Neidhart v. Areaco Investment Co.

STOCKARD, Commissioner. By notice of appeal filed prior to January 1, 1972, plaintiffs have appealed from the judgment of the Circuit Court of Ste. Genevieve County entered in their suit for a declaratory judgment and other relief. Plaintiffs’ petition was in four counts, but the issues on this appeal pertain solely to Count I. Appellants alleged that they are the owners of lots in Rocky Ridge Ranch, which lots were sold to them subj ect to restrictions running with the land contained in agreement executed April 6, 1966, and recorded in the office of the Recorder of Deeds of Ste. Genevieve County; that they represent that class of persons which is comprised of other owners of lots in Rocky Ridge Ranch; and that to plaintiffs’ damage Areaco Investment Company, contrary to the said restriction agreement, has purported to modify plaintiffs’ rights under the agreement. The purported modifications were executed by Areaco Investment Company alone, and were attached to plaintiffs’ petition as Exhibits B and C. Plaintiffs prayed for a declaratory judgment that (1) the purported modifications are invalid and void, and (2) that the purported changes “be declared invalid as being inconsistent with the defendants’ authority under the original restriction agreement of April 6, 1966.” Defendants admitted certain allegations as to ownership of the land affected, and denied generally all other allegations. Defendants subsequently filed a motion to dismiss Count I of plaintiffs’ petition. The alleged grounds therefor were that in another suit brought by the Rocky Ridge Ranch Homeowners Association, and certain named individuals, against Areaco Investment Company (Case No. 4455) in the Circuit Court of Ste. Genevieve County, the court had entered judgment decreeing that the purported modifications of the restriction agreement challenged by plaintiffs in their petition are invalid and of no effect. It was further alleged in the motion that the relief granted- in Case No. 4455 was the identical relief sought by plain [930] tiffs, and the judgment in Case No. 4455 is res judicata as to them. The judgment in Case No. 4455, entered by consent of the parties, provided that “the restriction agreement enacted * * * on the 6th day of April 1966 * * * [is] valid and binding upon the parties hereto,” and that “the modified restriction agreements * * * [those challenged by plaintiffs in their Count I] be declared invalid and held for naught.” The judgment in this case entered on Count I was that “there is not now in force and effect nor has there been since August 4, 1970 [the date of the judgment in Case No. 4455], any modified restrictive agreements designated as plaintiffs’ Exhibit B and plaintiffs’ Exhibit C [the two modifications challenged by plaintiffs] in plaintiffs’ petition.” It was further held that the judgment in Case No. 4455 was binding on plaintiffs, and for that reason there was no justiciable issue under Count I. Plaintiffs’ points on this appeal are that (1) the court “erred in dismissing [their] petition because (a) the consent judgment in the prior action is not res judicata as to nonparticipating members of the class of subdivision lot owners where no prior notice was given,” (b) “the consent judgment in the prior action was not res judicata as to [them] in that they were not represented as a class by plaintiffs in the prior suit,” and (2) “the court erred in dismissing [their] petition because there is a jus-ticiable controversy before the court and [they] are entitled to a declaratory judgment.” From plaintiffs’ argument we are able to determine that their contention is that the judgment in Case No. 4455 merely held the purported modifications to be void pursuant to a consent judgment, but they are entitled to a declaratory judgment that the provisions of the restrictive agreement of April 6, 1966 do not authorize Areaco Investment Company, acting alone, to make the same or other modifications in the future. If this court has jurisdiction of this appeal it is only on the basis that title to real estate is involved. Assuming that an appeal from a judgment declaring the validity of restrictions running with the land involves title to real estate, see Wilson v. Owen, 261 S.W.2d 19 (Mo.1953), there is no such issue on this appeal. Plaintiffs asked that the two purported modifications of the restrictions be declared invalid and of no effect, and the judgment appealed from so decrees. It also decreed that the restriction agreement dated April 6, 1966 is in effect. By their points on this appeal, plaintiffs do not contend that those rulings are incorrect, and could not do so because those rulings are in accord with the relief requested, and therefore plaintiffs are not aggrieved parties. There is no issue on this appeal concerning the validity of restrictions running with the land. Plaintiffs’ contentions are, in effect, that by their' petition they are entitled to a declaratory judgment that not only are they entitled to a judgment that the purported modifications are invalid, but also, that pursuant to the terms of the restriction agreement dated April 6, 1966, Areaco Investment Company, acting alone, cannot in the future modify the restrictions. This at most calls for a construction of the restriction agreement dated April 6, 1966, and the effect of the judgment in Case No. 4455. There is no issue involving title to real estate. This court does not have jurisdiction of this appeal. The case is transferred to the Missouri Court of Appeals, St. Louis District. HOUSER, C., concurs. PER CURIAM: The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court. FINCH, J., concurs in separate concurring opinion filed. HENLEY, P. J., and MORGAN, J., concur and concur in separate concurring opinion of FINCH, J.