                                                                                         
                                       In the Missouri Court of Appeals
                                               Eastern District
                                                                       DIVISION TWO

KAREN ELLIS and TODD ELLIS,                                                       )   No. ED100836
                                                                                  )
              Plaintiffs/Appellants,                                              )   Appeal from the Circuit Court
                                                                                  )   of St. Louis County
v.                                                                                )
                                                                                  )   Hon. Colleen Dolan
KEVIN HEHNER,                                                                     )
                                                                                  )
              Defendant/Respondent.                                               )   Filed: October 7, 2014


                                                                         Introduction
              Karen Ellis and Todd Ellis (collectively Appellants) appeal from the trial court’s

February 20, 2013 Order and Judgment in favor of Kevin Hehner (Respondent) on Count I

(Declaratory Judgment and Permanent Injunction) of Appellants’ three-count petition,1 and in

favor of Respondent on his Counterclaim for Declaratory Judgment and Injunctive Relief. We

affirm.

                                                               Factual and Procedural Background

              This case concerns a shared driveway between the respective homes of Appellant Karen

Ellis and Respondent. Appellant Todd Ellis is Karen Ellis’s son. Both Karen Ellis and

Respondent have lived in their respective neighboring homes for a long period of time, and the

driveway they share was created by an easement recorded in 1967 benefitting Respondent’s

                                                            
1
 Counts II (trespass) and III (battery) of Appellants’ petition were severed on October 9, 2012, then dismissed with
prejudice by the trial court on July 24, 2013.
property and burdening Karen Ellis’s property. The driveway itself is wide enough to

accommodate two cars side by side. However, the parties have been feuding over each other’s

various uses of and activities upon the driveway, such as the spraying of pesticide, the shoveling

of snow, the placing of railroad ties, and the pilfering of rocks. Todd Ellis has become involved

in this dispute between the parties as he often comes to his mother’s home to do various projects

on and about her property, including the shared driveway.

       On January 27, 2011, Karen Ellis filed a three-count petition against Respondent, asking

for equitable relief in the form of a declaratory judgment that the recorded easement is invalid

and injunction in Count I; alleging trespass in Count II; and battery in Count III. On February 9,

2011, prior to receiving service of Karen Ellis’s petition, Respondent filed a petition for

injunctive and declaratory relief against Karen Ellis and Todd Ellis requesting that the easement

be declared valid. Respondent also filed an answer and counterclaim to Karen Ellis’s petition.

Respondent filed a motion to consolidate the actions on July 21, 2011. On August 3, 2011, the

cases were consolidated as they concerned the same easement and involved the same set of facts

and issues. Also upon Respondent’s motion, Counts II and III of Karen Ellis’s petition were

severed from the equitable claims asserted in Count I.

       On March 7, 2012, Respondent filed a Motion to Dismiss Count I of Karen Ellis’s

petition and for Summary Judgment on said count as well as on his counterclaim. The trial court

called, heard and took the motion as submitted on June 22, 2012, denied it on July 19, 2012, and

set the matter for trial on November 26, 2012.

       A bench trial of the parties’ remaining claims was held on November 26 and 27, 2012.

At the conclusion of trial, the court requested the parties submit their respective proposed

findings of fact and conclusions of law. On February 20, 2013, the trial court entered judgment



                                                 2
in favor of Respondent on his counterclaim and Count I of Karen Ellis’s petition. The trial

court’s judgment found the easement belonging to Respondent and his successors at the property

where he resides, granted in an Easement Deed recorded on August 4, 1967 at Book 5600 Page

481 of the records of St. Louis County, is a valid interest in the real estate described in said

Easement as the property where Karen Ellis lives, as well as said property’s successors-in-

interest. The judgment further provides:

