Edmondson v. Edwards

• Decision Date: 03 April 2009
• Docket Number: No. SD 28765.,No. SD 28810.,SD 28765.,SD 28810.
• Citation: 280 S.W.3d 752
• Parties: R.G. EDMONDSON, Trustee of the Jewell Edmondson Testamentary Trust, Appellant/Cross-Respondent, v. Doug EDWARDS and Sandra Edwards, Respondents/Cross-Appellants.
• Court: Missouri Court of Appeals

280 S.W.3d 752

R.G. EDMONDSON, Trustee of the Jewell Edmondson Testamentary Trust, Appellant/Cross-Respondent, v. Doug EDWARDS and Sandra Edwards, Respondents/Cross-Appellants.

No. SD 28765.

No. SD 28810.

Missouri Court of Appeals, Southern District, Division One.

April 3, 2009.

Donald L. Cupps, Ellis, Cupps & Cole, P.C. and Darlene Parrigon, Cassville, for Appellant.

J. Michael Riehn, Law Office of J. Michael Riehn, P.C., Cassville, for Respondents.

ROBERT S. BARNEY, Judge.

Appellant/Cross-Respondent R.G. Edmondson, Trustee of the Jewell Edmondson Trust ("Plaintiff") (No. 28765), appeals from the trial court's "Orders Upon Post Trial Motions and Amended Judgment" ("the Amended Judgment") entered on October 2, 2007. Respondents/Cross-Appellants Doug Edwards ("Mr. Edwards") and Sandra Edwards (collectively "Defendants") (No. 28810) appeal from the trial court's "Judgment" ("the Judgment") filed June 21, 2007. Plaintiff asserts four points of trial court error and Defendants assert two points of trial court error.¹

These appeals arise from approximately seven years of protracted litigation by the parties, who are adjoining landowners. Due to the nature of the litigation, involving four, separate judgments relating to injunctive relief, contemptuous behavior and the imposition of per diem fines, the record in this matter is rather convoluted.² It first reveals that Defendants dammed up Brock Branch Spring in Barry County to create a pond³ on their property which resulted in a loss of water flow to Plaintiff's land such that Plaintiff was unable to water his livestock sufficiently. Plaintiff then filed a petition with the trial court requesting an injunction ordering Defendants to dismantle the pond to restore water flow to Plaintiff's property and damages for the expenses incurred in having to obtain water for his livestock. In a judgment entered June 27, 2002, in part pertinent to this appeal, the trial court "ordered and adjudged that ... Defendants be permanently enjoined and prohibited from maintaining the pond impounding the spring...." The trial court also directed Defendants "to demolish, destroy, or remove the pond and restore the stream bed and flow to the conditions existing prior to the construction of the pond[]."

In order to effectuate its orders, the trial court set out that if Defendants failed to comply with its orders by July 27, 2002, then Defendants "shall be subject to contempt and ordered to pay ... Plaintiff the sum of $50.00 per day from and after July 27, 2002, until such time as the pond is demolished ... and the stream bed is restored." This judgment was appealed to this Court by Defendants and the trial court's judgment of June 27, 2002, was affirmed on August 15, 2003. See Edmondson, 111 S.W.3d at 910.

On September 3, 2003, Plaintiff filed an "Amended Motion for Contempt" in which Plaintiff asserted Defendants had not complied with the trial court's order to restore water flow to Plaintiff's property and should be held in contempt of court. The motion also requested a monetary judgment of "$50.00 per day from July 27, 2002 ..." until water flow was restored.

Thereafter, on November 13, 2003, Defendants filed a "Motion to Dissolve Preliminary and/or Permanent Injunction." In this motion, Defendants asserted the trial court's injunction ordered them "to dismantle the dam placed across Brock Branch [Spring] and to restore the flow of Brock Branch [Spring] to its natural condition in order for Plaintiff to be allowed reasonable use of the water to water cattle;" however, Plaintiff "had a well drilled on his property in order to obtain water for his cattle...." Accordingly, Defendants argued the injunction should be dissolved and the $50.00 per diem penalty rescinded because "Plaintiff no longer ha[d] a need for a reasonable use for the water in Brock Branch [Spring]...."

