Whitworth v. Jones
| Decision Date | 10 April 2001 |
| Citation | 41 S.W.3d 625 |
| Court | Missouri Court of Appeals |
| Parties | (Mo.App. E.D. 2001) Diana L. Whitworth and Richard L. Brown, Plaintiffs/Respondents v. Melvina Jones, Defendant/Appellant. ED78008 & ED78015 0 |
Appeal From: Circuit Court of St. Louis County, Hon. Michael F. Godfrey
Opinion Summary: Defendant, Melvina Jones, appeals from the trial court's judgments that she trespassed on Plaintiffs', Diane L. Whitworth and Richard L. Brown, property and that Defendant committed civil contempt. Defendant contends the trial court erred in: (1) excluding testimony to rebut admissions Defendant made in response to Plaintiffs' request for admissions because Plaintiffs violated Supreme Court Rule 43.01(b) by submitting the request for admissions to Defendant rather than her attorney; (2) hearing Plaintiffs' motion for contempt for violating the judgment enjoining Defendant from entering Plaintiffs' property because the judgment was not final; and (3) failing to state sufficient findings of fact and circumstances in the order of contempt against Defendant.
JUDGMENT IS AFFIRMED FOR DAMAGES AND INJUNCTIVE RELIEF AND APPEAL OF CONTEMPT ORDER IS DISMISSED.
Division Four holds: (1) Defendant suffered no prejudice by the exclusion of the testimony she offered to rebut her admissions because the evidence was vague and irrelevant to the issues of the case; and (2) because the contempt order has not been enforced, it is an interlocutory order and not appealable.
JUDGMENT IS AFFIRMED FOR DAMAGES AND INJUNCTIVE RELIEF AND APPEAL OF CONTEMPT ORDER IS DISMISSED. Simon and Sullivan, J.J., concur.
In this consolidated appeal, Defendant, Melvina Jones, appeals from the trial court's judgments that she trespassed on Plaintiffs', Diane L. Whitworth and Richard L. Brown, property and that Defendant committed civil contempt. Defendant contends the trial court erred in: (1) excluding testimony to rebut admissions Defendant made in response to Plaintiffs' request for admissions because Plaintiffs violated Supreme Court Rule 43.01(b) by submitting the request for admissions to Defendant rather than her attorney; (2) hearing Plaintiffs' motion for contempt for violating the judgment enjoining Defendant from entering Plaintiffs' property because the judgment was not final; and (3) failing to state sufficient findings of fact and circumstances in the order of contempt against Defendant.
We affirm the judgment for damages and injunctive relief and dismiss the appeal of the contempt order.
Plaintiffs purchased a home at 613 Sontag in January 1997 that shares a septic system with Defendant's home at 611 Sontag. Although the septic system extends onto both properties, Defendant disputed Plaintiffs' right to use the septic system, and tried to harass and threaten people that Plaintiffs hired to clean the system. In March 1997, Defendant moved a fence separating the properties two feet and two inches beyond where the fence previously stood, denying Plaintiffs access to the hatch by which the septic system is cleaned.
Believing that Defendant moved the fence onto their property, Plaintiffs sued Defendant under a theory of trespass for damages and petitioned the court to permanently enjoin Defendant from entering Plaintiffs' property. Defendant hired two surveyors to determine which lot the fence was on, and both surveyors testified that the fence was on Plaintiffs' property. In March 2000, the trial court entered judgment against Defendant, finding that she committed trespass by moving the fence onto Plaintiffs' land and that a threat of future injury existed if the trespass continued. Therefore, the trial court ordered Defendant to remove the fence and to pay Plaintiffs $2,000 in compensatory damages, and the trial court permanently enjoined Defendant from entering Plaintiffs' property.
About one month later, Plaintiffs filed a motion for contempt against Defendant because she violated the trial court's judgment by firing a shotgun onto Plaintiffs' property and by interfering with the reconnection of Plaintiffs' home to the septic system. The trial court found Defendant in civil contempt and ordered her to pay $300 for attorney fees. Defendant files this timely appeal.
In her first point, Defendant alleges that the court should disregard Defendant's failure to respond timely to Plaintiffs' request for admissions because Plaintiffs violated Supreme Court Rule 43.01(b) by submitting the request to Defendant rather than to her attorney. Consequently, Defendant argues the court erred in excluding the testimony she adduced to contradict these admissions. We disagree.
At trial, Plaintiffs' attorney made an oral motion in limine to exclude any evidence rebutting Defendant's admissions, including her acknowledgment that she trespassed on Plaintiffs' property when she moved the fence and that Plaintiffs have an ownership interest in the septic system. The trial court granted the motion, and sustained Plaintiffs' objections when Defendant attempted to present evidence on those and other admissions. The trial court allowed Defendant to make an offer of proof for each witness who was not allowed to testify to rebut the previous admissions.
The trial court's ruling regarding the acceptance or rejection of evidence will not be disturbed on appeal unless there is an apparent abuse of discretion. A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386, 390 (Mo.App. E.D. 1998). Because the evidence was excluded, the question for review is whether the trial court abused its discretion, not whether the evidence is admissible. Id. at 391. The trial court abuses its discretion when the ruling is clearly against the logic of the circumstances before it and is so unreasonable and arbitrary as to shock the sense of justice and indicates a lack of judicial consideration. Id. To constitute grounds for reversal, we must find that the trial court's error in excluding evidence was prejudicial and not harmless. Id. at 392. Further, we cannot reverse a judgment unless we find the error committed materially affected the merits of the action. Id.
Here, even if we assume the trial court erred in rejecting Defendant's offer of proof, a question we need not decide, we are not persuaded that Defendant was prejudiced. Defendant offered several witnesses to rebut her admissions that she committed a trespass on Plaintiffs' property and that Plaintiffs had an ownership interest in the septic system. However, the testimony was vague on these issues and wholly unpersuasive.
Defendant offered the testimony of Albert Anders, who installed the septic system at 611 Sontag. Mr. Anders testified that he installed the single-family septic system between two fences, one on 611 Sontag and the other on 613 Sontag. Then, Defendant offered Melvin Jones, Jr., her brother and former resident of 610 Sontag, to testify regarding where Melvin Jones, Sr. erected the fence on 611 Sontag. He testified that there is approximately ten to fifteen feet between the houses on 611 and 613 Sontag. Originally, the fence was almost directly against the house on 613 Sontag. Later, Melvin Jones, Sr. moved the fence back eight feet toward his...
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