L.M.D. v. Gauert
| Decision Date | 06 April 2021 |
| Docket Number | WD 83816 |
| Citation | 622 S.W.3d 712 |
| Parties | L.M.D., Respondent, v. Robert W. GAUERT, Appellant. |
| Court | Missouri Court of Appeals |
Ryan P. Waters, Jefferson City, MO, for respondent.
Joshua J. Sieg, Columbia, MO, for appellant.
Before Division Three: Karen King Mitchell, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge
Robert Gauert ("Gauert") appeals from the judgment of the Circuit Court of Callaway County entering a full order of protection in favor of L.M.D.1 We reverse and vacate the judgment.
L.M.D. is married to R.D., and they purchased their farm in 2008. Because their farm was landlocked, they obtained an easement across property owned by a third party, the "Saddle Club." L.M.D.'s and R.D.'s property adjoins Gauert's farm, which he purchased in 2010. There has been a longstanding dispute between L.M.D. and R.D. and Gauert, which started over Gauert's use of L.M.D.'s and R.D.'s easement across the Saddle Club property. The easement is located next to Gauert's property line.
In May of 2011, Gauert called L.M.D. a "bitch" and a "whore" when she was retrieving her mail. As R.D. was driving home, he saw the encounter, intervened by pulling L.M.D. away from Gauert, and approached Gauert. R.D. and Gauert postured as though they were going to fight, and L.M.D. pulled R.D. away from Gauert. No physical confrontation ensued.
Gauert and L.M.D. and R.D. had another argument later in 2011, regarding Gauert's use of the easement across the Saddle Club's property. The Saddle Club and R.D. agreed to install a fence along the easement to prohibit Gauert from using the easement to enter his property. While R.D. was installing the fence, Gauert cursed at R.D. and argued that the fence could not be installed in that location because it was on Gauert's property. Gauert called the Callaway County Sheriff's Department, and Deputy Alan Lebel ("Deputy Lebel") was dispatched. Deputy Lebel determined that R.D. was installing the fence on property where he had the right to do so, and that Gauert did not have a right to interfere. Gauert got in his vehicle and drove over L.M.D.'s and R.D.'s trash can as he went to his house. L.M.D. and R.D. were standing approximately twenty feet away from the trash can at the time. R.D. requested Deputy Lebel to arrest Gauert for property damage, and Deputy Lebel took Gauert into custody.
On one occasion in 2012 or 2013, L.M.D. approached Gauert in a hardware store and shook Gauert's hand. Gauert did not recognize L.M.D. at first because L.M.D. had recently changed her hairstyle. When L.M.D. identified herself, Gauert withdrew his hand and "started yelling, and [Gauert] made such a scene in the middle of [the hardware store]." L.M.D. testified that Gauert said:
You need to stay away from me. You and your husband, stay away from me. Leave my people alone. I have filed ... harassment charges of some sort with the local authorities.
L.M.D. immediately found her husband several aisles away and left the store without further incident.
While there was testimony as to other events in 2015, when L.M.D. and R.D. were out of state on a business trip, L.M.D. acknowledged she speculated and had no proof that Gauert committed any of these other acts, as she was 2,000 miles away at the time and there were no witnesses to the acts.
On June 29, 2019, Gauert had a bonfire on his property. As L.M.D. and R.D. were leaving for dinner at approximately 9:00 p.m., they saw the bonfire and could not tell whether it was on their property or another neighbor's property. L.M.D. and R.D. used an ATV to investigate and reported the fire to the local fire department. After determining the fire was not on their own property, they crossed Gauert's property in the ATV to investigate if the fire was on another neighbor's property. While they were on Gauert's property, Gauert drove his truck towards L.M.D. and R.D. to chase them off of his property coming within three feet of their ATV. Gauert stopped his vehicle at the edge of his property and did not pursue L.M.D. and R.D. once they left his property. L.M.D. and R.D. contacted the Callaway County Sheriff's Department to report the alleged assault, but no arrests were made. The local fire department did not engage in any firefighting activity and no citations were issued to Gauert, but the fire department requested that Gauert report any future fires on his property so the department would know how to respond to calls.
On July 22, 2019, R.D. was working along the fence line, and Gauert began to taunt R.D. L.M.D. was behind some trees and recorded the encounter on a cell phone. At the end of the encounter, Gauert told R.D., "[Y]ou're a coward, you need to defend yourself and defend your wife." When asked whether she felt threatened by that statement, L.M.D. testified, "Absolutely."
