Court of Appeals of Missouri, Southern District, Second Division
U.S. BANK, N.A., f/k/a BANK OF AMERICA, N.A., and ARVEST BANK, Plaintiffs/Lienholders-Respondents,
DOUGLAS L. COVERDELL, and COVERDELL ENTERPRISES, INC., Defendants-Appellants, and COMMUNITY BANK OF THE OZARKS, INC., Defendant, and HCW DEVELOPMENT COMPANY, LLC, HCW PRIVATE DEVELOPMENT, LLC, and HCW NORTH, LLC, Defendants-Respondents, and CITY OF BRANSON, MISSOURI, and THE EMPIRE DISTRICT ELECTRIC COMPANY, Intervenors-Respondents
FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Timothy W.
Perigo, Circuit Judge.
W. COCKERHAM, St. Louis, MO, and EDWARD D. ROBERTSON JR,
Jefferson, City, MO, for Appellant Douglas Coverdell.
S. GENISIO, Joplin, MO, for Appellant Coverdell, Enterprises,
ELIZABETH HOLDENER, St. Louis, MO, for Respondents U.S. Bank
and City of Branson.
L. SAUERWEIN, Clayton, MO, for Respondent U.S. Bank.
RODGERS, Springfield, MO, for Respondent Arvest Bank.
J. WELSH, St. Louis, MO, for Respondents HCW Development, HCW
Private, and HCW North.
HOLSTEIN, and JAMES E. MEADOWS, Springfield, MO, for
Respondent City of Branson.
B. CHRISTENSEN, Springfield, MO, for Respondent Empire
SHEFFIELD, P.J., GARY W. LYNCH, J. - CONCURS.
AND REMANDED WITH DIRECTIONS
consolidated opinion addresses four separate appeals stemming
from summary judgments granted in a lawsuit filed in 2011 to
quiet title to real estate located in the Branson Landing
subdivision (" the 2011 case" ). The appeals
are brought by
Defendants Douglas L. Coverdell (" Coverdell" ) and
Coverdell Enterprises, Inc. (" CEI" )
(collectively, " Appellants" ), and these appeals
are related to two other appeals brought by Appellants
arising out of another lawsuit filed in 2003 (" the 2003
case" ). That case also involved land located in the
Branson Landing subdivision, and our opinion deciding those
consolidated appeals is being issued this same date.
See Empire District Electric Company v.
Coverdell, __ S.W.3d __, Nos. SD32806 and SD32807 slip
op., 484 S.W.3d 1, (Mo. App. S.D. Oct. 30, 2015) ("
Empire II" ). We hold in Empire
II that the trial court committed prejudicial error when
it dismissed with prejudice Coverdell's adverse
possession claim in the 2003 case. As a result, that opinion
reverses three summary judgments and remands the case for
further proceedings consistent with the opinion. Id.
reverse three summary judgments entered in this case, but we
do so for a different reason. The reason the summary
judgments entered in the instant case must be reversed is
that this case should not have proceeded while the 2003 case
remained unresolved. We therefore remand the matter with a
direction that the trial court stay these proceedings pending
a final resolution of the 2003 case.
of Claims and Challenged Judgments
Arvest Bank (" Arvest" ) and U.S. Bank
(collectively, " Lienholders" ); Defendants HCW
Development Company, LLC (" HCW Development" ), HCW
Private Development, LLC (" HCW Private" ), and HCW
North, LLC (" HCW North" and these defendants,
collectively, " HCW Entities" ); and two
intervenors, the City of Branson (" Branson" ) and
the Empire District Electric Company (" Empire" ),
have all filed briefs and will be referred to collectively as
" Respondents." 
