KANSAS CITY - Neighbors involved in a dispute over gravel, covenants and attorneys' fee came away from an appeals court ruling not getting results they sought.
According to a March 13 decision from the Missouri Court of Appeals, Western District, Kingsville residents George and Cecelia Wagner had sued neighbor Barry Nolan seeking reimbursement of $148.04 they paid for Nolan's share of gravel in their subdivision of 17 homes. They also sought an injunction to keep Nolan from operating a towing service which they argued violated terms of their subdivision's covenants.
While the Wagners were successful at trial court with Johnson County Circuit Court Judge William B. Collins enjoining Nolan from operating his towing service, Collins held that the covenants did not provide for the recovery of the gravel expenses or the attorneys' fees from the litigation.
Both parties appealed, the Wagners for fees and gravel expenses, with Nolan claiming the judge erred because the Wagners waived their right to enforce the covenant prohibiting commercial use of residential property.
The three-judge panel noted that Nolan's waiver argument was based on the fact that the Wagners "knowingly allowed the garage to operate" for 14 years before they sued and that they used the tow service on at least three occasions.
“Nolan was only one of seventeen homeowners using his residence for commercial purposes, and it was only within the last two or three years that noise and traffic associated with Nolan’s business became a nuisance,” the ruling states. “Thus, when we view the evidence in the light most favorable to the trial court’s judgment, it is clear Nolan’s violation was not widespread, and the Wagners did not unduly acquiesce in the violation when it became more significant.”
The panel included presiding Judge Alok Ahuja and Judges James Edward Welsh and Anthony Rex Gabbert.
They concluded that Collins did not err because the restrictive covenants' road-maintenance provision was too vague to be enforced against Nolan and that the covenants did not expressly provide for recovering attorney fees.
“We further find no error, because substantial evidence supported the trial court’s conclusion that Nolan’s violation did not constitute an intent to abandon the subdivision’s residential schema,” the ruling states.