Childress v. Lovins

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: Childress v. Lovins, 582 S.W.3d 129 (Mo. App. 2019)
• Decision Date: 27 August 2019
• Docket Number: No. SD 35435,SD 35435
• Parties: Lewis CHILDRESS, Andrea Hopper, Christa Childress, Larry Childress and Gary Childress, Petitioners-Respondents, v. Allan and Tina LOVINS, husband and wife, Respondents-Appellants.

582 S.W.3d 129

Lewis CHILDRESS, Andrea Hopper, Christa Childress, Larry Childress and Gary Childress, Petitioners-Respondents,

v.Allan and Tina LOVINS, husband and wife, Respondents-Appellants.

No. SD 35435

Missouri Court of Appeals, Southern District, Division One.

Filed: August 27, 2019

Attorney for Appellants – Christopher J. Swatosh of Ava, MO.

Attorneys for Respondents – William C. Hosmer, Kathryn A. Millington, and Thomas W. Millington of Springfield, MO.

Before Lynch, P.J., Rahmeyer, J., and Francis, Jr., J.

PER CURIAM.

Allan and Tina Lovins appeal the trial court’s January 29, 2018 judgment that condemned the Childress Cemetery, which was located on land owned by the Lovins, vested title to the cemetery in Webster County, and assessed costs in the amount of $2,874.85 against the Lovins. Five members of the Childress family ("the Childress petitioners") sought the condemnation pursuant to sections 214.200 and 214.080 and Chapter 523 of Missouri’s statutes.¹ The Lovins raise four points. We deny the first three points, but grant the fourth point and remand to the trial court for it to redetermine and reassess costs under Rule 86.09 rather than Rule 77.01 and section 214.120.²

Facts and Procedural History

Trial

A trial to the court occurred on August 10, 2017. Larry B. Childress, who lived in Rogersville, Greene County, at the time of the trial and is a third cousin to Lewis, Christa and Gary Childress and a third cousin once removed to Andrea Hopper, testified as follows. Larry lived on a farm located just south of the Childress Cemetery from the time he was born in 1947 until he left home in 1969. Larry and his father, mother and brother have visited the Childress Cemetery "[m]any times" "over the years." Larry’s great-great grandparents "settled" on the property that now contains the Childress Cemetery "around 1850" and Larry believed started the Childress Cemetery "sometime in the 1850’s" – a Childress family member was buried there at least as early as 1862. Allan and Tina Lovins now own the land that contains the Childress Cemetery. Larry’s family has maintained the Childress Cemetery "over the years." Larry’s great-great and great grandparents and a great aunt are buried in the Childress Cemetery – the great aunt was "buried there fairly recently, the last – probably 20 years." The most recent burial at the Childress Cemetery was in 2009, and was a Childress family member. "There’s vacant area within the cemetery for other burials" on a "first come first served" basis.

"[O]ver the years, there’s been some difficulty for the family to get access to the cemetery" though Larry has "always managed to be able to get to the cemetery." In a letter dated March 21, 2017, the Childress family offered to pay Allan and Tina Lovins $1,500 for the Childress Cemetery, but that offer was rejected. Larry testified that the Childress petitioners "are petitioning the Court to condemn the property as a private cemetery to be deeded to the public for future maintenance and care of that cemetery of the people that are buried there and the future burials that will take place at that location."

Gary L. Childress, who lived in Branson at the time of the trial and is related to Lewis, Christa and Larry Childress and Andrea Hopper, added the following testimony. The deed that conveyed the land containing the Childress Cemetery "out of the Childress family" contained a restriction that "allow[s] the Childress family to have access to the property to maintain and care and continue the cemetery." Farmland surrounds the Childress Cemetery, and Gary has "seen corn there, and I know that sometimes it’s pasture." In about 2007 during a "Childress reunion," Gary and numerous relatives were unable to reach the Childress Cemetery without walking because a corn crop "blocked" Gary and his relatives from driving a bus to the cemetery.

After the Childress petitioners rested, Allan Lovins took the witness stand and testified as follows. Allan and his wife Tina own a sixty-six acre tract that includes the Childress Cemetery. The Lovins purchased the tract in "about 2002, 2003 somewhere," and were aware the deed reserved "ingress and egress" to the cemetery to the Childress family. The Lovins grew corn "for at least five years, four or five years" and explained to the Childress family "that corn was just a 90-day event." During the years the Lovins grew corn, the Lovins followed the corn with wheat and pasture rotations. The wheat did not prevent access to the cemetery, and the Lovins "left a route" through the corn for access to the cemetery. The Childress family could not understand the explanation so the Lovins switched to a hay crop, which grew very tall because of a "rain event" and caused the Childress family to threaten to sue. The Lovins "mowed" the cemetery "for around six years," and the Childress family paid for this service. A previous lawsuit resulted in an "agreement for ... ingress and egress at that point in time." Allan believed he and his wife had given the Childress family ingress and egress.

