                              Missouri Court of Appeals
                                        Southern District
                                           Division Two


STANLEY SELLERS,                                      )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
vs.                                                   )       No. SD33312
                                                      )
WOODFIELD PROPERTY OWNERS                             )       Filed January 29, 2015
ASSOCIATION,                                          )
                                                      )
       Defendant-Respondent.                          )

             APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY

                              Honorable Mark E. Orr, Circuit Judge

AFFIRMED

       Stanley Sellers appeals from the trial court judgment ordering removal of a storage

building located on his property. Sellers raises four points on appeal, ultimately arguing that the

trial court erred because a prohibition of all storage buildings is not allowed in the property

covenants and is unreasonable. Finding no merit in any of Sellers’s claims, the trial court’s

judgment is affirmed.

                              Factual and Procedural Background

         Sellers has owned a home in the Woodfield subdivision of Nixa since 2011. Before

purchasing his home, Sellers became familiar with the “Declaration of Restrictions, Covenants

and Conditions of Woodfield Subdivision” (“the Covenants”). The Covenants provide that “[n]o


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structure whatsoever shall be erected, placed, or permitted to remain on any Lot except one

detached one-family dwelling with any appurtenant accessory structure or structures approved by

the Architectural Committee.” The Architectural Committee is composed of three members of

the Woodfield Property Owners Association (“the POA”). The Covenants state that the

Architectural Committee “shall develop guidelines and policies for the development and [sic] of

a residential community which is harmonious and aesthetically pleasing.” The Architectural

Committee established guidelines and policies by accepting rules enacted and enforced by the

original developer. The policies are set out in a document entitled “Woodfield Minimum

Building Requirements” (“the Requirements”) and have been publicly available online at the

POA’s website since 2010.

         Shortly after purchasing his home, Sellers constructed an outdoor kitchen with the prior

approval of the Architectural Committee. Without seeking the prior approval of the

Architectural Committee, however, Sellers then began construction of a storage building to store

lawn equipment. 1 After construction began on the storage building, Sellers was contacted by the

POA and advised that his storage building violated a provision of the Requirements, which

states: “Storage buildings or utility buildings are not allowed.” There are no other storage

buildings in the subdivision. Sellers initially sought a waiver from the POA and the

Architectural Committee. The POA declined to amend the Requirements at a special meeting.




1
  The structure in this case is categorized many different ways in the record: accessory building, storage building,
shed, etc. The Covenants address the regulation of “appurtenant accessory structure[s],” and the Requirements
speak more specifically to prohibiting “[s]torage buildings or utility buildings.” At oral argument, it was clarified
that the parties have used the term “accessory building” synonymously with the Covenants’ reference to
“appurtenant accessory structure[s].” For clarity, we refer to Sellers’s building as a storage building. Although
“storage building” is not defined in any of the property ownership documents, there seems to be no disagreement
among the parties that the storage building falls within both the Covenants’ regulated “appurtenant accessory
structure[s]” and the Requirements’ “[s]torage buildings or utility buildings” prohibition.

                                                           2
After the Architectural Committee also denied his request for approval via letter, 2 Sellers asked

the trial court to declare that his storage building was not in violation of the Covenants.

         Following a bench trial, the trial court entered judgment for the POA and concluded that

the Requirements were not a “new burden” on property ownership greater than that set forth in

the Covenants but rather were validly enacted and in effect when Sellers purchased his property.

The trial court also concluded that neither the Requirements nor the decision to deny Sellers’s

storage building was arbitrary or unreasonable and that Sellers had knowledge of the

Requirements. This appeal followed.

                                               Standard of Review

         The judgment in this court-tried case will be affirmed “unless there is no substantial

evidence to support it, unless it is against the weight of the evidence, unless it erroneously

declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30,

32 (Mo. banc 1976). A court reviewing the decision of an architectural committee reviews only

for reasonableness and does not substitute its opinion as to harmony or disharmony. Bennett v.

Huwar, 748 S.W.2d 777, 780 (Mo.App. 1988).

                                                     Discussion

         Sellers raises four points on appeal. 3 First, Sellers contends that the trial court erred as a

matter of law in that the Requirements unlawfully place a greater burden on property ownership


2
 This letter purports to be a denial by the POA’s board of directors. Because there were no volunteers to be on the
Architectural Committee, the three-person board of directors for the POA assumed the duties of the Architectural
Committee. We understand this letter to be authored by the board of directors acting in their capacity as the
Architectural Committee.
3
  All four of Sellers’s points claim that the trial court’s decision was “not supported by substantial evidence, against
the weight of the evidence, and erroneously declared or applied the law.” These are “distinct claims” and “must
appear in separate points relied on in the appellant’s brief to be preserved for appellate review.” Ivie v. Smith, 439
S.W.3d 189, 199 n. 11 (Mo. banc 2014). Nevertheless, Sellers’s arguments under his first and second points failed
to address three of his four alleged claims. Therefore, our review has excluded those claims that were abandoned by

