Southside Ventures, LLC v. La Crosse Lumber Co.

Counsel

David G. Brown, Columbia, MO, Attorney for Respondent., Ryan J. McDaniels, Jefferson City, MO, Attorney for Appellant., Karen King Mitchell, Chief Judge *776La Crosse Lumber Company appeals, following a bench trial, from a judgment granting Southside Ventures, LLC, a prescriptive easement over a portion of La Crosse's property for purposes of ingress and egress. La Crosse raises six points on appeal, all challenging the trial court's legal determinations below. Finding no error, we affirm., On August 31, 1989, La Crosse purchased the property it currently owns in Boone County near the intersection of Highway 63 and Grindstone Parkway. This property abuts the property that currently belongs to Southside on the east, and it abuts two other lots in the Chalet Subdivision, which is flanked by Ponderosa Street on the west. When La Crosse purchased its property, the only point of ingress and egress was through the parking lot and across the property that currently belongs to Southside; thus, when purchasing its lots, La Crosse also obtained a perpetual easement across a portion of what is now Southside's parking lot. A perpetual easement over both La Crosse's property and Southside's property was obtained at the same time in favor of current and future owners of the lots in the Chalet Subdivision to the west of La Crosse to ensure ingress and egress from those lots to the only access point for Grindstone Parkway through what is now Southside's parking lot. Part of the easement running through both La Crosse's property and Southside's property included a strip of pavement, present since at least 1994, connecting the two properties. Neither Southside nor its predecessors in interest ever obtained an express easement over La Crosse's property., From 1995 to 2007, the Ice Chalet Antique Mall operated in a building on what is now Southside's property. As mentioned above, initially, the only access point between Grindstone Parkway and the properties belonging to La Crosse, the Chalet Subdivision, and the Ice Chalet Antique Mall was through the parking lot belonging to Southside's predecessor in interest, and anyone needing access to any of those properties had to travel across what is now Southside's property. Sometime before 2002, a second access point for Grindstone Parkway was created on the west side of La Crosse's property, across from Bluff Creek Drive; at first, traffic was regulated by a stop sign, but the City of Columbia later installed a traffic signal for the intersection. After the second access point was created, people working at the Ice Chalet Antique Mall began to traverse La Crosse's property to use the new access point, as the original one had become hazardous and difficult to use due to increasing traffic on Grindstone Parkway. In fact, the former manager of the Ice Chalet Antique Mall directed people to use the new access point for safety reasons, as did the owner of a subsequent business in the same building. The former manager indicated that, on a daily basis-even on a slow day, there were at least one hundred visitors to the Ice Chalet Antique Mall., While the Ice Chalet Antique Mall was in operation, there was also a restaurant, Gibson Girls Café, and a rental car business operating in the same building. Though the antique mall closed in 2007, the café and the rental car business continued to operate through at least 2008. After the antique mall closed, the owners of the *777property put it on the market, and they were approached by some individuals seeking to open a family fun center. The owners agreed and leased the property for that purpose, so the new tenants began making renovations to the property in preparation for opening the new fun center in 2010. From 2010 to 2012, Galactic Fun Zone operated in the building on Southside's property. And, in 2012, Lazer Lanes took over; since then, the number of visitors has been estimated around one thousand every week day and four or five thousand on weekends. Evidence suggested that at least one-third to one-half of all visitors to Southside's property used the second Grindstone access point and drove through La Crosse's property to reach the building on Southside's property., In 2009, following conversations between the owners of La Crosse and Southside about the cut-through traffic using the second access point, an attorney for La Crosse sent a letter to Southside advising that Southside "had no business ... on the La Crosse property." In 2016, Southside approached La Crosse and sought an easement over La Crosse's property, and again Southside received a letter from an attorney for La Crosse advising that Southside had "no