A hearing was held January 16, 2004, on Plaintiff's motion for contempt and Defendants' motion to dissolve the injunction. Thereafter, the trial court entered a March 16, 2004, judgment which found Defendants had failed to destroy the pond despite the trial court's previous orders to do so. The trial court also found such actions to be "willful, intentional, and contumacious" such that Defendants were in contempt of court and denied Defendants' request to dissolve the injunction. The trial court also determined and ordered that Defendants owed Plaintiff "for the period of July 27, 2002[,] through January 16, 2004, ... the sum of $26,850.00 plus $50.00 per day from January 17, 2004[,] and continuing thereafter." The trial court, likewise, awarded Plaintiff attorney fees in the amount of $1,800.00 and ordered that the "matter be reviewed on September 21, 2004 ... to ascertain whether or not Defendants have complied with this [c]ourt's order. Execution may issue."⁴

On June 25, 2004, Defendants filed a second "Motion to Dissolve Preliminary and/or Permanent Injunction." In this motion, Defendants asserted they installed "a diversion ditch that diverted the water around the pond and back to Brock Branch [Spring]," thus, restoring the flow of water to Plaintiff's property.⁵ Accordingly, Defendants requested the injunction and the $50.00 per diem penalty be dissolved. A hearing was not held on this motion until February 9, 2007. In the interim, in early September of 2005, Plaintiff again began execution proceedings against Defendants based on the March 16, 2004, judgment. On September 27, 2005, the trial court stayed execution until it could consider Defendants' second motion to dissolve the injunction.

As previously set out, a hearing was held on Defendants' motion on February 9, 2007. The trial court filed its Judgment on June 21, 2007. The Judgment, which recited Defendants' "non-compliance with the original judgment [and] non-compliance with the contempt directives," found Defendants' actions in failing to demolish the pond were "willful, intentional and contumacious and assesse[d] the $50.00 a day penalty from March 17, 2004, to this date." The Judgment also denied Defendants' motion to dissolve the injunction and set aside the previous order to quash execution and halt garnishment proceedings. Additionally, the Judgment set out:

IT IS FURTHER ORDERED AND ADJUDGED that [D]efendants ... are found to be in contempt of this court from March 17, 2004, through June 20, 2007[,] and the monetary penalty being determined to be in the sum of $59,500[.00].

IT IS FURTHER ORDERED that [D]efendants may purge themselves of such contempt by demolishing the pond by July 20, 2007. For failure to do so, execution may issue.

Costs are assessed to [D]efendants.

On July 3, 2007, Plaintiff filed a "Motion for New Trial/Motion to Amend Judgment pursuant to Missouri Civil Rule 78.04," and on August 20, 2007, Plaintiff filed a "Motion to Enforce Contempt Judgment or in the Alternative to Assess Damages and Award Plaintiff Damages and For Monetary Judgment Against ... Defendants for Contempt."⁶ Argument was held on these motions and on October 2, 2007, the trial court entered its Amended Judgment. The Amended Judgment recited the following:

Plaintiff further maintains that the Court cannot allow Defendants to purge themselves of contempt for the additional monetary penalty of $59,500.00. In the alternative, Plaintiff maintains that given the chance to purge themselves of contempt, Defendants failed to do so by the July 20, 2007, date.... Argument disclosed that Defendants did not take action concerning the pond till near the deadline date of July 20.... Arguably, Defendants did not commence to drain the pond [until] July 17, which would follow Defendants' pattern of doing little or nothing to comply with the Court's previous directives. The parties generally concede the pond has been drained but now holds runoff water as a result of recent heavy rains. The Court in its Judgment of June 27, 2002, ordered Defendants to `demolish, destroy or remove the pond and restore the stream bed and flow to the conditions existing prior to the construction of the pond[].' The court in its Judgment [of June 21, 2007] directed Defendants to purge themselves of contempt by `demolishing' the pond which clearly has not been done.... However, the Court questions its ability to make the conditions of purging more stringent tha[n] the original Judgment of June 27, 2002. The Court will find there has been substantial compliance and Defendants have purged themselves of contempt by removing the pond.

While the pond had been drained and removed, the Court will not dissolve the injunction which might tempt Defendants to refill the pond and invite a repeat of this protracted litigation.

IT IS THEREFORE ORDERED that Plaintiff's Motion for New Trial is overruled and denied.

IT IS FURTHER ORDERED that Plaintiff's Motion to Amend Judgment be sustained in that the Court should have allowed evidence of attorney fees and litigation expenses and ... finds that Plaintiff should have judgment against Defendants ... for reasonably and necessarily incurred attorney fees of $12,860.10 and litigation expenses of $709.23 for which execution may issue.

IT IS FURTHER ORDERED that the monetary penalty of $59,500.00 assessed against Defendants ... be set aside since Defendants have removed the pond by draining it and have purged themselves of this Court's finding of contempt.

The instant appeals by both Plaintiff and Defendants followed.

At the outset we note the present appeals are plagued by an important issue regarding the finality of the Judgment dated June 21, 2007. We begin with Defendants' cross-appeal which is notably aimed at the Judgment filed on June 21, 2007, as opposed to the Amended Judgment dated October 2, 2007.⁷ Likewise, Plaintiff's second point relied on also takes issue with the June 21, 2007, Judgment.⁸

This Court is obligated to determine its authority sua sponte before considering claims raised on appeal. In re Estate of Shaw, 256 S.W.3d 72,...