Tichenor v. Vore

• Decision Date: 09 October 1997
• Docket Number: No. 21392,21392
• Citation: 953 S.W.2d 171
• Parties: Charles Wayne TICHENOR, et al., Plaintiffs-Respondents, v. James L. VORE, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 171

953 S.W.2d 171

Charles Wayne TICHENOR, et al., Plaintiffs-Respondents, v. James L. VORE, et al., Defendants-Appellants.

No. 21392.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 9, 1997.

Chris L. Weber, Monett, for Defendants-Appellants.

Dwight Douglas, Douglas & Douglas, Neosho, for Plaintiffs-Respondents.

BARNEY, Judge.

This action was brought by Charles Wayne Tichenor, Shirley Jean Tichenor, Donald Cooper, Judy Cooper, Charles Murphy, Daniel David Dunigan, Sr., Karen Ann Dunigan, R.E. White and Mosell White (Plaintiffs), five separate land owners in Barry County, Missouri. Plaintiffs sought to enjoin James L. Vore, Patricia M. Vore and Carl Vore (Defendants) from keeping and maintaining a large dog kennel on Defendants' property because Plaintiffs alleged that the noise from the barking dogs was a private nuisance which unreasonably interfered with Plaintiffs' use and enjoyment of their property. Following a court-tried case, the trial court permanently enjoined Defendants' "operating, maintaining or having a dog kennel or otherwise keeping or maintaining more than two dogs" on their property.

Defendants appeal, assigning one point of trial court error. Defendants maintain that the trial court's judgment was against the manifest weight of the evidence because the Defendants' dog kennel did not substantially interfere with the rights of Plaintiffs to use and enjoy their property. Specifically, Defendants aver that the trial court erred in granting the permanent injunction because (1) the location of the property where the nuisance was alleged to exist is semi-rural in nature, (2) the dog kennel is well-constructed and is a considerable distance from Plaintiffs' homes, (3) the dogs barked only during daytime hours, and (4) because most of the Plaintiffs did not lose any sleep or develop health problems due to the barking dogs.

I.

This being a court-tried case, this Court will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Gauzy Excav. & Grading Co. v. Kersten Homes, Inc., 934 S.W.2d 303, 304 (Mo. banc 1996). Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case. Morgan v. City of Rolla, 947 S.W.2d 837, 841 (Mo.App.1997). Weight of the evidence denotes its weight in probative value, not the quantity or amount of evidence. Id. It is not determined by mathematics; rather, it depends on its effect in inducing belief. Id. Appellate courts defer to the trial court's choice between conflicting evidence. Warren v. Tom, 946 S.W.2d 754, 757 (Mo.App.1997). This Court will also defer to the trial court on factual issues because it is in a better position to not only judge the credibility of witnesses directly, but also their sincerity and character as well as other trial intangibles which may not be completely revealed by the record. In re Estate of Campbell, 939 S.W.2d 558, 564 (Mo.App.1997); Dickinson v. Ronwin, 935 S.W.2d 358, 362 (Mo.App.1996). The trial court may believe all, part or none of the testimony of any witnesses. In re Campbell, 939 S.W.2d at 564. In determining whether the evidence is sufficient to support the judgment, we accept as true the evidence, with permissible inferences therefrom, favorable to the prevailing party and disregard contradictory testimony. McCombs v. Joplin 66 Fairgrounds, Inc., 925 S.W.2d 946, 948 (Mo.App.1996).

We note that the trial court's judgment does not contain specific findings of fact and conclusions of law. When, as here, specific findings of fact and conclusions of law were not requested and none were entered, this Court will affirm the trial court's judgment if it is supported under any legal theory. Lawson v. Traders Ins., 946 S.W.2d 298, 300 (Mo.App.1997); see also Gibson v. Adams, 946 S.W.2d 796, 800-01 (Mo.App.1997). We examine both the evidence and trial court's judgment with these precepts in mind.

II.

Defendants' parcel of land, purchased in February 1995, is located approximately three-quarters of a mile north of Wheaton, Barry County, Missouri, near Missouri Highway 86. ¹ According to Defendants' investigator-witness, Kenneth Herrington, the dog kennel is located 40 yards from the highway. Defendant Carl Vore was the only person residing on the property, some 150 feet from the dog kennel. However, at trial he testified that he had "been in and out of the hospital the last six months."

Each of the Plaintiffs lives near Defendants' dog kennel. Although an aerial photograph of the general area and an assessor's survey map were introduced into evidence, without additional interpretation these exhibits do not precisely set out the respective distances from each of the Plaintiffs' homes to Defendants' dog kennel.

