored drawings evidently torn from a magazine.

David Marose testified that some time between August 20 and 25, 1983, he was told by Foster that construction was under way on the four lots and “there was a problem with compliance, and he wished me to look into the situation.” According to Marose, Foster showed him “a very crude, a single layout for one ah ... building, and a magazine, three pages out of a Homes magazine with circles around the houses ah ... indicating what we might assume these exterior ah ... the exteriors of these houses would look like.” Marose understood that four houses were to be built. In his opinion, the blueprint did not look like the houses in the magazine drawings.

Marose testified:

“Q. Did these plans, as shown you, show the location of any of these buildings on the lots?
A. No, they did not.
Q.

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697 S.W.2d 279, 1985 Mo. App. LEXIS 3541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marose-v-deves-moctapp-1985.