Trustees of Clayton Terrace Subdivision, Respondent/Cross-Appellant v. 6 Clayton Terrace, LLC, and Jeannette R. Huey, Trustee of the Jane R. Huey Lifetime Trust Agreement Dated May 21, 1998, Appellants/Cross-Respondents. ( 2019 )

SUPREME COURT OF MISSOURI
en banc
TRUSTEES OF CLAYTON ) Opinion issued August 13, 2019
TERRACE SUBDIVISION, )
)
Respondent/Cross-Appellant, )
)
v. ) No. SC97349
)
6 CLAYTON TERRACE, LLC, )
)
and )
)
JEANNETTE R. HUEY, TRUSTEE )
OF THE JANE R. HUEY LIFETIME )
TRUST AGREEMENT DATED )
MAY 21, 1998, )
)
Appellants/Cross-Respondents. )
Appeal from the Circuit Court of St. Louis County
The Honorable Dale Hood, Judge
Jeannette R. Huey, 6 Clayton Terrace, LLC, and the Trustees of Clayton Terrace
Subdivision (“trustees”) appeal from portions of the circuit court’s judgment not in their
favor. This Court affirms the portion of the circuit court’s judgment upholding
Ms. Huey’s sale of her home located in the Clayton Terrace subdivision despite
allegations she failed to comply with the right of first refusal contained in the subdivision
indentures. But this Court reverses the portion of the circuit court’s judgment holding the
trustees’ attempt to have the sale set aside constituted an abuse of process and awarding
attorney’s fees to Ms. Huey on that claim. An abuse of process claim requires more than
the proof Ms. Huey offered that the trustees’ purpose was allegedly improper. She also
failed to show the trustees made an improper use of process.
This Court affirms the circuit court’s refusal to reject the amended indenture
provision prohibiting the building of more than one residence per lot. That provision
could not be avoided by attempting to divide the lot into two sub-lots. But the circuit
court erred in awarding attorney’s fees to the trustees against 6 Clayton Terrace on the
basis the latter’s failure to reveal its subdivision plan constituted “special circumstances”
justifying the award of attorney’s fees for intentional misconduct. Assuming attorney’s
fees could be awarded where, as here, the trustees did not seek declaratory relief against 6
Clayton Terrace, the trustees fail to identify any basis on which 6 Clayton Terrace, as an
arms’ length purchaser, had a duty to reveal its planned use of the property. Further, the
fact 6 Clayton Terrace ultimately lost its claim does not create “special circumstances”
for purposes of attorney’s fees, as one party loses every claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jane Huey lived in a home on a 2.3-acre piece of property referred to as Lot 6 in a
subdivision called Clayton Terrace in Frontenac, Missouri. Clayton Terrace was
established by plat in 1923, at which time it had 23 recorded lots. 1 The subdivision is
subject to the original indentures, which are handwritten and recorded on the same
1
Portions of certain lots were later taken for a highway access ramp, and the remaining
lots were reconfigured into 22 lots.
2
document that contains the plat. The original indentures provide the restrictions will be
“in force and binding upon the owners of this Subdivision for a period of 25 years from
date of this instrument, unless amended or extended by two-thirds of the lot owners in
this Subdivision and publicly recorded.”
The original indentures have been amended or extended approximately five times.
There are two relevant indenture amendments and extensions. One was approved in
1928, providing that “only one residence shall be erected on each lot.” In 1972, a “right
of first refusal” provision was approved under which any lot owner selling a lot was
required to provide “15 days’ written notice to the owners of all other lots in the
subdivision … such notice to contain the selling price and other terms of the proposed
sale and to whom it is made.” The 1972 provision grants the other lot owners “the right
to elect in writing to purchase said lot on the same terms (including the closing date) as
offered to the third party buyer ….” Both the “one residence per lot” provision and “right
of first refusal” provision were restated in the most recent amendment and extension,
which was recorded in 1998 and approved by two-thirds of the lot owners. The
indentures also provide for the election of subdivision trustees. The indentures impose a
fiduciary duty on the trustees to the lot owners and provide “the Trustees shall have the
power to enforce the restrictions spread upon the plat of Clayton Terrace subdivision.”
Jane Huey died October 15, 2011. Her daughter, Jeannette Huey, as trustee of her
mother’s trust, became responsible for Lot 6. Ms. Huey listed Lot 6 with a real estate
agent in September 2012. A career real estate developer, Kevin McGowan, testified at
trial that, “as soon as I saw it, when I noticed it was almost three acres, my very first
3
thought was that this might be able to be split.” Before making an offer, he confirmed
with Frontenac that its municipal ordinances would not prohibit subdivision of the
property. To purchase the property, he secured an investor, Century Renovations, LLC,
and both he and the investor reviewed the Clayton Terrace indentures. In January 2013,
Ms. Huey and Century Renovations agreed to terms for the sale of Lot 6 and set the
closing for February 2013.
As the sale was pending, Insight Title Company, LLC, on behalf of Ms. Huey,
reached out to the trustees concerning the sale. The trustees advised Insight Title of the
“right of first refusal” provision. Insight Title prepared a notice of sale for the property
and the real estate agent hand-delivered notice to Clayton Terrace lot owners of the
proposed sale 15 days before the closing date. Whether all lot owners were given this
notice later became the subject of dispute. The notice of sale did not contain the identity
of the proposed purchaser.
Only one homeowner returned her notice of sale indicating she might be interested
in acquiring the property. Her request to walk through the property was denied.
Ultimately, that homeowner delivered a written document expressly waiving her right of
first refusal and later confirmed she did not want to buy the property. The day before
closing, and after the notices had gone out, Century Renovations assigned the sale
contract to an entirely new entity, 6 Clayton Terrace. 6 Clayton Terrace is a limited
liability company owned by Century Renovations.
On February 15, 2013, Ms. Huey sold Lot 6 to 6 Clayton Terrace. The proceeds
from the sale of Lot 6 went into Jane Huey’s trust. Believing the sale of the property to
4
be final, Ms. Huey disbursed its proceeds to the trust beneficiaries in April 2014. As part
of the sale, Insight Title tendered the outstanding homeowners’ association fees to the
trustees of Clayton Terrace. The trustees deposited these funds in the subdivision
account. Following the sale of the lot to 6 Clayton Terrace, Mr. McGowan leased the
home and moved in with his children. He began substantial renovations that would have
been evident to those passing or living near the home, including renovating the pool and
deck, removing multiple trees and significant brush, knocking out walls within the
residence, and cutting holes in the exterior walls to add more doors.
