Tripp v. Harryman

• Decision Date: 11 March 1981
• Docket Number: Nos. 11403,11675,s. 11403
• Citation: 613 S.W.2d 943
• Parties: Paul C. TRIPP et al., Plaintiffs, and Joe T. Sullivan and Anne E. Sullivan, husband and wife, Plaintiffs-Respondents, v. Burley Wilbur HARRYMAN and Eula Mae Harryman, husband and wife, Defendants- Appellants, and Jess Harryman et al., Defendants.
• Court: Missouri Court of Appeals

Page 943

613 S.W.2d 943

Paul C. TRIPP et al., Plaintiffs and Joe T. Sullivan and Anne E. Sullivan, husband and wife Plaintiffs-Respondents, v. Burley Wilbur HARRYMAN and Eula Mae Harryman, husband and wife, Defendants- Appellants and Jess Harryman et al., Defendants.

Nos. 11403, 11675.

Missouri Court of Appeals, Southern District, Division One.

March 11, 1981.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 27, 1981.

Application to Transfer Denied May 11, 1981.

William D. Powell, Craig R. Oliver, Daniel, Clampett, Rittershouse, Dalton & Powell, Rodney E. Loomer, Turner, Reid, Duncan, & Loomer, Springfield, for plaintiffs-respondents.

Dale L. Davis, Bussell, Hough, Bernhardt, Leighton & O'Neal, Springfield, Ralph Gilchrist, Bolivar, for defendants-appellants.

TITUS, Judge.

Plaintiff Sullivan et uxor (hereinafter plaintiffs), brought suit in equity to quiet title to a disputed strip of land 161/2 feet (1 rod) wide, to enjoin defendants from interfering with their enjoyment and use of that land, and for reformation of the appropriate warranty deeds. Defendant Harryman and wife (herein defendants) filed a counterclaim in damages for statutory trespass. ¹ Several other counts in the petition and counterclaim involved other parties to the lawsuit. These were settled during the course of trial and are not at issue in the instant appeal. Defendants' counterclaim was tried to a jury which returned a verdict for plaintiffs. The trial court found the equity issues in favor of plaintiffs, ordered the requested reformation and granted the injunction. Defendants appeal both the judgment entered on the jury verdict and the reformation decree, which appeals have been consolidated by order of this court.

Prior to 1973, defendants were the the record owners of the southeast quarter (SE 1/4) of the northwest quarter (NW 1/4) of Section 20, Township 33, Range 18. At this time, the owners of the quarter-quarter-section directly south of defendants were Colonel and Mrs. May, who had purchased the northeast quarter (NE 1/4) of the southwest quarter (SW 1/4) of Section 20, sight unseen, in 1966. Since the May's 40 acres were landlocked, Colonel May approached defendant Harryman for the purpose of negotiating an access route across defendants' property. These negotiations culminated in the execution of a general warranty deed, dated March 14, 1973, by which defendants conveyed to the Mays the "East One (1) Rod of the South-east quarter (SE 1/4) of the North-west quarter (NW 1/4) of Section Twenty (20)." By constructing a north-south road over this strip, the May's 40 acres would have a vehicular outlet to the county road which runs in a diagonal northwest-to-southeast direction across the northeast corner of defendants' property.

According to Col. May's uncontroverted testimony at trial, introduced via deposition, the location for the access strip was chosen because it "was the end of (defendant's) property and it would not affect him in any way, other than shortening his property sixteen and a half feet." Col. May's deposition further revealed that the legal description for the strip of land conveyed to the Mays was taken from "the official description at the court house" of defendants' 40 acres.

On March 23, 1973, only nine days after the deed from defendants had been executed, the Mays sold the property (including the one-rod-wide strip) to Mr. and Mrs. Raymond S. Scott. The Scotts, in turn, sold the entire parcel to plaintiffs on November 7, 1974. All of these several conveyances were accomplished by the usual printed form general warranty deed.

Two years later or around February of 1976, plaintiffs began to plan the actual construction of the access road. In accordance with the prior negotiations between defendant Harryman and Col. May, the fence which bordered defendants' property on the east (hereinafter, the Existing Fence) was to be utilized as the eastern boundary of the road. Therefore, plaintiff Sullivan approached defendants' son, Jess Harryman, who at the time was managing the property for his parents, about the possibility of pushing brush and trees onto defendants' land. Jess agreed, provided plaintiffs would furnish materials and labor for a new fence on the west side of the proposed road. Although Jess believed an agreement had been made on these terms, plaintiff Sullivan testified at trial that he never agreed to such conditions and that he thought it unreasonable for him to have to furnish both labor and materials.

