Forbes v. Allison, SD37175

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMARY W. SHEFFIELD, P.J.
PartiesJASON W. FORBES, and CHARLOTTE FORBES, Respondents, v. RUSSELL F. ALLISON, and REBECCA J. ALLISON Appellants.
Decision Date13 June 2022
Docket NumberSD37175

JASON W. FORBES, and CHARLOTTE FORBES, Respondents,
v.

RUSSELL F. ALLISON, and REBECCA J. ALLISON Appellants.

No. SD37175

Court of Appeals of Missouri, Southern District, Second Division

June 13, 2022


APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable Judge John D. Beger

MARY W. SHEFFIELD, P.J.

Russell and Rebecca Allison (the "Allisons") appeal from a judgment establishing a private road over their property. In a single point, they argue the trial court erred in denying their motion to dismiss Jason and Charlotte Forbes' (the "Forbes") petition because certain adjacent property owners were not added as parties to the lawsuit as required by section 228.342.[1] Finding no error, we affirm the trial court's judgment.

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Background

The Forbes own a landlocked piece of real estate in Texas County, Missouri, which had been historically accessed by a roadway that passed over neighboring properties. The Forbes hired a surveyor who prepared a legal description of the historic roadway, which passed over the Allisons' property as well as property owned by Delbert and Tammy McKinley, Robert and Sherry Reed, and Randall Pool (the "non-party neighbors").[2] Each non-party neighbor granted the Forbes an easement, allowing them

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access and use of the historic roadway that ran across each of their individual properties.[3] The Allisons refused to grant an easement or allow access across their property. The Forbes filed an amended petition seeking to establish a private road over the Allisons' property under section 228.342.

On December 13, 2019, the trial court held a hearing pursuant to section 228.352. Following the hearing, the trial court issued an interlocutory judgment determining the Forbes' property lacked access to a public road and that the road sought was of strict necessity. The interlocutory judgment appointed three commissioners to review the proposed location of the private road and assess damages to the Allisons pursuant to section 228.355. The commissioners issued their report to the trial court on January 14, 2021, assessing damages to the Allisons in the amount of $15, 000.00. The commission further determined that the Allisons' proposed alternative route was "not viable" because it would run through a deep ravine and intersect numerous trees. The Allisons filed exceptions and requested a jury trial pursuant to section 228.358.[4]

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In May 2021, the Allisons filed a "Motion to Dismiss and Suggestions in Support or, Alternatively, Motion for Joinder of Required or Indispensable Parties and a New Trial" (the "motion to dismiss"). The motion to dismiss asserted, among other things, that the non-party neighbors who had granted the easements were required to be named as parties under section 228.342 and were necessary and indispensable to the lawsuit because the proposed historic roadway passed over their properties. The trial court denied the Allisons' motion to dismiss on May 12, 2021. At the hearing, the trial court stated:

The phrase 'the proposed private road' in [section 228.342], I believe, refers to the road to be established by 228.342. Once the [Forbes] received a granted easement, it is no longer a road to be established by 228.342 and they-the grantor of the easement is no longer a necessary party.

The Allisons subsequently withdrew their exceptions and their request for jury trial.

The trial court entered a final judgment on May 25, 2021, establishing a private roadway over the Allisons' property using the legal description provided by the surveyor describing the historic roadway. The Allisons appeal from that judgment. The Allisons' sole point on appeal states:

The trial court erred in denying [the Allisons'] motion to dismiss or for joinder of a new trial because [the Forbes] failed to name all required defendants in that § 228.342 is to be strictly construed and requires that the owners of the real property over which a proposed private road would pass to be named as defendants in an action to establish or widen a private road as a strict necessity.
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Standard of Review

Generally, a party cannot appeal the denial of a motion to dismiss because it is not considered a final judgment. In re O.J.B., 436 S.W.3d 726, 728 (Mo. App. W.D. 2014). However, after a final judgment has been entered, an order denying a motion to dismiss can be reviewed as part of the appeal from that final judgment. In re Halverson ex rel. Sumners, 362 S.W.3d 443, 448 n.7 (Mo. App. S.D. 2012); Welsh v. Kansas City Pub. Schs., 608 S.W.3d 751, 753 (Mo. App. W.D. 2020). Here, the denial of the Allisons' motion to dismiss is reviewed as part of the appeal from the final judgment.

We will affirm the trial court's judgment in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Ivie v. Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014). Whether the trial court was required to dismiss the Forbes' petition based on section 228.342 is a question of law.[5] Pratt v. Lasley, 213 S.W.3d 159, 160 (Mo.

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App. W.D. 2007). We apply de novo review to questions of law. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).

Analysis

The Allisons' point argues the trial court erred in denying their motion to dismiss the Forbes' petition for failing to name the non-party neighbors as defendants to the lawsuit because section 228.342 requires the owners of the...

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