In the meantime, 6 Clayton Terrace began attempting to obtain approval from the
Frontenac planning and zoning commission to split the 2.3 acres into two lots. No formal
notice of this plan was given to the Clayton Terrace trustees, although 6 Clayton Terrace
presented evidence Mr. McGowan’s nine-year-old son informally told a Clayton Terrace
resident about the plan shortly after closing, and that resident informed one or more
trustees. The trustees were concerned about the idea of having the lot subdivided but had
received no direct notice of an intent to subdivide and they did not approach the owners
or those living in the home about the rumor the lot would be subdivided.
The following spring, in April 2014, 6 Clayton Terrace filed an application with
Frontenac to subdivide Lot 6 into two lots, to be known as Lots 6A and 6B. The trustees
and several of the Clayton Terrace residents strongly opposed 6 Clayton Terrace’s
proposal and appeared at public meetings to voice their opposition. Frontenac advised
the trustees it was bound only by its own municipal ordinances, which simply required
that each lot be greater than one acre in size, and it had no authority to enforce private
5
indentures. In June 2014, Frontenac approved 6 Clayton Terrace’s application as it did
not violate city ordinances.
Two months later, in August 2014, the trustees sued both Ms. Huey and 6 Clayton
Terrace. Count I sought a declaratory judgment against Ms. Huey, claiming she violated
the amended indentures by failing to provide sufficient written notice to all the
subdivision lot owners and failing to accept one lot owner’s offer to purchase Lot 6. In
support, the trustees asserted the hand-delivered notice did not show the property was
being purchased by a developer rather than a family, gave an incorrect closing date, and
one or more Clayton Terrace owners were not given the notice.
In count II the trustees sought injunctive relief against 6 Clayton Terrace to
prohibit it from subdividing the lot and constructing an additional home on Lot 6,
claiming division of Lot 6 into two sub-lots would violate the restrictions in the amended
indentures. The trustees also sought attorney’s fees. Both 6 Clayton Terrace and Ms.
Huey denied these claims and asserted affirmative defenses, including that the trustees
had waived and ratified the purchase by waiting more than one year to challenge the sale
and alleging the amendments to the original indentures were invalid because they were
adopted without the unanimous consent of all lot owners. Ms. Huey also filed a
counterclaim against the trustees for abuse of process, based on her contention the
trustees filed count I against her for the sole and allegedly improper purpose of
preventing 6 Clayton Terrace from constructing another residence on Lot 6.
Prior to trial, the parties submitted stipulated facts and exhibits. In December
2016, the circuit court entered judgment in favor of Ms. Huey and against the Clayton
6
Terrace trustees on count I, holding the “right of first refusal” provision was invalid and
unenforceable, and in any event equitable considerations and the doctrines of waiver and
ratification militated against enforcement of the indentures because the trustees: (1) did
not raise any failure to comply for a year and a half after the sale despite their awareness
of substantial modifications being made to the property by the new owners; and (2)
ratified the sale by accepting funds out of the proceeds of the closing for homeowner
association fees.
The circuit court also found in Ms. Huey’s favor on her abuse of process
counterclaim, finding the trustees’ attempts to set aside the sale of the property were done
with what it said was the improper purpose of coercing 6 Clayton Terrace into
withdrawing its request to subdivide the property by placing its title at risk. The circuit
court awarded Ms. Huey attorney’s fees. 2
On count II, the circuit court found in the trustees’ favor. Noting the text of the
indentures neither expressly prohibited nor expressly allowed for the subdivision of lots,
the circuit court looked to the various provisions of the indentures and concluded the
limitation of one house per lot was intended to preclude subdivision of the lots. It
enjoined 6 Clayton Terrace from subdividing Lot 6 or constructing an additional
residence on Lot 6 and awarded the trustees’ their costs. Finding that 6 Clayton Terrace
had acted in bad faith in failing to reveal its plan to subdivide the property and that this
2
Puzzlingly, the court found Ms. Huey’s fees of $119,243 to be fair and reasonable but
awarded her only $60,000 in attorney’s fees. Of the $60,000 awarded, $20,000 was
against the trustees and the other $40,000 was against 6 Clayton Terrace, which brought
no claim against Ms. Huey and against whom she claimed no abuse of process.
7
constituted “special circumstances,” it included substantial attorney’s fees in its judgment
against 6 Clayton Terrace. 3 All parties appealed. After an opinion by the court of
appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
II. STANDARD OF REVIEW
“The trial court’s judgment will be affirmed unless there is no substantial evidence
to support it, it is against the weight of the evidence, or it erroneously declares or applies
the law.” Robinson v. Title Lenders, Inc., 364 S.W.3d 505, 510 (Mo. banc 2012). “The
circuit court’s determinations of questions of law are subject to de novo review.” Hill v.
Mo. Dep’t of Conservation, 550 S.W.3d 463, 467 (Mo. banc 2018).
III. THE CIRCUIT COURT’S FINDING THAT THE SALE OF LOT 6 WAS
VALID IS NOT AGAINST THE WEIGHT OF THE EVIDENCE
The trustees contend the circuit court’s ruling that Ms. Huey’s sale of Lot 6 was
valid because she complied with the “right of first refusal” provision was against the
3
The judgment set out the court’s reasoning in detail:
Accordingly, the Court looks to the four corners of the document for
guidance. The Fifth Revised Indentures continue the restriction that “only
one residence shall be erected on each lot”. The Fifth Revised Indentures
also provide that “if more than one lot owner elects to purchase said lot,
then all lot owners electing to purchase said lot shall do so on a pro rata
basis.” Such provision indicates a preference for ownership of undivided
lots as opposed to division of the lots to separate owners. In addition, the
Fifth Amended Indentures provide that: “No building or other structure
shall be erected closer than 15 feet to any side of rear lot line provided,
however, that one residence may be erected on two adjoining lots in which
and every such event such two lots shall for all purposes of the foregoing
restrictions be deemed one lot.” Thus, the indentures indicate preference for
consolidation rather than subdivision of Lots. This Court is unable to locate
any provisions in the indentures providing for subdivision of lots under any
circumstances.
8
weight of the evidence. 4 That provision required she provide at least 15 days’ notice to
each lot owner, and that such notice contain the selling price and “other terms.” Because
the circuit court reasonably could have found from the record that she complied with the
“right of first refusal” provision, that finding was not against the weight of the evidence.