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than the Covenants allow. Second, Sellers contends that the trial court erred as a matter of law

because the prohibition of accessory buildings was arbitrary and unreasonable. Third, Sellers

contends that his failure to seek the approval of the Architectural Committee should not be held

against him. Fourth, Sellers contends that the trial court’s finding that he had knowledge of the

Requirements was either against the weight of the evidence or not supported by substantial

evidence. Because we ultimately determine that the Requirements did not place a new burden on

Sellers’s ownership of his property and that the Architectural Committee did not act arbitrarily or

unreasonably, Sellers’s third point becomes moot. Sellers’s fourth point fails because he does

not challenge a factual proposition necessary to sustain the judgment.

        Requirements Did Not Place a Greater Burden on Ownership than the Covenants

         Sellers contends that the Requirements place a “new burden” on his property ownership,

which violates this Court’s previous holding that “a new restrictive covenant, adopted by

majority vote only, is invalid and unenforceable if it imposes new burdens upon the affected

property owners[,]” citing Bumm v. Olde Ivy Dev., LLC., 142 S.W.3d 895, 903 (Mo.App. 2004).

The case law on “new burdens” is discussed extensively in Harris v. Smith. 250 S.W.3d 804,

809-10 (Mo.App. 2008) (citing Van Deusen v. Ruth, 125 S.W.2d 1 (Mo. 1938), Hazelbaker v.

Cnty. of St. Charles, 235 S.W.3d 598 (Mo.App. 2007), Webb v. Mullikin, 142 S.W.3d 822

(Mo.App. 2004), Bumm, 142 S.W.3d 895, and Jones v. Ladriere, 108 S.W.3d 736 (Mo.App.

2003)). The basic fact pattern underlying all of the cases set forth in Harris and Harris itself is:

A subdivision is restricted by a set of covenants. Those covenants allow amendment by majority

vote. Property owners set out to “amend” the covenants, but, in effect, add entirely new


Sellers. In re Marriage of Roedel, 550 S.W.2d 208, 211 (Mo.App. 1977) (“Because the argument section of
appellant’s brief fails to develop his contention and because appellant cites no authority in support of this point,
appellant’s contention is deemed abandoned.”).


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covenants. For example, in Harris, the original covenants allowed for outbuildings that blended

with the décor of the home. Harris, 250 S.W.3d at 807. These covenants were amended to

restrict the number and size of outbuildings. Id. The change was approved by a majority of

homeowners, but two homeowners did not approve. Id. This was a held to be invalid. Id. at

809.

       Based on Harris, Sellers argues that the Requirements place a greater burden on his

property ownership than the Covenants because the Covenants allow him to have an accessory

building subject to the approval of the Architectural Committee and the Requirements totally

prohibit a subcategory of accessory buildings without first having received “100% approval of

property owners[.]” Sellers’s argument fails because it misconstrues the burden created by the

Covenants. Unlike in Harris, the Covenants in this case provide for an Architectural Committee

that is required to “develop guidelines and policies for the development and [sic] of a residential

community which is harmonious and aesthetically pleasing.”

       Sellers argues that a prohibition on accessory buildings is ineffective without 100 percent

approval of property owners, but he does not cite any authority under which a court held that the

only way to control accessory buildings is to receive 100 percent approval by property owners.

To do so would essentially invalidate the provision within the Covenants that requires the

Architectural Committee to create guidelines and policies. He also cites no authority from which

we could conclude that restrictive covenants cannot or should not grant an architectural

committee the power to make guidelines. In Vill. of Pheasant Run Homeowners Assoc., Inc. v.

Kastor, 47 S.W.3d 747, 752 (Tex.App. 2001), an architectural committee was given authority to

establish minimum guidelines concerning exterior design and color of homes within a

subdivision. The Texas Court of Appeals held that because the language of the deed made it



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clear that a committee existed and the committee had authority to establish independent

standards, the homeowners could be held to those standards. Id. at 753. Similarly, the policies

here are not a new burden because the Covenants have always provided for their creation.

Sellers’s first point is denied.

