                   MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT


PAUL C. FERGUSON,                      )
                                       )   WD76487 and
             Appellant-Respondent,     )   WD76521
   v.                                  )
                                       )   OPINION FILED:
R. KENNETH EWING AND                   )
DOROTHY A. EWING,                      )   July 29, 2014
                                       )
            Respondent-Appellants.     )


         Appeal from the Circuit Court of Callaway County, Missouri
                    Honorable Carol Ann England, Judge

                  Before Division Three: Gary D. Witt, P.J.,
                 Joseph M. Ellis, and Thomas H. Newton, JJ.


        Mr. Paul C. Ferguson appeals the trial court‟s award of $2,000 for the

repair of a division fence. Mr. R. Kenneth Ewing and Mrs. Dorothy A. Ewing

cross-appeal. We affirm and remand.

                        Factual and Procedural History

        This is a fencing dispute between adjoining landowners—Mr. Ferguson

and Mr. R. Kenneth Ewing and Mrs. Dorothy A. Ewing (the Ewings)—whose

land shares a boundary line. In August 2011, Mr. Ferguson‟s attorney sent a

letter to the Ewings to notify them that Mr. Ferguson had completed the
construction of a lawful fence on his boundary portion, pursuant to section

272.020, 1 and demanded that they pay for the cost of constructing their portion

of a new fence. The Ewings replied that there was no need for a new fence

because they had already built a portion of the fence on their property, and

because they no longer kept livestock and had no future plans to keep or corral

livestock or any other animals.

          In December 2011, Mr. Ferguson filed a petition with the circuit court for

a neutral resolution, pursuant to section 272.060.1. 2                       The Ewings filed a

counterclaim against Mr. Ferguson for trespass, damage to their portion of the

fence, and the unlawful removal of fencing and posts from their property.


1
 Statutory references are to RSMo 2000 and the 2013 supplement, unles s otherwise stated. Section
272.020 defines a “lawful fence” as follows:

          1. Any fence consisting of posts and wire or boards at least four feet high which is
          mutually agreed upon by adjoining landowners or decided upon by the associate
          circuit court of the county is a lawful fence.

          2. All posts shall be set firmly in the ground not more than twelve feet apart with
          wire or boards securely fastened to such posts and placed at proper distances apart to
          resist horses, cattle and other similar livestock.
2
    Section 272.060.1 states:

          Whenever the owner of real estate desires to construct or repair a lawful fence, as
          defined by section 272.020, which divides his or her land from that of another, such
          owner shall give written notice of such intention to the a djoining landowner. The
          landowners shall meet and each shall construct or repair that portion of the division
          fence which is on the right of each owner as the owners face the fence line while
          standing at the center of their common property line on their ow n property. If the
          owners cannot agree as to the part each shall construct or keep in repair, either of
          them may apply to an associate circuit judge of the county who shall forthwith
          summon three disinterested householders of the township or county to appe ar on the
          premises, giving three days‟ notice to each of the parties of the time and place where
          such viewers shall meet, and such viewers shall, under oath, designate the portion to
          be constructed or kept in repair by each of the parties interested and no tify them in
          writing of the same. Such viewers shall receive twenty-five dollars each per day for
          the time actually employed, which shall be taxed as court costs.


                                                    2
       In April 2012, the court appointed three “disinterested householders”

(Householders) to designate the portions of the fence to be constructed by each

party, along with a cost estimate. The Householders determined that each party

would each be responsible for building and maintaining 1,880 linear feet of

fencing, at a total estimated cost of $14,602.80.

       After the Ewings still failed to build their portion of the fence, Mr.

Ferguson filed a petition with the court to authorize its construction. In the

petition, Mr. Ferguson requested the following: that the court issue an order

authorizing him to construct the Ewings‟ portion of the fence; that the costs be

recorded in each owner‟s deed; that he be granted a defense to trespass,

pursuant to section 272.110, 3 to construct and maintain the fence; and that he

be granted a judgment for the cost of construction chargeable to the Ewings,

along with court costs and attorney fees.