“Appellate courts act with caution in exercising the power to set aside a decree or
judgment on the ground that it is against the weight of the evidence.” Ivie v. Smith, 439
S.W.3d 189, 205 (Mo. banc 2014). “When reviewing the record in an against-the-weight-
of-the-evidence challenge, this Court defers to the circuit court’s findings of fact when
the factual issues are contested and when the facts as found by the circuit court depend on
credibility determinations.” Id. at 206. “A circuit court’s judgment is against the weight
of the evidence only if the circuit court could not have reasonably found, from the record
at trial, the existence of a fact that is necessary to sustain the judgment.” Id.
The circuit court found notice of the sale for Lot 6 was prepared by Insight Title
and that the real estate agent hand delivered the notices to each home in Clayton Terrace.
After delivering the notices, Insight Title postponed the closing date of the sale for 15
days to accommodate the 15-day requirement contained in the “right of first refusal”
provision. The circuit court found the majority of homeowners filled out and returned
these written waivers, which said the homeowner was not interested in purchasing Lot 6.
Further, none of the witnesses called by the trustees testified they did not receive notice
of the sale or currently desired to purchase Lot 6. The only homeowner who had
4
The trustees also contend the sale was void if the indentures were not substantially
complied with, but because the Court affirms the ruling that the indenture provisions
9
indicated an interest in buying Lot 6 did receive notice and later delivered a written
document expressly waiving her right of first refusal. Based on this evidence, the circuit
court found that Insight Title complied with the indenture.
While the trustees note they presented substantial evidence certain lot owners did
not receive the notice, Ms. Huey presented evidence she had delivered the notice to all
homes. The circuit court clearly found that more credible. The circuit court “is free to
believe all, some, or none of the evidence offered to prove a contested fact, and the
appellate court will not re-find facts based on credibility determinations through its own
perspective.” Id. As the circuit court could reasonably have found Ms. Huey complied
with the “right of first refusal” provision from facts in the record, this Court rejects the
trustees’ argument that the circuit court’s ruling was against the weight of the evidence.
IV. CLAYTON TERRACE TRUSTEES DID NOT ABUSE PROCESS IN SUING
TO INVALIDATE THE SALE OF LOT 6
While Ms. Huey’s sale of Lot 6 is affirmed, this Court reverses the circuit court’s
finding that there was an abuse of process by the trustees in seeking to have the sale
invalidated. “The general rule is that no right of action exists for damages resulting from
the initiation of a civil action, unless the action was prosecuted maliciously and without
probable cause or there was an abuse of process.” Dillard Dep’t Stores, Inc., v. Muegler,
775 S.W.2d 179, 183 (Mo. App. 1989). To prevail on her abuse of process claim, Ms.
Huey was required to show three elements: “(1) the present defendant made an illegal,
improper, perverted use of process, a use neither warranted nor authorized by the process;
were not violated, this Court need not address the effect of non-compliance on the sale.
10
(2) the defendant had an improper purpose in exercising such illegal, perverted or
improper use of process; and (3) damage resulted.” Ritterbusch v. Holt, 789 S.W.2d 491,
493 (Mo. banc 1990), citing Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc 1979).
Ms. Huey’s abuse of process counterclaim asserted the trustees’ purpose in
seeking to set aside the sale was wholly pretextual and was brought solely for the
allegedly improper collateral purpose of coercing 6 Clayton Terrace into abandoning or
withdrawing its request to subdivide the property. The circuit court discussed the
evidence in detail and concluded Ms. Huey had proved the second element by showing
the trustees’ purpose was an improper one in that they did not actually care about the
alleged improprieties in the notice given by Ms. Huey nor did they identify an owner who
wanted to utilize the right of first refusal. The circuit court further found the third
element – damage resulted.
Ms. Huey, however, also was required to adduce evidence of the first element, “an
illegal, improper, perverted use of process, a use neither warranted nor authorized by the
process.” Id. To support this element, she and the circuit court relied on the same
evidence used to support the second element – improper motive. That was error. The
test for liability in an abuse of process claim is “whether the process has been used to
accomplish some unlawful end, or to compel the defendant to do some collateral thing
which he could not legally be compelled to do.” Moffett v. Commerce Trust Co., 283
S.W.2d 591, 600 (Mo. 1955) (quotations omitted). “The ulterior motive may be inferred
from the wrongful use made of the process, but the use itself may not be inferred from the
motive.” Id. at 599 (quotations omitted). It is improper to conflate these two separate
11
elements by inferring an improper use of process from bad motive. Id.
The test employed to see whether there has been a misuse of process “is whether
process had been used to accomplish some unlawful end or to compel the opposite party
to do some collateral thing which he [or she] could not be compelled to do legally.”
Ritterbusch, 789 S.W.2d at 493 n.1, citing, Owen v. Owen, 642 S.W.2d 410, 414 (Mo.
App. 1982). Courts have found misuse of legal process when a party “employs legal
process in a manner technically correct, but for a wrongful and malicious purpose to
attain an unjustifiable end or an object” that the particular process is not meant to
effectuate. Montgomery GMC Trucks, Inc. v. Nunn, 657 S.W.2d 334, 336 (Mo. App.
1983) (quotations omitted).
But “[n]o liability attaches where a party has done nothing more than pursue the
lawsuit to its authorized conclusion regardless of how evil a motive he possessed at the
time.” Pipefitters Health & Welfare Trust v. Waldo R., Inc., 760 S.W.2d 196, 198-99
(Mo. App. 1988). To the contrary, in the rare cases in which a valid abuse of process
claim will lie, there has been evidence the complained-about action was brought “to
obtain a result which the process was not intended by law to effect.” Thompson v.
Farmers Exch. Bank, 62 S.W.2d 803, 810 (Mo. 1933) (quotations omitted). 5
5
For example, Stafford, 582 S.W.2d at 679, found improper use of process where a
circuit court charged a party in a child custody case with contempt to compel her to
answer questions that the other party had no legal right to ask. Ritterbusch, 789 S.W.2d
at 493-94, found improper use of process where a person filed a complaint in municipal
court to criminally charge Ritterbusch with malicious damage of a vehicle but offered to
withdraw his complaint if Ritterbusch would pay the alleged claim for damage to the car.
12
The facts presented here do not show the use of a legal claim to accomplish some
end not envisioned by the legal process used. The trustees had the right to sue to enforce
the “right of first refusal” provision, as they had a fiduciary duty to the other lot owners,
and the indentures themselves provide “the Trustees shall have the power to enforce the
restrictions spread upon the plat of Clayton Terrace subdivision.” Ms. Huey, as the
seller, was the only person against whom that claim could be brought. See Moffett, 283
S.W.2d at 600 (finding a petition for abuse of process insufficient when it was “based on
allegations of wrongful motives … but shows a state of facts under which it was
defendant’s duty to have the matters in issue determined”). Most importantly, the claim –
a declaratory judgment to establish a transfer of property was void or voidable due to
failure to comply with indentures – was brought with the goal of setting aside the sale of
property to the developer and is a purpose for which that cause of action is designed.
