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Southside Ventures, LLC v. LA Crosse Lumber Co.

Court of Appeals of Missouri, Western District, Fourth Division

May 7, 2019

SOUTHSIDE VENTURES, LLC, Respondent,
v.
LA CROSSE LUMBER CO., Appellant.

          Appeal from the Circuit Court of Boone County, Missouri The Honorable Jeff Harris, Judge

          Before: Karen King Mitchell, Chief Judge, Thomas N. Chapman, Judge, and Cory Atkins, Special Judge

          KAREN KING MITCHELL, CHIEF JUDGE

         La Crosse Lumber Company appeals, following a bench trial, from a judgment granting Southside Ventures, LLC, a prescriptive easement over a portion of La Crosse's property for purposes of ingress and egress. La Crosse raises six points on appeal, all challenging the trial court's legal determinations below. Finding no error, we affirm.

         Background

         On August 31, 1989, La Crosse purchased the property it currently owns in Boone County near the intersection of Highway 63 and Grindstone Parkway. This property abuts the property that currently belongs to Southside on the east, and it abuts two other lots in the Chalet Subdivision, which is flanked by Ponderosa Street on the west. When La Crosse purchased its property, the only point of ingress and egress was through the parking lot and across the property that currently belongs to Southside; thus, when purchasing its lots, La Crosse also obtained a perpetual easement across a portion of what is now Southside's parking lot. A perpetual easement over both La Crosse's property and Southside's property was obtained at the same time in favor of current and future owners of the lots in the Chalet Subdivision to the west of La Crosse to ensure ingress and egress from those lots to the only access point for Grindstone Parkway through what is now Southside's parking lot. Part of the easement running through both La Crosse's property and Southside's property included a strip of pavement, present since at least 1994, connecting the two properties. Neither Southside nor its predecessors in interest ever obtained an express easement over La Crosse's property.

         From 1995 to 2007, the Ice Chalet Antique Mall operated in a building on what is now Southside's property. As mentioned above, initially, the only access point between Grindstone Parkway and the properties belonging to La Crosse, the Chalet Subdivision, and the Ice Chalet Antique Mall was through the parking lot belonging to Southside's predecessor in interest, and anyone needing access to any of those properties had to travel across what is now Southside's property. Sometime before 2002, a second access point for Grindstone Parkway was created on the west side of La Crosse's property, across from Bluff Creek Drive; at first, traffic was regulated by a stop sign, but the City of Columbia later installed a traffic signal for the intersection. After the second access point was created, people working at the Ice Chalet Antique Mall began to traverse La Crosse's property to use the new access point, as the original one had become hazardous and difficult to use due to increasing traffic on Grindstone Parkway. In fact, the former manager of the Ice Chalet Antique Mall directed people to use the new access point for safety reasons, as did the owner of a subsequent business in the same building. The former manager indicated that, on a daily basis-even on a slow day, there were at least one hundred visitors to the Ice Chalet Antique Mall.

         While the Ice Chalet Antique Mall was in operation, there was also a restaurant, Gibson Girls Café, and a rental car business operating in the same building. Though the antique mall closed in 2007, the café and the rental car business continued to operate through at least 2008. After the antique mall closed, the owners of the property put it on the market, and they were approached by some individuals seeking to open a family fun center. The owners agreed and leased the property for that purpose, so the new tenants began making renovations to the property in preparation for opening the new fun center in 2010. From 2010 to 2012, Galactic Fun Zone operated in the building on Southside's property. And, in 2012, Lazer Lanes took over; since then, the number of visitors has been estimated around one thousand every week day and four or five thousand on weekends. Evidence suggested that at least one-third to one-half of all visitors to Southside's property used the second Grindstone access point and drove through La Crosse's property to reach the building on Southside's property.

         In 2009, following conversations between the owners of La Crosse and Southside about the cut-through traffic using the second access point, an attorney for La Crosse sent a letter to Southside advising that Southside "had no business . . . on the La Crosse property." In 2016, Southside approached La Crosse and sought an easement over La Crosse's property, and again Southside received a letter from an attorney for La Crosse advising that Southside had "no business . . . on the La Crosse property." Despite these letters, La Crosse never took any steps to stop people from crossing their parking lot to gain access to Southside's property from the traffic signal at the second Grindstone Parkway access point. And people associated with Southside and the businesses in its building continued to use the paved connector between the traffic signal and Southside's property.

