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Ben Brower Property Co., LLC v. Evella, LLC

Court of Appeals of Missouri, Southern District, Second Division

July 2, 2018

BEN BROWER PROPERTY CO., LLC, Plaintiff-Respondent,
v.
EVELLA, LLC, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable James K. Journey, Circuit Judge

          JEFFREY W. BATES, J.

         Following 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.

         Standard of Review

         The 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).[1] 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.

         Factual and Procedural Background

         Brower 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.[2] 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.

         In 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.

         In 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.

         In 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 public road.

         In 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.

         In 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.

         Thereafter, 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.[3] The court further enjoined Evella from claiming title, ownership or possession of the disputed property and denied both counts of Evella's counterclaim.

         In a 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.

         Poin ...


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