The circuit court inferred improper use of process by the trustees from their
admissions that they chose to pursue their right to enforce the indentures only because
they did not like what the purchaser was going to do with the property and from their
failure to object timelier to that use or to the alleged indenture violations. But that did not
make their use of the process itself either unwarranted, illegal or perverted. The trustees’
actions may have been strategic, caused stress and concern to Ms. Huey, and, ultimately,
failed, but they were not an unauthorized use of a declaratory judgment. “Abuse of
process is not appropriate where the action is confined to its regular function even if the
plaintiff had an ulterior motive in bringing the action, or if the plaintiff knowingly
brought the suit upon an unfounded claim.” Misischia v. St. John’s Mercy Med. Ctr., 30
13
S.W.3d 848, 862 (Mo. App. 2000), abrogated on other grounds by Ellison v. Fry, 437
S.W.3d 762, 770 (Mo. banc 2014). Whether they won or lost on the “right of first
refusal” provision, and regardless of their primary motive for seeking to enforce the
indentures they were charged with following, the trustees cannot be found to have abused
process when they used the process in the manner intended. 6
The circuit court’s judgment for Ms. Huey on her counterclaim for abuse of
process is reversed. Additionally, because the circuit court awarded attorney’s fees on
her abuse of process claim, the award of attorney’s fees is reversed as well. 7
V. THE INDENTURE AMENDMENTS ARE VALID AND ENFORCEABLE
AND PROHIBIT SUBDIVISION OF LOTS
6 Clayton Terrace concedes the “one residence per lot” provision is valid if the
original indentures permitted the addition of restrictions upon approval of two-thirds of
the lot owners. But it argues the original indentures did not expressly permit the addition
of restrictions, and, even had they, this provision does not preclude subdividing lots so
more residences can be built.
The trustees argue that, to the contrary, the original indentures expressly permit
the addition of restrictions to the list of restrictions set out in the original indentures if
approved by two-thirds of the lot owners, and the “one residence per lot” restriction
6
This Court notes Ms. Huey did not assert a claim for prima facie tort, in which the
motivation of the actor is the key element. See Bandag of Springfield, Inc. v. Bandag,
Inc., 662 S.W.2d 546, 555-56 (Mo. App. 1983) (plaintiffs unable to prove defendant
intentionally sought to injure them by performing an otherwise lawful act, essential to a
claim for prima facie tort).
7
Because this Court reverses the attorney’s fee award, it need not reach the other issues
Ms. Huey raises about the size of the award and any error in apportioning it.
14
cannot be avoided by attempting to subdivide the original lots. This Court agrees with
the trustees’ interpretation of the indentures.
The original indentures, filed with the plat in 1923, provided, “The following
restrictions shall be in force and binding upon the owners of this Subdivision for a period
of 25 years from date of this instrument, unless amended or extended by two-thirds of
the lot owners in this Subdivision and publicly recorded.” (Emphasis added). The
question before this Court therefore is whether the provision that this list of restrictions
may be “amended or extended by two-thirds of the lot owners” provides authority for the
addition of restrictions to the indentures and, if so, whether the addition of the “one
residence per lot” restriction prohibits subdivision of the lots in the manner attempted by
6 Clayton Terrace.
Contract law provides a simple answer to these questions. “[A] restrictive
covenant is a private contractual obligation generally governed by the same rules of
construction applicable to any covenant or contract.” Kling v. Taylor-Morley, Inc., 929
S.W.2d 816, 819 (Mo. App. 1996). Thus, “[t]he principles of contract law apply when
interpreting an [i]ndenture.” Arbors at Sugar Creek Homeowners Ass’n v. Jefferson Bank
& Tr. Co., 464 S.W.3d 177, 183 (Mo. banc 2015).
To ascertain the parties’ intent, courts give the words of the contract their “natural,
ordinary, and common sense meaning.” Wilshire Const. Co. v. Union Elec. Co., 463
S.W.2d 903, 906 (Mo. 1971). In so doing, the contract’s terms “are read as a whole to
determine the intention of the parties and are given their plain, ordinary, and usual
meaning.” Dunn Indus. Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo.
15
banc 2003). “Additionally, each term of a contract is construed to avoid rendering other
terms meaningless.” Id.
“[W]hen there is any ambiguity or substantial doubt as to the meaning, restrictive
covenants will be read narrowly in favor of the free use of property.” See Blevins v.
Barry-Lawrence Cty. Ass’n for Retarded Citizens, 707 S.W.2d 407, 408 (Mo. banc 1986).
This means if the terms are ambiguous, their meaning “will not be extended by
implication to anything not clearly expressed in them.” Andrews v. Metro. Bldg. Co., 163
S.W.2d 1024, 1028 (Mo. 1942) (quotations omitted).
But “the right of one property owner to the protection of a restrictive covenant is a
property right just as inviolable as is the right of another to the free and untrammeled use
of his property when unrestricted, and the courts are not commissioned to hunt out a way
to defeat such a covenant.” Marose v. Deves, 697 S.W.2d 279, 289 (Mo. App. 1985),
citing, Proetz v. Cent. Dist. of Christian & Missionary All., 191 S.W.2d 273, 277 (Mo.
App. 1945). This means that, “[w]hen a contract is unambiguous, the intent of the
contract is discerned solely from the contract’s language.” Arbors at Sugar Creek
Homeowners, 464 S.W.3d at 183. Strict construction “should never be applied in such a
way as to defeat the plain purpose of the restriction.” Berkley v. Conway P’ship, 708
S.W.2d 225, 227 (Mo. App. 1986). “If the intention of the parties to the deed containing
the restrictions is clearly expressed the intention controls. All courts profess to give
effect to the plain intention of the parties in imposing such restrictions.” Andrews, 163
S.W.2d at 1027 (quotation omitted); accord Hall v. Koehler, 148 S.W.2d 489, 494 (Mo.
1941) (“[W]hen the intention is clear the courts will enforce such restrictions.”).
16
A. The Original Indentures Permitted the Addition of Restrictions by Two-
Thirds of the Lot Owners
As noted above, the Clayton Terrace indentures state “[t]he following restrictions
shall be in force and binding upon the owners of this Subdivision for a period of 25 years
from date of this instrument, unless amended or extended by two-thirds of the lot
owners.” “The use of the term ‘or’ generally refers to alternative possibilities and is akin
to use of the word ‘either.’” TAP Pharm. Prods. Inc. v. State Bd. of Pharmacy, 238
S.W.3d 140, 144 (Mo. banc 2007). By the indentures’ terms, the drafters provided that
two-thirds of the lot owners could do two things – amend the list of restrictions that
followed and extend those restrictions. To “amend” means “to change or modify in any
way for the better.” Webster’s Third New International Dictionary 68 (3d ed. 1966).
