Warren v. Dunlap

• Decision Date: 30 October 2017
• Docket Number: No. SD 34797,SD 34797
• Parties: Leo WARREN and Maxine Warren, Plaintiffs-Appellants, v. Juanita DUNLAP and Dewayne Dunlap, Defendants-Respondents.
• Court: Missouri Court of Appeals

532 S.W.3d 725

Leo WARREN and Maxine Warren, Plaintiffs-Appellants,

v.Juanita DUNLAP and Dewayne Dunlap, Defendants-Respondents.

No. SD 34797

Missouri Court of Appeals, Southern District, Division One.

Filed October 30, 2017

Attorney for Appellants: Chrys Fisher, of West Plains, Missouri.

Attorneys for Respondents: Steven Privette, Lynsie Gabel-Upton, and Zane Privette, Law Office of Steven Privette, of Willow Springs, Missouri.

GARY W. LYNCH, J.

Leo and Maxine Warren (collectively, "the Warrens") filed suit against siblings Dewayne and Juanita Dunlap (collectively, "the Dunlaps") alleging, among other things, that the Warrens had acquired title to a triangular-shaped parcel of real estate ("the triangular parcel") through adverse possession and had also acquired a ten-foot-wide prescriptive easement over another parcel of real estate.¹ The trial court found that the Warrens failed to meet their burden of proving either claim. The Warrens appeal claiming each of those findings was against the weight of the evidence (Points 1 and 2) and the trial court misapplied the law by assessing against them as a court cost one-half of Juanita's² expense for a non-court-ordered pre-litigation survey (Point 3). We reverse that portion of the judgment assessing the survey expense as a court cost against the Warrens but affirm the judgment in all other respects.

Standard of Review

"We are required to affirm the judgment of the trial court in this non-jury case, ‘unless there is no substantial evidence to support it, it is against the weight of the evidence, or unless it erroneously declares or applies the law.’ " Williams v. Frymire, 186 S.W.3d 912, 916 (Mo. App. 2006) (quoting Harness v. Wallace, 167 S.W.3d 288, 289 (Mo. App. 2005) ). To prevail on an against-the-weight-of-the-evidence challenge, a litigant must show that the trial court could not have reasonably found, from the trial record, the presence of a fact necessary to uphold the judgment. Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). In such a challenge, the trial court may believe all, part, or none of the evidence, and we must defer to its factual findings when the issues of fact are contested and when the facts ultimately found depend on credibility determinations. Id."The against-the-weight-of-the evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. This court presumes the trial court's judgment is valid, and it is the appellant's burden to show otherwise. Williams, 186 S.W.3d at 916.

Factual and Procedural Background

"We view the evidence and permissible inferences drawn therefrom in the light most favorable to the judgment." In re Marriage of Scrivens, 489 S.W.3d 361, 363 (Mo. App. 2016). So viewed, the following evidence relevant to this appeal was adduced at trial. The Warrens and the Dunlaps are owners of adjoining tracts of real estate in Oregon County. The Warrens hold record title to and occupy a tract consisting of approximately 234 acres ("the Warren farm"). The Warrens obtained ownership by deed in 1976 upon purchase from Maxine's parents, Roscoe and Augusta Honeycutt, who originally acquired and occupied the Warren farm beginning in 1959. State Highway EE bisects the Warren farm diagonally along a northeast to southwest course.

The Dunlaps acquired title by deed in 1998 from their mother, Mary Dunlap, to an adjacent 259-acre tract ("the Dunlap farm"), sitting just west of the Warren farm. Mary Dunlap and her husband David bought the farm in 1963 and began living there with their children in 1968.

In 2007, Juanita Dunlap acquired an additional 40-acre parcel of land ("the Price tract") from Doug Price ("Price"). Most of the Price tract is situated below Highway EE, but the triangular parcel, consisting of 1.76 acres, extends above Route EE and borders the southwest corner of the Warren farm and the southeast corner of the Dunlap farm. Surveys commissioned in 2009 by Juanita Dunlap disclosed that the triangular parcel was within her deed to the Price tract. The Warrens thereafter filed suit for adverse possession of the triangular parcel. They also claimed they had obtained the right via prescriptive easement to use what the Warrens described as a ten-foot-wide roadway running along the eastern boundary of the Dunlap farm which the Warrens used to access the western boundary of the Warren farm. After a bench trial on the issues, the trial court entered a judgment finding that the Warrens had failed to meet their burden of proof as to either claim. This timely appeal followed.

