Gerald Poger v. Missouri Department of Transportation

In the Missouri Court of Appeals

Eastern Dtstmct
DIVISI()N 'I`WO
GERALD POGER, et al., ) EDl()3293
)
Appellants, )
) Appeal from the Circtlit Court
v. ) of St. Louis County
) l2SL-CC00042
MISSOURI DEPARTMENT OF )
TRANSPORTATION, et al., ) Honorable Thomas J. Prebil
)
Respondents. ) Filed: Jnne 7, 2016

hitroductiori
Appellants, a class of liomeowners, filed several claims against Respondelits
Missonri Departlnent of Transportatiori (MODOT), Wood Lake Residents Association
(Associatiori), and Cotntntmity Maliagers Association, Inc. (CMA), after the Assooiation
negotiated with MoDOT for the purchase of a portion of common land in the Wood Lake
Snbdivision (Stlbdivision). Appellants appeal the trial court’s summary judgments in favor
of all Respondents. We affirm in part and reverse in part.
Background
Appellants are a class of llomeowiters who own lots in the Subdivision. In October'
of 2009, MoDOT paid the Association $l .5 million in exchange for 27.05 acres of property

(the Property) within the Stlbdivision, all of which was designated as common land.

MoDOT acquired the Property in order to complete a project extending and widening
Missottri State Highway 141.

The Association sought input from liomeowners regarding how the proceeds from
the sale should be spent, asking that ltomeo\vners respond by February 28, 2010. The
Association tlltiinately spent $250,000 on a new swimming pool and distributed
approximately $500,000 to 28 lioineowners whose property value had diminished because
of the liighway project.

On Jariuary 5, 2012, twelve liomeowners initiated the present lawsuit. After rounds
of amended pleadings, Appeilants filed their fifth amended petition, \vhicli became a class
action representing all lioineovviiers in the Subdivision, including over 450 separate
individuals and entities. This petition brought four claims against MoDOT: inverse
condemnation, taking, violation of equal protection, and unlawful seizure All of these
claims were preinised on the argument that the Association had no authority to sell the
Property. Appellants’ petition also contained five claims against the Assooiation and
CMA, the nranagirig and servicing agent of the Association. These included claims for
money had and received, breach of fiduciary duty, negligence, an accounting, and violation
of the Missotlri Merchandisiiig Practices Act (MMPA).

The trial court granted sunnnary judgment in favor of all defendants, finding that
the Association had the authority to sell the Property and that Appellaiits were estopped
from bringing their claims because they accepted the proceeds from the sale. This appeal

follows

in the Inderiture." i_d. Tlrerefore, our task in interpreting this contract "is to ascertain the
pa1ties’ intent and give effect to that intent." Capitol Group v. Collier, 365 S.W.Sd 644,
649 (Mo. App. E.D. 2012).

As we have already seen from the language of the Indenture, the intent is clear:
more land will be added to the Sttbdivisioir as common land, and the indenture will govern
such land. When that land was added later by five additional general warranty deeds, those
deeds also stated that they were recorded in accordance with and pursuant to the Indenture.
Thus, the language in the indenture applies to all six deeds cornprisirig the Propeity.

Specitically, as relevant liere, the indenture contains a restriction on Appellarits’
rights to sell the common land, and all six of the general \varrarity deeds contain the same
restriction. By acquiring lots or dwelling units in the Subdivision, which are subject to the
Indenture, Appellants have relinquished any individual rights they may otherwise lrave had
to sell their interests in the Property except as incident to sales of their lots or dwelling
units. In fact, had any of the Appellants attempted to independently sell the Property, any
liorneotvner' in the Subdivision could have brought a suit in equity to enforce the Indenture.
§e_e Hoag v. McBride & Son Inv. Co., 967 S.W.Zd 157, 168 (Mo. App. E.D. 1998)
(Missotlri courts "aliow[] landowners to bring actions seeking to enjoin the improper use
of the btlrdetied larid").