The Lovins then rested, and there was no rebuttal evidence.

Pleadings

In their answer, the Lovins admitted (1) the Childress Cemetery was located in Webster County on land that they owned; (2) the Childress Cemetery "has been continuously used as a private burial ground for more than ten years and ... has not been deeded to the public for the purposes of a burial ground;" (3) the Childress petitioners "seek title" to the Childress Cemetery "for the continued use as a burial cemetery;" and (4) despite good faith efforts, the Childress petitioners have been unable to acquire the Childress Cemetery from the Lovins. Though denied by the Lovins in their answer, the Childress petitioners alleged in their condemnation petition that the "purpose of the taking is to maintain, own, care for and provide the burial grounds in perpetuity for use by the public," and requested authority to, among other things, "[m]aintain the burial grounds of the cemetery," "[t]o prepare for future internments [sic]," and "[f]or all other uses normally associated with a burial cemetery." Among other things, the prayer of the condemnation petition requested that the trial court "vest in the public title[ ] to" the Childress Cemetery.

Order of Condemnation and Judgment

In an order of condemnation entered on August 17, 2017, the trial court found (1) the Childress petitioners "are five members of the public having an interest in the Childress Cemetery;" (2) "[t]he Childress Cemetery has been in continuous use as a private cemetery for more than ten years" and "has never been deeded to the public for the purpose of a burial ground;" and (3) "[t]he parties have, in good faith, negotiated to obtain the subject property without exercising condemnation concerning the property sought to be appropriated, but they have been unable to reach an agreement as to value." The order then decrees in part that "the property containing the Childress Cemetery and property rights be and stand condemned for the uses and purposes as set out in the Petitioners' Petition." Following the filing of a report of commissioners and the Childress petitioners' filing of a motion to review and tax costs in the amount of $3,699.85, the trial court, on January 29, 2018, entered a judgment that decreed the Childress Cemetery "shall be vested in fee simple title to Webster County," and assessed costs in the amount of $2,874.85 "to [the Lovins] in accordance with the Motion to Review and Tax Costs attached hereto and incorporated herein by reference."

Analysis

The Lovins assert four points on appeal. The first three points are similar, and claim the trial court "erred to the prejudice of [the Lovins] by erroneously declaring and applying the law in ordering a condemnation of the Childress Cemetery" (1) "in that the Childress Cemetery is the private property of [the Lovins] and its condemnation was taken for the private use of [the Childress petitioners] and was not for the primary benefit of the public" (Point I); (2) "in that [the Childress petitioners] did not constitute ‘the public’ since they were seeking such condemnation for their private use and not for the primary benefit of the public" (Point II); and (3) "in that it was not ‘absolutely necessary’ to condemn or enlarge the Childress Cemetery since it has vacant space for future burials, and [the Childress petitioners] have the right to maintain and access the cemetery both by deed and by [statute]." In their fourth point, the Lovins contend that the trial court erred "by abusing its discretion and erroneously declaring and applying the law in taxing all costs against [the Lovins]" "in that such costs were incurred prior to or at the time of the filing of the report of the commissioners" and are required to be taxed against the Childress petitioners under Rule 86.09.

Standard of Review

As with other court-tried cases, " ‘the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’ Murphy [v. Carron] , 536 S.W.2d [30,] 32 [ (Mo. banc 1976) ]." Planned Industrial Expansion Authority of Kansas City v. Ivanhoe Neighborhood Council , 316 S.W.3d 418, 423 (Mo. App. W.D. 2010).

Points I, II and III

Because of the similarity of these three points, we address all three together.

Each of these points and the accompanying argument are not clearly stated, but we interpret the points to assert that the trial court "erroneously declar[ed] and appl[ied] the law" in that, as a matter of law, the evidence failed to establish essential elements of the Childress petitioners' action to condemn the Childress Cemetery – i.e., that (1) the condemnation was for a public purpose under the Missouri Constitution (Point I), (2) the Childress petitioners "constitute[d] ‘the public’ " ...