JOHNNY ROBERTS and DEBRA                                  )
ROBERTS,                                                  )
                                                          )
           Plaintiffs-Respondents,                        )
                                                          )
vs.                                                       )           No. SD33993
                                                          )
WAYNE J. SHAW, Deceased, LINDA                            )           Filed: March 23, 2016
LANE, and RICHARD OGDEN,                                  )
TRUSTEE OF TOWN & COUNTRY                                 )
BANK,                                                     )
                                                          )
           Defendants,                                    )
                                                          )
and BETTY J. SHAW,                                        )
                                                          )
           Defendant-Appellant.                           )

                     APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY

                                Honorable David Gregory Warren, Senior Judge

REVERSED AND REMANDED

           This case involves a long country lane or roadway located in Phelps County, Missouri,

which crosses at least two different tracts of land 1 and ends at two private residences or farms.

The case commenced in 2004, when Johnny and Debra Roberts (“Respondents”), James Roberts

and Edna Roberts (now deceased) filed their petition in the Circuit Court of Phelps County,
1
    See SD33992, Roberts, et al. v. Lane, also filed this date.

                                                              1
Missouri, seeking to establish an easement by prescription or, in the alternative, to establish the

lane as a private road or way of necessity. The case proceeded to trial in 2005, with the dispute

being the width and possible usage of the lane in dispute. In the original order after trial, the trial

court made findings about the use and width of the road and as to various gates, but directed the

surveyor to provide a survey description of the roadway.

       Specifically, the trial court in 2005 entered an order finding that Respondents were

entitled to a prescriptive easement across the property of both defendants because both stipulated

and admitted that Respondents were entitled to such an easement. The court found that this was

a one-lane dirt road that had stayed substantially the same throughout its years of use; it was

basically a beaten path. The road measurement varied from 8 1/2 feet wide to its widest point of

14 feet “where they had moved over to avoid a mud hole.” The issue was the width of the

easement and whether the defendants have the right to maintain the five gates currently set on the

road. The evidence indicated that the use under which the prescriptive rights were acquired

involved the continuing inconvenience and burden of the current gates. The order also stated

that the road would be a minimum of ten feet wide per the survey with an additional three feet

width to get out of the vehicle to open the gate. The order further ordered Elgin Surveying and

Engineering, Inc., “to furnish the court with a survey description across both Defendant[s’]

properties, reflecting a minimum of ten feet (10’) wide road except where the road is already ten

feet (10’) or wider.” (Emphasis in original). The court further noted that the natural barriers

including a row of trees and a lagoon existing during the prescriptive period which may narrow

the road were not ordered to be removed in order to enlarge the road.

       The trial judge who entered that order left the circuit court and a subsequent judge was

appointed. No further hearings were held from the time of the 2005 hearing; however, on May

                                                  2
14, 2015, a successor trial judge entered an order granting a 25-foot easement and making further

orders. Defendant Betty J. Shaw (“Appellant”) claims the court erred in declaring a 25-foot

easement because there was no evidence to support a finding that the easement had been that

wide during the prescriptive period and that the successor judge was without authority to enter a

judgment based on testimony and evidence heard by his predecessor. We agree with Appellant’s

second point. The successor judge, without taking further testimony or evidence, entered an

order that was contrary to the findings of the trial judge.

           “Under Missouri law, a successor judge is without power to render a judgment based on

testimony and evidence heard by his predecessor absent a stipulation by the parties.” Central

Bank of Kansas City v. Costanzo, 873 S.W.2d 672, 674 (Mo.App. W.D. 1994); Ard v. Shannon

County Commission, 424 S.W.3d 468, 475-76 (Mo.App. S.D. 2014). In this case, there is no

stipulation of the parties that a judgment may be entered. Respondents cite to Rule 79.01 2

contending that the successor court had the power to enter a judgment in this case. Rule 79.01

does allow for another judge to perform the duties of a judge who leaves office; however, in this

case, the successor court exceeded the powers granted under Rule 79.01 by granting judgment,

without evidence, far in excess of what the trial court had written as findings supported by the

record. Rule 79.01 allows the successor court to perform the duties of the trial court “after a

verdict is returned or findings of fact are filed.” Rule 79.01 (emphasis added). As noted above,

the court found that the road was a one-lane dirt road that was basically a beaten path, measuring

from 8 1/2 feet wide to the widest point of 14 feet. The successor judge morphed that road into a

25-foot easement with no testimony concerning different usage of the road and without a



2
    All rule references are to Missouri Court Rules 2015, unless otherwise specified.

                                                            3
stipulation of the parties, further hearings or further evidence. The final judgment is contrary to

the findings of fact of the original trial court.

        We must reverse and remand the judgment for further proceedings consistent with this

opinion. In the absence of a stipulation of the parties to proceed, the court must either make a

judgment consistent with the findings of the original trial court that heard the evidence or hold a

new hearing.


Nancy Steffen Rahmeyer, J. - Opinion Author
Gary W. Lynch, J. - Concurs

William W. Francis, Jr., J. - Concurs




                                                    4