       A hearing was held. In April 2013, the trial court entered judgment in

favor of Mr. Ferguson.            The trial court found that “some portions” of the

Ewings‟ segment of shared fencing were not statutorily compliant. It awarded

Mr. Ferguson $2,000 to bring the Ewings‟ portion of the shared fence within

compliance “by ensuring they insert posts and fasten them to the fence in any

location where fence posts are more than twelve feet apart . . . and ensure fence

and posts are at least four feet high.”           It required both parties to maintain their

3
  Section 272.110 states: “Every person owning a part of a division fence shall keep his or her portion
of the same in good repair according to the requirements of this chapter, and may enter upon any land
lying adjacent thereto for such purpose.”


                                                  3
respective portions of fencing within compliance of section 272.110 in the

future. It assessed the $75 Householders‟ fee as costs to the Ewings and denied

their counterclaim, but it did not address attorney fees.   Mr. Ferguson appeals,

and the Ewings cross-appeal.

                               Standard of Review

      When reviewing a court-tried case, we will affirm the trial court‟s

judgment unless there is no substantial evidence to support it, it is against the

weight of the evidence, or it erroneously declares or applies the law. Tadych v.

Horner, 336 S.W.3d 174, 177 (Mo. App. W.D. 2011). We defer to the trial

court‟s factual determinations because it “is in a better position not only to

judge the credibility of witnesses and the persons directly, but also . . . other

trial intangibles which may not be completely revealed by the record.”        Id.

(internal quotation marks and citation omitted). Evidence is examined “in the

light most favorable to the judgment,” and we “disregard all contrary evidence

and inferences.” Id. Lastly, when setting aside a judgment, we must exercise

caution and only do so when we firmly believe that it is wrong. Id.

                                 Legal Analysis

                             Mr. Ferguson’s Appeal

      Mr. Ferguson contends that this is a matter of first impression because

“Missouri‟s fencing law statutes underwent a major change in 2001, and, to

date, there has been no case law interpreting and applying the same.”        Mr.

Ferguson is correct in this assessment, as there is no existing case law that has

                                        4
interpreted this segment of Chapter 272 since it was amended in 2001. 4 We

review statutory interpretations de novo. Short v. S. Union Co., 372 S.W.3d

520, 532 (Mo. App. W.D. 2012). “The primary rule of statutory construction is

to ascertain the intent of the legislature by construing words used in the statute

in their plain and ordinary meaning[,] unless the legislature has defined

particular words or phrases.” Id. (internal citation omitted). For terms defined

within statutes, “a court must give effect to the legislature‟s definition.” Id.

(internal quotation marks and citation omitted).                     A statutory definition

“supercedes the commonly accepted dictionary or judicial definition and is

binding on the courts.” Id. (internal quotation marks and citation omitted).

       Mr. Ferguson raises two points. In the first point, he argues that the trial

court erred in awarding him $2,000 to repair the Ewings‟ portion of the shared

fence because the court violated Missouri law by granting equitable relief that

was neither (1) specifically requested in his pleadings, nor (2) tried by the

parties‟ express or implied consent. He claims that his petition requested that


4
  Before 2001, two fencing laws would potentially apply to adjoining landowners who had not
mutually agreed on costs for the construction and maintenance of partition fencing, depending on
whether the county was classified as “local option” or “non -local option.” See Craig R. Heidemann,
Fencing Laws in Missouri: Confusion, Conflict, Ambiguity an d a Need for Change, 63 M O . L. R EV .
537, 548-49 (Spring 1998).

In 2001, Missouri‟s fencing laws (found in Chapter 272) were changed. Now, there are “general
fence law” counties, such as Callaway, and “local option fence law” counties. The general law is
contained within sections 272.010 to 272.200, and the local option law is found in sections 272.210
to 272.370. See generally Steven F. Matthews, Missouri Fencing and Boundary Laws, University of
Missouri Extension, http://extension.missouri.edu/p/G810 (di scussing the history of Missouri‟s
fencing laws) (revised May 2008; accessed July 21, 2014). See also Joe Koenen, Missouri’s Fencing
and Boundary Laws: Frequently Asked Questions , University of Missouri Extension,
http://extension.missouri.edu/p/G811 (June 2011; accessed July 21, 2014). The general fence law was
again updated in 2010. Id. at 1.