         On October 20, 2016, Southside's predecessor in interest filed a petition against La Crosse to obtain a prescriptive easement over a portion of La Crosse's property for the purposes of ingress and egress. The petition alleged that, "[s]ometime before January 1, 2003, a roadway access . . . was constructed connecting the parking lot of the Servient Tenement [La Crosse's property] to Grindstone Parkway." It further alleged that Southside's predecessors in interest "used the Roadway Access and the parking lot of the Servient Tenement for more than ten years to provide an access from the parking lot of the Dominant Tenement [Southside's property] to Grindstone Parkway for the purpose of ingress and egress," and that their use was "visible, adverse, under claim of right, hostile, open and notorious, and continuous and uninterrupted." In response, La Crosse asserted the affirmative defenses of estoppel, laches, and waiver, arguing that Southside's predecessor in interest was either estopped from asserting or waived its right to assert a claim for prescriptive easement because it had sought to purchase an easement from La Crosse, and it further argued that too much time had passed before Southside's predecessor in interest sought the prescriptive easement.

         The case proceeded to bench trial. At trial, the court received evidence that there was an existing easement in favor of landowners in a nearby subdivision over the land upon which Southside sought the prescriptive easement. And Southside's owner testified that Southside was seeking a matching easement to traverse La Crosse's parking lot and use the traffic signal connecting to Grindstone Parkway. Following the trial, the court entered judgment in Southside's favor on January 25, 2018 ("original judgment"). The original judgment described the easement as "the thirty-foot wide strip of hard-paved road surface that exists and is required to be maintained along the northern edge of the La Crosse Parking Lot pursuant to an existing easement recorded in Book 739, Page 600, Records of Boone County, Missouri." The original judgment more particularly described the easement as follows:

Starting at a point where the East line of Lot Nine (9) intersects the South line of the right-of-way of East U.S. Highway Business Route, then South Thirty (30) feet with said East line to a point, then West parallel to the North line of Lots Nine (9) and Ten (10) to the Center line of Lot Ten (10), then along said Center line of Lot Ten (10) North to the North line of Lot Ten (10), then East along the North line of Lots Ten (10) and Nine (9) to the point of beginning.

         On February 22, 2018, La Crosse filed a "Motion for New Trial or for Amended Judgment," invoking Rules 73.01(d), 75.01, and 78.01.[1] In that motion, La Crosse argued, among other claims, that the judgment's description of the easement granted was overbroad insofar as it included portions of La Crosse's property that were not subject to the prescriptive easement; specifically, the description in the original judgment included an unpaved portion west of the second Grindstone Parkway access point that had not been subject to any use by Southside. On April 9, 2018, the trial court held a hearing on La Crosse's motion. The following day-April 10, 2018-Southside filed a "Post-Hearing Response to [La Crosse's] Motion for New Trial," wherein Southside conceded that the judgment contained an overbroad description of the property subject to the prescriptive easement and suggested changes to the judgment to accurately reflect the description of the property subject to the easement. On April 11, 2018, the trial court entered the following order:

The Court, having reviewed the pleadings, including [Southside's] Post-Hearing Response to [La Crosse's] motion for new trial, and having heard oral argument, hereby denies [La Crosse's] motion for new trial. The Court, however, orders that paragraphs 6, 9 and A of the January 25, 2018 judgment shall be amended in accordance with [Southside's] Post-Hearing Response. [Southside] shall submit a proposed Amended Judgment to the Court in its entirety by May 11, 2018, incorporating the proposed amendments set forth in the Post-Hearing Response. [Southside] shall amend the January 25, 2018 judgment and not the proposed judgment submitted by [Southside] on or about December 20, 2017. RJH/II (ss)

