Ridgway v. Ttnt Development Corp.

• Decision Date: 20 February 2004
• Docket Number: No. 25359.,25359.
• Citation: 126 S.W.3d 807
• Parties: Robert A. RIDGWAY and Bonita M. Ridgway, Plaintiffs-Respondents, v. TTnT DEVELOPMENT CORP., et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

126 S.W.3d 807

Robert A. RIDGWAY and Bonita M. Ridgway, Plaintiffs-Respondents, v. TTnT DEVELOPMENT CORP., et al., Defendants-Appellants.

No. 25359.

Missouri Court of Appeals, Southern District, Division Two.

February 20, 2004.

David L. Baylard, Union, MO, for Appellants.

Michael J. McKitrick, St. Louis, MO, for Respondents.

JEFFREY W. BATES, Judge.

Defendants TTnT Development Corp., Jerry Tuma, William Tillman and Jeffrey Tillman ("Developers") appeal from a judgment awarding Robert and Bonita Ridgway ("the Ridgways") $150,000 in damages and $103,393.98 in attorney fees on their claim for trespass to realty. Developers present three points on appeal. They contend that the trial court erred in the following respects: (1) using the wrong measure of damages in awarding the Ridgways actual damages of $50,000 as compensation for the trespass committed by Developers; (2) trebling the Ridgways' actual damage award pursuant to § 537.340; and (3) granting the Ridgways' request for attorney fees.¹ For the reasons stated below, we conclude that the trial court properly awarded the Ridgways $50,000 as actual damages for common law trespass, but the trial court erred when it trebled the Ridgways' damages and awarded them attorney fees. Accordingly, we affirm in part, reverse in part and remand the case to the trial court with directions to enter a judgment for the Ridgways and against Developers in the amount of $50,000, plus court costs.

I. Facts and Procedural History

This case is on appeal to this Court for the second time. A detailed statement of the facts can be found in our prior opinion, Ridgway v. TTnT Development Corp., 26 S.W.3d 428 (Mo.App.2000) ("Ridgway I"), and will not be repeated here. Instead, we will briefly summarize what took place in the first appeal and explain the limited purposes for which the case was remanded. Thereafter, we will recount only such additional facts as are relevant and necessary to decide Developers' points in this second appeal.

A. Ridgway I

The Ridgways' petition was pled in three counts. Count I alleged that the roadway being constructed by Developers exceeded the scope of a roadway easement granted by the Ridgways. The remedy sought in Count I was ejectment as to all portions of the roadway that constituted an encroachment on the Ridgways' property. Count II alleged that, during construction of the roadway bed, Developers destroyed trees on the Ridgways' property, altered the natural grade of a portion of the real estate, and redirected the flow of water so as to cause erosion. The remedy sought in Count II was injunctive relief. Count III alleged that the aforementioned actions of Developers constituted a trespass to the Ridgways' realty. The remedy sought in Count III was actual damages for trespass to realty, treble damages for trespass pursuant to § 537.340, and punitive damages. Id. at 430. Thus, the allegations in Count III of the Ridgways' petition stated a cause of action for damages due to trespass under both common law and statutory theories of recovery.

The trial court's original judgment determined that Developers were guilty of trespass. That conclusion was based, inter alia, upon the following findings: (1) the Ridgways' property was subject to a roadway easement 40 feet wide; (2) the new road exceeded the boundaries of the roadway easement and encroached upon 0.7235 acres of the Ridgways' property; (3) during the construction process, Developers destroyed a number of trees on the Ridgways' property that were outside of the easement; (4) Developers' use of the cut and fill method of construction to create a smoother, wider road raised the roadbed several feet above the existing terrain; and (5) this change in elevation of the new roadway allowed Developers better access to their property, but it limited the Ridgways' access to their property.

Despite these findings, the trial court denied the Ridgways' requests for ejectment and injunctive relief that would have required the encroaching portions of the roadway to be removed from their property. Furthermore, Developers were only ordered to pay the Ridgways nominal damages for trespass in the amount of one dollar because the trial court concluded that the construction of the roadway had increased the value of the Ridgways' property by twenty percent. The trial court apparently reached its conclusion by using a condemnation-like measure of damages, which offset any damages resulting from Developers' trespass by the benefit which the trial court perceived to have been conferred upon the Ridgways by the construction of the new roadway. Id. at 433. The Ridgways appealed from the trial court's judgment.