Defendants' investigator testified that Plaintiff Dunigan's residence was located "200 yards" from the dog kennel and that Plaintiff Coopers' residence was "a little bit further." He stated that Plaintiff Murphy's home was located "about the same [distance from the dog kennel] as Dunigan. I figured a hundred-and-fifty, two hundred yards is what I figured." Plaintiff Whites' residence was "probably a good three-hundred yards." He concluded by stating that "Defendants' witness [Patricia] Utters house was a 'bit closer' and that Defendants' witness, [Tina] Burn's [sic] home was probably a little bit closer than the rest of them except for Mr. Tichenor's."

Additionally, the area was referred to by the parties as being "semi-rural" with several homes, including Plaintiffs, in relative close proximity to each other. Most Plaintiffs live approximately one mile north of Wheaton, Missouri.

In June 1995, Defendants constructed a dog kennel to house their Australian Shepard show dogs. The kennel is an insulated building, constructed of cinder block and a wood shingle roof. The kennel contains sixteen pens/runs. No dogs were sold from the kennel.

Generally, Defendants would maintain sixteen Australian Shepard dogs, more or less, in the kennel. The dogs remained in the indoor/outdoor portion of the kennel during daytime hours. Defendants would move the dogs inside the kennel usually between 6:00 p.m. and 9:00 p.m.

There was detailed testimony from each of the five Plaintiffs regarding the noise generated by Defendants' barking dogs. Each of the Plaintiffs testified that Defendants' dogs barked in a fairly constant and annoying manner.

Plaintiffs Tichenors testified that Defendants' barking dogs were a constant source of aggravation. The Plaintiffs Tichenors noted that Defendants' dogs would bark as much as twenty hours per day, with "[n]ot a breath between barks." They both testified that they would often lose sleep from hearing the dogs barking. Plaintiff Charles Tichenor testified that Defendants' dogs would "[b]e barking hard enough, constant enough, you can't go back to sleep ... you lay there and listen to them dogs." Plaintiff Charles Tichenor also testified that when the dogs were inside the kennel at night, barking, that the kennel structure created a "megaphone effect" and that he was forced to wear ear plugs when he slept at night. Plaintiff Charles Tichenor further testified that "I've been a royal grouch total for the last year ... [t]he dogs has finally just got me--my nerves shook. There ain't no place to get away from it." He testified that they would often leave their residence and travel to "Cassville, Monett, Joplin, anywhere to just get away ... for a few hours and let the dogs just go crazy...."

The Plaintiffs Tichenors also testified that they were often unable to perform yard work, plant flowers, work in the garage or enjoy their back porch because of the constant "roar" of dog barking.

As additional evidence of the nuisance created by Defendants' barking dogs, Plaintiffs Tichenors presented a videotape and audiotape at trial, both of which recorded the level of noise generated by the dog barking. Also admitted in evidence was a diary maintained by Plaintiff Shirley Jean Tichenor that recorded their daily aggravation from hearing the dogs barking for some thirteen consecutive months. This diary was a detailed, fifty page, type-written document that chronicled when the Plaintiffs Tichenors were awakened by the dogs, when the dogs would stop barking and when they would resume barking.

Plaintiff Donald Cooper testified that the dog barking is "annoying--nerve racking." He further testified that often he and his wife would go outside of their home, "but sometime[s] we get tired of it and go in the house." Plaintiff Donald Cooper testified that he heard the dogs barking every day and agreed that the noise makes him physically upset.

Plaintiff Charles Murphy testified that sometimes he would go outside and you "don't hear them, but most of the time you do." He testified that even in his house he could easily hear the dogs barking. He testified that Defendants' barking dogs have had an adverse effect on his sleeping and his nerves.

Plaintiff Robert White testified that from where he lives he could easily hear the dogs barking. He testified that occasionally the barking dogs have been particularly annoying, in one instance disturbing his family reunion.

Plaintiff Daniel Dunigan testified that he and his wife often worked in their yard and that they could hear the dogs barking on and off all day long. He testified that "after two or three hours ... you get annoyed with them."

On the other hand, Defendant Carl Vore denied that his dogs barked at night "to such a point that [he] had to go out--inside the kennel." Additionally, a neighbor, Tina Burns, testified that she had never been wakened by the dogs barking and had never had a problem entertaining guests or staying outside and enjoying the use of her property. Likewise, Patricia Utter...