Dennis v. Henley, SD 30012.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: JEFFREY W. BATES, Presiding
• Citation: 314 S.W.3d 786
• Parties: Rodney DENNIS, Petitioner-Respondent, v. Waylan HENLEY, Respondent-Appellant.
• Docket Number: No. SD 30012.,SD 30012.
• Decision Date: 29 June 2010

314 S.W.3d 786

Rodney DENNIS, Petitioner-Respondent,
v.
Waylan HENLEY, Respondent-Appellant.

No. SD 30012.

Missouri Court of Appeals, Southern District, Division One.

June 29, 2010.

314 S.W.3d 787

Abe Robley Paul, Pineville, MO, for Appellant.

Respondent acting pro se.

JEFFREY W. BATES, Presiding Judge.

Waylan Henley (Henley) appeals from a judgment granting Rodney Dennis (Dennis) a full order of protection pursuant to the Adult Abuse Act (the Act) after a bench trial. See §§ 455.010-.090.¹ On appeal, Henley challenges the sufficiency of the evidence to support the judgment. Because the evidence presented was insufficient to authorize the entry of a full order of protection against Henley for stalking, we reverse the judgment. The case is remanded to the trial court with instructions to vacate the full order of protection and deny the request for an order of protection.

I. Standard of Review

Appellate review of a court-tried case is governed by Rule 84.13(d). Foster v. Village of Brownington, 140 S.W.3d 603, 607 (Mo.App.2004). The trial court's judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).² On appeal, this Court views the evidence in the light most favorable to the judgment and defers to the trial court's credibility determinations. Binggeli v. Hammond, 300 S.W.3d 621, 623 (Mo. App.2010).

II. Factual and Procedural Background

Henley lives in Springdale, Arkansas, and is the developer of a subdivision in Missouri called Sugar Creek Trails Estates. The subdivision's restrictive covenants prohibit the riding of four-wheelers, except on the common roads.

Dennis' girlfriend, Jaymi Hobbie (Jaymi), purchased 30 acres of land from Henley.³ The property contained a house and two barns. Around March 15, 2008, Dennis and his daughter moved into the house with Jaymi and her two children. Thereafter, Henley asked Dennis if he wanted to buy certain gates stacked up in one of the barns. Dennis told Henley to speak to Jaymi about it. Dennis described Henley as a larger man than himself—Dennis being "5-11, 160, 165 pounds" compared to Henley, who was "6-2 and weighed 220."

In January 2009, Henley's gates were still stacked in the barn. In addition, an auger belonging to Henley was on Jaymi's property. Dennis had borrowed the auger from Henley, with his permission, to dig holes for fence posts. Before January 14, 2009, Dennis and Henley had gotten along well and had no problems with one another.

On January 14, 2009, Henley was sitting in his pickup, which was parked on his property. Jaymi's son, Chris Hobbie (Chris), and Dennis were riding four-wheelers near a creek in the subdivision, looking for their dog. They pulled up right next to Henley's pickup. Henley told

314 S.W.3d 788

Dennis and Chris about the restrictive covenant and asked them not to ride their four-wheelers off the common roads. According to Dennis, the conversation "ended in Mr. Henley slamming his door onto me and jumping out and grabbing me and hitting me." At this point, Chris left to call the sheriff. Dennis got loose from Henley and jumped onto the four-wheeler. As he tried to drive away, Henley stepped in front of the vehicle. Henley was knocked down and pinned beneath the four-wheeler. Dennis got off the machine, lifted it up and then helped Henley into his truck. Henley waited for the sheriff, and Dennis went home. According to Dennis, he "was scared" during this altercation with Henley. At the end of Dennis' direct examination, he gave the following testimony

Q. Okay. And you—you filed this ex parte on January 15, '09; is that right?

A. That's correct.

Q. Has Henley made any statements to you or did anything else that might put you in apprehension or fear?

A. Not since the incident on the 14th, no.

When the sheriff arrived, Henley asked if he could pick up his auger. The sheriff went to Jaymi's house and asked Dennis if he would help load Henley's auger into his pickup. Dennis declined because he was concerned about damaging Henley's truck. There was some discussion about Henley returning to pick it up, and Dennis had no problem with that occurring. The sheriff reported this information to Henley and told him to get the auger at a later date.

On January 15, 2009, Dennis filed a pro se petition under the Act seeking an order of protection against Henley. The petition alleged that Dennis had no relationship with Henley, other than "we Dennis and Jaymi bought property from him as a developer." Dennis further alleged that he was being stalked by Henley. A narrative statement explaining these allegations was included in the petition. In this narrative, Dennis made the following three assertions: (1) on January 14, 2009, Henley choked Dennis and hit him in the face; (2) Henley made repeated telephone calls to Dennis' home; and (3) Henley entered Dennis' property without permission. The petition alleged that Dennis was afraid of Henley because "he has threated sic me and said he would come back to finish the issues he says he has." That same day, the trial court entered an ex parte order against Henley. A hearing on the petition was scheduled for later that month.

On January 22, 2009, the summons to Henley was returned non est. On January 24, 2009, Henley was in his pickup with his wife when he saw the auger lying "right off the road" on Jaymi's property.⁴ He and his wife loaded the auger into the pickup. Dennis did not see Henley enter Jaymi's property or load the auger. Dennis only saw them as they were leaving and told Jaymi. She immediately jumped into her pickup and drove ahead of Henley, blocking his path. Dennis drove his four-wheeler to the top of the hill where Henley was stopped. The record contains nothing to indicate that Henley did anything to cause Dennis to be fearful during this forced confrontation, and Henley was allowed to leave with his auger. After this incident, Dennis and Henley had no further personal contact with one another.

314 S.W.3d 789

In March 2009, Dennis observed Henley on the road in front of Jaymi's house on two occasions. On the first occasion, Dennis was standing near the barn with two other persons when Henley drove past and "flipped us the bird." Dennis said this conduct made him "fearful." On the second occasion, Dennis observed Henley park about 100 yards away from Jaymi's house for 15-20 minutes and leave a trailer there. Henley owns nearby property which he shows and sells. Henley was on his way home to Springdale to return the trailer when he learned that potential buyers wanted to see a lot in the subdivision. Henley dropped the trailer off temporarily while he was showing the property. After doing so, he picked up the trailer and took it home. Dennis admitted that Henley owns property in the vicinity which he...