Lienholders filed this case after the 2010 judgment was
entered in the 2003 case and while the appeal of that
judgment was pending before this court. See
Empire I, 344 S.W.3d at 844. After multiple
amendments had been made to the petition in the instant case,
U.S. Bank ultimately sought to quiet title, based upon deeds
or, alternatively, adverse possession, in Branson as to Lots
1 and 4 and in Empire as to Lots 3 and 6. U.S. Bank also
sought declarations, inter alia, that: (1) the lease
by Branson as to Lot 6 and the sublease by HCW Private as to
land we will refer to as " Retail Tract" were
valid;  (2) U.S. Bank possessed " a valid
leasehold deed of trust" with " a first lien
position" encumbering Retail Tract; and (3) Appellants
had no rights to " any part of Lots 1, 3, 4 or
6[.]"  U.S. Bank alleged that its deed of
trust (" U.S. Bank deed of trust" ) encumbering
Retail Tract was used to secure a $90,000,000 indebtedness.
claim, based upon a chain of deeds, sought to have title
quieted in Branson as to Lot 1 and in Empire as to Lot 6. It
also sought declarations, inter alia, that: (1)
Branson had a valid lease of Lot 6; (2) HCW Private had a
valid sublease as to Retail Tract, (3) HCW North had valid
leases as to two tracts in Lot 1 that we will refer to as
" Northwest Tracts" ; (4) Arvest had a valid first
lien as to Northwest Tracts; and (5) Appellants had no right
to " any part of Lots 1 and 6[.]"  Arvest
asserted in its statement of uncontroverted facts that
Arvest's deed of trust (" Arvest deed of trust"
) encumbering Northwest Tracts was executed to secure a debt
" in the maximum amount of $3,956,250.00[.]"
cross-claim sought to quiet title in itself as to all of Lots
1 and 4, and in Empire as to all of Lots 2, 3, and 6 based
upon deeds, or alternatively, adverse possession. Branson
also sought a decree, inter alia, that Appellants
" have no right, title or interest in and to or right of
possession to any of the Branson Landing[.]" HCW
Entities and Empire answered Lienholders' claims, but
they made no additional, specific claims for relief.
asserted " CLAIMS AGAINST PLAINTIFF AND OTHER
DEFENDANTS" as a part of their response to U.S.
Bank's amended petition. These claims sought to quiet
title in Appellants as to " Property A and Property
B" based upon a chain of deeds, and, in the alternative,
to quiet title to these same properties in Coverdell based
possession (the alternative claim will hereinafter be
referred to as " Appellants' claim" ).
Appellants also sought a declaration, inter alia,
that Empire, Branson, and Lienholders had no rights in
Property A and Property B. We observe -- without so holding -
- that Property A may overlap part of the peninsula and an
area south of the peninsula in Branson Landing, and Property
B appears to be a smaller portion of Property A, which
Coverdell allegedly conveyed to CEI.
instant appeals challenge the following three judgments,
which we will collectively refer to as " the summary
judgments" : (1) a June 2013 judgment (" U.S.
Bank's judgment" ) certifies as final a September
2012 summary judgment entered in favor of U.S. Bank ("
U.S. Bank's interlocutory judgment" ) declaring,
inter alia, that: (a) title is quieted in Branson as
to the parts of Lots 1 and 4, and in Empire as to the parts
of Lots 3 and 6, each of which are described in Retail Tract;
(b) HCW Private has a valid lease in Retail Tract; (c) U.S.
Bank deed of trust is valid and is the first lien; and (d)
Appellants have no " right, title or interest, in and
to, or right of possession of" Retail
Tract; (2) an August 2, 2013 summary
judgment on Branson's motion (" Branson's
judgment" ) that, inter alia : (a) quieted
title in favor of Branson as to specific portions of Lot 1
described as " The Western Peninsula" ("
Western Peninsula" ) and " Park Addition[,]"
and in favor of Empire as to specific portions of Lots 2 and
6 described as the " Branson Town Company Tract"
(" Branson Town" ); (b) denied any right of
Appellants in Lots 1, 2, and 6, or of " Western
Peninsula, Park Addition, [Branson Town and] Eastern
Peninsula [sic]" ; (c) dismissed with prejudice
Appellants' " Amended Claim" for "
fail[ure] to state a claim upon which relief can be
granted" ; and (d) denied dismissal of the 2011
case.; and (3) an August 5, 2013 summary
judgment in favor of Arvest (" Arvest's
judgment" ) that, inter alia : (a) quieted
title in favor of Branson as to Northwest Tracts, and denied
any right by Appellants to these parts of Lot 1; and (b)
dissolved pertinent notices of lis pendens.
