Farrow v. Brown

873 S.W.2d 918, 1994 Mo. App. LEXIS 672, 1994 WL 133404
CourtMissouri Court of Appeals
DecidedApril 19, 1994
Docket64604
StatusPublished
Cited by17 cases

This text of 873 S.W.2d 918 (Farrow v. Brown) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farrow v. Brown, 873 S.W.2d 918, 1994 Mo. App. LEXIS 672, 1994 WL 133404 (Mo. Ct. App. 1994).

Opinion

REINHARD, Judge.

Plaintiff appeals the circuit court’s summary judgment in favor of defendants in plaintiffs action to establish a private road of necessity, § 228.342, RSMo. Supp.1992. 1 We reverse and remand.

Plaintiff purchased, on October 23, 1992, property in Cape Girardeau County from Donald and Faye Hirsch. The Hirsches had, on January 3, 1969, filed a three count peti *919 tion in the Cape Girardeau Court of Common Pleas seeking a prescriptive easement over property owned by defendants (Count I), or alternatively, a private road of necessity pursuant to § 228.340 over that property (Count II), and seeking to have defendants enjoined from interfering with their ingress and egress (Count III).

Count II was dismissed by the court at the Hirsches’ request, Count I was tried before a jury and Count III before the court. The jury found for the Hirsches on Count I and assessed no damages. On Count III the court found that the Hirsches had established, by open, notorious, adverse and continuous use, a twelve foot wide prescriptive roadway easement over defendants’ property. Defendants were enjoined from interfering with the Hirsches’ use of the easement and from denying ingress or egress.

On February 22, 1993, plaintiff in this action filed an action seeking a forty foot wide private road by strict necessity over defendants’ land, the actual location of which was to be determined by appointed commissioners. In her petition, plaintiff acknowledged that a prescriptive easement existed, but asserted the “description was inaccurate and unsuitable for purposes of plaintiff’ and the easement had been “abandoned by non-use.”

Defendants filed an answer, inter alia, denying plaintiffs contention that no public road passed through or alongside her land and admitting the existence of the prescriptive easement.

Defendants filed a motion for summary judgment on July 1,1993. They alleged that “no genuine issue of material fact exists in that this matter is res judicata” by virtue of the 1969 action. In support of their motion, defendants filed a “Memorandum in Support of Motion for Summary Judgment” and the affidavit of defendant Lester Brown. Brown admitted the existence of a prescriptive easement from plaintiffs land across his property. Plaintiff filed a “Memorandum in Opposition to Defendants’ Motion for Summary Judgment” and affidavits by Wesley Farrow, Jr. (plaintiffs son) and Larry Dowdy (a licensed registered surveyor). Dowdy stated that the road easement was “unusable, incorrect and totally ineffective for providing any access” to and from plaintiffs property. The “land and terrain described in said Judgment and decree cannot be used for roadway purposes.” Wesley Farrow’s affidavit essentially repeated the allegations of Dowdy. On August 4,1993, the court granted defendants’ motion for summary judgment.

On appeal, plaintiff asserts the trial court erred in granting the summary judgment motion as there was a “clearly established ... material, substantiated factual dispute” as to whether there existed an actual, useable easement across defendants’ land. Defendants argue the issue of a private road of necessity should have been raised in plaintiffs predecessor’s 1969 action for an easement by prescription and is, therefore, res judicata. Plaintiff contends that the existing issues cannot be res judicata because it was new, changed facts which resulted in a non-usable easement.

Summary judgment is an appropriate vehicle for the assertion of an affirmative defense entitling a party to judgment as a matter of law. Wilson v. Altruk Freight Systems, Inc., 820 S.W.2d 717, 720 (Mo.App.1991); Rule 74.04(c). Where the trial court grants a motion for summary judgment without specifying the basis, it is presumed the order was based on the grounds specified in the motion. Manar v. Park Lane Medical Center, 753 S.W.2d 310, 312 (Mo.App.1988).

When considering appeals from summary judgments, the court will review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving parties response to the summary judgment motion. Id. We accord the nonmovant the benefit of all reasonable inferences from the record. Id.

Our review is essentially de novo. The criteria for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of sum *920 mary judgment is purely an issue of law and we need not defer to the trial court’s order granting summary judgment. Id.

A “defending party” movant establishes a right to summary judgment by showing: (1) facts that negate any one of the claimant’s elements facts; (2) that the non-movant, after an adequate discovery period, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Id. at 381. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper. Id.

Res judicata principles encompass both claim preclusion, which prohibits the same parties from relitigating the same cause of action, and issue preclusion, which forbids the same parties from relitigating issues previously adjudicated. Terre Du Lac Ass’n v. Terre Du Lac, Inc., 737 S.W.2d 206, 212 (Mo.App.1987). The doctrine of res judi-cata provides that, where two actions are on the same cause of action, the earlier judgment is conclusive not only as to matters actually determined in the prior action, but also as to other matters which could properly have been raised and determined therein. Id. Where a second action is upon a claim, demand, or cause of action different from a prior action, the judgment in the first action does not operate as an estoppel to matters not litigated in the former action. Id.

In an action for a private road pursuant to § 228.342, a plaintiff is required to show: (a) the plaintiff owns the land, (b) no public road goes through or alongside the tract of land, and (c) the private road petitioned for is a way of “strict necessity.” King v. Jack Cooper Transport Co., Inc., 708 S.W.2d 194, 196 (Mo.App.1986).

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Bluebook (online)
873 S.W.2d 918, 1994 Mo. App. LEXIS 672, 1994 WL 133404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farrow-v-brown-moctapp-1994.