On appeal, this Court affirmed the trial court's determination that Developers had committed trespass to the Ridgways' realty.² Id. at 433-35. However, we reversed the trial court's judgment that the Ridgways were not entitled to injunctive relief and should only be awarded nominal damages as recompense for Developers' trespass. Id. at 434. With respect to the latter issue, we also reviewed the applicable Missouri law concerning the proper measure of damages rules that could be applied on remand to the Ridgways' theories of recovery based on common law and statutory trespass to realty. Id. at 434-36. The following paragraph from our opinion defined the two purposes for which the case was remanded:

The judgment is reversed and the cause remanded for the trial court to enter a mandatory injunction ordering the removal of the roadway and other alterations outside of the easement, allowing a reasonable time for this to be accomplished and, if necessary, a reasonable time for improvements within the easement in order that there be continued access for those wishing to go to and from the condominiums and Defendants' property. The trial court must also determine, consistent with this opinion, and take additional testimony if necessary, Plaintiffs' damages as a result of Defendants' encroachments on Plaintiffs' property.

Id. at 436.

B. Proceeding on Remand

After the case was remanded, the trial court entered a mandatory injunction as ordered, and all encroaching portions of the roadway were removed. On June 11, 2001, Developers filed a certification of compliance with the mandatory injunction order.

Thereafter, the parties agreed to submit the case to the trial court for a determination of damages on the existing record without taking any additional testimony. Each party also submitted legal memoranda to the trial court addressing the issue of damages. In the Ridgways' legal memorandum, they requested—for the first time during the long life span of this litigation— an award of attorney fees from Developers in the amount of $103,393.98.³ In Developers' damages memoranda, that request was opposed on several grounds which will be discussed in more detail, infra.

After reconsidering the evidence in light of our opinion and reviewing the parties' legal memoranda on damages, the trial court entered a new judgment awarding actual damages and attorney fees to the Ridgways. The basis for the trial court's decision is set forth below:

The measure of damages for real property is the difference in value of the property before and after the damage or the cost of restoration, whichever is less. All parties conceded the correct measure of damages to be the diminution of value. The diminution of value is also the measure of damages under the statutory trespass claim since the trees destroyed and the land removed to alter the terrain have no market value in their severed state. The Court finds the actual damages to be $50,000. The Court further finds that Plaintiffs are entitled to treble damages under 537.340, RSMo because the Defendants were aware of the encroachments during the construction of the road and yet proceeded to its conclusion. The Court also awards attorney fees in the amount of $103,393.98. No punitive damages are awarded.

Developers filed a timely notice of appeal from the judgment and assert three points of error, described above, for determination in this second appeal.

II. Standard of Review

In this court-tried case, our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) and Rule 84.13(d).⁴ Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 899 (Mo.App.2003). The judgment will be affirmed 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. Pelligreen v. Wood, 111 S.W.3d 446, 450 (Mo.App.2003).

At the parties' request, the trial court prepared findings of fact and conclusions of law. See Rule 73.01(c). In reviewing issues of fact in this case, we bear in mind that the credibility of witnesses and the weight to be given to their testimony is a matter for the trial court, which is free to believe none, part or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). Accordingly, we view the evidence and all reasonable inferences derived therefrom in a light most favorable to the judgment, and we disregard all contrary evidence and inferences. Schubert, 111 S.W.3d at 899; Reardon v. Newell, 77 S.W.3d 758, 760 (Mo.App.2002). We defer to factual findings made by the trial court because it is in a superior position to assess the credibility of witnesses. Pelligreen, 111 S.W.3d at 450; Rathbun v. CATO Corp., 93 S.W.3d 771, 777 (Mo.App.2002). No such deference is afforded the trial court, however, when we review its conclusions of law. We independently evaluate whether the trial court properly declared or applied the law to the facts presented. Schubert, 111 S.W.3d at 899; Rathbun, 93 S.W.3d at 777.

III. Analysis

In Developers' first point relied on, they assert that the trial court erred in using the wrong measure of damages to assess the damages caused by Developers' trespass. They argue that, because the encroaching portions of the roadway were...