McDonald v. Bemboom

• Decision Date: 28 May 1985
• Docket Number: No. WD,WD
• Citation: McDonald v. Bemboom, 694 S.W.2d 782 (Mo. App. 1985)
• Parties: Norval A. McDONALD and Louise McDonald, husband and wife, Respondents, v. David L. BEMBOOM and Kathy Bemboom, husband and wife, and Guy Shook and Anna Shook, husband and wife, Appellants. 36030.
• Court: Missouri Court of Appeals

Page 782

694 S.W.2d 782

Norval A. McDONALD and Louise McDonald, husband and wife, Respondents, v. David L. BEMBOOM and Kathy Bemboom, husband and wife, and Guy Shook and Anna Shook, husband and wife, Appellants.

No. WD 36030.

Missouri Court of Appeals Western District.

May 28, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

July 30, 1985.

Application to Transfer Denied

Sept. 10, 1985.

Robert L. Hyder, Hyder & Prenger, P.C., Jefferson City, for appellants.

David Brydon, Hawkins, Brydon & Swearengen, P.C., Jefferson City, for respondents.

Before LOWENSTEIN, P.J., and SHANGLER and SOMERVILLE, JJ.

PER CURIAM.

Plaintiffs (hereinafter McDonalds) filed a multicount petition in the Circuit Court of Cole County against defendants (hereinafter Bemboom-Shook) for injunctive relief, damages, and apportionment of repair and maintenance costs in conjunction with an easement for a private roadway. Defendants filed an answer and a counterclaim for injunctive relief and damages. Statuswise, regarding the easement for a private roadway, McDonalds were owners of the dominant tenement and Bemboom-Shook were owners of the servient tenement.

The case was tried to the court and a decree was entered awarding McDonalds the injunctive relief prayed for along with a judgment in favor of Bemboom-Shook and against McDonalds on the latter's claim for damages, and in favor of McDonalds and against Bemboom-Shook on their counterclaim for injunctive relief and damages. McDonalds' count for apportionment of repair and maintenance costs of the private roadway against Bemboom-Shook was not ruled on by the trial court at the time. However, the trial court recited in the combined decree and judgment heretofore mentioned that the count for apportionment of costs was "subject to a further hearing of this Court."

Approximately four years later a "further hearing" was held by the trial court resulting in a judgment for $347.20 in favor of McDonalds and against Bembooms, and for $347.20 in favor of McDonalds and against Shooks as their proportionate share of repair and maintenance costs of the private roadway. Bemboom-Shook, appellants herein, appeal only that portion of the overall decree and judgment in favor of McDonalds and against Bemboom-Shook for proportionate shares of the cost of repair and maintenance of the private roadway. The bifurcated nature of the trial below accounts for one or two issues raised by Bemboom-Shook on appeal.

The record on appeal is sparse, confusing and, in several instances, incomplete. For example, the legal instrument granting McDonalds an easement for a private roadway is not included, and legal descriptions of the tracts of real property owned by the various parties and their respective locations and sources of title, are largely left to imagination. After considerable effort, this court has been able to piece together the following facts.

The residences of all the parties were so located with respect to a public road that the private roadway in question was their only means of egress and ingress. McDonalds and Bemboom-Shook all used the private roadway on a regular, continuing basis to get to and from their respective residences and the public road. It appears that there was a common grantor somewhere in the respective chains of title both as to the easement conveyed to McDonalds and the separate tracts of real property conveyed to each of the parties on which their residences were located. Conveyance of the easement and tract of real property to McDonalds apparently preceded conveyance of any tracts of real property to Bemboom-Shook. Although neither a copy of the written easement nor an oral recitation of its terms are before this court, the overall tone of both briefs on appeal indicates that it was silent regarding repairs and maintenance of the private roadway.

Bemboom-Shook raise two points on appeal--(1) the trial court lacked jurisdiction to render judgment in favor of McDonalds and against Bemboom-Shook for proportionate shares of the cost of repairs and maintenance of the private roadway, and (2) Bemboom-Shook, owners of the servient tenement, as a matter of law, were not liable for proportionate shares of the cost of repairs and maintenance of the private roadway.

Sections 506.110 and 506.160(6), RSMo 1978, are the only authority cited by Bemboom-Shook in support of their first point. Section 506.110, supra, is captioned "How suits may be instituted in courts of record" and § 506.160, supra, is captioned "Service by mail or publication." The only conclusion this court can draw, in view of the aforementioned statutes cited by Bemboom-Shook, is that they apparently contend that the "further hearing" held by the trial court and the judgment rendered in conjunction therewith in favor of McDonalds and against Bemboom-Shook was posited upon a new, separate and distinct cause of action which was never instituted by the filing of a petition and obtainment of service of process upon Bemboom-Shook. Suffice it to say, Bemboom-Shooks' reliance upon §§ 506.110 and 506.160(6), supra, is misplaced.

When McDonalds' original petition was filed it contained a count for apportionment of the cost of repairs and maintenance of the private roadway against Bemboom-Shook, and service of process was properly obtained on Bemboom-Shook in conjunction therewith. The decree and judgment rendered prior to the "further hearing" deferred by the trial court was not a final judgment, and no appeal was taken therefrom, as it did not dispose of all the issues and left the count for apportionment of costs for the trial court's later determination. See: Crow v. Bertram, 681 S.W.2d 6, 7 (Mo.App.1984). Bemboom-Shook had notice of the "further hearing" and the judgment for apportionment of costs recites that they appeared in person and by counsel and presented evidence at such hearing. The trial court had continuing jurisdiction to conduct the "further hearing" and render judgment in favor of McDonalds and against Bemboom-Shook for apportionment of costs. See: Oasis Car Wash, Inc. v. First North County Bank, 558 S.W.2d 683, 687 (Mo.App.1977); and Schenberg v. Schenberg, 307 S.W.2d 697, 702-03 (Mo.App.1957). Bemboom-Shooks' first point affords no basis for relief.

In their second and final point, Bemboom-Shook contend they could not be assessed proportionate shares of the cost of repairing and maintaining the private roadway, as a matter of law, because of their status as owners of the servient tenements. Four cases are cited by Bemboom-Shook in support thereof: Schuricht v. Hammen, 221 Mo.App. 389, 277 S.W. 944 (1925); Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983 (1933); Swingler v. Robinson, 321 S.W.2d 29 (Mo.App.1959); and Rollins v. Schwyhart, 587 S.W.2d 364 (Mo.App.1979). A careful and exhaustive analysis of each of these cases reveals that they are readily distinguishable from the instant case and therefore offer little, if any, guidance.

In Schuricht, the owner of the servient tenement brought an action against the owner of the dominant tenement to recover a proportionate share of the costs he...