                2. The object and purpose of the Easement is for egress and ingress
       between [Respondent’s] property and Victory Drive. Pursuant to said object and
       purpose, [Respondent] and his successors shall have the right to use the Easement
       for traffic, including that of vehicles, lawn equipment and by foot; for parking; for
       undertaking reasonable maintenance including but not limited to the addition of
       gravel, minor repairs, leveling, weed control, and removal of snow, debris,
       obstacles, and refuse from the driveway; and for any and all other purposes
       reasonable and natural to the use of a suburban driveway.
                3. The boundary line separating [Respondent’s] and [Karen Ellis’s]
       properties is hereby declared to be the line determined by Land Surveyor James
       Whitehead of Glasper Professional Services (formerly Cornerstone Land
       Surveying & Civil Engineering) as set out more fully in the survey, marked as
       [Respondent’s] Exhibit W (a true and accurate copy of which is attached hereto),
       and as physically marked on the land by set iron pipes with licensed caps.
                4. The land survey attached to the Easement Deed, found at Book 5600
       Page 483, (a true and accurate copy of which is attached hereto) record with the
       St. Louis County Recorder of Deeds, sets out the dimensions of the Easement, as
       they relate to the above-referenced boundary line.
                5. The costs for repairs to that portion of the driveway embraced by the
       Easement (i.e. that portion upon the Ellis property) shall be shared equally
       between the parties so as to maintain a white limestone gravel suburban driveway
       that includes an existing curb on its western boundary. Should [Karen] Ellis, her
       personal representative, or any of her successors permanently remove the circle
       driveway connecting to the Easement driveway and forever cease all use of the
       Easement driveway, abandoning all use in writing, then all maintenance shall be
       borne by [Respondent], his personal representatives or successors.
                6. Karen Ellis, Todd Ellis, their agents, representatives, employees,
       successors and any and all others at their direction are hereby permanently
       enjoined and prohibited from:
                a. Blocking, obstructing, impeding or otherwise limiting the reasonable
       use or maintenance by [Respondent] or [Respondent’s] guests and successors of
       the portion of the driveway embraced by the Easement;
                b. Removing or altering any part of the driveway embraced by the
       Easement, except as mutually agreed upon in writing between [Karen Ellis] and

                                                  3
       [Respondent] or their personal representatives or successors. Any agreement to
       perform substantial repairs or maintenance to the driveway which is embraced by
       the Easement shall be signed by [Karen Ellis] and [Respondent] or their personal
       representatives or successors;
              c. Altering that portion of the driveway embraced by the Easement in any
       manner that would change the essential character of the driveway as a white
       limestone gravel, suburban driveway that includes an existing curb on its western
       boundary (i.e. as it has existed for the last 25 years);
              d. Entering any portion of the driveway which is upon [Respondent’s]
       property for any purpose, including driving upon that portion of the driveway
       which lies outside the Easement. [Karen Ellis] and Todd Ellis, as well as their
       successors, shall take reasonable steps to prevent others servicing the property at
       910 Victory, including delivery persons, and those operating transport vehicles
       and postal vehicles, from driving upon that portion of the driveway which lies
       outside the Easement by instructing or advising such persons or entities of this
       Order;
              e. Placing or installing any obstacles or impediments on the Easement.
       [Karen Ellis] and Todd Ellis are specifically ordered to remove any wooden
       landscaping timbers or beams from the portion of the property which lies inside
       the Easement, as well as any rebar stakes holding such timbers or beams in place.

       The trial court also awarded Respondent his attorney’s fees and costs, the proper amount

of which would be determined by the court at a hearing on a later date after Counts II and III of

Karen Ellis’s petition were tried. Counts II and III of Karen Ellis’s petition were scheduled for

trial on July 29, 2013. Prior to that date, however, Respondent filed a Motion for Enforcement

of the court’s Order and Judgment, asserting that Appellants had not yet removed the railroad

ties blocking the driveway easement as ordered in paragraph 6(e) of the judgment. The trial

court heard the motion on June 14, 2013, and ordered Appellants to remove the railroad ties from

the driveway easement within 20 days of the date of the order. The trial court further noted that

failure to comply with this order would result in Karen Ellis’s remaining two claims being

dismissed with prejudice. On July 3, 2013, Karen Ellis filed a Motion to Reconsider Order of

February 20, 2013. On July 8, 2013, Respondent filed a Motion to Dismiss Karen Ellis’s Counts