Subsequently, plaintiff Sullivan contacted one Homer Parris, the owner of the tract immediately east of defendants. An agreement was reached whereby plaintiffs would furnish the materials and Parris the labor to rebuild the Existing Fence. In return, plaintiffs would be allowed to push brush, onto Parris' property.

Plaintiffs then hired a bulldozer operator to clear the proposed roadway of trees and brushy undergrowth. At trial, the bulldozer operator testified that when he bulldozed the road, he never deviated more than 161/2 feet west of the Existing Fence which formed the eastern boundary of plaintiffs' access strip. In compliance with the agreement and with the help of some neighbors, Mr. Parris rebuilt the Existing Fence in the same location as it had previously existed, using new posts and wire furnished by plaintiffs. Although Jess Harryman (defendants' son) was present while this construction was taking place, according to Mr. Parris, Jess voiced no objection except that he thought he had plaintiffs' commitment to build a new fence along the road's western boundary.

Soon after the completion of the bulldozing, the controversy which culminated in the present litigation began to brew. Neither the transcript on appeal nor either parties' briefs are clear on this point, but it appears that a survey was run whereby it was determined that the Existing Fence did not correspond with the quarter-section line which formed the eastern boundary of defendants' property. In other words, plaintiffs' access road was not built on the strip of land actually deeded by defendants to plaintiffs' predecessors in title, Col. and Mrs. May, for this purpose. Rather, the road was built some 40-50 feet west of the quarter-section line, with the result that it divided defendants' property instead of merely "shortening" it by 161/2 feet. When Jess Harryman learned of the discrepancy, he tore out a portion of the fence put up by Mr. Parris and proceeded to construct a series of fences which had the effect of rendering the access road unusable by plaintiffs. Thereupon, plaintiffs filed this suit with the results as noted at the outset of this opinion.

On appeal, defendants raised eight points relied on. For ease of treatment, we shall deal with the last one first. Defendants' eighth point relied on concerns their counterclaim for trespass, which was tried to a jury, and reads as follows: "The trial court erred in submitting Instruction No. 4 to the jury on Count I of Defendants' counterclaim for the reason that: A. Instruction No. 4 submitted to the jury an affirmative defense which was not pleaded by Plaintiffs. B. The trial court improperly allowed Plaintiff Sullivans to amend their reply to Count I of Defendants' counterclaim to include the affirmative defense of consent when there was no testimony in evidence to support such alleged defense." This point is fatally defective. A trial judge is vested with broad discretion in granting leave to amend pleadings, which may be done at any time during the course of the proceedings, even after judgment. A party objecting to the exercise of this discretion must demonstrate that the trial court's action prejudiced his case. Rule 55.33(b), V.A.M.R.; Siedler v. Tamar Realty Co., 491 S.W.2d 566, 568(2) (Mo.App.1973). Here, defendants' point relied on not only fails to explicate "wherein and why", as required by Rule 84.04(d), V.A.M.R., the trial judge abused his discretion by granting plaintiffs leave to amend their pleadings to include the affirmative defense of consent but also fails to advise "wherein and why" the exercise of discretion was prejudicial. Nevertheless, and in excess of duty, we note that the argument portion of defendants' brief claims prejudice because they "had no opportunity to prepare to meet this defense." This claim is undermined by the fact that defendants neither objected on such grounds to the testimony introduced by plaintiffs on this point nor requested a continuance. Siedler, supra, 491 S.W.2d at 568-569(3). Similarly, testimony in the transcript itself belies defendants' contention that no evidence was presented to support plaintiffs' consent defense. We find no prejudicial error.

Having dispensed with defendants' eighth point relied on, we now turn to the others, all of which involve plaintiffs' equity action for reformation, and with respect to which the trial court sat as factfinder. Defendants' first point relied on reads: "The trial court erred in ordering reformation of the deed, dated March 14, 1973, from Defendants Harryman to Lavern and Margie May, for the reason that Count V of Plaintiffs' Third Amended Petition failed to allege any facts which would support a finding of mutual mistake on the part of the parties to the deed in question and, therefore, Count V of Plaintiffs' Third Amended Petition failed to state a claim for reformation."

An action for reformation based on mutual mistake requires the petitioner to allege three elements: (1) the pre-existing agreement of the parties; (2) the mistake; and (3) the mutuality of the mistake. Ethridge v. Perryman, 363 S.W.2d 696, 698(2) (Mo.1963). Paragraphs Five and Six of Count V of plaintiffs' Third Amended Petition aver facts encompassing these elements, as follows: "5. That on or about the 14th day of March 1973, defendants, Burley Wilbur Harryman and Eula Mae Harryman, conveyed the following described property to Lavern May and Margie N. May (Plaintiff...