Southern Missouri Dist. Council of Assemblies of God v. Hendricks

• Decision Date: 02 April 1991
• Docket Number: No. 16229,16229
• Citation: 807 S.W.2d 141
• Parties: SOUTHERN MISSOURI DISTRICT COUNCIL OF the ASSEMBLIES OF GOD, Plaintiff-Respondent, v. Morrison HENDRICKS and Madgie Hendricks, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 141

807 S.W.2d 141

SOUTHERN MISSOURI DISTRICT COUNCIL OF the ASSEMBLIES OF GOD Plaintiff-Respondent, v. Morrison HENDRICKS and Madgie Hendricks, his wife Defendants-Appellants.

No. 16229.

Missouri Court of Appeals,

Southern District,

Division Two.

April 2, 1991.

John D. Compton, Springfield, for defendants-appellants.

Scott B. Stinson, Mountain Grove, for plaintiff-respondent.

HOGAN, Judge.

This appeal arose out of a court-tried boundary dispute between the defendants and their church, the Ava Assembly of God, hereinafter referred to as the Assembly. In 1981, the Assembly deeded a tract of land to the defendants. The conveyance recited that the land was being conveyed to the defendants as husband and wife, and described the tract involved as follows:

All that part of the East 75 yards of the NE 1/4 of NE 1/4 of Section 15, Township 26, Range 16, which lies East of Missouri State Highway No. 5 as now located, except for the North 456 feet. Containing 3.5 acres, more or less.

This conveyance of realty was part of a broader transaction between the Assembly and the defendants. The trial court had credible evidence before it indicating that in 1981 the defendants lived at Ozark, in Christian County, but had a relative at Squires, which is in Douglas County, south of Ava. The defendants were looking for land to buy so they could construct an "earth-sheltered" home. It was suggested that the Ava Assembly might sell some land to the defendants, and the Assembly made a small plot available. At the time the defendants bought land from the Assembly, the defendants loaned the church $36,065.52. According to Mrs. Hendricks, the pastor of the Ava church "... told us they was in a hard bind, and we'd sold our cattle; and so [Mr. Hendricks] said, 'Well, we'll loan the church that much and get them on their feet.' " Thereafter, the defendants bought their land for $10,500, "and so then the next thing was the bus. [Mr. Hendricks] loaned on the bus...."

The loans were repaid and the church flourished. The defendants constructed a residence south of the church. Reverend Ivie, pastor of the church, was replaced and one Lawrence Cook became pastor of the Ava Assembly. For whatever reason, ill feeling developed between the defendants and Reverend Cook, and eventually the defendants "placed charges" against Reverend Cook. The charges were tried before a group of church officials which, according to one witness, amounted to an ecclesiastical court. This tribunal concluded that Reverend Cook was innocent of any wrongdoing and that the defendants had been contentious and had "created the situation." The defendants' memberships were "placed in suspension," which meant that they were still members of the church but were unable to vote at business meetings.

Shortly thereafter, defendants erected a fence which generally followed the line they believed to be the boundary between their property and that of the Assembly. The Assembly had two complaints about the fence. For one thing, the fence was in the wrong place and for another, it was so crooked "[the Assembly] couldn't determine exactly where the lines ran and what it represented."

In February 1986 the Assembly retained counsel in order to settle the dispute. Counsel advised the defendants that the fence (referred to as the "first fence") encroached upon the church's property. Counsel advised the defendants to have a survey made and to put the fence on the proper boundary line. The defendants had a survey made and discovered that the tract which had been deeded to them contained only 2.16 acres, whereas the conveyance recited that it contained 3.5 acres. If the common boundary line were extended to enclose 3.5 acres, it would run through the church building. The defendants contented themselves with construction of a new fence approximately 150 feet south of This litigation followed. The Assembly filed (and later amended) a three-count petition. In Count I, the Assembly sought a declaratory judgment establishing the boundary line between the tracts occupied by the Assembly and that parcel deeded to the defendants and further sought injunctive relief requiring the defendants to remove the second fence. In Count II, the Assembly sought damages for trespass. In Count III, the Assembly petitioned the court for damages for malicious prosecution and battery.

the church. This fence, referred to as the "second fence," effectively obstructed passage to and from the church.

