Chapman v. Lavy

CourtCourt of Appeal of Missouri (US)
Citation20 S.W.3d 610
Parties(Mo.App. E.D. 2000) . Walter E. Chapman, Jr., and Erma C. Chapman, Plaintiffs/Appellants, v. Lewis Lavy and Kimberly Lavy, Defendants/Respondents. Case Number: ED76265 Missouri Court of Appeals Eastern District Handdown Date: 0
Decision Date30 June 2000

20 S.W.3d 610 (Mo.App. E.D. 2000)
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Walter E. Chapman, Jr., and Erma C. Chapman, Plaintiffs/Appellants,
v.
Lewis Lavy and Kimberly Lavy, Defendants/Respondents.
Case Number: ED76265
Missouri Court of Appeals Eastern District
Handdown Date: 06/30/2000

Appeal From: Circuit Court of Lincoln County, Hon. Fred Rush

Counsel for Appellant: Thomas B. Burkemper and Malaine P. Hagemeier

Counsel for Respondent: John M. McIlroy, Jr., and Amy H. Rost

Opinion Summary: Plaintiffs Chapmans appeal the trial court's judgment in favor of defendants Lavys on the Chapmans' claims for injunction, quiet title, and damages regarding a roadway between their and the Lavys' properties. The trial court found the roadway to be a public road and awarded the Lavys damages in an amount equal to their attorneys' fees.

AFFIRMED IN PART, REVERSED IN PART.

Northern Division holds: (1) The trial court did not err in finding the roadway to be a public road in that substantial evidence supported this determination. (2) The trial court erred in awarding the Lavys attorneys' fees in that no unusual circumstances existed justifying such an award.

Opinion Author: Mary Rhodes Russell, C.J.

Opinion Vote: AFFIRMED IN PART, REVERSED IN PART. Ahrens and Mooney, J.J., concur.

Opinion:

Walter and Erma Chapman ("plaintiffs") appeal from the trial court's judgment finding in favor of Lewis and Kimberly Lavy ("defendants") on plaintiffs' claims for injunction, quiet title, and damages regarding a roadway between plaintiffs' and defendants' properties. The trial court found the roadway to be a public road and awarded defendants damages in an amount equal to their attorneys' fees. We affirm the judgment finding the roadway to be a public road in that substantial evidence supported this determination. We reverse the award of attorneys' fees in that no unusual circumstances existed justifying such an award.

Plaintiffs and defendants are owners of adjacent parcels of land located on County Road 634 in Lincoln County. Plaintiffs' property is west of defendants' property. County Road 634 runs in an east-west direction along the north boundaries of both parcels. The roadway at issue runs south from County Road 634 along the west boundary of defendants' property.

Plaintiffs moved onto their property in 1977, purchasing it in 1978 from a family member. Defendants purchased their property in 1996 and made plans to build a house on it. They informed plaintiffs of their plans and offered to help maintain the roadway during construction. Plaintiffs responded they did not want anyone else using the roadway. Defendants proceeded to grade an entrance off the roadway to their house site.

Plaintiffs filed suit against defendants, seeking an injunction preventing defendants from using the roadway which they claimed they owned through adverse possession. They also sought to quiet title and an award of damages. Defendants stipulated to a temporary restraining order prohibiting them from using the roadway. After a hearing, the trial court entered a preliminary injunction. Defendants thereafter filed a counterclaim, seeking an injunction, to quiet title, and an award of damages.

In its judgment order, the trial court found that the roadway was not sufficiently legally described in plaintiffs' petition. It found that the roadway, except for a small part of it, was located on defendants' property. It further found that the roadway was a county road open to the public, precluding any claims of adverse possession or prescriptive easement.

The trial court found in the alternative that even if the roadway were not a county road, plaintiffs failed to establish the necessary elements of an adverse possession or of a prescriptive easement claim. Finally, the court found that the injunction suit filed by plaintiffs and the temporary injunction obtained thereunder constituted a cloud upon defendants' title.

The trial court entered a judgment declaring the roadway to be a county road open to the public and ordered judgment in favor of defendants. The trial court awarded defendants $4,280 in damages. Plaintiffs appealed.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32. We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 434 (Mo. App. 1996).

In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge. H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 671 (Mo. App. 1998). Where there is conflicting evidence, the trial court has the prerogative to determine the credibility of witnesses,...

To continue reading

Request your trial
18 practice notes
  • Lau v. Pugh, No. SD 29289.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Diciembre 2009
    ...our judgment for that of the trial judge.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App. 2005) (quoting Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App.2000)). In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidence ......
  • Burris v. Mercer County, No. WD 67601.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Abril 2008
    ...cannot be surrendered or abandoned unless all of the public concur therein.'" Kleeman 167 S.W.3d at 203 (quoting Chapman v. Lavy, 20 S.W.3d 610, 613 (Mo.App. E.D.2000)). "`The law does not fix the number of persons who must travel upon a road to determine its existence.'" Oet......
  • Lau v. Pugh, No. SD 29289 (Mo. App. 11/4/2009), No. SD 29289.
    • United States
    • Missouri Court of Appeals
    • 4 Noviembre 2009
    ...our judgment for that of the trial judge.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App. 2005) (quoting Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App. 2000)). In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidence......
  • Ruby v. Troupe, WD 82014
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Agosto 2019
    ...exception." Id. (citation omitted).3 See , e.g. , Schindler v. Pepple , 158 S.W.3d 784, 787 (Mo. App. E.D. 2005) ; Chapman v. Lavy , 20 S.W.3d 610, 614–15 (Mo. App. E.D. 2000) ; Gerst v. Flinn , 615 S.W.2d 628, 631-32 (Mo. App. E.D. 1981).4 The Rubys' petition named their predecessors ......
  • Request a trial to view additional results
18 cases
  • Lau v. Pugh, No. SD 29289.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Diciembre 2009
    ...substitute our judgment for that of the trial judge.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App. 2005) (quoting Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App.2000)). In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidence......
  • Burris v. Mercer County, No. WD 67601.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Abril 2008
    ...road cannot be surrendered or abandoned unless all of the public concur therein.'" Kleeman 167 S.W.3d at 203 (quoting Chapman v. Lavy, 20 S.W.3d 610, 613 (Mo.App. E.D.2000)). "`The law does not fix the number of persons who must travel upon a road to determine its existence.'" Oetting, 175 ......
  • Lau v. Pugh, No. SD 29289 (Mo. App. 11/4/2009), No. SD 29289.
    • United States
    • Missouri Court of Appeals
    • 4 Noviembre 2009
    ...substitute our judgment for that of the trial judge.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App. 2005) (quoting Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App. 2000)). In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidenc......
  • Ruby v. Troupe, WD 82014
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Agosto 2019
    ...this exception." Id. (citation omitted).3 See , e.g. , Schindler v. Pepple , 158 S.W.3d 784, 787 (Mo. App. E.D. 2005) ; Chapman v. Lavy , 20 S.W.3d 610, 614–15 (Mo. App. E.D. 2000) ; Gerst v. Flinn , 615 S.W.2d 628, 631-32 (Mo. App. E.D. 1981).4 The Rubys' petition named their predecessors ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT