How to unshare a shared driveway

[woodyga]

Hi Gang,

I have a question for the legal eagles. I was doing research for my case and I found a case that might be real similar to mine. It is at fastcase.com. They want a $95 monthly fee to view the whole thing here is the preview to the case.

307 S.W.2d 59

William A. HENDERSON and Leona L. Henderson, Appellants,
v.
Conjetta M. LA CAPRA, Respondent.

No. 22626.

Kansas City Court of Appeals, Missouri.

Nov. 4, 1957.

William I. Potter, Kansas City, for appellants.

James Daleo, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiffs (appellants) seek to establish an easement over that portion of a concrete driveway which is located on the property of defendant (respondent). Plaintiffs base their alleged entitlement first, on an easement by implication, and, second, by prescription. After hearing the testimony and weighing the evidence, the trial court denied an injunction and dismissed plaintiffs' petition. In the decree it was specifically found: (1) That the driveway was not a 'way of necessity' as concerns the real property owned by plaintiffs; (2) that the use of the driveway has been since severance of the unity of ownership, controlled and limited by the defendant and her predecessors in title; (3) that the use of said driveway by the plaintiffs and their predecessors in title has been permissive; (4) that under the...


Thats all it will let me see (without donating $95). I was wondering if any of the legal eagles have access to this database could take a look and see if it is real similar to my case. Or better yet can you post the rest of the case for me.

As you all know Ive been doing a lot of research for my case trying to save a few bucks. And I admit its been kinda fun digging thru records and such. Ive learned alot. Maybe I should have went to law school.
Well we have 14 more days until the hearing. Wish us luck


Any help would be greatly appreciated,

Woody,

[nomonojust]

I was wondering what the outcome of this case was?

[woodyga]

Hi Gang,

Sorry, I should have posted that our case has been rescheduled until late Oct. The judges wife had to have surgery the week our case was originally scheduled.
I promise I will post the outcome when it happens.


Woody,

[woodyga]

Hi, Gang

I have another update. We have another continuance, no new date set yet. The wheels of justice turn very slowly. Our attorney is planning to refile a new motion to dismiss based on a very recent Missouri Court of Appeals decision.
Will keep you posted.

Woody,

[nomonojust]

What new case are you speaking of?

[HomeGuru]

Very confusing to say the least.

[woodyga]

Hi gang,

Sorry guys. Search slip opinion 28544
Hope this clears up the confusion.
Woody,

[woodyga]

Hey Gang,

Hope everyone had a good holiday. Wow over 6200 views. Well our attorney filed the new motion to dismiss today. He cited Missouri Court of Appeals case 28544. We also have a trail setting for 2-10-09, If the new motion should be denied. So I should have some news as to the outcome pretty soon.

Woody,

[woodyga]

Well Gang,

We finally had our trial hearing today. The Judge did not decide today. My attorney says we should prevail. That the plaintiffs failed to prove any of the 4 elements required for a easement by implication.But you never know what the judge will do. The plaintiffs attorney said that he may have a adverse possession claim,but my attorney got every witness to say their use was by permission and that their use was not exclusive.
So hopefully we should here from the judge in a week on his decision. Will post when it comes out.

Woody,

[drewguy]

Originally Posted by woodyga

Question for the panel. Do you think my attorney is handling my case right? Do you think he responded to her plea with the right answer (failure to state a claim with which relief can be granted). I think he should have mentioned she has her own driveway and asked for a quite title, but Im no lawyer.

Thanks again Woody,

Just read through this thread -- good luck with the outcome.

BTW, filing a motion to dismiss is relatively inexpensive, but in this type of case unlikely to be successful. Given that the other party was trying to prove adverse possession or easement by implication, there are lots of facts in dispute (even though it sounds like at trial you had strong proof). On a motion to dismiss, you have to assume all the facts alleged by the other side are true, and even then you would still win.

[woodyga]

Hey Drew thanks for the support.

I now think that my attorney has handled my case right. I have done a little research on my judge and he had been overturned on a easement case before and I suspect he wanted to hear all the evidence before he decided. I hope he (the judge) is also doing research on recent case law. My attorney said the reason for filing the second motion to dismiss was to get the data in front of the judge before the hearing. My attorney suspected the judge would not dismiss but that now he has the elements needed to prove easement by implication in front of him and also case law that supports it.

Thanks Again for the support , Woody

[drewguy]

Originally Posted by woodyga

Hi Gang,

Well It hasn't happened yet, but Saturday I recieved a copy of a proposed judgment against me and for the plaintiff submitted by the plantiffs attorney. The proposed Judgment states that no request for finding of fact or conclusions of law was requested to the court. And for me to remove the fence and let plaintiff use our driveway and pay punitive damage an attorney fess of $4000. I spoke to my attorney this morning and he said that it is typical for the judge to have the winning attorney submit a proposal. So my attorney thinks the judge has ruled against us.
I don't understand how he can not state a conclusion of law or finding of fact that allows him to just give our property away.
On appeal what can I do. Since he probably wont state any conclusion of law how can I appeal that he made an error?
Please Help Im am beside myself with grief worrying about this. Can any of you guys file something like a friend of the court brief or something. The case number is 07CG-CC00229
The judge is William L. Syler, Div I
Presiding Judge
Common Pleas Courthouse
44 North Lorimore Suite 2
Cape Girardeau Missouri 63701

1) Local practice is different everywhere, but it seems a little odd for one side to be told pre-judgment to submit proposed findings of fact/conclusions of law. But if you're attorney is right, that's too bad.

2) Local practice is different everywhere, but typically you can appeal regardless of whether the judge made explicit findings of fact or conclusions of law. Indeed, conclusions of law are easier to challenge on appeal than conclusions of fact. Law the appeals court usually reviews "de novo"--that is, on a clean slate. Fact, in comparison, is reviewed for "abuse of discretion" or a similar standard (the words vary)--the basic idea is that the judge had to get them clearly wrong for the court to reverse.

I'm kind of surprised that a judge could rule for a plaintiff without making any findings of fact or conclusions of law. It's a bit easier to do that for a defendant (e.g., defendant needed to show A, B, C, D, and failed to do any of that). It's also odd, because it's to the plaintiff's advantage to have favorable findings so that it's harder to reverse.

You can still appeal based on the transcript of the trial plus any documents/evidence that was submitted. The appeals court may get annoyed they have to go through everything, but the best approach would be to focus on making the appeal as straightforward as possible.

[woodyga]

Hi Gang,

Just wondering does anyone have any suggestions for me to pursue now or do I just wait to see what the judge finally decides. Is the friend of the court thing just wishful thinking? I guess its possible that the plaintiffs attorney is trying to slip one past the judge/ made a mistake, wrong case, ect. My attorney says we wait. I asked him to ask the judge whats going on, but he said he wouldn't do that? Is that illegal for my Atty to do that, I don't know.
Any suggestions would be greatly appreciated.
Again thanks to all that replied to my post.

Thanks Woody,

[drewguy]

Originally Posted by woodyga

Hi Gang,

Just wondering does anyone have any suggestions for me to pursue now or do I just wait to see what the judge finally decides. Is the friend of the court thing just wishful thinking? I guess its possible that the plaintiffs attorney is trying to slip one past the judge/ made a mistake, wrong case, ect. My attorney says we wait. I asked him to ask the judge whats going on, but he said he wouldn't do that? Is that illegal for my Atty to do that, I don't know.
Any suggestions would be greatly appreciated.
Again thanks to all that replied to my post.

Thanks Woody,

I would wait for a ruling. If the judge has decided and is waiting on the other party, then nothing you can do. If the judge hasn't decided, well, nothing you can do.

FWIW in a lot of places, both sides submit "proposed findings of fact and conclusions of law". Basically gives the judge roadmap from each side as to how that side wins. Seems odd that one side only would be invited to provide them. You could look on the bright side--maybe he wanted to see them put forth their best case because he planned to rule for you.

As for an amicus, that's not going to do much. First off, you need someone familiar with the facts of the case. Second, you usually need there to be some greater public interest--i.e., this case will have an impact on someone other than the parties before the court. Taht seems not to be hte case--it's you and your neighbord.

[woodyga]

Thanks Drew,

My attorney called awhile ago, and said he was going to try to put my case back on the docket. Said if he can get it, he will ask for finding of facts and conclusions of law. I just hope this is not to late, as it would just be more cost for me to appeal. Thanks again for your suggestions.


Woody,