II and III, as she had failed to comply with the court’s June 14, 2013 order of enforcement of

paragraph 6(e) of its February judgment to remove the railroad ties. The trial court held a

                                                 4
hearing on the motions to reconsider and to dismiss, respectively, on July 24, 2013, and on that

date denied Karen Ellis’s motion to reconsider and granted Respondent’s motion to dismiss,

dismissing Karen Ellis’s two remaining claims with prejudice for failure to comply with the

February 20, 2013 judgment and June 14, 2013 order of enforcement. The court also set for

hearing on August 14, 2013 Respondent’s award of attorney’s fees. At the hearing on

Respondent’s attorney’s fees, both parties submitted testimony and Respondent submitted

exhibits, and the court heard arguments from both sides. On October 2, 2013, the trial court

entered an Order and Judgment awarding $5,000 in attorney’s fees to Respondent.

              This appeal follows.

                                                               Discussion of Points on Appeal

                                                                  Point I – Attorney’s Fees

              In their first point, Appellants claim the trial court erred by granting Respondent’s request

for attorney’s fees in the amount of $5,000 because an award of attorney’s fees was not

warranted under Section 527.1002 as Respondent failed to show “special circumstances.”

              Section 527.100, titled “Costs,” provides: “In any proceeding under sections 527.010 to

527.130 the court may make such award of costs as may seem equitable and just.” Under this

statute authorizing circuit courts to award costs in an amount the court deems equitable and just,

in declaratory actions, “costs” may include attorney’s fees when there are special circumstances.

Smith v. City of St. Louis, 395 S.W.3d 20, 26 (Mo.banc 2013); see also Bernheimer v. First

National Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745 (1949) (court held that attorney’s

fees may be awarded in a declaratory judgment action when there are special circumstances).

The standard of review is abuse of discretion. Smith, 395 S.W.3d at 26.


                                                            
2
    All statutory references are to RSMo 2006, unless otherwise indicated.

                                                                             5
          At the August 19, 2013 post-trial hearing on attorney’s fees and costs, Respondent

presented testimony and exhibits setting forth the attorney’s fees he incurred in connection with

the litigation totaling $14,802.19. On October 20, 2013, the trial court entered an Order and

Judgment finding that:

          [Respondent] has incurred reasonable attorneys’ fees in bringing and defending
          the claims in the above cause … Section 527.100 RSMo. provides for payment of
          attorneys’ fees when there are “special circumstances.” Goellner v. Goellner
          Printing, 226 S.W.3d 176, 179 (Mo.App. E.D. 2007). Based on the evidence
          adduced at trial, the court finds [Respondent] in this case is not nearly as
          sympathetic a party as was the prevailing party in Goellner and the court finds he
          is not entitled to reimbursement from [Appellants] for all of the fees he has
          incurred. However, the evidence supports an award of a portion of his fees as
          [Appellants] blocked [Respondent] from using the driveway for ingress and
          egress to and from his property on numerous occasions for no other reason than
          spite, to inconvenience and annoy him. [Respondent] is therefore awarded
          attorney’s fees in the amount of $5,000.00.

In Goellner, wife brought an action against her deceased husband’s former employer after

employer stopped paying wife’s health insurance despite its contractual obligation to do

so for all of wife’s life. Id. at 179. We found that after paying for wife’s insurance for

over 20 years, employer terminated her benefits out of spite, and wife, who was 92 years

old at the time of trial, was forced to bring action for declaratory judgment. Id.

          In the instant case, we find that the trial court’s determination that Appellants

acted out of spite on numerous occasions in blocking Respondent’s use of the driveway,

use of which Appellants knew he was legally entitled, justified awarding a portion of

Respondent’s fees in the action in which he prevailed. The trial court did not abuse its

discretion in awarding Respondent $5,000 of his total fees of $14,802.19. Point I is

denied.




                                                    6
                        Point II – Injunction for Enforcement of Easement

       In their second point, Appellants maintain the trial court erred in finding that Respondent

made a submissible case for an injunction for enforcement of the previously recorded easement

in that there was no probative evidence concerning or reference in the court’s judgment to a legal

description or survey of the boundary portion of the driveway.

