DOHOGNE v. Counts

• Decision Date: 19 April 2010
• Docket Number: No. ED 92911.,ED 92911.
• Citation: 307 SW 3d 660
• Parties: Patricia A. DOHOGNE, Plaintiff/Respondent, v. Pamela J. COUNTS, Michelle Fike and Steve Delcambre, Defendants/Appellants.
• Court: Missouri Court of Appeals

307 S.W.3d 660

Patricia A. DOHOGNE, Plaintiff/Respondent, v. Pamela J. COUNTS, Michelle Fike and Steve Delcambre, Defendants/Appellants.

No. ED 92911.

Missouri Court of Appeals, Eastern District, Division Two.

February 23, 2010.

Rehearing Denied April 19, 2010.

Walter S. Drusch, Jr., Cape Girardeau, MO, for Plaintiff/Respondent.

Michael L. Jackson, Jackson, MO, for Defendants/Appellants.

Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.

SHERRI B. SULLIVAN, Presiding Judge.

Introduction

Pamela J. Counts (Counts), Michelle Fike, n/k/a Michelle Burgess (Burgess) and Steve Delcambre (Delcambre) (collectively Appellants) appeal from the trial court's declaratory judgment and permanent injunction entered in favor of Patricia A. Dohogne (Respondent), ordering Appellants to remove a fence erected by Appellants that prevented Respondent's lawful use by virtue of a joint easement of the driveway between the respective parties' properties. We affirm.

Factual and Procedural Background

Respondent owns the house and lot at 510 North Farmington Road (hereinafter referred to as either "Respondent's property/house/home" or "510 North Farmington Road") in the City of Jackson, Missouri. Counts owns the house and lot at 514 North Farmington Road (hereinafter referred to as either "Count's property/house/home" or "514 North Farmington Road"), north of and adjacent to Respondent's property.¹ North Farmington Road runs north and south in front of both properties. The gravel driveway, which is the subject of this action runs east and west, perpendicular to North Farmington Road, between Respondent and Counts' homes. With the exception of a small corner where the driveway, at its widest point, opens onto North Farmington Road, the driveway lies entirely on Counts' lot and runs in a straight line from and perpendicular to North Farmington Road to a detached garage belonging to Counts located near the rear of Counts' lot. Respondent has a paved driveway which runs from North Farmington Road to an attached one car garage on the south side of Respondent's house. Respondent's house also has a carport at the northwest corner of the house and additional parking beyond the carport which Respondent and her predecessors in title have accessed through use of the subject gravel driveway.

History of Driveway

At the time of trial, the driveway between the properties had existed for 47 years, since 1962. Both properties were once commonly owned by James and Linda Malone (the Malones), the original owners and developers of the Sunny Slope Subdivision in which both Counts' and Respondent's properties are situated. The Malones lived in Respondent's home until 1962, when it was sold to Penny and Jeanne Kurre (the Kurres). The Malones, upon selling Respondent's property to the Kurres, moved next door into Counts' house. When the Kurres purchased 510 North Farmington in 1962, there was a garage and a chicken house at the rear of the lot that the Kurres accessed through use of the gravel driveway running between the homes. At that time, there was also access to the rear of the lot at 510 North Farmington Road from Harrison Drive, a public street running north and south, parallel to North Farmington Road, at the rear of the property. In January 1992, the Kurres sold the property to Malones' granddaughter and her husband, Christie and Rick Guilliams (Guilliams). The Guilliams sold the back half of the lot, thus cutting off the Harrison Drive access to the lot. The Guilliams owned the property until May 1993, when they sold the property to Michael and Tandy Wendall.

Mr. Kurre testified that he and his wife owned what is now Respondent's property (plus the back lot that fronts on Harrison Drive) from 1962 until 1990. Mr. Kurre testified that when he and his wife bought that property, Mr. Malone represented to him that the driveway was shared and that the property line ran through the center of the driveway. Mr. Kurre testified that he later learned that the property line was actually further on his side. Mr. Kurre also testified that after Mr. Malone's death, when the City of Jackson installed curbs and guttering on North Farmington Road, Mr. Kurre built up the drive to drain to the street, thus moving the drive entirely (except for the south front corner of the driveway) onto Mrs. Malone's property.