'I`his right of sale has been contractually granted to the Trustees, and it exists
regardless of the holder of legal title at the time of sale. We find that the same language
contained in the six deeds, along with their enactment "pursttarit to the Indenture,"

expresses the parties’ intent to ltarmoliize these documents and all liomeowners agreed that

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the Trustees will continue to exercise their rights and duties over the common land,
including the power of sale, regardless of which party holds title.

Appellants argue that even if this is true, a problem reinaiiis, because the Trustees’
power of sale in the Indeiiture applies only to land not considered in the Subdivision’s
density computation as a planned-environment unit, and MoDOT failed to establish that
the land it purchased was not included in such computation. However, the indenture and

the six general warranty deeds rnust be read together. Q_f_. Paddock Forest Residents Ass’n

Inc. v. Ladue Serv. Corp., 613 S.W.Zd 474, 477 (Mo. App. E.D. ]981) ("Laiigtzage used in
the entire instrument, not just one clause, will be considered . . . Principles of construction
should not be applied in a way to defeat the plain purpose of the restriction").

There is one provision contained in all of the five later general warranty deeds that
does not appear in the indenture or the first general warranty deed, and it relates specifically
to conveying Stlbdivision property to a public agency:

ln the event it shall become necessary for any public agency to
acquire all of or any part of the property herein conveyed to the
said 'l`rustee, for any public purpose, the Trustee, during the
period of Trnst, is hereby authorized to negotiate with such
public agency for such acquisition and to execute instruments

iiecessary for that purpose Should acquisitions by eminent
domain become necessary, only the 'l`rtlstee need be made a

party . . . .

This provision einpowers the Trustee to negotiate with a public agency for the acquisition
of common land and does not restrict the land that the Trustee may convey to only that
which is not considered in determining the density computation for the Subdivision.

Appellants argue this provision is inapplicable because it states the 'l`rustee may
exercise this power "durilig the period of Trust," and the ZO-year periods contained in the

five later general warranty deeds have expired. However, reading this provision in

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accordance with other provisions stating that the powers of the Trustee are to continue,
even after title vests in the liomeowners, we must conclude that the "period of 'l`rtist"
includes this time during which the Trustee continues to act as Trustee.

Appellants urge that such a reading renders the words "period of Trust"
superfluous However, because the documents deny the ironieowriers a power of sale, to
read them as Appellants suggest would mean that no party has had the powver to sell the
common land that was conveyed under the five later general warranty deeds since 1992 or
1993, respectively This is an illogical result and does not comport with the parties’
intentions that the Trustee will continue to act as Trustee over the common land regardless
of who holds legal title. Appellants imply that the Association’s rights with regard to the
common land granted by the five later general warranty deeds have terminated; iio\vever,
there is no corresponding indication Appellants have assumed the duties related to
inaintaiiring the common land.

Appellants’ final argument is that even if this provision in the five later general
\varranty deeds regarding the sale of common land to a public entity applies, it only applied
to the five parcels of land granted by those deeds, and not to the one parcel conveyed
originally with the Indenture. The Property MoDOT purchased was cornprised of portions
of all six parcels However, we find that under the specific circumstances here, reading all
of the documents together, to interpret them as anything other than granting the Association
the power to carry out the sale in this case would be inconsistent with the intent of the
documents and lead to inconsistency in carrying out the Trustee’s duties across the

Subdivision.

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The deeds’ provision authorizing the Association to negotiate with a public entity
is a recognition that a future occasion may arise on which a public entity will seek to
acquire part of the coinmon land. Separate from a sale initiated by the Association, which
under the indenture must take into account the density determination, the deeds add the
possibility that this land may be taken by a public entity. lt seems in such a case, the
original grantors of the common land desired to einpower‘ the Assoeiation to negotiate,
perhaps for a better price through a sale than the public entity would pay as just
contpeiisation for a tal