       Contrary to Appellants’ assertion that there is no reference in the judgment to a legal

description or survey of the boundary portion of the driveway, the judgment reads:

               3. The boundary line separating [Respondent’s] and [Karen Ellis’s]
       properties is hereby declared to be the line determined by Land Surveyor James
       Whitehead of Glasper Professional Services (formerly Cornerstone Land
       Surveying & Civil Engineering) as set out more fully in the survey, marked as
       [Respondent’s] Exhibit W (a true and accurate copy of which is attached hereto),
       and as physically marked on the land by set iron pipes with licensed caps.
               4. The land survey attached to the Easement Deed, found at Book 5600
       Page 483, (a true and accurate copy of which is attached hereto) record with the
       St. Louis County Recorder of Deeds, sets out the dimensions of the Easement, as
       they relate to the above-referenced boundary line.

The survey prepared as a document by James Whitehead (Whitehead) and as physically marked

out on the parties’ properties and photographed, and the easement deed with accompanying

survey as recorded in the Office of the St. Louis Recorder of Deeds in 1976 at Book 5600 Page

483, cited in the judgment as set out above, were attached and incorporated into the judgment by

reference and fully and completely set out the legal dimensions of the easement. Additionally, in

further contravention of Appellants’ point, these items of documentary and physical evidence as

historically recorded, professionally reconstructed, reproduced and testified to by an expert land

surveyor witness constitute ample probative evidence of the dimensions of the previously

recorded easement.

       Appellants maintain the trial court’s judgment should be reversed because it did not

incorporate a “metes and bounds” description of the easement driveway. However, there is no

                                                 7
specific requirement that such a manner of measurement be used in delineating the dimensions of

an easement. Rather, the judgment must describe with reasonable certainty the real estate

affected by the judgment. Dillon v. Norfleet, 813 S.W.2d 31, 32 (Mo.App. W.D. 1991);

Patterson v. Harrison, 46 S.W.3d 580, 581 (Mo.App. S.D. 2001). As previously noted in

response to this point, the trial court’s judgment references and incorporates the 1967 deed of

easement recorded with the St. Louis County Recorder of Deeds, Book 5600, Page 483, to which

a survey is attached depicting Karen Ellis’s property; the easement thereon; and the entire east

driveway, indicating the property line that divides it, designating distances and specific points of

origin and termination with respect to the dividing property line. In addition, the judgment also

incorporates the survey performed by Whitehead on the property, also depicting the boundary

line separating the properties. The easement as recorded and referenced by the trial court in its

judgment was sufficiently specific as to the easement’s use, although such specificity is not

strictly required. The easement in question is described as a “driveway” and has been used for

ingress and egress between Respondent’s home and the street as well as for the normal usages to

which a driveway is put. Such is to be its continued use.

       In this case, the trial court’s judgment in all respects has affirmatively determined and

declared the parties’ respective titles and privileges with regard to a fully and completely legally

dimensioned easement, such as would be required for the benefit of any future conveyance of the

property. See, e.g., Maune v. Beste, 292 S.W.3d 528, 529-30 (Mo. App. E.D. 2009). As such,

Appellants’ Point II is without merit and is therefore denied.

                                    Point III – Unclean Hands

       In their third point, Appellants contend the trial court erred by granting the injunction

because it failed to consider the undisputed evidence of ongoing and systematic misuse of the

easement by Respondent.
                                                 8
        In this case, the record evidences allegations and instances of bad behavior on the parts of

both parties. The courts have officially recognized bad behavior on the part of Appellants, in

fact, by issuing a restraining order to Respondent in his Adult Abuse action and in the underlying

action in the instant case by awarding Respondent a portion of his attorney’s fees based on the

actions taken by Appellants to disturb Respondent’s peaceful enjoyment of his property purely

out of spite.

        In any event, there is no authority that a properly recorded easement may be extinguished

because of the owner’s conduct. An easement runs with the property and not the property’s

owner. In this case, the easement is particularly necessary because its extinction would deprive

Respondent, and future owners of his property, of the only means of ingress and egress from the

property to the street.

