Daniels v. Griffin, 15694

• Decision Date: 03 May 1989
• Docket Number: No. 15694,15694
• Parties: Larry DANIELS and Wilma Daniels, Plaintiffs-Appellants, v. O.G. GRIFFIN and Jean Griffin, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 199

769 S.W.2d 199

Larry DANIELS and Wilma Daniels, Plaintiffs-Appellants, v. O.G. GRIFFIN and Jean Griffin, Defendants-Respondents.

No. 15694.

Missouri Court of Appeals,

Southern District,

Division One.

May 3, 1989.

Ted M. Henson, Jr., Poplar Bluff, for plaintiffs-appellants.

GREENE, Judge.

Plaintiffs, Larry and Wilma Daniels, sued defendants, O.G. and Jean Griffin, seeking relief in several claims arising out of a property line dispute. The Daniels asked that title to a disputed tract of land be quieted in them, that the Griffins be enjoined from trespassing on the land in question, and enjoined from assaulting, threatening, or harassing the Daniels. The Griffins counterclaimed in five counts, seeking damages for alleged tortious acts of the Daniels. Count V of their counterclaim alleged that the Daniels had been threatening, harassing, and assaulting them, and requested that such acts be enjoined.

The trial court, after a jury-waived trial in which the Griffins proceeded without counsel, ¹ granted all relief requested by the Daniels, and denied all relief requested by the Griffins, except for their prayer that the Daniels be enjoined from threatening, assaulting, or harassing them. Therefore, each was enjoined from threatening, assaulting, or harassing the other.

Despite the fact that the trial court granted the Daniels all of the relief they requested in their petition, they, nevertheless, have appealed that part of the trial court's judgment enjoining them from committing the acts heretofore described. They contend that the trial court erred in granting any relief to the Griffins because (1) the Griffins lacked "clean hands" to seek equity since Mr. Griffin had threatened and assaulted Mr. Daniels with a shovel, (2) the Griffins were not entitled to an injunction since they had an adequate remedy at law, and (3) the judgment in favor of the Griffins was unsupported by and against the weight of the evidence because there was "no evidence" that the Daniels had threatened, harassed, or assaulted the Griffins, because any acts by the Daniels toward the Griffins "were either trivial or justified."

Appeals in injunction cases are treated as appeals in other court-tried cases, and it is our duty to uphold 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 was based on an erroneous declaration or application of law. Mertzlufft v. Bunker Resources Recycling, 760 S.W.2d 592, 596 (Mo.App.1988). In support of their position on the issues raised in their appeal, the Daniels have seen fit to file what they call a transcript, which consists of an abbreviated 15-page document containing selected portions of the direct and/or cross-examination of various witnesses.

An appellant has a duty to furnish an adequate record by which allegations of error can be reviewed with some degree of confidence. In re Redemption Proceeding by Hokanson, 706 S.W.2d 559, 560 (Mo.App.1986); State ex rel. State Highway Com'n v. Lynch, 563 S.W.2d 779, 780 (Mo.App.1978). The attorney for the Daniels asserts that the document in question includes all of the evidence relevant to their appeal. Such a statement is self-serving, and is no substitute for the record. See In re Redemption Proceeding by Hokanson, 706 S.W.2d at 560.

Rule 81.12(a) ² provides that the record on appeal "shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented," and that "[t]he transcript shall contain the portions of the proceedings and evidence not previously reduced to written form." While the rule contains provisions that some portions of the record can be omitted, if not relevant to the appeal, it is doubtful if such latitude extends to the presentation of selective excerpts from witnesses' testimony that is favorable only to the appealing party.

We are entitled to assume that the omitted portions of the record were unfavorable to the Daniels, and that is why they were not included. Delf v. Cartwright, 651 S.W.2d 622, 624 (Mo.App.1983). However, if the Daniels, on the basis of the record they chose to submit, have failed to meet their burden of proof on appeal, we may affirm the judgment without regard for those omitted portions of the record. State ex rel. State Highway Com'n v. Lynch, 563 S.W.2d at 780; Delaney v. Gibson, 639 S.W.2d 601, 604 (Mo. banc 1982).

While what...