This same dictionary defines “extend” to mean “to cause to be longer.” Id. at 804.
It would be unnatural to read these words other than as expressing an intent that
two-thirds of the homeowners could add restrictions to the list provided and could
lengthen the time in which the original or added restrictions would be in effect, as both
“amend” and “extend” inherently broaden the reach of the list of restrictions either in
effect or in time. Indeed, that is how the lot owners have interpreted the indentures up
until the current controversy. They amended them in 1928 when, by a more than two-
thirds (but not unanimous) vote, they approved an amendment providing, “only one
residence shall be erected on each lot.” They did so again in adopting amendments over
the succeeding decades, adding various restrictions and extending the time of the list of
restrictions, by two-thirds vote, most recently in 1998.
17
6 Clayton Terrace argues this Court, nonetheless, must construe the “unless
amended or extended” language as insufficiently explicit to have permitted the
amendment of the list of restrictions to add a restriction of one residence per lot because
Van Deusen v. Ruth, 125 S.W.2d 1, 3-4 (Mo. 1938), held that use of the word “amended”
in indentures in that case was insufficiently specific to permit the addition of restrictions
without unanimous homeowner approval. Van Deusen’s result might have been justified
in the context of the particular facts and the unique language of the particular indentures
then being interpreted, 8 but its reasoning was suspect.
Van Deusen interpreted “amend” in the context of a restrictive covenant to mean
an “amelioration of the thing (as by changing the phraseology of an instrument, so as to
make it more distinct or specific) without involving the idea of any change in substance
or essence[.]” 125 S.W.2d at 1. This is far from the usual meaning of amend set out
above, and violates the settled rule that words in an indenture “are given their plain,
ordinary, and usual meaning.” Dunn, 112 S.W.3d at 428. Van Deusen, for this reason,
should be limited to its own facts, and has no persuasive – let alone binding – force under
the present facts or in cases using different language.
8
The language in Van Deusen was not comparable to that in the current case, for there
the word “amended” was used with the words “modified … released or extinguished.”
125 S.W.2d at 2. Van Deusen found that, considered in context, there was an ambiguity
as to whether the indentures intended to permit additions to the restrictions listed. Id. at
2-3. In particular, as the words “released or extinguished” are words of limitation and
could be read in the context of that agreement to imply an intent to permit a narrowing of,
but not additions to, the restrictions already set out, it interpreted them strictly not to
permit amendments that added to the restrictions listed. Id. at 3. There is no such
ambiguity in the restrictions at issue in the instant case – they use only the words
18
It is unfortunate, then, that Van Deusen’s abnormally limited reading of
“amended” has led appellate courts to interpret that word so narrowly as to effectively
prohibit almost any amendment to an indenture without unanimous approval. For
example, Jones v. Ladriere, 108 S.W.3d 736, 739-40 (Mo. App. 2003), held a restrictive
covenant providing restrictions “may be altered, amended, changed, or revoked” by two-
thirds majority vote, did not contemplate the addition of new restrictions. Similarly,
Webb v. Mullikin, 142 S.W.3d 822, 827 (Mo. App. 2004), held the language “altered or
amended all or in part” did not evidence an intent to allow for new restrictions.
One would have thought it not difficult to draft language that would
unambiguously permit the addition of restrictions. Yet, more explicit language was
drafted, only to itself also be found insufficiently explicit, in Bumm v. Olde Ivy
Development, LLC, 142 S.W.3d 895, 904-05 (Mo. App. 2004). In Bumm, the indenture
provisions expressly stated “[t]hese Protective Covenants may be amended, repealed or
added to at any time by the owners of a majority of the lots in said addition.” Id. at 897-
98 (emphasis added). Yet, relying on Van Deusen’s unaccountably narrow definition of
the word “amended” and cases applying it, Bumm held even the use of the words “added
to” was insufficient to permit any additional restrictions. Id. at 904-05.
All three of these cases, and others like them, were decided in error based on a
misinterpretation and misapplication of Van Deusen. The phrases “added to” or “altered
or amended” mean just what they say. When a contract unambiguously permits
“amended or extended” thereby indicating an intent to allow an increase in the reach of
the listed restrictions.
19
amendment or alteration, there is nothing to construe; the contract may be altered or
amended. Unless use of the word amended in the context of a particular set of indentures
indicates it is being used in other than its normal and natural sense, then “amended” has
its normal meaning – “to change or modify [them] in any way for the better.” Webster’s
Third New International Dictionary 68 (3d ed. 1966).
Applying these principles here, the original indentures (written a decade before
Van Deusen was decided) permitted the lot owners to both “amend” and “extend” the
indentures. Both are words of enlargement, and nothing in the context of the indentures
suggests these words were used in other than their normal meaning. The plain language
of the original indentures, thereby, gave the power to the homeowners to vote, by two-
thirds, to change or modify the list of restrictions in the way they believed was for the
better. In 1928, they chose to utilize this power by adding the “one residence per lot”
restriction. The addition of a requirement that there be one residence per lot was a
permissible amendment of the original indenture providing for 23 lots in the subdivision,
and it was approved by two-thirds of the owners as required by the original indenture.
This provision is valid and enforceable.
B. The “One Residence Per Lot” Provision Prevents Lot Subdivision
6 Clayton Terrace also argues that, even if valid, the “one residence per lot”
provision does not preclude subdividing Lot 6 into two lots and building one residence on
each sub-lot. This Court again disagrees. As the circuit court held, because the “one
residence per lot” indenture provision, read in the context of the entire instrument,
indicates it was intended to prevent construction of multiple residences per original lot,
20
this language precludes 6 Clayton Terrace from subdividing Lot 6 into two lots to avoid
the “one residence per lot” restriction.
In determining a covenant’s plain meaning, “[r]estrictive covenants are examined
in the context of the entire instrument and not in just a single clause.” Kauffman v.
Roling, 851 S.W.2d 789, 792 (Mo. App. 1993).
The cardinal rule of contract interpretation, and thus for the interpretation
of a restrictive covenant, is that the party’s intentions must be ascertained
and given effect. … The parties’ intent can be determined by inquir[ing]
into the purpose sought to be accomplished by the restrictive covenant.