        Finally, in a court-tried case, issues of the witnesses’ credibility are matters within the

trial court’s discretion. McAllister v. McAllister, 101 S.W.3d 287, 290-91 (Mo.App. E.D. 2003).

The trial court is in a better position to judge factors such as credibility, sincerity, character of

the witnesses, and other intangibles which are not revealed in a trial transcript. Id. The trial

court is free to accept or reject all, part, or none of the testimony of a witness. Id. And, it may

disbelieve testimony even when it is uncontradicted. Id. The trial judge has absolute discretion

as to the credibility of witnesses and the weight of their testimony is a matter for the trial court,

and its findings on witness credibility are never reviewable by the appellate court. Id.

        For the foregoing reasons, Point V is denied.

                                Point IV – Removal Of Railroad Ties

        In their fourth point, Appellants assert the trial court erred in striking Karen Ellis’s non-

equitable, bifurcated claims for failure to remove the railroad ties from the driveway as she was

physically incapable of removing the railroad ties due to her age and incapacity and Todd Ellis
                                                   9
was subject to possible criminal prosecution if he removed the railroad ties due to a restraining

order.

         The trial court’s February 20, 2013 judgment, paragraph 6(e) stated: “[Karen Ellis] and

Todd Ellis are specifically ordered to remove any landscaping timbers or beams from the portion

of the property which lies inside the Easement, as well as any rebar stakes holding such timbers

or beams in place.” More than 60 days later, on May 13, 2013, Respondent had to file a motion

for enforcement of the court’s judgment because Appellants had not removed the timbers as

ordered by the court. The trial court then entered a judgment stating in pertinent part, “[Karen]

Ellis shall cause the removal of the wooden landscaping timbers or beams from the driveway (as

ordered in the Feb. 20, 2013 Judgment) within 20 days of this date. Failure to comply shall

result in the dismissal with prejudice of [her] remaining cause of action.” Appellants again failed

to comply and thus the trial court dismissed the remaining claims.

         We find Appellants’ contentions that they could not comply with the order because Karen

Ellis is unable to move the timber herself due to her age and Todd Ellis cannot move the beams

because the restraining order prevents him from going onto Respondent’s side of the driveway to

be disingenuous. The court did not order that Karen Ellis herself or Todd Ellis himself had to

physically remove the timbers from the driveway. Therefore, their claims that they failed to

comply with the court’s directive because Karen Ellis is too frail and Todd Ellis is legally

prohibited from doing so are unpersuasive. Appellants can hire someone to move them if need

be.

         Based on the foregoing, Point IV is denied.

                                     Point V – Expert Testimony

         In their fifth point, Appellants argue the trial court erred by allowing Whitehead to testify

at trial because he had not been disclosed as an expert opinion witness and he had no personal
                                                  10
knowledge of any of the measurements taken or work performed on the driveway, making his

testimony inadmissible hearsay opinion testimony.

              Rule 56.01(b)(4)(a)3 requires the disclosure of experts expected to be called to testify at

trial. An expert witness is a person retained by a party in relation to litigation and who by reason

of education or specialized experience possesses superior knowledge respecting a subject about

which persons having no particular training are incapable of forming an accurate opinion or of

deducing correct conclusions. St. Louis County v. Pennington, 827 S.W.2d 265, 266 (Mo.App.

E.D. 1992). A trial court has broad discretion in its choice of action in response to non-

disclosure of evidence or witnesses. Id.

              In the case sub judice, Respondent did not timely disclose his expert witness Whitehead

in response to Appellants’ requests in discovery, but disclosed his identity as an expert witness

and his boundary survey in his motion for summary judgment filed March 12, 2012, more than

eight months before trial. As such, Appellants were not prejudiced by Respondent’s failure to

disclose Whitehead and his survey during discovery, because Appellants had ample time to

prepare a rebuttal to Whitehead and his survey prior to trial. There was no unfair surprise or

concealment. The purpose of the discovery rule is to eliminate the element of surprise during

trial and provide the parties with all relevant materials. State ex rel. Plank v. Koehr, 831 S.W.2d

