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White v. Simon

Court of Appeals of Missouri, Southern District

January 13, 2020

DONNIE R. WHITE and BARBARA A. WHITE, Respondents,
v.
JON M. SIMON and JACKIE SIMON, Appellants, WM. O. RUSSELL ABSTRACT CO., Defendant.

          APPEAL FROM THE CIRCUIT COURT OF DADE COUNTY Honorable David R. Munton, Judge

          DANIEL E. SCOTT, P.J.

         AFFIRMED

         The Simons appeal a judgment denying their request to reform a warranty deed that granted their neighbors, the Whites, an ingress/egress easement. The Simons raise four challenges to the trial court's application of the law and four challenges to the trial court's weighing of the evidence. We affirm.

         Background

         The Simons owned 43 acres platted as a subdivision. In October 2011, the Whites agreed to buy 19 acres of it (the "Property"). Consistent with the eventual warranty deed, the Whites believed access would be via easement to use the chip-and-seal roadway that ran between subdivision lots 9 and 67 and was designated on the plat. That was how they accessed the Property in deciding whether to buy it and was the only developed roadway then leading to the Property.

         There was no written sale contract. In February 2012, everyone signed the abstract agent's escrow-order form which described the Property only as "land only 19 acres m/l see survey." The parties then authorized the abstract agent to generate a legal description for the Property and prepare a warranty deed and other closing documents.[1]

         The abstract agent did so and hosted the March 8 closing. The warranty deed's four-paragraph legal description included all or parts of subdivision lots 26-55, 74-83, 88-93 and certain platted roadways "along with Easement for Ingress and Egress located between Lots 9 and 67 …" (emphasis in original)(the "Easement"). The Simons executed the deed, which was duly recorded, and everyone left the closing on good terms.

         The Whites built a house near the Simons' home and connected their driveway to the existing road. Construction workers used the Easement and roadway, as did the Whites then and thereafter for several years. The Simons knew this and did not object. Another property owner also used the Easement to access his driveway. This photo shows the three homes and the roadway, which is marked with dashes where it followed the Easement:

          In December 2015, the Simons fenced and gated the Easement while the Whites were on vacation. They notified the Whites that they would lock the gates the following March (three years after the Property sale closing) to prevent "unwanted traffic."

         The Whites sued to enforce their Easement rights under the deed. The Simons counterclaimed to reform the deed and for a declaration that no easement existed between Lots 9 and 67. After a 2018 bench trial where both Whites, both Simons, and other witnesses testified, the court entered a judgment for the Whites and against the Simons that included these findings:

• The deed clearly and unambiguously transferred the Property "along with Easement for Ingress and Egress located between Lots 9 and 67."
• For deed reformation, the Simons had to prove by clear, cogent, and convincing evidence (1) a preexisting agreement between the parties; (2) a scrivener's error; and (3) that the mistake was mutual as between grantors and grantees. See ...

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