Lau v. Pugh, No. SD 29289 (Mo. App. 11/4/2009), No. SD 29289.

CourtMissouri Court of Appeals
Writing for the CourtRobert S. Barney
PartiesGIL AND JOAN LAU, Respondents, v. KEN PUGH, Appellant.
Decision Date04 November 2009
Docket NumberNo. SD 29289.

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GIL AND JOAN LAU, Respondents,
KEN PUGH, Appellant.
No. SD 29289.
Court of Appeals of Missouri, Southern District, Division One.
November 4, 2009.

Appeal from the Circuit Court of Texas County, Missouri, Honorable Mary W. Sheffield, Judge.

John Price, for Appellant.

Jason Coatney and Lucius B. Lau, for Respondents.


Ken Pugh ("Appellant") appeals the judgment of the trial court entered in a civil suit filed against him by Gil ("Mr. Lau") and Joan Lau ("Mrs. Lau") (collectively "Respondents"). The trial court's judgment ruled: (1) in favor of Respondents on their claim against Appellant for a declaratory judgment finding Appellant's mechanic's lien to be null and void; (2) in favor of Respondents on their claim for slander of title; (3) in favor of Respondents on Appellant's counterclaim for quantum meruit; and (4) in favor of Appellant on

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Appellant's counterclaim for trespass. Appellant now raises four points of trial court error.

Viewing the evidence in the light most favorable to the judgment of the trial court, Ridgway v. TTnT Dev. Corp., 126 S.W.3d 807, 812 (Mo.App. 2004), the record reveals Appellant and Respondents are neighboring landowners that share a common east-west property boundary line.1 Appellant and his wife, Linda Pugh ("Mrs. Pugh), purchased their 20-acre property in 1998 and began residing there on a full-time basis in 2002. Respondents began residing on their 12-acre property in 2004. The parties were neighborly to one another and often visited each other's homes; invited each other over for dinner and to play cards; and watched over each other's property during vacations. Respondents also allowed Appellant and his family to fish in their pond; hunt on their property; and otherwise utilize their land as they desired.

In early 2006, Mr. Lau approached Appellant "to come up and teach him how to bring a tree down;" Appellant "offered to help him;" and Appellant ended up "helping [his] neighbor" by cutting three trees down for Mr. Lau. Mr. Lau told Appellant at that time that he was planning on growing Morel mushrooms and that he would "supply [Appellant] with mushrooms for the rest of [his] life." Appellant spent approximately five hours working on the trees and Mrs. Pugh helped him for approximately three hours as well. There was no discussion of monetary payment for the services of Appellant and Mrs. Pugh, and Mr. Lau

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was under the impression that Appellant was helping out in a "neighborly" way. Ultimately, Mr. Lau did not grow any mushrooms.

Around the time that Appellant aided Mr. Lau with cutting down the three trees, the parties entered into several discussions relating to the boundary line of their properties. According to Mr. Lau, they agreed that the exact boundary line was not important as long as they all agreed not to damage the property in that area.

At some point in time, approximately May of 2006, Respondents hired Wayne Davis ("Mr. Davis") to utilize a piece of heavy equipment to cut down nine to twelve trees on their own property "for the purpose of selling the trunks." Mr. Davis cut the trees down and placed the remaining leaves and limbs into an already existing brush pile located in the vicinity of the boundary line between the parties' property.2 After this was completed, Mrs. Lau telephoned Mrs. Pugh and informed her that she was afraid that the brush pile might not be located on Respondents' property. Upon learning this information, Appellant and Mrs. Pugh told Respondents "to move it" since it was located on Appellant's property as opposed to Respondents' property. Appellant and Mrs. Pugh then notified Respondents by letter that the brush pile was located on their property and Respondents had wrongfully placed their

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tree debris in the brush pile.3

The parties met at the larger brush pile sometime in June of 2006 to discuss the issue. A heated disagreement ensued during which Appellant said he would "see that [Respondents] never sell this property."4 The parties came to no resolution as to the location of the boundary line or a solution to the problem with the brush pile in question. Mrs. Lau spoke with Mrs. Pugh on the telephone sometime thereafter and indicated that Respondents would arrange to have the brush pile moved onto what they felt was their property and Mrs. Pugh "didn't seem upset about it or anything . . . at all."

