Karen Ellis and Todd Ellis v. Kevin Hehner, Defendant/Respondent.
448 S.W.3d 320
| Mo. Ct. App. | 2014Background
- Karen and Todd Ellis share driveway with neighbor Kevin Hehner; easement recorded in 1967 benefits Hehner's property and burdens Karen Ellis’s property. Driveway wide enough for two cars; parties disputed various uses and physical alterations (railroad ties, pesticide, snow removal, etc.).
- Karen filed a three-count petition (Count I: declaratory judgment and permanent injunction challenging easement; Counts II–III: trespass and battery). Hehner filed a declaratory/injunctive counterclaim to enforce the easement; the parties’ equitable claims were tried to the bench after consolidation.
- The trial court upheld the 1967 easement, declared boundary per a survey, described permissible uses and maintenance obligations, and permanently enjoined the Ellises from obstructing or altering the easement; it ordered removal of wooden landscaping timbers (railroad ties) within the easement.
- Hehner was awarded partial attorney’s fees ($5,000) after he proved repeated spiteful obstruction by the Ellises; Hehner sought full fees of about $14,800 but court awarded a portion.
- After the Ellises failed to remove the railroad ties, the court ordered removal within 20 days and warned noncompliance would result in dismissal; Ellises did not comply and the court dismissed Counts II–III with prejudice.
- On appeal the Missouri Court of Appeals (E.D.) affirmed: (1) attorney’s fees were properly awarded in part; (2) the injunction and enforcement of the recorded easement were proper and sufficiently described by incorporated surveys/deed; (3) dismissal for failure to comply with the removal order was proper; and (4) other evidentiary and procedural challenges failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Award of attorney’s fees under §527.100 | Fees not warranted; Hehner failed to show “special circumstances.” | Ellises repeatedly and spitefully blocked Hehner’s legal use of the easement, justifying fee award. | Court affirmed partial fee award ($5,000); trial court did not abuse discretion. |
| Injunction/enforcement of easement and sufficiency of description | Judgment lacked a metes-and-bounds legal description; inadequate evidence of survey/description. | Easement deed and Whitehead’s survey were incorporated into judgment and provided sufficient certainty. | Court held incorporated recorded easement and survey sufficiently described the easement; injunction proper. |
| Defendant’s alleged misconduct / unclean hands | Hehner misused the easement; his conduct should bar enforcement. | A recorded easement runs with the land and cannot be extinguished based on owner conduct; both parties had misconduct but easement remains necessary. | Court rejected unclean-hands defense; upheld easement because its extinction would deny access to Hehner’s property. |
| Failure to remove railroad ties and dismissal of remaining claims | Karen was physically incapable and Todd was restrained by protective order, so they could not comply. | Court’s order required removal but not that they personally perform it; they could hire others. | Court affirmed dismissal with prejudice for failure to obey enforcement order. |
| Admission of surveyor Whitehead’s testimony | Whitehead was not timely disclosed as an expert and lacked personal knowledge; testimony was hearsay/expert opinion. | Whitehead was disclosed in a motion for summary judgment months before trial; testimony was limited to identifying and explaining his survey (not opinion on facts). | Court found no unfair surprise; allowed testimony and survey; trial court acted within discretion. |
| Collateral estoppel / splitting causes (motion to reconsider) | Prior adult-abuse protective order and prior proceedings preclude Hehner from litigating easement issues. | Protective order addressed conduct/communication and is a different cause of action than declaratory relief about property rights. | Court held issues were not identical; collateral estoppel and split-cause arguments fail. |
Key Cases Cited
- Smith v. City of St. Louis, 395 S.W.3d 20 (Mo. banc 2013) (attorney’s fees in declaratory actions may be awarded when special circumstances exist)
- Bernheimer v. First Nat’l Bank of Kansas City, 225 S.W.2d 745 (Mo. 1949) (fees may be awarded in declaratory judgment actions under special circumstances)
- Goellner v. Goellner Printing, 226 S.W.3d 176 (Mo. Ct. App. E.D. 2007) (example of equitable fee award where prevailing party was sympathetically wronged by spiteful conduct)
- Dillon v. Norfleet, 813 S.W.2d 31 (Mo. Ct. App. W.D. 1991) (judgment must describe affected real estate with reasonable certainty)
- Maune v. Beste, 292 S.W.3d 528 (Mo. Ct. App. E.D. 2009) (declaratory judgment should determine titles/rights sufficiently for future conveyance)