Sinopole v. Morris, 53013
| Decision Date | 29 December 1987 |
| Docket Number | No. 53013,53013 |
| Citation | 743 S.W.2d 81 |
| Parties | Joseph T. SINOPOLE and Patricia W. Sinopole, Plaintiffs-Appellants, v. Hugh O. MORRIS, Winnie M. Morris, and Estelle C. Pezold, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Richard M. Stout, Chesterfield, for plaintiffs-appellants.
Dan Dildine, Troy, Edward C. Ahlheim, St. Charles, for defendants-respondents.
This is the second appeal by plaintiffs, Joseph T. Sinopole and Patricia W. Sinopole, husband and wife, concerning the instant action. Their first appeal was dismissed without prejudice as premature. See Sinopole v. Morris, 735 S.W.2d 194 (Mo.App.1987). The judgment is now final and we proceed to the merits of the case.
Plaintiffs Sinopole sued defendants, Hugh O. and Winnie M. Morris, neighboring landowners, seeking in Count I of their three-count petition to quiet title to the north/south boundary line between defendants' and plaintiffs' properties. Plaintiffs' property lies to the south of defendants' property. In Count II, plaintiffs sought damages for defendants' trespass on a separate fifty foot strip of land. In Count III, plaintiffs sought an injunction barring defendants' use of the fifty foot strip of land. In a separate action, plaintiff Joseph T. Sinopole sued defendant Hugh O. Morris for malicious prosecution. This action was ordered consolidated for trial with plaintiffs' other claims.
Defendants counterclaimed, requesting quiet title to the disputed north/south boundary line separating defendants' and plaintiffs' properties and damages for trespass by plaintiff, Joseph T. Sinopole, on defendants' property. Defendants' counterclaim added an additional party, Estelle Pezold, the common grantor of plaintiffs' and defendants' properties, on the basis of her alleged adverse interest in defendants' property based on a deed of trust given to her by defendants.
The trial court granted plaintiffs the prayed-for injunction, and directed verdicts for defendants on plaintiffs' claims for trespass and malicious prosecution at the close of all the evidence. Further, a directed verdict for defendants on plaintiffs' quiet title claim was granted at the close of plaintiffs' evidence. The trial court directed a verdict for plaintiffs on defendants' counterclaim for trespass at the close of all the evidence. However, the trial court took defendants' counterclaim for quiet title under advisement, pending the appointment of a surveyor to determine the north/south boundary line between plaintiffs' and defendants' properties. The court appointed Robert Lewis, Warren County, Missouri surveyor, to prepare a survey of the southern boundary of defendants' property abutting plaintiffs' northern boundary. On December 18, 1986, having received the ordered survey, the trial court declared that the "southern boundary of Defendant's land and the northern boundary of Plaintiffs' land, the subject of dispute in this case, to be as shown by survey dated 11-86, revised 11-12-86, prepared by Robert Lee Lewis, registered land surveyor; said survey being of the southeast quarter of the northwest quarter of Section 2, Township 45 North, Range 1 West, Warren County, Missouri. The court declares the true boundary between the properties of the parties to be the line marked 'deed line' on the above referenced survey.
On appeal, plaintiffs maintain that the trial court erred in: (1) directing a verdict in defendants' favor on Joseph T. Sinopole's claim for malicious prosecution; (2) directing a verdict in defendants' favor on plaintiffs' trespass claim; (3) refusing to allow testimony by Joseph T. Sinopole as to the intent of the common grantor of plaintiffs' and defendants' property as to the location of the boundary line in dispute; (4) directing a verdict in favor of defendants on plaintiffs' claim for quiet title; (5) admitting into evidence the court ordered survey and in taxing costs for said survey equally between the parties; and (6) failing to describe within the decree the legal description of the properties and boundaries for which title had been quieted and in failing to describe the court ordered survey within the decree.
A summary of the facts pertinent to the instant appeal follows. On November 1, 1972, defendants purchased a track of land of approximately forty acres from Estelle Pezold. Gene Ditch, a licensed surveyor, prepared a survey of defendants' property shortly before their purchase. Defendants paid for the survey. Defendants' deed was drawn in accordance with the survey. The Ditch survey, however, is not part of the record. An "old fence" runs near the southern boundary of defendants' property. The fence was there prior to defendants' purchase of the property. To the south of and parallel to the old fence is an old unimproved road, which existed prior to 1972.