Each contractual provision is construed in harmony with the others to give
each provision a reasonable meaning and avoid an interpretation that
renders some provisions useless or redundant.
Blue Ridge Bank & Trust Co. v. Trosen, 221 S.W.3d 451, 459 (Mo. App. W.D. 2007)
(quotations and citations omitted) (alteration in original); accord Andrews, 163 S.W.2d at
1028 (courts will interpret restriction “in the light of the entire context of the instrument
containing the restrictions”).
Applying these principles, Berkley held a restriction limiting one single family
dwelling per lot prevented subdivision of a lot when the covenant provisions also
included other restrictive measures, such as specific cubic feet requirements for
specifically listed individual lots. 708 S.W.2d at 227-28. Berkley found the restriction on
dwellings combined with the set specification of cubic feet for each specified lot
“show[ed] that the original grantor placed the residential restrictions on the individual
lots, intending to assure each lot owner that only a limited number of homes would ever
be built in the Ingleside Subdivision.” Id. at 228.
The original Clayton Terrace indentures were created in 1923 as a handwritten
21
paragraph on the plat. The plat had 23 lots. The first amended indentures, codified just
five years later in 1928, were also hand-written and meant to accompany that plat. They
unambiguously state, “Only one residence shall be erected on each lot.” In context, it is
evident the term “each lot” necessarily refers to each of the 23 lots on the plat the
indentures accompanied and on which the original indenture actually was written. At no
point since 1928 has Clayton Terrace had more than 23 houses. 9
Further, as the circuit court concluded below, similar to Berkley, this intent is
supported by the inclusion of other indenture provisions restricting what can be done if
lots are to be sold or if an owner wants to erect a new house on adjoining lots. For
instance, the indentures provide:
No building or other structure shall be erected closer than 15 feet to any
side of rear lot line provided, however, that one residence may be erected
on two adjoining lots in which and every such event such two lots shall for
all purposes of the foregoing restrictions be deemed one lot.
The separate opinion would hold that this restriction is not comparable to that in
Berkley because it does not list each lot by number in saying how far from the rear line
each structure may be placed. But, as the restriction was the same for all lots, there was
no reason to list each lot separately, as had been done in the Berkley indenture. 10 Here,
9
Since its founding, Clayton Terrace has rearranged three lots so two of the three lots
would have access to an interior, neighborhood street rather than Lindbergh Boulevard.
One lot has been taken by eminent domain, so now there are 22 lots. But Clayton
Terrace has never subdivided these lots, the lot number has never exceeded 23, and no
more than one residence has ever been built on a single lot.
10
The restrictive covenant in Berkley provided, “No residence, shall be erected, altered,
placed or permitted to remain on lots 4, 7, 8, 9, 10 which contains less than 26,000 cubic
feet; and on lots 1, 2, 3, 5, 6, 11, 12 which contains less than 28,000 cubic feet.” 708
S.W.2d at 227.
22
the restriction for each lot was the same: no structure “shall be erected closer than 15 feet
to any side of rear lot line ….” The rear lot lines were set out on the original plat. This
restriction, therefore, restricted placing a structure closer than 15 feet to any of those
original lot lines. It could not be avoided by changing those rear lot lines by dividing one
lot into two lots any more than the restriction in Berkley could be avoided by subdividing
the lot.
Further, the indenture at issue in this case does more than limit residences to one
per lot and require them to be a certain distance from the rear lot line set out in the plat; it
also provides that, if lots are combined, still only a single home can be built on the
combined lot. Similarly, another provision directs that if multiple lot owners exercise
their right of first refusal to buy a lot which is being sold, they take pro rata shares of a
single lot. In other words, even if purchased by other lot owners, those lot owners must
each take a pro rata share in the single lot and are not permitted to divide the lot pro rata.
Reviewing the “one residence per lot” provision in light of these other provisions – that
is, in the context of the entire instrument, as directed by Andrews, 163 S.W.2d at 1028 –
the circuit court found it would violate the intent of the indentures to permit a lot to be
subdivided such that there would be more than one residence per lot.
While 6 Clayton Terrace and the seperate opinion disagree with the circuit court’s
interpretation of the indenture language, “[a] provision [in a restrictive covenant] is not
ambiguous merely because the parties disagree over its meaning.” Barry Harbor Homes
Ass’n v. Ortega, 105 S.W.3d 903, 908 (Mo. App. 2003), quoting Sonoma Mgmt. Co. v.
Boessen, 70 S.W.3d 475, 479 (Mo. App. 2002) (alterations in original). Further, were the
23
concurring opinion’s approach taken, many of the indenture’s restrictions could be
rendered meaningless simply by subdividing the lots. “Each provision is construed in
harmony with the others to give each provision a reasonable meaning and avoid an
interpretation that renders some provisions useless or redundant.” Wildflower, 25 S.W.3d
at 534. Restrictions like the “one residence per lot” provision and the restriction that
multiple lot owners must take pro rata shares in a combined purchase would be without
effect if a lot owner could avoid them simply by subdividing the lot after purchase. The
intention here is clear – to protect the homeowners of Clayton Terrace by limiting the
residences to one per original lot. The circuit court’s finding on this issue is affirmed.
VI. THE CIRCUIT COURT ERRED IN AWARDING ATTORNEY’S FEES TO
THE TRUSTEES BECAUSE THERE WAS INSUFFICIENT PROOF OF
SPECIAL CIRCUMSTANCES
The trustees argue “special circumstances” exist justifying the award of attorney’s
fees because 6 Clayton Terrace engaged in intentional misconduct by concealing its
attempt to purchase and subdivide Lot 6. “In considering a request for attorney’s fees,
Missouri has adopted the American Rule; that is, absent statutory authorization or
contractual agreement, with few exceptions, each litigant must bear his own attorney’s
fee.” Incline Village Bd. of Trustees v. Edler, --- S.W.3d --- (Mo. banc Apr. 30, 2019)
(quotations omitted). The question is whether such an exception was shown here.
It appears this Court has found an exception to the American Rule when one party
brought a declaratory judgment action that resulted in creation of a common fund that
benefited a trust with multiple beneficiaries. See Bernheimer v. First Nat’l Bank of Kan.
City, 225 S.W.2d 745, 755 (Mo. banc 1949). This Court also approved the award of
24
attorney’s fees as an exception to the American Rule in Johnson v. Mercantile Trust Co.
National Ass’n, 510 S.W.2d 33, 40 (Mo. 1974), when “the natural and proximate result of
a wrong or breach of duty is to involve the wronged party in collateral litigation.”