Shortly after the meeting at the brush pile, Mr. Lau hired Justin Wetstein ("Mr. Wetstein") to use a piece of heavy equipment to move the brush pile to Respondents' property and to place a line of logs along what he believed to be the property boundary line so that "anybody visiting [him] w[ould] not trespass on [Appellant's] property."5

In July of 2006, Appellant prepared an invoice for the work he did cutting down trees on Respondents' property in early 2006. This invoice

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charged Respondents $150.00 per tree for a total amount owed of $450.00. Appellant mailed this invoice in September of 2006 along with a "Statement of Mechanic's Lien" that he had filed against Respondents' property on September 18, 2006. Mr. Lau testified that he never received notice from Appellant of his intention to file a mechanic's lien against them.

Later Respondents had the land surveyed. The survey revealed that their property line was approximately 50 to 100 feet back from the brush pile such that they were made aware that they had employed both Mr. Davis and Mr. Wetstein to perform work on Appellant's property as opposed to their own.6

On January 5, 2007, Respondents filed their two-count petition against Appellant. Respondents' first count requested a declaratory judgment relating to the validity of the mechanic's lien filed by Appellant and their second count asserted an action for slander of title against Appellant for "maliciously" and "without justification" filing the mechanic's lien against them. On February 14,

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2007, Appellant filed his "Answer to Petition and [Counterclaim]" against Respondents. In Count I of his counterclaim, Appellant asserted a claim for trespass against Respondents based on Respondents' entry upon his land "[a]t various and sundry times" including when they employed people to move the brush piles and purportedly removed and damaged trees while committing this trespass. Appellant's second count was for quantum meruit in which he requested to be paid the $450.00 he asserts he was owed for helping Respondents remove their three trees in early 2006.

Prior to trial, Appellant apparently released his mechanic's lien on Respondents' property.

A trial was held on January 17, 2008. In addition to the evidence adduced above, there was testimony from several witnesses on the issue of damages for the trespass to Appellant's property. Kathleen Yarbrough ("Ms. Yarbrough"), a "horticulturist with a specialty in erosion control and drainage," testified she was hired by Appellant in May of 2007 to evaluate the "bare," "scraped" areas of his property and develop a "scenario which would restore the property as closely as possible to what it was as quickly as possible." She opined that it would take approximately ten trees, the creation of a mulched berm of soil, a system for watering the new trees, and other steps to restore the "general nature of the land." She testified that such remedial steps would cost approximately $15,000.00.

Susan Michelle Short ("Ms. Short"), a real estate appraiser, was called by Respondents as an expert witness. She testified she had examined

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photographs of Appellant's property and looked at twenty-eight property cards from the county assessor's office to come up with comparable prices for property in their area so that she could determine the value of Appellant's land per acre. She concluded that the market value of Appellant's property was reduced by approximately $2,200.00 such that he was damaged in that amount by Respondents' trespass.

At the close of all the evidence, the trial court took the matter under advisement. On June 13, 2008, the trial court entered a judgment in which it found on Respondents' claim for declaratory judgment that "the mechanic's lien filed by [Appellant] be found null, void and of no effect. The Court further finds that [Respondents] did not hire [Appellant] to perform any services nor did [Appellant] announce that labor would be performed in expectation of remuneration, but instead was a gratuitous offer by [Appellant] to assist his neighbors." The trial court then found in favor of Respondents on their claim for slander of title and ordered Appellant to pay Respondents "the sum of $1,814.67 and for Court Costs." Turning to Appellant's counterclaims, the trial court found against Appellant on his claim for quantum meruit and in favor of Appellant on his claim of trespass for which Respondents were ordered to pay "$3,100.00 and for Court Costs." This appeal by Appellant followed.

The standard of review of a court-tried case is established by Rule 84.13(d).7 This Court is required to sustain the judgment of the trial court "unless there is no substantial evidence to support it, it is against the weight of

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the evidence, or it erroneously declares or applies the law." Beavers v. Rec. Ass'n of Lake Shore Estates, Inc., 130 S.W.3d 702, 708 (Mo.App. 2004); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).8 "`In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App. 2005) (quoting Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App. 2000)). In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence.'" Kleeman, 167 S.W.3d at 202 (quoting Behr v. Bird Way, Inc., 923 S.W.2d 470, 472...

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