On December 4, 1973, plaintiffs purchased from Estelle Pezold an 80 acre tract of land immediately to the south of defendants' property, and a 50 foot wide strip of land that extends northwardly from the northwest corner of the 80 acre tract to Joerling Lane, a public road. The 50 foot wide strip of land runs along the western boundary of defendants' property and is not involved in the north/south boundary line dispute between the parties.
Plaintiffs did not have a new survey commissioned at the time they purchased their property, because they walked along what was identified as the boundaries with the real estate agent. Mr. Sinopole testified that, in his understanding, the "old fence" represented the boundary between his property and that of defendants. Plaintiffs were unsuccessful in attempting to introduce statements allegedly made by Estelle Pezold, the common grantor, to the effect that the southern boundary of defendants' property was the "old fence."
Shortly after plaintiffs purchased their property a dispute arose between plaintiffs and defendants as to the ownership of the aforementioned 50-foot wide strip of land. From late 1973 or early 1974 through 1982, defendants farmed on the 50-foot wide strip without plaintiffs' permission. Defendants were using part of the 50-foot strip to graze cattle before plaintiffs purchased the land. In late 1982, plaintiffs, for the first time, informed defendants by letter that "this land will no longer be available to you." As soon as they received notice defendants terminated their use. At trial, defendants admitted that plaintiffs owned the 50-foot strip.
On July 27, 1982, a complaint was filed against Mr. Sinopole charging him with the infraction of trespass in the second degree. § 569.150, RSMo (1986). The complaint was signed by defendant, Mr. Morris, and notarized by Timothy Joyce, the prosecuting attorney of Warren County. Mr. Morris' complaint to the prosecutor was that plaintiff Joseph Sinopole had pulled up survey stakes in the aforementioned old road south of and parallel to the old fence. On the same date an information charged plaintiff, Mr. Sinopole, with the commission of the said infraction on property belonging to defendants, located at Joerling Lane, two miles west of Highway T in Warren County. The case was ultimately dismissed three days before trial.
Timothy Joyce testified that he had met Mr. Morris in June or July, 1982. Joyce produced a copy of a letter that he had written to Mr. Sinopole as a private attorney on behalf of Mr. Morris, in June, 1982. This letter made reference to "a survey which had been done for Mr. Morris that shows boundaries different from the pre-existing boundaries." (Apparently the boundaries set forth in the deeds of the parties). Joyce's notes indicated that Kirby Anderson was the surveyor. The Anderson survey has not been made part of the record. This letter was received by Mr. Sinopole, who discussed its contents with Mr. Joyce, before the criminal charge was filed.
Joyce later filed the information as prosecuting attorney pursuant to the complaint. The prosecutor's file contained a letter to Mr. Morris from Mr. Joyce, dated September 7, 1982, informing Mr. Morris of the trial date and stating that Mr. Morris should have the surveyor, Anderson, available for trial. At the trial of the instant case, Joyce identified a letter sent to Mr. Morris, dated October 1, 1982, stating in essence that since Mr. Morris had hired a private attorney and a civil case had been filed by plaintiffs, the criminal charge would be dismissed. Mr. Morris recalled being advised to seek other counsel. The prosecutor's file also had a letter of the same date to the apparent private lawyer for Mr. Morris, informing the lawyer of the impending dismissal of the charge.
Mr. Joyce testified that when there is a boundary dispute, "we don't like to get involved" and that "it is very difficult to make [trespass] cases unless it is something blatant, someone constantly trespassing." Mr. Joyce had initially told Mr. Morris the difference between a criminal case and a civil case, that even if the criminal case were successful there would need to be a quiet title suit, and that probably Mr. Morris's chances were better in a civil case. Evidence was adduced from Mr. Sinopole that as of 1974, he understood that Mr. Morris was claiming land south of the "old fence," although he had never had any discussions with Mr. Morris concerning the claim prior to 1982.
In their first point, plaintiffs claim that the trial court erred in sustaining defendants' motion for directed verdict at the close of all the evidence as to Mr. Sinopole's claim for malicious prosecution.
In reviewing the alleged error, we note that if a plaintiff fails to adduce substantial evidence supporting his theory of recovery, then a...
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