Accord Tupper v. City of St. Louis, 468 S.W.3d 360, 374 (Mo. banc 2015); Essex
Contracting, Inc. v. Jefferson Cty., 277 S.W.3d 647, 657 (Mo. banc 2009). Neither of
these circumstances are alleged to be relevant here, however.
In Mayor, Councilmen, & Citizens of City of Liberty v. Beard, 636 S.W.2d 330,
331 (Mo. banc 1982), this Court recognized a court can award attorney’s fees for “special
circumstances.” It did so, however, in the context of a declaratory judgment action in
which section 527.100 specifically permits the recovery of “costs.” Id. Mayor held that
while these “costs” normally do not include attorney’s fees, they may do so when
“special circumstances” are shown. Id., citing, Bernheimer, 225 S.W.2d at 745.
While Mayor did not attempt to define what is encompassed in the term “special
circumstances,” the landmark case of David Ranken, Jr. Technical Institute v. Boykins,
816 S.W.2d 189, 193 (Mo. banc 1991), overruled on other grounds by Alumax Foils, Inc.
v. City of St. Louis, 939 S.W.2d 907, 911 (Mo. banc 1997), used the term in referring to
all three previously recognized exceptions, that is, “special circumstances” involving a
common fund, declaratory judgments, or requiring collateral litigation:
Missouri has adopted the American Rule; that is, absent statutory
authorization or contractual agreement, with few exceptions, each litigant
must bear his own attorney’s fee. Mayor, Councilmen, & Citizens v. Beard,
636 S.W.2d 330, 331 (Mo. banc 1982).
Missouri courts have limited the exceptions to those cases involving
“very unusual circumstances” or where the natural and proximate result of a
breach of duty is to involve the wronged party in collateral litigation.
25
Johnson v. Mercantile Trust Co. National Ass’n, 510 S.W.2d 33, 40 (Mo.
1974). Sometimes the term “special circumstances” has been used. Temple
Stephens Co. v. Westenhaver, 776 S.W.2d 438, 442 (Mo. App. 1989).
The declaratory judgment statutes under chapter 527 make no
reference to attorneys’ fees. However, several cases have recognized that
attorneys’ fees may be awarded as costs under section 527.100, RSMo
1986, where very unusual circumstances have been shown. Beard, 636
S.W.2d at 331.
Later cases from this Court have applied Ranken’s authorization of attorney’s fees
as costs permitted by section 527.100 in declaratory judgment actions when intentional
misconduct was shown. See, e.g., Incline Village, --- S.W.3d ---, citing Tupper, 486
S.W.3d at 374 (“[I]ntentional misconduct is a ‘special circumstance’ that may justify an
award of attorney’s fees”). But no case from this Court has been cited allowing a finding
of “special circumstances” based on intentional misconduct outside the declaratory
judgment context. To the contrary, Ranken listed a series of non-declaratory judgment
actions in which it noted attorney’s fees had been denied. 816 S.W.2d at 193.
Later court of appeals cases nonetheless have applied the intentional misconduct
exception to non-declaratory judgment actions when the party against whom the fees
were awarded engaged in intentional conduct that was spiteful, fraudulent, or groundless.
See, e.g., St. Louis Title, LLC v. Talent Plus Consultants, LLC, 414 S.W.3d 24, 26 (Mo.
App. 2013) (recognizing “special circumstances” exception even though the action was
one in contract, and a declaratory judgment was not sought); Barr v. Mo. State Dep’t of
Soc. Servs., 565 S.W.3d 683, 691 (Mo. App. 2018) (affirming award of attorney’s fees in
child abuse registry case because “[g]iven …unchallenged findings regarding the
26
Children’s Division’s conduct in this case, we cannot conclude that unusual or special
circumstances were not present in this case justifying an award of attorney’s fees”).
Here, the trustees sought only injunctive and not declaratory relief against 6
Clayton Terrace and do not claim a common fund or collateral litigation resulted from 6
Clayton Terrace’s actions. They rely on the additional “intentional misconduct”
exception created sub silencio by the appellate courts when “special circumstances”
involving unusually improper conduct are shown in non-declaratory judgment cases.
This Court need not determine whether these appellate courts erred in extending the
declaratory judgment exception to similar cases. Assuming, without deciding, that such a
limited additional exception exists for intentional misconduct that is fraudulent,
groundless or based solely on spite, this is not such a case.
There is no claim here of spite or purposeful attempts to injure other homeowners.
Neither is there evidence of fraud. The intentional misconduct on which the claim for
attorney’s fees is based is the fact 6 Clayton Terrace failed to reveal before or after the
time of purchase that it hoped to subdivide the property and, thereby, avoid the “one
residence per lot” limitation. This does not constitute the kind of “intentional
misconduct” that qualifies as “special circumstances.”
The trustees fail to identify any duty on the part of 6 Clayton Terrace to reveal this
information prior to the purchase. It was not in a fiduciary or confidential relationship
with the trustees at that time. Indeed, it did not become the proposed owner of Lot 6 until
the day before the closing. Further, this was an arms’ length transaction, and the trustees
cite no authority for a duty of a purchaser to provide such notice to the trustees of
27
property it does not yet own. Absent such a duty, 6 Clayton Terrace’s decision not to
inform the other homeowners proactively of its identity and motives, while potentially
strategic, was not fraudulent nor can an intent to harm be inferred from its silence.
Similarly, no authority is cited for a duty after the sale to let the trustees know the
new owners believed the indentures did not prohibit them from subdividing the lot. See
Volk Const. Co. v. Wilmescherr Drusch Roofing Co., 58 S.W.3d 897, 899 (Mo. App.
2001) (finding fraud when defendant filed falsified UCC forms purporting to create a
security interest in the assets of an insolvent corporation); Temple Stephens Co. v.
Westenhaver, 776 S.W.2d 438, 440 (Mo. banc 1989) (finding fraud when defendant
knowingly omitted a required, neighboring landowner from a rezoning application
because that particular landowner opposed the rezoning). 6 Clayton Terrace’s purpose
was to make money, and it did not hide that purpose after the purchase. Buying,
dividing, and reselling property for profit is not intentional misconduct.
Finally, while 6 Clayton Terrace proved to be incorrect that it could subdivide the
lot, its arguments to the contrary were not frivolous or fraudulent. “‘Special
circumstances’ contemplates something more than advocating a position a court finds
wrong.” Incline Village, --- S.W.3d ---. Special circumstances are not shown here. The
award of attorney’s fees to the trustees from 6 Clayton Terrace is reversed.
