Whittom v. Alexander-Richardson Partnership

916 S.W.2d 333, 1995 Mo. App. LEXIS 2097, 1995 WL 757736
CourtMissouri Court of Appeals
DecidedDecember 26, 1995
DocketNo. 67269
StatusPublished
Cited by3 cases

This text of 916 S.W.2d 333 (Whittom v. Alexander-Richardson Partnership) 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
Whittom v. Alexander-Richardson Partnership, 916 S.W.2d 333, 1995 Mo. App. LEXIS 2097, 1995 WL 757736 (Mo. Ct. App. 1995).

Opinion

CRAHAN, Presiding Judge.

Plaintiffs, a class of subdivision residents and landowners, appeal the adverse judgment entered on their claim of prescriptive easement across defendants’ adjacent land following remand ordered in Whittom, v. Alexander-Richardson Partnership, 851 S.W.2d 504 (Mo. banc 1993) (hereinafter “WhittomI”). We affirm.

The procedural history and much of the evidence is set forth in Whittom I. The plaintiff class is comprised of residents and homeowners in Lake Village Subdivision. Defendants own land adjacent to the subdivision. The only means of access to the subdivision from the nearest public road is across defendants’ land. Until 1988, plaintiffs used a gravel roadway across defendants’ land to gain access to their property. In 1988, defendants constructed another gravel road for plaintiffs’ use, blaektopped the old roadway and placed a barricade at the end nearest the subdivision to prevent plaintiffs from using the old roadway for access to their property.

Plaintiffs originally brought a five count petition seeking declaratory and injunctive relief to establish their right to continue to use the original roadway and damages for interference with their right to use the original roadway. The action was certified as a class action and tried to the court without a jury. At the conclusion of the trial, the court directed plaintiffs to elect between two of their pleaded theories, common law dedication and prescriptive easement. Noting their objection, plaintiffs elected to submit on common law dedication. The court entered judgment for defendants on that count and the remaining counts.

On appeal, the Missouri Supreme Court held that it was error to require plaintiffs to elect between their pleaded theories of common law dedication and prescriptive easement because, on the facts presented, the theories were not necessarily repugnant to each other so as to justify requiring an election. Because the trial court had never ruled on the claim of prescriptive easement, that claim was remanded for entry of judgment based on the evidence adduced at trial. Id. at 509. The judgment was affirmed on the remaining counts. Id. at 510.

On remand, the trial court entered judgment for defendants on the prescriptive easement claim. The propriety of that judgment is the sole issue presented in this appeal.

Our review of this case is governed by the familiar standards expressed in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court must be sustained “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.” Id. at 32. Further, we are admonished to exercise our power to set aside a judgment on the ground that it is “against the weight of the evidence” with caution and only with a firm belief that the judgment is wrong. Id. Additionally, we must defer to the trial court’s superior ability to judge the credibility of witnesses. State v. Hayden, 878 S.W.2d 883, 884-85 (Mo.App.1994).

Plaintiffs Points Relied On, in their entirety, are as follows:

I
THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFFS’ PROOF DOES NOT SUPPORT THEIR CLAIM OF PRESCRIPTIVE EASEMENT BECAUSE PLAINTIFFS’ PROOF CLEARLY MEETS THE REQUIREMENTS OF A PRESCRIPTIVE [335]*335EASEMENT SET OUT BY THE SUPREME COURT OF MISSOURI IN THE PRIOR APPEAL OF THE CASE TO THE MISSOURI SUPREME COURT.
II
THE TRIAL COURT’S DECISION FOR DEFENDANTS WAS CLEARLY ERRONEOUS, EVEN IF THE JUDGE HAD CONSIDERED ALL THE PROOF IN THE CASE, SINCE THE DEFENDANTS’ EVIDENCE WOULD NOT HAVE BEEN SUFFICIENT UNDER THE REQUIREMENT OF MURPHY V CARRON FOR THE COURT TO HOLD FOR DEFENDANTS. THEREFORE, THIS COURT SHOULD REVERSE OUTRIGHT AND HOLD FOR OR DIRECT A DECISION FOR PLAINTIFFS.

Neither of these points satisfy the requirements of Rule 84.04(d). The first point fails to identify what proof plaintiffs maintain meets the requirements for a prescriptive easement. See Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). The second point fails to inform us what plaintiffs claim defendants’ evidence was required to establish or why it fails to do so. Id. at 685-86. From the argument, however, it is clear that plaintiffs’ complaints on appeal are essentially twofold: (1) the trial court improperly considered only plaintiffs’ evidence in rendering its judgment; and (2) even assuming the trial court considered all of the evidence, the judgment is not supported by substantial evidence. The former contention is not supported by the record and the latter issue is addressed fully in defendants’ brief. Accordingly, in view of the fact that defendants make no complaint and have apparently suffered no prejudice by reason of plaintiffs’ failure to comply with Rule 84.04(d), we will exercise our discretion to reach the merits. See Bergsieker v. Schnuck Mkts, Inc., 849 S.W.2d 156, 160 (Mo.App.1993).

Plaintiffs’ contention that the trial court improperly limited its consideration to plaintiffs’ evidence is based on language in the judgment essentially mirroring language in the Missouri Supreme Court’s opinion remanding the cause for a determination of “whether the proof adduced by plaintiffs supported their claim of prescriptive easement. ...” Whittom I, 851 S.W.2d at 509. Although the judgment is indeed couched in terms of plaintiffs’ proof, we do not interpret either the opinion in Whittom I or the judgment itself as limiting consideration to plaintiffs’ evidence alone. Indeed, such an interpretation of the judgment would be inconsistent with the trial court’s earlier ruling denying defendants’ motion for a directed verdict at the close of plaintiffs’ evidence when the case was first tried. Our interpretation of the judgment is that the trial court held that plaintiffs failed to carry their burden of proof based on all of the evidence submitted to the court. This interpretation is consistent with the Missouri Supreme Court’s observation immediately preceding the language quoted above to the effect that “[wjhether the plaintiffs proved that their use of the road was adverse under the law of prescriptive easements is a matter for decision by the trier of fact [as is proof of the remaining elements].” Id. Plaintiffs do not dispute that they bore the ultimate burden of proof on their claim of prescriptive easement. In sum, we find that the sole issue presented is whether, considering the record as a whole, the trial court’s determination that plaintiffs failed to satisfy that burden of proof is supported by substantial evidence.

To establish a claim of prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of ten years. Whittom I, 851 S.W.2d at 508. Neither party requested written findings of fact and conclusions of law so we must assume that all factual findings were in accordance with the result reached by the trial court. Askins v. James,

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Bluebook (online)
916 S.W.2d 333, 1995 Mo. App. LEXIS 2097, 1995 WL 757736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittom-v-alexander-richardson-partnership-moctapp-1995.