business ... on the La Crosse property." Despite these letters, La Crosse never took any steps to stop people from crossing their parking lot to gain access to Southside's property from the traffic signal at the second Grindstone Parkway access point. And people associated with Southside and the businesses in its building continued to use the paved connector between the traffic signal and Southside's property., On October 20, 2016, Southside's predecessor in interest filed a petition against La Crosse to obtain a prescriptive easement over a portion of La Crosse's property for the purposes of ingress and egress. The petition alleged that, "[s]ometime before January 1, 2003, a roadway access ... was constructed connecting the parking lot of the Servient Tenement [La Crosse's property] to Grindstone Parkway." It further alleged that Southside's predecessors in interest "used the Roadway Access and the parking lot of the Servient Tenement for more than ten years to provide an access from the parking lot of the Dominant Tenement [Southside's property] to Grindstone Parkway for the purpose of ingress and egress," and that their use was "visible, adverse, under claim of right, hostile, open and notorious, and continuous and uninterrupted." In response, La Crosse asserted the affirmative defenses of estoppel, laches, and waiver, arguing that Southside's predecessor in interest was either estopped from asserting or waived its right to assert a claim for prescriptive easement because it had sought to purchase an easement from La Crosse, and it further argued that too much time had passed before Southside's predecessor in interest sought the prescriptive easement., On February 22, 2018, La Crosse filed a "Motion for New Trial or for Amended Judgment," invoking Rules 73.01(d), 75.01, and 78.01.1 In that motion, La Crosse argued, among other claims, that the judgment's description of the easement granted was overbroad insofar as it included portions of La Crosse's property that were not subject to the prescriptive easement; specifically, the description in the original judgment included an unpaved portion west of the second Grindstone Parkway access point that had not been subject to any use by Southside. On April 9, 2018, the trial court held a hearing on La Crosse's motion. The following day-April 10, 2018-Southside filed a "Post-Hearing Response to [La Crosse's] Motion for New Trial," wherein Southside conceded that the judgment contained an overbroad description of the property subject to the prescriptive easement and suggested changes to the judgment to accurately reflect the description of the property subject to the easement. On April 11, 2018, the trial court entered the following order:, On April 16, 2018, La Crosse filed a notice of appeal from the original judgment, noting that a post-trial motion was filed on February 22, 2018, and ruled on April 11, 2018. On April 18, 2018, the trial court entered an amended judgment in conformity with the amendments suggested by Southside's Post-Hearing Response to La Crosse's Motion for New Trial or for Amended Judgment. The amended judgment provided the following description of the easement: "the thirty-foot wide strip of hard-paved road surface that exists along the northern edge of the La Crosse Parking Lot pursuant to an existing easement recorded in Book 739, Page 600, Records of Boone County, Missouri." La Crosse did not file a notice of appeal from the amended judgment. Instead, it separately filed the amended judgment on May 11, 2018. In correspondence accompanying the amended judgment, La Crosse indicated:, La Crosse did not file a motion for new trial after the amended judgment was entered., La Crosse brings six points on appeal. In its first point, La Crosse attacks the description of the easement as presented in the original judgment, arguing that it was overbroad insofar as it included unpaved property that Southside had never used. In its second point, La Crosse argues that, regardless of which judgment is considered, the property description of the prescriptive easement is insufficient insofar as the description lacks certainty. In its third point, La Crosse argues that Southside was not entitled to a prescriptive easement insofar as Southside acknowledged La Crosse's superior title to the property when Southside actively sought to acquire an easement from La Crosse in both 2009 and 2016. In its fourth point, La Crosse argues that the trial court erred in determining that Southside's use was adverse because La Crosse was unable to legally block access to the paved roadway in light of the fact that it was subject to an existing easement in favor of other individuals, and La Crosse never sought to