VII. CONCLUSION
For the reasons stated here, this Court affirms the portion of the judgment refusing
to invalidate the sale by Ms. Huey and holding the “one residence per lot” indenture
provision is valid and precludes subdivision of the lot. It reverses the portion of the
28
judgment finding abuse of process on the part of the trustees as well as its awards of
attorney’s fees to Ms. Huey and the trustees.
_________________________________
LAURA DENVIR STITH, JUDGE
Draper, C.J., Wilson, Russell, and Breckenridge,
JJ., concur; Powell, J., concurs in part and dissents
in part in separate opinion filed; Fischer, J.,
concurs in opinion of Powell, J.
29
SUPREME COURT OF MISSOURI
en banc
TRUSTEES OF CLAYTON )
TERRACE SUBDIVISION, )
)
Respondent/Cross-Appellant, )
)
v. ) No. SC97349
)
6 CLAYTON TERRACE, LLC, )
)
and )
)
JEANNETTE R. HUEY, TRUSTEE )
OF THE JANE R. HUEY LIFETIME )
TRUST AGREEMENT DATED )
MAY 21, 1998, )
)
Appellants/Cross-Respondents. )
Opinion Concurring in Part and Dissenting in Part
I respectfully dissent as to section V. B. of the principal opinion because I disagree
with its conclusion that a restrictive covenant that states “[o]nly one residence shall be
erected on each lot,” precludes subdivision of a lot within Clayton Terrace. 1 Because
nothing in the text of this restrictive covenant, or any other covenant governing Clayton
1
I fully concur in sections I, II, III, IV, and V. A. of the principal opinion. I also concur
in the result reached in section VI of the principal opinion.
Terrace, prohibits subdivision of lots, I would reverse the circuit court’s judgment
enjoining 6 Clayton Terrace from subdividing its privately owned lot.
“The right to own private property is a bedrock principle in American law.”
Odegard Outdoor Advertising, LLC v. Bd. of Zoning & Adjustment of Jackson Cty., 6
S.W.3d 148, 149 (Mo. banc 1999). Indeed, this Court has explained “the right to acquire,
hold, enjoy, and dispose of property, real or personal” is a fundamental right. Stone v. City
of Jefferson, 293 S.W. 780, 782 (Mo. banc 1927). Buried within this bedrock principle is
the right of property owners “to specify the uses to which land may be put and … to prevent
use for any purpose not included.” Matthews v. First Christian Church of St. Louis, 197
S.W.2d 617, 620 (Mo. 1946). Property owners may agree, therefore, to collectively restrict
their property rights for a common purpose. But in the absence of such an agreement, the
law seeks to promote “the free and untrammeled use of real property.” Steve Vogli & Co.
v. Lane, 405 S.W.2d 885, 889 (Mo. 1966). For this reason, restrictive covenants are not
favored and are strictly construed. Vinyard v. St. Louis Cty., 399 S.W.2d 99, 105 (Mo.
1966). “Restrictive covenants will not be extended by implication to include anything not
clearly expressed in them.” Id. Courts fail to zealously protect the fundamental right to
freely own and use private property by enforcing restrictions that do not appear in the text
of a covenant. Lane, 405 S.W.2d at 889.
The restrictive covenant at issue in the instant case provides, “Only one residence
shall be erected on each lot.” The plain and obvious purpose of this covenant is to prohibit
the construction of multiple residences on a single lot. The provision does not in any way
speak to lot owners’ authority to subdivide their lots. The only way to conclude the
2
covenant prohibits subdivision is to infer the phrase “each lot” limits the total number of
lots allowed in Clayton Terrace to those in existence when the covenant was adopted.
While this inference is certainly plausible, inferring that the phrase “each lot” operates as
a subdivision restriction violates the principle that restrictive covenants will not be
extended by implication to include restrictions not clearly expressed. Vinyard, 399 S.W.2d
at 105.
The principal opinion concludes the “one residence per lot” provision of the
restrictive covenants precludes subdivision of the lots located within Clayton Terrace. Slip
op. at 21. The principal opinion correctly reasons “the ‘one residence per lot’ indenture
provision … indicates it was intended to prevent construction of multiple residences per
original lot.” Id. But the principal opinion errs by looking beyond the text of this indenture
and reading into “the context of the instrument” to infer that “this language precludes 6
Clayton Terrace from subdividing Lot 6 into two lots to avoid the ‘one residence per lot’
restriction.” Id. This inference violates the principle that restrictive covenants will not be
enforced beyond the terms clearly expressed in the covenant. Vinyard, 399 S.W.2d at 105.
The principal opinion’s reliance on Berkley v. Conway Partnership, 708 S.W.2d
225 (Mo. App. 1986), likewise, is misplaced. The restrictive covenant at issue in Berkley
was fundamentally different from the covenant at issue here. The restrictive covenant in
Berkley provided, “No residence, shall be erected, altered, placed or permitted to remain
on lots 4, 7, 8, 9, 10 which contains less than 26,000 cubic feet; and on lots 1, 2, 3, 5, 6,
11, 12 which contains less than 28,000 cubic feet.” Id. at 227. Berkley held this covenant
expressly prohibited the construction of an undersized residence and also prohibited
3
subdivision because the “set specification of cubic feet for each residence on each of
twelve lots reflects the developer’s intention that these be the sole lots established by his
original subdivision.” Id. at 228 (emphasis added). By contrast, the covenant in this case
contains no language specifying a certain number of lots. Although the covenant does
specify “only one residence shall be erected on each lot,” the principle of strict construction
requires the Court to not infer anything more into this restriction.
Inferring a “no subdivision” restriction into the “one residence per lot” provision
violates this Court’s policy to promote the free use of property unless property owners have
voluntarily and unambiguously surrendered their rights. See Vinyard, 399 S.W.2d at 105.
Because the covenants of Clayton Terrace do not expressly forbid lot owners from
subdividing their lots, I would hold 6 Clayton Terrace is free to subdivide its lot and use
the land for any lawful purpose not expressly forbidden by the covenants of Clayton
Terrace. 2
___________________
W. Brent Powell, Judge
2
In section VI, the Court conducts a thoughtful and comprehensive analysis of whether 6
Clayton Terrace engaged in intentional misconduct by failing to reveal its intent to
subdivide the property before purchasing the lot so as to justify an award of attorney fees.
Because I believe, however, the covenants of Clayton Terrace do not preclude subdivision
of 6 Clayton Terrace’s lot, I would not reach the issue the Court decides in section VI. In
my view, Clayton Terrace should have prevailed on the subdivision issue. The trustees,
therefore, should have no claim to attorney fees in the first place. However, because the
Court ultimately holds the trustees are not entitled to recover attorney fees, I concur in the
result the Court reached in section VI.
4