                                                5
the court issue him an order to build the portion of the shared fence that the

Ewings had failed to maintain, and not that he be awarded money to repair it.

As the prevailing party, he contends that he should have instead been awarded

$7,301.40 (half of the Householders‟ $14,602.80 estimate) to construct the

Ewings‟ portion of the fence, “with said costs constituting „a lien on [the

Ewings‟] real estate.‟”

      Based on a review of relevant sections of Chapter 272—including

sections 272.020, 272.060, and 272.070—by their plain and ordinary meaning,

we are not convinced that a “lawful” fence is necessarily a “new” fence.

Moreover, an aggrieved party does not always receive the judgment for which

he specifically prays.     Instead, the remedy of equitable relief must be

“adequate,” based on “the particular facts and circumstances in each case.”

Easley v. Easley, 333 S.W.2d 80, 86 (Mo. 1960). In its judgment, the trial court

specifically stated that the award of $2,000 should be used to bring the Ewings‟

portion of the shared fence in compliance by adding various fence posts.

Although substantially less than the amount Mr. Ferguson requested, it would

likely enable him to render the existing fence statutorily compliant. Thus, Mr.

Ferguson‟s first point is denied.

      In the second point, Mr. Ferguson argues that the trial court erred in

failing to award him reasonable attorney fees “because legitimate public policy

rationales support the mandatory award of attorney‟s fees and court costs given

to a prevailing party under [Section] 272.070.” Section 272.070 states:

                                       6
      If either party fails to construct or repair his or her portion of the
      fence in accordance with the provisions of section 272.060 within a
      reasonable time, the other may petition the associate circuit court
      of the county to authorize the petitioner to build or repair the fence
      in a manner to be directed by the court. If the court authorizes
      such action, the petitioner shall be given a judgment for that
      portion of the total cost of the fence which is chargeable as the
      other party‟s portion of the fence, court costs and reasonable
      attorney’s fees. Any such judgment shall be a lien on the real
      estate of the party against whom the judgment may be given.

(Emphases added). Missouri courts generally follow “the American Rule that

each party bears the burden of their own attorney‟s fees.” Wally & Co., L.C. v.

Briarcliff Dev. Co., 371 S.W.3d 880, 885 n.4 (Mo. App. W.D. 2012).             One

exception is where a statute specifically authorizes the awarding of attorney

fees to the prevailing party. Id

      Section 272.070 specifically authorizes the awarding of attorney fees and

court costs to the prevailing party.    Furthermore, this directive includes the

word, “shall,” which many courts have interpreted to be defined as mandatory.

U.S. Cent. Underwriters Agency, Inc. v. Hutchings, 952 S.W.2d 723, 725 (Mo.

App. E.D. 1997). But see Frye v. Levy, No. SC 93471, 2014 WL 3107299, at

*4-5 (Mo. banc July 8, 2014) (discussing the perameters of the definition of

“shall” to sometimes be interpreted as “may,” depending on the language

contained in a given statute).     Here, the statutory language is unambiguous.

Thus, the trial court erred in failing to award attorney fees to Mr. Ferguson as

the prevailing party. Mr. Ferguson‟s second point is granted.




                                         7
                           The Ewings’ Cross-Appeal

       The Ewings raise two points. In the first point, they argue that the trial

court erred in awarding Mr. Ferguson $2,000 to repair the fence because the

court, Mr. Ferguson, and the Householders all failed to comply with current

law.   They contend that a judgment under section 272.070 may only be

obtained by fulfilling “all the statutory conditions” of section 272.060, and that

the judgment should not stand because “they followed the procedures under the

repealed 272.060 and not the statute then in effect.”        The Ewings further

contend that the trial court followed the “wrong procedure” in appointing the

Householders, based on a pre-2001 interpretation of section 272.060.         They

claim that the pre-2001 version of the statute “provided a process for an

individual who had already built part of an enclosure fence to be reimbursed

half the costs,” and that the Householder‟s role was that of an appraiser of the

value of the existing fence. They further claim that, under section 272.070, Mr.