On August 14, 2019, L.M.D. and G.G., L.M.D.'s and R.D.'s hired hand, were bathing a horse in L.M.D.'s and R.D.'s pasture approximately twenty-five yards from the property line to Gauert's property. G.G. had her dog with her, which was off-leash and wandered onto Gauert's property. L.M.D. heard a gunshot from a small caliber firearm, but she did not think anything of it because it is not unusual to hear gunshots in the rural area where they live. G.G. noticed her dog was missing and looked through trees that lined the fence-line between Gauert's property and the pasture she was in and saw her dog lying dead on Gauert's property. Neither L.M.D. nor G.G. saw the shooting or the events leading up to it. Immediately, L.M.D. and G.G. went to the property line and telephoned the Callaway County Sheriff's Department. While waiting for law enforcement to arrive, Gauert moved the dog's body away from the middle of his yard so it was closer to his porch and removed the dog's collar. Gauert testified G.G.'s dog was being aggressive towards Gauert's cats, and Gauert retrieved a .22 caliber rifle. Gauert testified that after he returned with the rifle, G.G.'s dog showed his teeth to Gauert, and Gauert shot the dog for his own protection. Gauert did not threaten L.M.D. or leave his property during the killing of G.G.'s dog or afterwards.
Two weeks later on September 4, 2019, L.M.D. filed a petition seeking an order of protection based on an allegation of stalking. The circuit court conducted a bench trial on January 23, 2020, and entered its judgment granting L.M.D. a full order of protection against Gauert ("Judgment") on that date. The Judgment prohibited Gauert from coming within fifty feet of L.M.D.; communicating with L.M.D. in any fashion; harassing, stalking, or threatening L.M.D.; and using, attempting to use, or threatening to use physical force against L.M.D. The Judgment further ordered Gauert not to possess firearms while the Judgment is in effect. The circuit court also found that it was in the parties' best interests that the Judgment automatically renew after one year; thus, the Judgment is effective until January 22, 2022. After various post-trial motions were filed, heard, and ruled on, the Judgment became final on May 20, 2020. This timely appeal followed.3
Gauert raises two claims of error. First, he asserts that the circuit court erred in granting the Judgment because the record lacks substantial evidence to support it, in that L.M.D. failed to prove all of the elements required to establish stalking under the Adult Abuse Act ("Act").4 Second, he argues the circuit court erred in ordering that Gauert not possess firearms during the pendency of the Judgment because the circuit court exceeded its jurisdiction in that the Act does not provide for a remedy of prohibiting the possession of firearms except when the parties are "intimate partners." Because Gauert's first point on appeal is dispositive, we do not address his second point.
We review orders of protection under the Act "the same as in any other court-tried case; we will uphold the trial court's judgment as long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." M.N.M. v. S.R.B. , 499 S.W.3d 383, 384 (Mo. App. E.D. 2016). "Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the circuit court's judgment." Ivie v. Smith , 439 S.W.3d 189, 199 (Mo. banc 2014). We defer to the circuit court's credibility determinations and consider the evidence in the light most favorable to the circuit court's judgment. Id. at 200.
The Act provides that a person who has been subject to domestic violence or has been the victim of stalking or sexual assault may seek an order of protection. Section 455.020.1. Because it is undisputed that L.M.D. and Gauert are not related and are not members of the same household as defined by the Act, the Judgment could only be entered if L.M.D. sufficiently demonstrated she was a victim of stalking by Gauert.
The Act defines "[s]talking" as "when any person purposely engages in an unwanted course of conduct that causes alarm to another person ... when it is reasonable in that person's situation to have been alarmed by the conduct." Section 455.010(14). " ‘Course of conduct’ " means a pattern of conduct composed of two or more acts over a period of time, however short, that serves no legitimate purpose." Section 455.010(14)(b). " ‘Alarm’ means to cause fear of danger of physical harm[.]" Section 455.010(14)(a). Therefore, to obtain relief under the Act, a petitioner must demonstrate by a preponderance of the evidence: (1) that the respondent engaged in a pattern of conduct of at least two or more acts, (2) which served no legitimate purpose, (3) causing the petitioner to fear danger of physical harm, and (4) that the petitioner's fear was reasonable. Binggeli v. Hammond , 300 S.W.3d 621, 624 (Mo. App. W.D. 2010) (applying section 455.010(10)(a)-(c) RSMo 2000 ).5
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