926, 927 (Mo.banc 1992). Furthermore, Whitehead’s testimony at trial was limited to

identifying the survey he prepared, photographs of the property as surveyed and explaining the

process of compiling a boundary survey. He did not offer any opinions and the 1967 Easement

Deed was entered into evidence as self-explanatory. Therefore, the trial court acted within its

discretion in allowing Whitehead’s testimony and survey to be allowed into evidence at trial and

considered in fashioning its declaratory judgment.
                                                            
3
    All rule references are to Mo R. Civ. P. 2011, unless otherwise noted.

                                                               11
       Appellants’ Point V is denied.

                                 Point VI – Motion to Reconsider

       In their sixth point, Appellants aver the trial court erred in denying their motion to

reconsider on the basis of splitting a cause of action and/or collateral estoppel because

Respondent had litigated the same issue of the blockage of the driveway before two different St.

Louis County courts. 

       Appellants maintain the Order of Protection Respondent obtained in his action under the

Adult Abuse Act, Sections 455.010 to 455.085, for verbal threats made against him on

September 23, 2012 by Todd Ellis collaterally estops him from litigating his claims in the instant

case. This contention is without merit. That action was filed over a year and a half after the

claim filed by Respondent in the instant action and involved a different cause of action than the

instant one, which was filed for declaratory and injunctive relief with regard to a recorded

easement. The Order issued in the adult abuse case is based on the parties’ conduct, and

provides that both Respondent and Appellant Todd Ellis are to “refrain from any contact,

communication, or interaction of any kind.” It also ordered them to remain within their

respective property boundaries or within the driveway easement, to-wit: “[Todd Ellis] shall not

use any portion of the East driveway (includes the person) and shall remain on the 910 Victory

property boundaries. [Respondent] shall not use any portion of the west driveway (including the

person) and shall remain on the 906 Victory property boundaries and within the Driveway

Easement.” The Order and Declaratory Judgment in the instant case covers legal usage and

ownership of the subject easement-shared driveway based on the recorded easement on the

property. These are different issues.

       Collateral estoppel is defined as issue preclusion. Adams v. Inman, 892 S.W.2d 651, 654

(Mo.App. W.D. 1994). Collateral estoppel precludes the same parties or their privies from
                                                 12
relitigating issues that have been previously litigated. Id. In order to invoke collateral estoppel,

the following four elements must be found: 1) the issue decided in prior litigation must be

identical to the issue presented in the present action; 2) the prior litigation must have resulted in

a judgment on the merits; 3) the party against whom collateral estoppel is asserted must have

been a party or in privity with a party to the prior litigation; and 4) the party against whom

collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the

prior action. Id. The first and most fundamental element of collateral estoppel, i.e., identity of

issues, is missing here. Determination of rights of shared use and ownership of a driveway that

is subject to a recorded easement does not involve issues of communication and adult abuse.

       The rule against splitting a cause of action is related to the doctrine of collateral estoppel.

Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593, 595 (Mo.App. E.D. 1998). A cause

of action that is single may not be split and filed or tried piecemeal, the penalty for which is that

an adjudication on the merits in the first suit is a bar to a second suit. Id. However, distinct

causes of action may arise from a single contract, transaction or occurrence. Id. Respondent’s

adult abuse claim and resulting protective order against Appellant Todd Ellis arose eighteen

months after the instant cause of action was filed, and involved verbal threats made by Todd

Ellis to Respondent, and not the legal right to property ownership and use of the driveway based

on a recorded easement.

       For the foregoing reasons, Point VI is without merit and denied.




                                                  13
                                                               Conclusion
                                                               C

              The trial cour judgmen is affirmed 4
              T            rt’s    nt          d.

                                                                                                 


                                                                 
                                                                         Sher B. Sulliva P.J.
                                                                            rri        an,


Mary K. Hoff, J., andd
Philip M. Hess, J., co
                     oncur.

                                                                          




                                                            
4
    Responde
           ent’s Motion to Dismiss for Lack of Jurisdiction is denied
                         o             L                            d.



                                                                    14
