Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable James K.
Journey, Circuit Judge
JEFFREY W. BATES, J.
a bench trial, Evella, LLC (Evella) appeals from a judgment
quieting title in Ben Brower Property Co., LLC (Brower) to a
strip of land (hereinafter referred to as the disputed
property) situated between the parties' respective
properties. Evella contends the trial court erred by: (1)
awarding the disputed property to Brower because it "did
not plead nor prove" that a road on the disputed
property "was not a public road or a public road that
had been abandoned or vacated"; (2) awarding Brower
judgment on its alternative second count (boundary by
acquiescence) and third count (boundary by express agreement)
because the judgment is not supported by substantial evidence
and is against the weight of the evidence; (3) denying
Evella's motion to amend its answer to assert as a new
affirmative defense that the "road is a public road that
has neither been vacated or abandoned"; (4) refusing to
allow Evella to introduce evidence that the "road was a
public road"; and (5) awarding Brower judgment on its
first count because the judgment is not supported by
substantial evidence and is against the weight of the
evidence. We affirm because: (1) Points 1, 3 and 4 lack
merit; and (2) Points 2 and 5 preserve nothing for review.
trial court's judgment is presumed correct, and Evella
bears the burden of proving it erroneous. Grider v.
Tingle, 325 S.W.3d 437, 440 (Mo. App. 2010). Our review
in this court-tried case is governed by Rule
84.13(d). This Court must affirm the trial
court's judgment unless it is not supported by
substantial evidence, it is against the weight of the
evidence, or it erroneously declares or applies the law.
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976);
Grider, 325 S.W.3d at 440. "We review the
evidence and all reasonable inferences in the light most
favorable to the judgment and disregard all contrary evidence
and inferences." Lee v. Hiler, 141 S.W.3d 517,
520 (Mo. App. 2004). In addition, "[w]e defer to the
trial judge's superior opportunity to assess the
witnesses' credibility." Id.;
Grider, 325 S.W.3d at 441. Our summary of the
evidence presented at trial, which is set forth below, has
been prepared in accordance with these principles.
and Procedural Background
and Evella own adjoining properties that have a common
boundary for a distance of one-half mile. A fence on the west
side of Brower's property served as a boundary between
the two tracts (hereinafter referred to as the boundary
fence). The boundary fence has been located at its present
location since 1963. Along the fence, on Brower's side,
there is a dirt road (the road), which was maintained by
Brower and used to access its property. According to Brower,
no one else used the road except by permission.
October 2015, a survey revealed that the boundary fence was
not located on the surveyed line between the Brower and
Evella tracts. The surveyed line is 22-25 feet east of the
boundary fence and encompasses the road. The disputed
property is this 22-25 foot strip of land lying between the
boundary fence and surveyed line.
December 2015, Brower filed the underlying action to quiet
title to the disputed property. In July 2016, each of the
parties was permitted to amend their pleadings by agreement
and pursuant to court order.
Brower's first amended petition, Brower alleged three
counts. Count 1 sought to quiet title by adverse possession.
In the alternative, Count 2 sought to establish a boundary by
acquiescence, and Count 3 sought to establish a boundary by
express agreement. Evella filed an amended answer denying
these allegations and alleging the following affirmative
defenses: (1) failure to state a claim; (2) statute of
limitations; (3) failure of "exclusivity"; (4) acts
by Evella of use and maintenance of the disputed property;
and (5) permissive use of the disputed property by Brower.
Evella also filed an amended counterclaim in two counts,
seeking to quiet title in Evella and for ejectment. Nowhere
in Evella's pleadings did Evella claim the road was a
September 2016, Evella filed a motion for summary judgment in
which Evella referred to the road as a "public
road" and at times, an "abandoned public
road." The trial court denied the motion, based on the
existence of material factual disputes. Although Evella
described the road as a public road in its summary judgment
motion, Evella did not move to amend its pleadings at that
time to assert that issue as an affirmative defense.
April 2017, the matter was tried on the issues raised in
Brower's first amended petition, Evella's first
amended answer and counterclaim, and Brower's answer to
the counterclaim. On the first day of trial, after
Brower's presentation of its case-in-chief evidence had
ended, Evella moved to amend its pleadings to assert, as a
new affirmative defense, that the road was a public road that
had not been abandoned or vacated. The trial court denied
Evella's motion to amend because it was untimely and
raising it at that juncture would be prejudicial to Brower.
Evella also made an offer of proof on the road issue, which
the trial court excluded. After the presentation of
additional evidence and arguments, the trial concluded.
the trial court entered a judgment, with findings of fact and
conclusions of law, in favor or Brower. The court found that
Brower and its predecessors had possessed the disputed
property since 1963, and said possession had been hostile,
actual, open and notorious, and exclusive for a continuous
period of more than ten years prior to the commencement of
the action. The court established the boundary between the
properties of Brower and Evella at the location of the
boundary fence and quieted title to the disputed property in
Brower. The court further enjoined Evella from
claiming title, ownership or possession of the disputed
property and denied both counts of Evella's counterclaim.
post-trial motion for reconsideration or new trial, Evella
argued for the first time that Brower had failed in
"Plaintiff's burden of showing [the road] was not a
public road or … was a public road that had been first
abandoned or vacated[.]" The trial court denied the
motion. Evella then appealed. Additional facts will be
included below as we address Evella's five points of
error. For ease of analysis, we will address some points
together and out of order.