block it because it was being "neighborly." The fifth point challenges the trial court's determination that Southside's use of the property was sufficiently continuous and visible for the entire ten-year period as being both against the weight of the evidence and lacking in substantial evidence. La Crosse's final claim argues that the trial court erred in considering use by the general public in granting a private easement., In its motion to dismiss, Southside contends that the amended judgment is the final operative judgment for purposes of appeal and that, by failing to appeal from that judgment, La Crosse failed to invoke this court's jurisdiction over the matter. La Crosse contends that the original judgment became the final operative judgment on April 11, 2018, when the trial court denied La Crosse's request for a new trial. La Crosse contends that the amended judgment is a nullity because the trial court lacked authority to enter it in response to Southside's post-hearing response to La Crosse's post-trial motion. Thus, we must determine which judgment is the operative final judgment for purposes of invoking appellate jurisdiction., "Rule 81.04(a) requires the notice of appeal to be filed no later than 10 days 'after the judgment, decree, or order appealed from becomes final.' " Heifetz v. Apex Clayton, Inc. , 554 S.W.3d 389, 393 (Mo. banc 2018) (quoting Rule 81.04(a)). Under Rule 81.05(a), "when a judgment becomes final for purposes of filing a notice *780of appeal depends, in part, on whether an authorized after-trial motion was filed." Id. Here, La Crosse timely filed a "Motion for New Trial or for Amended Judgment" on February 22, 2018, which was within thirty days of the original judgment.2 Both "a motion to amend and a motion for new trial are authorized after-trial motions." Blue Ridge Bank & Tr. Co. v. Hart , 152 S.W.3d 420, 425 (Mo. App. W.D. 2005)., La Crosse argues that, once the trial court denied its motion for new trial on April 11, 2018, the original judgment became final under Rule 81.05(a)(2)(B) because La Crosse's motion was the only timely filed authorized post-trial motion. In making this argument, however, La Crosse overlooks the fact that, though filed in a single document, La Crosse actually filed two alternative post-trial motions: a motion for new trial and a motion to amend the judgment. See In Re Bell , 481 S.W.3d 855, 861 (Mo. App. S.D. 2016) ("A single motion may qualify as a motion for rehearing, a motion to amend the judgment or both."). As such, the trial court's denial of La Crosse's motion for new trial did not, in itself, dispose of all timely filed authorized post-trial motions; La Crosse's alternative motion to amend was still pending, meaning that the trial court retained jurisdiction under Rule 81.05(a)(2) to amend its original judgment until either it ruled on the motion to amend or the ninety-day window for ruling elapsed., The ninety-day window for purposes of Rule 81.05 began to run on February 22, 2018, when La Crosse filed its post-trial motion. Ninety days from February 22, 2018, would have been May 23, 2018, which is well outside the date the amended judgment was entered. Accordingly, if-as La Crosse seems to argue-the trial court ruled solely on La Crosse's motion for new trial on April 11, 2018, then it had until the earlier of either ruling on the motion to amend or May 23, 2018 (when the motion would have been deemed denied), to enter the amended judgment. Because the amended judgment was entered within this time frame, the trial court had jurisdiction., To begin, Southside's response was an express concession of certain claims raised in La Crosse's motion to amend; specifically, Southside conceded-as La Crosse argued-that the property description in the original judgment was overbroad in the sense that it described more property than was properly subject to the prescriptive easement. And Southside proposed curative amendments to the judgment to resolve the problem. Though the trial court's *781order of April 11, 2018, did not expressly invoke La Crosse's motion to amend, under these circumstances, this is a distinction without a difference. In sum, the amended judgment is the operative final judgment for purposes of appeal, as it was entered under the authority granted the trial court by Rule 81.05(a)., La Crosse argues that, even if the amended judgment is the operative judgment, its notice of appeal is sufficient under Rule 81.05(b), which allows for prematurely filed notices of appeal to be deemed "filed immediately after the time the judgment becomes final for the purpose of appeal.", The applicable rules have changed significantly since the L.J.B. decision. In L.J.B. , the Court held that "the amendment of the judgment as authorized by Rule 73.01(a)(5) is not the entry of an entirely new judgment." Id. (emphasis added). At that time, Rule 73.01(a)(5) (1995) provided: "Unless the amended judgment shall otherwise specify, an amended judgment or opinion shall be *782deemed a final judgment for all purposes as of the day it is entered of record." But the language of Rule 73.01(a)(5) as it existed in 1995 has since been moved to Rule 78.07(d) and substantially altered to provide: "Unless an amended judgment shall otherwise specify, an amended judgment shall be deemed a new judgment for all purposes." Rule 78.07(d) (emphasis added). This provision is directly at odds with L.J.B. 