The defendants filed an answer and also filed a counterclaim laid in four counts. In their first count, the defendants sought judgment of the trial court declaring their rights under the contract as purchasers of land from the Assembly, construing the said contract and requiring the Assembly to convey the entire 3.5 acres it had contracted to sell. In Count II, the defendants sought damages for misrepresentation and requested specific performance of the Assembly's contract to convey 3.5 acres of land to them. In Count III, the defendants prayed damages for fraud committed by an agent of the plaintiff, and in Count IV prayed damages for assault and battery committed by agents of the Assembly.

The case was tried by fits and starts, but on June 30, 1988 the trial court heard evidence on Counts I and II of plaintiff's amended petition and Counts I, II and III of defendants' counterclaim. Prior to trial, the court had ordered a separate trial of Count III of plaintiff's petition and Count IV of the counterclaim. The judgment and order filed January 20, 1989 disposed of the issues tried as follows:

* * * * * *

"1. As to Plaintiffs' Count I, the Court declares that the common boundary between Plaintiffs' and Defendants' lands is that line described by the Schnurbush [sic] survey admitted into evidence as Plaintiffs' Exhibit '11' and marked in red pencil on a xerox copy of said exhibit, which such true copy is attached hereto, marked Exhibit 'A' and made a part hereof by reference as though fully set forth herein. Defendants are hereby ordered to remove at their expense any portion of the existing fence which is now located north of this line described herein.

2. As to Plaintiffs' Count II, the Court finds in favor of Plaintiffs and hereby awards judgment in favor of Plaintiffs for actual damages in the sum One Thousand Dollars ($1,000.00) and grants judgment against Defendants for this amount. The Court further finds that Defendants' trespass was done willfully, wantonly, maliciously and without just cause or excuse and that Plaintiffs are therefore entitled to punitive damages in addition in the sum of Three Thousand Dollars ($3,000.00), and judgment is granted against Defendants in favor of Plaintiffs for this amount.

3. As to Count II of Defendants' Counterclaim, the Court finds in favor of Defendants and against Plaintiffs. The Court assesses Defendants' damages in the sum of Four Thousand Dollars ($4,000.00) and judgment is hereby granted against Plaintiffs and in favor of Defendants for this amount.

4. As to Counts I and III of Defendants' Counterclaim, the Court finds in favor of Plaintiffs and against Defendants.

5. Further, the Plaintiffs are ordered to convey to Defendants an easement for purposes of ingress and egress twelve (12) feet wide over the existing driveway. The Court appoints Willard Schnurbush [sic] to inspect the land, to write a legal description of the easement, and to report his description to the Court so that it may be made a part of the final judgment. Mr. Schnurbush's [sic] fees are to be taxed as costs."

* * * * * *

The defendants have appealed from that part of the judgment and order disposing of Counts I and II of plaintiff's petition. The court found, as required by Rule 74.01(b), that there was no just reason to delay entry of a final judgment on the It should further be noted that both defendants expired after the notice of appeal was filed in this case. Upon motion, one Margaret Fay Sanders was substituted for both defendants. On the record before us, the substitution appears to be proper.

counts submitted for trial. Rule 74.01(b) vests discretion in the trial court and permits appeals to proceed in due course upon an express determination that there is no just reason for delay. Landoll by Landoll v. Dovell, 752 S.W.2d 323, 326 (Mo.banc 1988); Eyberg v. Shah, 773 S.W.2d 887, 894 (Mo.App.1989). The decision to enter judgment as to one or more but fewer than all the claims involved and the determination that there is no just reason for delay requires something more than a summary declaration to that effect, Eyberg v. Shah, 773 S.W.2d at 894-896, but, without going into detail, we have examined the record and have concluded that the trial court did not abuse its discretion in making the "express determination" under Rule 74.01(b), thereby permitting this appeal.

In this court, the defendants have briefed and presented four assignments of error. The arguments presented in support of the four "Points Relied On" are very diffuse and confuse a number of distinct legal principles, but this case has been pending for nearly five years and it is our duty to dispose of the cause finally upon its merits, if that can be done. Rule 84.14; Dickey Co., Inc. v. Kanan, 486 S.W.2d 33, 36 (Mo.App.1972); State ex rel. George v. Mitchell, 230 S.W.2d 116, 120 (Mo.App.1950). In this case, we cannot finally resolve the appeal without remand, but we shall take up and consider the defendants' four assignments of error as it is given to us to understand them.

I

Defendants' first point, as presented, is that "the trial court erred in granting separate plaintiff Southern Missouri District Council of the Assemblies of God judgment on Count I of its second amended petition and declaring that the common boundary between the parties' lands is that line described by plaintiff's trial Exhibit '11' because the undisputed evidence was that the original agreement was a sale by the acre with defenda...