Grider v. Tingle

• Decision Date: 13 September 2010
• Docket Number: No. SD 28753.,SD 28753.
• Citation: 325 S.W.3d 437
• Parties: L. Wayne GRIDER and Nancy C. Grider, Plaintiffs-Respondents, v. Jeffrey J. TINGLE, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

325 S.W.3d 437

L. Wayne GRIDER and Nancy C. Grider, Plaintiffs-Respondents,

v.Jeffrey J. TINGLE, et al., Defendants-Appellants.

No. SD 28753.

Missouri Court of Appeals, Southern District,Division One.

Sept. 13, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Richard J. Rollings, Jr. of Camdenton, MO, for Plaintiffs-Respondents.

Lewis Z. Bridges of Osage Beach, MO, for Defendants-Appellants.

JEFFREY W. BATES, Judge.

After a bench trial, the trial court entered a judgment that quieted title to certain real estate, awarded nominal damages for trespass to the Griders and granted their requests for ejectment and injunctive relief. Jeffrey Tingle (Jeffrey) has appealed from the judgment and presents four points of alleged error. ¹ Because none of Jeffrey's points have any merit, the judgment is affirmed.

The trial court's judgment is presumed correct, and Jeffrey bears the burden of proving it erroneous. Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). Appellate review in this court-tried case is governed by Rule 84.13(d). ² This Court must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Strobl v. Lane, 250 S.W.3d 843, 844 (Mo.App.2008). Substantial evidence is evidence which has probative force and from which the trier of fact could reasonably find the issues in harmony with its decision. Harvard Properties, LLC v. City of Springfield, 262 S.W.3d 278, 279 (Mo.App.2008). The phrase “weight of the evidence” means its weight in probative value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id. “An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.” Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007).

On appeal, the evidence and all reasonable inferences derived therefrom are viewed in the light most favorable to the judgment. Bacon v. Uhl, 173 S.W.3d 390, 396 (Mo.App.2005). This Court disregards all contrary evidence and inferences. Id. The credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part or all of the testimony of any witness. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). “We defer to the trial judge's superior opportunity to assess the witnesses' credibility.” Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). In the case at bar, the court made a number of factual findings in the judgment. This Court considers all other factual issues to have been determined in accordance with the result reached. Rule 73.01(c). Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

This lawsuit involves a dispute about real property located at Lake of the Ozarks in Camden County, Missouri, in the Shawnee Bend No. 4 and View East subdivisions. The relevant portions of a subdivision survey are appended to this opinion to aid the reader's understanding of the following facts and case background.

The Lake of the Ozarks is a privately owned, man-made lake. Before the lake was created, the Union Electric Land and Development Company (Land Company) acquired ownership of large tracts of land that would form the lakebed and adjacent lakefront property. Land Company's holdings included all of the land located in Shawnee Bend No. 4 above and below the 662-foot contour line. The land below that contour line was conveyed to the Union Electric Light and Power Company (Power Company), but Land Company retained an easement which, in relevant part, is set out below:

This deed is made, however, subject to the following easement reserved to and retained by [Land Company] in and to all lands herein conveyed to [Power Company], viz; [Land Company] for itself, its successors and assigns, hereby reserves an easement in the lands hereinbefore described and hereby conveyed, to use the surface of said lands whether submerged or not, for any and all purposes whatsoever, including the erection and maintenance of improvements thereon, provided such use will in no way interfere with the construction, operation and maintenance by [Power Company], its successors or assigns, of the said dam ..., power plant and works appurtenant....

Thereafter, the land above the 662-foot contour line was platted as Lot 4 in the Shawnee Bend No. 4 subdivision (hereinafter, Lot 4). In 1959, William and Joan Hamilton (collectively, the Hamiltons) became the owners of Lot 4. This tract contained approximately eight acres.