Feguson would only be authorized to construct or repair their portion of the

fence if the Ewings failed to act within a resonable time after receiving notice,

and that they were not provided such notice.

       Section 272.060, in its current form, requires the following: (1) written

notice from the party seeking the construction or repairing of fencing to the

adjoining landowner; (2) a meeting between the landowners to determine

segments that each will construct or repair; (3) in the event that an agreement

cannot be reached, an application to an associate circuit judge for assistance in

                                        8
obtaining a resolution via the appointment of three Householders; (4) after

three days‟ notice to the parties, an assessment by the Householders to

determine segments of fencing and cost estimates for which each landowner

will be responsible; and (5) written notification of these determinations to the

court and each landowner. § 272.060.1.

      Here, Mr. Ferguson contacted the Ewings in writing about the fence.

After more than two months, he received no response. He later petitioned the

trial court to appoint three Householders. Both Mr. Ferguson and the Ewings

suggested Householder candidates to the court. Two of the three appointed

Householders    were    suggested    by   the   Ewings.    Once    appointed,   the

Householders made their determinations, which they provided in writing to the

parties and the court. Nothing in the record indicates that the Ewings were not

provided adequate notice of any of these events. The Ewings‟ apparent refusal

to respond to Mr. Ferguson‟s written letter with an in-person meeting does not

lead to a determination of a lack of compliance with the statute; certainly, the

legislature did not intend for the terms of this statute to automatically fail to be

satisfied for a lack of a meeting between the parties when one apparently

refuses to meet with the other. Thus, the Ewings have failed to establish that

the current requirements of section 272.060 were not followed. Accordingly,

the trial court did not err in determining that Mr. Ferguson was authorized to

repair the fence, pursuant to section 272.070. The Ewings‟ first point is denied.



                                          9
        In the second point, the Ewings argue that the trial court erred in its

apportionment of responsibility for fence repair because the determination was

based on the court‟s adoption of “the erroneous division of the shared boundary

fence    made      by    the    [H]ouseholders.”         The     Ewings      contend      that    the

Householders‟ report was “defective” because it was based on incorrect

boundary lines 5 and did not clearly stipulate the portions for which each party

would be responsible.           They claim that the total distance of linear feet of

required fencing was based on figures that preceded the sale of a portion of

their property. They assert that the correct figure attributed to them should not

have been 1,880 feet. Due to this alleged inaccuracy, the Ewings argue that,

were this judgment to stand, they would be required to repair and maintain

fencing on property they no longer own. They suggest that the proper remedy

would be to reverse the trial court‟s judgment and remand the case so that they

may be granted an “opportunity to bring the correct portion of the shared fence

into compliance with the statute.”

        In the judgment, the trial court determined that each party would be

responsible for the one-half of the shared fence line to their right if they were

standing in the center of their common property line on their own property, and

that each adjoining landowner “would be responsible for the maintenance of

that half of the fence which is to their right.” This directive is based on current

5
  The Ewings claim that “the north-south boundary line was no longer a shared boundary between the
parties at the time of the Householders‟ [r]eport because [they] had sold their property in section 21
to a third person who was not a party to the case.”

                                                 10
property ownership, and it clearly stipulates the segments of fencing for which

each owner is responsible. Moreover, the trial court awarded Mr. Ferguson

$2,000 to repair the fence, instead of $7,301.40 for half of the Householders‟

estimated construction costs for a new fence. This shows that the amount of

the award was not based solely on the Householders‟ estimate.          For these

reasons, the fencing directive was clear and appropriate. Thus, the Ewings‟

second point is denied.

                                    Conclusion

       For the above reasons, we affirm the trial court‟s award of $2,000 to Mr.

Ferguson and remand for a determination of reasonable attorney fees.




                                             /s/THOMAS H. NEWTON
                                             Thomas H. Newton, Judge


Witt, P.J., and Ellis, J. concur.




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