BK&M, University Heights appeal arguments presented

The Missouri Court of Appeals Southern District today turned a much-anticipated appeal setting into a teaching opportunity for students at Branson High School, who sat quietly in the school auditorium to hear competing views of counsel for BK&M LLC and of residents of the University Heights neighborhood.

The three-panel court heard oral arguments in the case Dixie Sleight et al. v. BK&M LLC et al. Appearing were Bryan Wade of Husch Blackwell LLP, representing the University Heights appellants (“That means I lost,” he told students before the panel of judges filed into the space used for the hearing), and from Charles Cowherd of Spencer Fane LLP, representing BK&M.

Wade described a neighborhood that remains composed of single-family residences a century after it was established through covenants carried on property deeds.

He also noted that Judge Derek Ankrom of the 31st Judicial Circuit began his judgment order in the original case by saying there were four discernible restrictive covenants in place.

“He said that in his judgment, and then he completely ignored it,” he said.

Top among the covenants is a restriction against any structure that is not a single-family residence, Wade noted.

“There’s not a lot in that subdivision that does not have a single-family residence on it,” he said.

Chief Judge Jennifer Growcock asked questions about the subdivision of lots – meaning not only one single-family residence, as spelled out in the covenants, is placed on every lot in University Heights.

Cowherd said the plaintiffs want a restriction that says the neighborhood can be used only for single-family residences.

“Unfortunately, for the last 100 years, that’s not what they’ve ever had,” he said. “What they had is not a use restriction at all; what they have is a structure restriction.”

He added if zoning regulations allowed it, one could build a single-family house and run a business out of it.

Cowherd also argued that restrictions were applied inconsistently, with some houses having them and some not.

“What we’re asked for today is whether the trial judge did what the trial judge is supposed to do, and he did,” Cowherd said, noting that was to strictly apply restrictions.

Wade and Cowherd each argued for 15 minutes, with Wade having five more minutes to respond to Cowherd’s remarks.

Afterwards, students were given an opportunity to ask questions of attorneys and court representatives.Before the arguments were given, the attorneys demonstrated a U.S. legal system that is designed to be adversarial but not necessarily antagonistic, both telling the student audience that they like and respect each other. Wade said the two would use their adversarial skills today to represent their respective clients to the best of their abilities and then move on to whatever’s next.

Cowherd said the two used to practice together, and he knew Wade would do a great job in presenting his case.

“I’ve been waiting all these years for the opportunity for three judges to say he’s wrong,” Cowherd said. “If I accomplish that, I will have accomplished my objective here today.”

No timeline was announced for a decision in the appeal.