Both Mr. and Mrs. Kurre testified that the arrangement between the Malones and the Kurres regarding the gravel driveway was one of mutual respect for the use of the driveway. Mr. Kurre testified that the property owners used the driveway with mutual permission.

Christie Guilliams testified that the driveway was always a shared driveway used by both parties because that's the way her grandmother, Linda Malone, wanted it. Under cross-examination, Guilliams testified that both property owners used the driveway permissively, that Guilliams gave her grandmother permission to use the driveway and vice versa.

The Wendalls, who owned Respondent's property from April 1993 until April 1996, did not testify, and thus there was no evidence of what use the Wendalls made of the driveway during the time they owned the property.

The Wendalls conveyed Respondent's property to Daniel and Roberta Brown in April 1996. The Browns lived on the property until April 2005 when the property was conveyed to Respondent. Linda Malone lived next door on what is now Counts' property throughout the time that the Browns owned Respondent's property. Mr. Brown testified that there was never any discussion between the Browns and Linda Malone regarding the Browns' use of the driveway, though the Browns did use the driveway as the sole means of access to the carport and the rear of their property.

When asked on direct examination if there was ever any discussion between Mr. Brown and Mrs. Malone as to "who could use what and whose was whose," Mr. Brown stated,

That never came up officially. We would meet out in the yard, and I mowed her yard. She was a disabled lady, and I even cared for her wooden garage back there for her, and that was kind of our understanding. I helped her with her situation, and I even helped her maintain the driveway and never was anything said, you can't use this driveway. It was all very amiable.

Counts bought the 514 North Farmington Road property in May 2005. Burgess, Counts' daughter, has occupied the property since that time with her husband and two children. Burgess testified that she and her husband occasionally parked their vehicle next to Counts' garage, placing their vehicle about two feet over onto Respondent's property. Respondent complained and insisted that Burgess not park next to Counts' garage over onto Respondent's property without permission. Burgess further testified that Respondent's free and unrestricted access to the gravel driveway limits the parking available to Counts' property.

Delcambre is Counts' fiance, and lives with her at 301 Carolina Place in Jackson, Missouri. Delcambre acknowledged that on July 31, 2007, he erected the rail fence on Counts' side of the dividing line between the properties, running from the southwest corner of Counts' garage to a point just past the northeast corner of Respondent's house. The fence, though located on the Counts' side of the dividing line between the properties, crosses the section of the gravel driveway which turns south into Respondent's carport, cutting off Respondent's access to her carport and adjacent parking area. When asked whether the "fence has any earthly purpose except to keep Respondent from getting onto her carport," Delcambre replied, "That's exactly why it's there."

Mr. Brown testified that Harrison Drive was not a way of access to the rear of his property when he lived at 510 North Farmington Road, and to use it would require going through somebody else's yard and garden. He stated that the gravel driveway was the only way for him to get back to the carport. Mr. Kurre also testified that the gravel driveway was the only access to the rear of the house and carport at 510 North Farmington Road and that it was impossible to get from Harrison Drive to any portion of the property. Respondent also testified that the gravel driveway was the only access to the carport and parking area at the rear of her property.

Judgment

After a bench trial, the court entered its Judgment directing Appellants to remove the fence erected by Delcambre and permanently enjoining Appellants from replacing the fence or otherwise erecting a fence or barrier at or near the driveway in such a way as to obstruct Respondent's use of the driveway for ingress to and egress from the carport and parking area lying behind Respondent's residence. The court also permanently enjoined Appellants from interfering with the use of the driveway by Respondent for ingress to and egress from the property behind Respondent's residence. This appeal follows.

Points on Appeal

In their first point, Appellants claim that the trial court erred in granting mandatory injunctive relief against Appellants ordering them to permit Respondent, her heirs, successors, assigns and invitees to freely use the gravel driveway described in the court's judgment for ingress to and egress from Respondent's property and by permanently enjoining Appellants from maintaining a fence or barrier near or upon the gravel driveway or in any way obstructing Respondent's use of the gravel driveway for ingress to or egress from the carport and parking area located on Respondent's property behind Respondent's residence because the judgment of the trial court is not supported by competent and substantial evidence on the record as a whole, is against the greater weight of the evidence or involves a misinterpretation of law or a misapplication of the facts to the law, in that the injunctive relief granted by the trial court against Appellants presupposes the existence of an implied easement in favor of Respondent in the...