Boone County, Missouri, Respondent, v. John H. Redden, et al., Defendant, Ann Beasley and Carl Smith, Appellants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Boone County, Missouri, Respondent, v. John H. Redden, et al., Defendant, Ann Beasley and Carl Smith, Appellants. Case Number: WD68724 Handdown Date: 09/09/2008 Appeal From: Circuit Court of Boone County, Hon. Gary M. Oxenhandler, Judge Counsel for Appellant: Jonathan Sternberg Counsel for Respondent: Susan Ford Robertson Opinion Summary: Ann Rae Beasley appeals the trial court's decision entering summary judgment in favor of Boone County. In September 2005, the county filed a petition against numerous landowners with property abutting Howard Redden Road, including Beasley as trustee of the Ann Rae Beasley Revocable Living Trust, seeking to have the road declared public. After unsuccessfully attempting personal service on Beasley several times, the county accomplished service on her by publication. Beasley failed to file an answer to the petition. Eventually, the trial court entered a default judgment against her and entered summary judgment against all defendants in favor of the county, declaring the road to be a public road. DISMISSED. Division Three holds: Having failed to file a motion to set aside the default judgment against her, Beasley may not appeal from the trial court's judgment because she does not bring a claim related to the subject matter jurisdiction of the trial court or the sufficiency of the pleadings.

Citation: Opinion Author: Joseph M. Ellis, Judge Opinion Vote: DISMISSED. Welsh and Dandurand, JJ., concur. Opinion: In September 2005, Boone County filed a petition against numerous landowners with property abutting Howard Redden Road, including Appellant Ann Rae Beasley as trustee of the Ann Rae Beasley Revocable Living Trust, seeking to have Howard Redden Road declared a public road. The County also sought to enjoin two of the landowners from interfering with the public maintenance and use of the road. After unsuccessfully attempting personal service on Appellant several times, the County accomplished service on Appellant by publication. Appellant failed to file an answer to the petition. Subsequently, the County filed a motion for summary judgment. Appellant likewise did not respond to that motion. Eventually, the trial court entered a default judgment against Appellant. The trial court also entered summary judgment against all defendants in favor of the County, declaring Howard Redden Road to be a public road and enjoining Carl Smith from interfering with public use or maintenance on the road. In her sole point on appeal, Appellant claims that the trial court lacked jurisdiction to declare Howard Redden Road a public road without first assessing the amount of just compensation the property owners were entitled to from the County. Appellant contends that entering its judgment prior to establishing just compensation violated the Takings Clause of the Fifth and Fourteenth Amendments to the United States Constitution and the eminent domain provisions of article I, section 26 of the Missouri Constitution. Indeed, Appellant's brief covers 39 pages, including 23 pages of argument on this issue.

But Appellant brings this appeal without having filed a motion to set aside or vacate the default judgment against her. "[A] party may not directly appeal from a default judgment without filing a motion to set aside or vacate the judgment, other than to present questions concerning the trial court's subject matter jurisdiction or the sufficiency of the plaintiff's petition." In re Marriage of Miller & Sumpter, 196 S.W.3d 683, 689 (Mo. App. S.D. 2006). While Appellant claims that her challenge on appeal is to the subject matter jurisdiction of the trial court, Appellant misconstrues the nature of the County's petition and the action taken by the trial court. The County's petition was filed pursuant to the Declaratory Judgment Act, section 527.010, et. seq., asking the court to determine and declare whether Howard Redden Road was public or private. The County maintained that Howard Redden Road was a public road for several reasons, one of which was that it had been rendered public through the provisions of section 228.190. Under section 228.190, "all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads." The trial court ultimately issued summary judgment declaring that, based upon the undisputed facts in the case, Howard Redden Road had been open to and used by the public in excess of ten years and had been regularly maintained by the County since at least 1990 and, therefore, the road had been rendered public by operation of section 228.190. The public easement over the property was established by use and arose by operation of law. Shapiro Bros., Inc. v. Jones-Festus Props., L.L.C., 205 S.W.3d 270, 274 (Mo. E.D. 2006). Thus, contrary to Appellant's assertions, the trial court did nothing to divest her of any property rights, and the court clearly had jurisdiction under the Declaratory Judgment Act to issue a declaration regarding the property rights of the parties. (FN1) What the Appellant really wants is to now be able to challenge the constitutionality of section 228.190. In actuality, her claim has nothing to do with the subject matter jurisdiction of the trial court to enter a declaration as to the parties' existing property rights. Consequently, having failed to file a motion to set aside the default judgment against her, Appellant may not appeal from the trial court's judgment because she does not bring a claim related to the subject matter jurisdiction of the trial court or the sufficiency of the pleadings. In re Marriage of Miller & Sumpter, 196 S.W.3d at 689;

State ex rel. Nixon v. McGee, 213 S.W.3d 730, 732 (Mo. App. W.D. 2007). Appeal dismissed. Footnotes: FN1.Appellant concedes as much in her reply brief, stating: "Ms. Beasley does not challenge whether declaring Howard Redden Road to be a public road was proper . . .." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.