In 1977, the Hamiltons sold all of their lakefront property to Gerald and Kay Stonitsch (the Stonitsches). As shown on the attached survey, the two-acre lakefront tract of land located within the bold, black lines was conveyed to the Stonitsches by warranty deed. The deed stated that the conveyance was:

Subject to the following described easement, to be retained by the grantors: Beginning at the Southeast corner of said Lot 4; thence run along said South line of said Lot 4 South 59 degrees 24' West 247.9 feet; thence leaving said South line and run North 12 degrees 27' East 41.5 feet; thence North 59 degrees 24' East 229.0 feet to the 662 Contour line of the Lake of the Ozarks; thence run along said 662 Contour line in a Southerly direction 30.8 feet more or less, to the point of beginning.

The easement was located on two wooded slopes that came together to create a natural drainage area into the lake.

In August 1979, the Stonitsches recorded a plat that created the View East Subdivision (VES). This new subdivision contained six lots. The Hamiltons' retained easement was located along the southern edge of VES lot 1 (hereinafter, Lot 1). It is identified as “EASEMENT OF RECORD” on the attached survey. ³

William died in 1978 or 1979. Joy Horne-Jones (Horne-Jones) is the daughter of William and Joan. Jeffrey is Horne-Jones' son. His wife is Maria Tingle. At some point not disclosed by the record, the Joan M. Hamilton 1991 Revocable Trust (the Trust) appears to have acquired an interest in Lot 4.

In 1999, the Lisses owned Lot 1. In October of that year, Joan filed a lawsuit against the Lisses in the Circuit Court of Camden County, Missouri. The petition alleged, inter alia, that Joan had an easement over Lot 1 “for ingress to and from the Lake of the Ozarks” and that the Lisses' placement of trash, debris and a dog run cable on the easement had interfered with Joan's ability to use it. The suit was dismissed in April 2000 after the Lisses cleaned up the easement area. In June 2000, Joan and the Trust conveyed Lot 4, including the retained easement over Lot 1, to Jeffrey and Horne-Jones.

That same year, Wayne and Nancy Grider became interested in purchasing Lot 1. Wayne knew about the easement and inspected the property. The easement was “completely grown up.” There was no evidence that the easement had ever been used by the Hamilton family to tie up a boat dock. Wayne saw nothing to indicate that the easement had been used for anything other than access to the lake. In September 2000, the Griders became the owners of Lot 1. ⁴ The warranty deed conveying the property to them stated that it was “[s]ubject to all restrictions, reservations, conditions and easements of record and to all existing roads and power lines, whether of record or not.” The Griders received a permit from AmerenUE (Ameren) to have a boat dock and to install a seawall on the submerged land below the 662-foot contour line. ⁵ The Barrows, who lived in a home on the lot immediately south of Lot 1, also had a boat dock.

Between 1977 and 2004, the easement property had been used by Hamilton family members and their guests to access the water for fishing or swimming. In addition, this group of individuals had used the easement five or six times each summer to launch and temporarily beach small rented boats. During this same 27-year time period, the owners of Lot 1, their family members and guests likewise had used the easement property for swimming, fishing, launching boats and jet skis and temporarily parking such watercraft on the sandy shore.

Fred and Teril Buck lived next door to the Barrows and south of the Griders' property. With the Griders' permission, the Bucks and other neighbors used the beach portion of the easement area to swim and to temporarily store and wash their jet skis, boats and trailers. In the fall of 2004, Fred encountered Jeffrey on the easement area. Jeffrey was holding a large map and a blueprint and said he was putting in a boat dock. When Fred told Jeffrey that he could not put in the dock because the Griders had given other people permission to use the easement area, Jeffrey said he owned that property.

In late 2004, Jeffrey was attempting to refinance the loan on Lot 4. On December 31, 2004, Jeffrey and Horne-Jones, along with their respective spouses, conveyed Lot 4 to Jeffrey and Maria (collectively, the Tingles) by warranty deed. This conveyance included the retained easement over Lot 1. In order to obtain a loan, however, Jeffrey had to have lakefront property. He went to Legend Land Title and asked the owner, Teresa Sapp (Sapp), to prepare a warranty deed from Joan conveying a fee simple interest in the land encompassed by the easement to the Tingles. Sapp told Jeffrey that he already had an easement interest in the property, and the warranty deed would be no good to him. Sapp declined to prepare the deed. Jeffrey returned to the title company two more times and finally persuaded another employee to prepare the warranty deed for him. In January 2005,...