         On April 16, 2018, La Crosse filed a notice of appeal from the original judgment, noting that a post-trial motion was filed on February 22, 2018, and ruled on April 11, 2018. On April 18, 2018, the trial court entered an amended judgment in conformity with the amendments suggested by Southside's Post-Hearing Response to La Crosse's Motion for New Trial or for Amended Judgment. The amended judgment provided the following description of the easement: "the thirty-foot wide strip of hard-paved road surface that exists along the northern edge of the La Crosse Parking Lot pursuant to an existing easement recorded in Book 739, Page 600, Records of Boone County, Missouri." La Crosse did not file a notice of appeal from the amended judgment. Instead, it separately filed the amended judgment on May 11, 2018. In correspondence accompanying the amended judgment, La Crosse indicated:

The Amended Judgment is being provided to the Court out of an abundance of caution. The Amended Judgment was entered on April 18, 2018, seven days after the final post-trial motion in that case was denied and two days after La Crosse Lumber Co. filed its Notice of Appeal. It is La Crosse's position that the Amended Judgment was entered without jurisdiction or authority, but to the extent the Court deems otherwise, La Crosse is providing the Amended Judgment to the Court for inclusion with the previously filed Notice of Appeal.

         La Crosse did not file a motion for new trial after the amended judgment was entered.

         On September 21, 2018, Southside filed a motion to dismiss this appeal, arguing that La Crosse appealed from a moot judgment (the original judgment) and failed to appeal from the only final judgment in the case (the amended judgment). La Crosse filed suggestions in opposition, arguing that the original judgment was the only final judgment in the case and, alternatively, that, even if the amended judgment were the operative judgment, La Crosse's notice of appeal could be treated simply as a premature filing under Rule 81.05.

         Analysis

         La Crosse brings six points on appeal. In its first point, La Crosse attacks the description of the easement as presented in the original judgment, arguing that it was overbroad insofar as it included unpaved property that Southside had never used. In its second point, La Crosse argues that, regardless of which judgment is considered, the property description of the prescriptive easement is insufficient insofar as the description lacks certainty. In its third point, La Crosse argues that Southside was not entitled to a prescriptive easement insofar as Southside acknowledged La Crosse's superior title to the property when Southside actively sought to acquire an easement from La Crosse in both 2009 and 2016. In its fourth point, La Crosse argues that the trial court erred in determining that Southside's use was adverse because La Crosse was unable to legally block access to the paved roadway in light of the fact that it was subject to an existing easement in favor of other individuals, and La Crosse never sought to block it because it was being "neighborly." The fifth point challenges the trial court's determination that Southside's use of the property was sufficiently continuous and visible for the entire ten-year period as being both against the weight of the evidence and lacking in substantial evidence. La Crosse's final claim argues that the trial court erred in considering use by the general public in granting a private easement.

         A. Southside's motion to dismiss the appeal is denied.

         In its motion to dismiss, Southside contends that the amended judgment is the final operative judgment for purposes of appeal and that, by failing to appeal from that judgment, La Crosse failed to invoke this court's jurisdiction over the matter. La Crosse contends that the original judgment became the final operative judgment on April 11, 2018, when the trial court denied La Crosse's request for a new trial. La Crosse contends that the amended judgment is a nullity because the trial court lacked authority to enter it in response to Southside's post-hearing response to La Crosse's post-trial motion. Thus, we must determine which judgment is the operative final judgment for purposes of invoking appellate jurisdiction.

         "Rule 81.04(a) requires the notice of appeal to be filed no later than 10 days 'after the judgment, decree, or order appealed from becomes final.'" Heifetz v. Apex Clayton, Inc., 554 S.W.3d 389, 393 (Mo. banc 2018) (quoting Rule 81.04(a)). Under Rule 81.05(a), "when a judgment becomes final for purposes of filing a notice of appeal depends, in part, on whether an authorized after-trial motion was filed." Id. Here, La Crosse timely filed a "Motion for New Trial or for Amended Judgment" on February 22, 2018, which was within thirty days of the original judgment.[2] Both "a motion to amend and a motion for new trial are authorized after-trial motions." Blue Ridge Bank & Tr. Co. v. Hart, 152 S.W.3d 420, 425 (Mo. App. W.D. 2005).

         If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:

(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of ...

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