Bowles v. McKeon, No. 27548.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Phillip R. Garrison
• Citation: 217 S.W.3d 400
• Parties: William G. BOWLES, Sr., William G. Bowles, Jr., and Martha Spencer Bowles, Plaintiffs-Respondents, v. Cynthia Anne McKEON, f/k/a Cynthia Anne Morgan, Defendant-Appellant.
• Decision Date: 28 March 2007
• Docket Number: No. 27548.

217 S.W.3d 400 William G. BOWLES, Sr., William G. Bowles, Jr., and Martha Spencer Bowles, Plaintiffs-Respondents,
v.
Cynthia Anne McKEON, f/k/a Cynthia Anne Morgan, Defendant-Appellant. No. 27548. Missouri Court of Appeals, Southern District, Division Two. March 28, 2007.

[217 S.W.3d 402]

Daniel E. Leslie, Union, for Appellant.

William E. Hickle, The Hickle Law Firm, L.L.C., Rolla, for Respondents.

PHILLIP R. GARRISON, Judge.

William G. Bowles, Jr. and his wife, Martha Spencer Bowles (collectively referred to as "Plaintiffs") filed a three-count petition to quiet title, for a permanent injunction, and for trespass.¹ The subject property is 0.08 acres (the "disputed property") located between Plaintiffs' 153-acre farm ("the farm") and six to eight acres owned by Cynthia Anne McKeon ("Defendant"). The trial court entered judgment in favor of Plaintiffs on all three counts. Defendant now appeals.

In March 1939, J.H. Hughes and J.M. Hughes, husband and wife, obtained title to the farm, and on July 14, 1972, transferred this title to their son, Joseph Dale Hughes ("Dale") and his wife, Catherine Ann Hughes ("Catherine") (collectively referred to as "the Hughes"). The Hughes owned and lived on the farm until April 24, 1998, when they conveyed it to Rodney Felton and Vickie Felton (collectively referred to as "the Feltons"), husband and wife. On June 19, 1998 the Feltons transferred title to the farm to David Goldsmith. David Goldsmith then transferred title to Plaintiffs on July 31, 2001. On November 5, 2001, Plaintiffs conveyed the farm to William George Bowles, Sr., who then conveyed the farm back to Plaintiffs in December 2002.

The disputed property lies between two parcels of land with the farm to its east and six to eight acres, purchased by Defendant on March 31, 1999, to its west. It is bordered on its south by Highway 72 and consists of a driveway that operates as sole access to the farm. It has a fence on

217 S.W.3d 403

the east and west sides and contains two entrances, a cattle guard and a wooden gate. Sometime after Plaintiffs purchased the farm, a dispute arose between the parties as to the ownership of the disputed property.

At one point, without prior notice to Plaintiffs, Defendant's husband bulldozed the west boundary fence to the disputed property. That fence had been erected by the previous owner of the farm. Defendant's husband also had the bulldozer place a boulder in the driveway which prevented Plaintiffs from entering through the wooden gate. This forced the Plaintiffs to use the old wooden cattle guard entrance to their property that was "not in very good shape," and, which ultimately collapsed as they were driving over it. Plaintiffs eventually moved the boulder blocking the driveway with a nine foot pry bar so that they could enter and leave their property via the wooden gate.

On November 21, 2001, Plaintiffs filed a petition in the Dent County Circuit Court for a temporary restraining order, preliminary injunction, and permanent injunction against Defendant. Subsequently, a first amended petition was filed to quiet title, for a permanent injunction, and for trespass. Defendant filed a counterclaim for ejectment. The trial court heard the evidence and entered its judgment for Plaintiffs, quieting title to the disputed property; permanently enjoining Defendant, her successors, assigns, agents, employees or others acting on her behalf from interfering in any way with Plaintiffs' use and ownership of real property, and ordering her to immediately remove herself or any of her property or possessions located on the disputed property; and in favor of Plaintiffs on the trespass claim, but awarded no actual or punitive damages. It did not specifically enter judgment on the counterclaim.

Defendant, on November 17, 2005, filed a motion for new trial or, in the alternative, to amend the judgment. No action was taken on this motion by the trial court and it was denied by operation of law. Defendant now appeals.

Before we address the merits of the appeal we must determine whether we have jurisdiction to hear this appeal. Both Plaintiffs and Defendant have briefed the issue of whether or not the judgment of the trial court is a final one from which an appeal can be taken.

As indicated, Plaintiffs filed a petition alleging three counts, to quiet title, obtain a permanent injunction, and for trespass, relating to the disputed property. In response, the Defendant filed a counterclaim for ejectment. In issuing its judgment, the trial court expressly found for Plaintiffs in the three counts in their petition but did not dispose of Defendant's counterclaim, and there was not "an express determination that there is no just reason for delay" as authorized by Rule 74.01(b).²

Ordinarily, for a judgment to be final it must dispose of all parties and issues in the case and if a counterclaim is pleaded and submitted a finding must be made disposing of the counterclaim. See Jack Brandt, Ltd. v. Morris, 400 S.W.2d 417, 418 (Mo.1966); Todd v. St. Ann's School of Music Service, Inc., 585 S.W.2d 522, 524-25 (Mo.App. E.D.1979).

However, an exception to this general rule exists when "finding for a plaintiff necessarily carries with it a finding against the defendant on the defendant's counterclaim." Wright v. Martin, 674 S.W.2d 238, 240 (Mo.App. S.D.1984). In these cases the judgment contains an implicit ruling

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against the defendant on his counterclaim and the judgment is deemed final and appealable. Podlesak v. Wesley, 849 S.W.2d 728, 730 (Mo.App. S.D.1993).

This case fits within this exception. For Defendant to be successful on her claim for ejectment she would need to show that she was in possession of the disputed property and had the right of possession. Elton v. Davis, 123 S.W.3d 205, 213 (Mo.App. W.D.2003). In finding for Plaintiffs on all three counts, the trial court found that Plaintiffs had proven adverse possession and quieted title in them, permanently enjoined Defendant from interfering with Plaintiffs' use and enjoyment of the disputed property, and found that Defendant had trespassed on the disputed property. Implicit in this finding is the trial court's determination that Defendant did not and does not have a right of possession in the disputed property. Under these circumstances the trial court's judgment implicitly rejected Defendant's counterclaim and the judgment is final and...