Points 1 and 2—Against-the-Weight-of-the-Evidence Review

Point 1 claims "the trial court erred in denying [the Warrens'] claim to the triangular parcel, because [the Warrens'] adverse title vested long prior to Price's sale to Juanita Dunlap, in that the undisputed evidence showed that Price never used or maintained the triangle and was aware that Honeycutts and Warrens used and maintained it." Point 2 claims "the trial court erred in finding that [the Warrens'] use of the driveway was permissive, because the undisputed evidence showed that Roscoe Honeycutt installed two gates from the driveway into the Honeycutt/Warren pastureland in the 1960s, which remained in place and in use until Juanita Dunlap fenced them out in 2009, and this permanent installation is irreconcilable with occasional permissive use."³ Both of these against-the-weight-of-the-evidence challenges fail for the same reason: the Warrens held the burden of proof as to each claim, and the trial court did not find their evidence credible.

To establish title to a tract of land by adverse possession, a claimant must prove by a preponderance of evidence that his or her possession of the land was "(1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of ten years." Flowers v. Roberts, 979 S.W.2d 465, 469 (Mo. App. 1998). "Failure to establish any one of these elements will defeat a claim for adverse possession." Leonard v. Robinson, 276 S.W.3d 868, 875 (Mo. App. 2009). A party claiming a prescriptive easement bears the burden of proving five elements by clear and convincing evidence: use of the claimed easement was "(1) continuous; (2) uninterrupted; (3) visible; and (4) adverse for (5) a period of 10 years." Orla Holman Cemetery, Inc. v. Robert W. Plaster Trust, 304 S.W.3d 112, 118-19 (Mo. banc 2010) ; Tamko Asphalt Products, Inc. v. Arch Associates, 830 S.W.2d 434, 438 (Mo. App. 1992).

The Warrens' argument under each point relies on testimony not mentioned in the judgment which they claim satisfies their burden of proof. The Warrens argue this testimony was "relevant, competent, material, undisputed, and not self-destructive" and must be considered probative by this court because the judgment made no explicit finding that the testimony was not credible or worthy of belief. We disagree.

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.

White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (internal citations and quotations omitted).

The Warrens' burden of proof has two components: (1) a burden to produce evidence, and (2) the burden to persuade or convince the court as fact-finder to view the facts in the Warrens' favor. See Nicholson v. Surrey Vacation Resorts, Inc., 463 S.W.3d 358, 369 (Mo. App. 2015). Regarding those components, what we said in Black River Elec. Coop. v. People's Comty. State Bank is worth repeating:

Credible, believable, even uncontradicted proof of evidentiary facts may not prove a contested issue of ultimate fact to the fact-finder's satisfaction. A party with the burden of proof cannot merely offer a submissible case; it must convince the fact-finder to view the facts favorably to that party. This is because evidence never proves any element until the fact-finder says it does.

466 S.W.3d 638, 640 (Mo. App. 2015) (internal citations, quotations, and brackets omitted).

The existence of the five elements of adverse possession to establish the Warrens' title to the triangular parcel and the existence of the five elements of a prescriptive easement to establish the Warrens' right to use the alleged roadway were all fact questions that were contested at trial. All of the evidence presented at that trial consisted of witness testimony. The Warrens presented five witnesses (two of which were via deposition) and the Dunlaps presented seven, all of whom were cross-examined. See White, 321 S.W.3d at 308 (setting forth the ways in which evidence may be contested, which includes by cross examination). Because all the ultimate factual issues were contested, we must defer to the trial court's credibility determinations and its prerogative to believe all, part, or none of the evidence offered to prove those facts. Ivie, 439 S.W.3d at 206.

No findings of fact were requested in this case, so we consider all fact issues upon which no specific findings were made as having been found in accordance with the result reached per Rule 73.01(c).⁴ Id. Thus, under our mandated standard of review, we must presume the trial court implicitly decided not to credit the testimony upon which the Warrens rely,⁵ even if undisputed, and the Warrens present no evidence immune from such a credibility determination. See id.("Evidence not based on a credibility determination, contrary to the circuit court's judgment, can be considered in an appellate court's review of an against-the-weight-of-the-evidence challenge.")...