's holding that such an amended judgment "is not the entry of an entirely new judgment." L.J.B. , 908 S.W.2d at 351. As such, L.J.B. is no longer controlling under the current rules, and best practices suggest that, any time a trial court enters an amended judgment, a party seeking to appeal should file a new notice of appeal from the amended judgment rather than relying on a notice of appeal filed pursuant to an original judgment.3 Then, the appealing party may either dismiss the original appeal or seek permission from the appellate court to consolidate the two appeals, thereby allowing the court to resolve any question regarding which of the judgments constitutes the final judgment for purposes of appellate jurisdiction., In its first point on appeal, La Crosse attacks solely the original January 25, 2018 judgment. As discussed above, the original judgment is not the operative judgment in this case. When a trial court enters an amended judgment, the original judgment is vacated in its entirety and becomes a *783nullity. Mo. Parks Ass'n , 316 S.W.3d at 384. Because La Crosse's first point on appeal is directed to a judgment that has since been vacated, there is nothing for us to review with respect to La Crosse's first point on appeal. As such, it is denied., Despite the breadth of each of these points, La Crosse's arguments in support fail to address each of the challenges raised. "A contention raised in the point relied on must be developed in the argument section of the brief." Wright v. Barr , 62 S.W.3d 509, 528 (Mo. App. W.D. 2001). "Arguments raised in the points relied on that are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review." Id., Our review of La Crosse's brief reveals that the only claims before us are as follows: (1) Point II presents solely a misapplication-of-law challenge with respect to whether the petition and judgment must contain a legal description of the property at issue; (2) Point III presents solely a misapplication-of-law challenge with respect to whether Southside's efforts to obtain an easement directly from La Crosse precluded its ability to obtain a prescriptive easement; (3) Point IV presents solely a misapplication-of-law challenge with respect to whether the trial court was entitled to use a presumption that Southside's use was adverse under the facts presented; (4) Point V presents solely a challenge to the sufficiency of the evidence to support the trial court's finding that Southside's use was sufficiently continuous and visible for the entire prescriptive period; and (5), "To establish a prescriptive easement over another's property, a party must show that its use of the property has been continuous, uninterrupted, visible and adverse for a period of ten years." Brick House Cafe & Pub, L.L.C. v. Callahan , 151 S.W.3d 838, 841 (Mo. App. W.D. 2004) ; see also Orla Holman Cemetery, Inc. v. Robert W. Plaster Tr. , 304 S.W.3d 112, 118 (Mo. banc 2010). "The law does not favor the creation of prescriptive easements." Brick House , 151 S.W.3d at 841. "Therefore, the party seeking to acquire the prescriptive easement must establish each of these elements by clear and convincing evidence." Id. at 842. "In reviewing a court-tried case to determine whether the judgment is supported by sufficient evidence, we must act with caution and will reverse only upon a firm belief that the judgment is wrong." Wertz-Black v. Guesa USA, LLC , 524 S.W.3d 68, 72 (Mo. App. W.D. 2017)., In its fifth point on appeal, La Crosse argues that the evidence was insufficient to support the trial court's finding that Southside's use was sufficiently continuous and visible for the entire prescriptive period. More specifically, with respect to the continuous nature of the use, La Crosse argues "that for a one to two year stretch within the ten-year period upon which [Southside] bases its claim for prescriptive easement, [Southside's] property sat without a tenant, and the use of the property in question in this case, was minimal or non-existent."