                          Architectural Committee Did Not Act Unreasonably

        Sellers’s second ‘Point Relied On’ contends that the trial court erred because the

Architectural Committee’s denial of his request to maintain his storage building based on a total

prohibition of accessory buildings was unreasonable. 4 Sellers’s argument is solely premised on

distinguishing one case, LeBlanc v. Webster, 483 S.W.2d 647 (Mo.App. 1972). LeBlanc holds

that restrictions requiring prior approval or consent to the erection of structures are valid but such

restrictions must be reasonably exercised. Id. at 650. In LeBlanc, one party argued that

decisions by architectural committees were unreasonable unless there was some external

standard to control the committee’s discretion. Id. at 649. LeBlanc rejected that argument by

subjecting the committee’s discretion to a reasonableness standard. Id. See also 20 AM. JUR. 2d

Covenants, Conditions, and Restrictions § 224 (2008) (“Architectural review pursuant to a

restrictive covenant is suspect . . . due to its tendency to be arbitrary, capricious, and

unreasonable; such review must be done reasonably and any doubts as to its reasonableness will

be resolved in favor of the landowners.”).

        Sellers attempts to distinguish LeBlanc by arguing that the Requirements inappropriately

remove the Architectural Committee’s ability to give prior approval or consent because


4
 Sellers’s point relied on actually states that the POA denied his request, not the Architectural Committee.
Although the board of directors did decline to amend the storage building provision of the Requirements at a special
meeting, reliance on Leblanc clarifies that what Sellers actually appeals is the Architectural Committee’s letter
denying his belated and untimely request for approval. As stated in note 2, although this letter purports to be
authored by the POA’s board of directors, we understand the board to be acting in its capacity as the Architectural
Committee.

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accessory buildings are allowed by the Covenants but totally prohibited by the Restrictions.

Reliance on LeBlanc in this manner is misplaced for two reasons.

         First, Sellers’s argument under this point hinges on a belief that a blanket prohibition of

accessory buildings is unreasonable because an architectural committee must exercise discretion

on a case-by-case basis. 5 This argument fails because it misconstrues the property ownership

documents. The property ownership documents did not prohibit all accessory buildings. Rather,

the property ownership documents required that accessory buildings be approved by the

Architectural Committee. Moreover, the Architectural Committee has not enforced a complete

ban on accessory buildings either, as evidenced by its approval of Sellers’s outdoor kitchen.

         Second, the existence of the Requirements should be a comfort to property owners

because they remove some measure of opportunity for arbitrariness from the Architectural

Committee’s actions. At trial, Sellers presented the testimony of Rick Muenks, a real estate

attorney. Muenks testified that giving standards to an architectural committee is “favored”

because it helps to “avoid the ambiguity or inconsistencies that may exist.” Indeed, the

reasonableness standard that was originally introduced in LeBlanc arose because of a fear

induced by the lack of standards governing architectural committees. Id. at 650. Therefore,

LeBlanc does not support Sellers’s argument that discretion was inappropriately removed.

Rather, it supports the reasonableness of the Architectural Committee’s decision because its

exercise of discretion granted by the Covenants was based upon objective standards in the

Restrictions applied consistently to all properties in the subdivision.

         Sellers’s second point is denied.



5
 Sellers does not argue that the ban on storage buildings is not reasonably related to the harmony of the
neighborhood.


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          Whether Sellers Asked Permission of the Architectural Committee is Moot

          Sellers contends his attempt to seek the approval of the Architectural Committee after

constructing the storage building rather than before, as required by the Covenants, should not be

held against him because his efforts would have been futile. Because we ultimately conclude

that the Requirements (and therefore the total prohibition on storage buildings) are enforceable

against Sellers, whether he was excused in failing to ask permission before building is moot

because the Architectural Committee would still have been justified in demanding removal of the

storage building. See Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. 1999) (“When an

event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the

court impossible, the case is moot and generally should be dismissed.”) (citing State ex rel.

Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. 1998)). Sellers’ third point is

denied.

            Sellers’ Knowledge of Requirements is Not Necessary to Sustain Judgment

          Sellers contends in his final point that the trial court’s judgment was either against the

weight of the evidence or not supported by substantial evidence, or both, as to its conclusion that

Sellers had knowledge of the Requirements before purchasing his lot. A cogent argument

supporting either contention requires an appellant to “identify a challenged factual proposition,

the existence of which is necessary to sustain the judgment.” Houston v. Crider, 317 S.W.3d

178, 187 (Mo.App. 2010). Because Sellers has failed to demonstrate why the existence of his

knowledge of the Requirements is necessary to support the judgment, Sellers’ fourth point is

denied. 6

6
 Sellers admitted that he had actual knowledge of the Covenants. As discussed, supra, the Covenants, not the
Restrictions, imposed the burden upon his property mandating that the construction of any accessory structure upon
his property required the prior approval of the Architectural Committee in accordance with the guidelines adopted
by it.

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                                           Decision

      The trial court’s judgment is affirmed.



GARY W. LYNCH, J. – Opinion author

MARY W. SHEFFIELD, P.J. – concurs

DON E. BURRELL, J. – concurs




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