Regarding the Claims and Judgments Entered in the 2003 Case
After the Remand Ordered in Empire I
successfully intervened in the 2003 case after our remand in
Empire I, claiming that they held separate deeds of
trust that secured financing for lessees -- $90,000,000 as to
U.S. Bank's interest, and $3,956,250 as to Arvest's
interest. Empire II at 3. U.S. Bank's
cross-claim sought to quiet title in Branson as " to all
of Lots 1 and 4" and in Empire as " to all of Lots
3 and 6[.]" Id. at 10. It further sought a
declaration that Appellants had no right or interest as to
" Lots 1, 3, 4 or 6[.]" Id. Arvest's
cross-claim against Appellants sought to quiet title in
Branson as " to all
of Lot 1" and in Empire as to " all of Lot
6[,]" id. at 9, as well as a declaration that
Appellants had no interest in this land. Id. Branson
claimed " that Empire owned Lots 2, 3, and 6; that
Branson owned Lots 1 and 4; and Branson leased the lots owned
by Empire." Id. at 3. Empire claimed ownership
of what we refer to as " Eastern Peninsula" and
" Branson Town[.]" Id. at 2-3.
Appellants' answers and separate cross-claims sought
decrees that Coverdell owned " Property A" by
either deed or adverse possession and that he had conveyed a
portion of that land, identified as " Property
B[,]" to CEI. The legal descriptions used for Properties
A and B in the 2003 case and in the instant case appear to be
identical. See id. at 13 n.12, and 54.
Bank then received a judgment in the 2003 case that did not
expressly decree quiet title in Branson or Empire, but it did
conclude that Branson owned a part of Lot 1 and that Empire
owned a part of Lot 6, both being in Retail Tract.
Id. at 24-25. We refer to this smaller portion of
Retail Tract as " Retail North." 
Id. at 25. U.S. Bank's 2003 case judgment
declared U.S. Bank's deed of trust to be a valid, "
first priority" encumbrance on Retail North, and it
denied Appellants any interest in Retail North. Id.
received a judgment in the 2003 case that quieted title in
Empire as to the parts of Lot 2 known as Eastern Peninsula
and Branson Town, and it quieted title in Branson as to the
parts of Lot 1 known as Western Peninsula and Park
Addition. Id. at 26. Branson's
2003 case judgment denied Appellants any right or interest in
" 'Western Peninsula, Eastern Peninsula, Park
Addition[, and Branson Town] now known as Lots 1, 2 and
6[.]'" Id. at 26.
received a judgment in the 2003 case that quieted title in
Branson as to Northwest Tracts in Lot 1, declared leases and
subleases for HCW Entities valid, and declared Arvest's
deed of trust to be the lien of first priority. Id.
at 23-24. Arvest's 2003 case judgment also declared that
Appellants had no right or interest in Northwest Tracts.
Id. at 24.
Procedural History in the Instant Case
our related Empire II opinion, we again focus on the
procedural history of this case relevant to Appellants'
points on appeal, including various claims asserted by the
the original petition was served, Appellants moved to dismiss
the case in August 2011, based on an assertion that
Lienholders lacked standing or, alternatively, that the case
be stayed based on litigation involving " the
property" being addressed in the 2003 case ("
Appellants' first dismissal motion" ).
Appellants' motion asserted, inter alia, that
filed the instant case " seeking to quiet title to
property that [they] admit is already the subject of another
quiet title suit that has been in litigation in this [c]ourt
for more than eight years," and then relied on the
principle that a second action may be stayed where a prior
pending action would adequately determine the parties'
rights, citing Brink v. Kansas City, 358 Mo. 845,
217 S.W.2d 507, 510 (Mo. banc 1949). It does not appear from
the docket that Arvest responded to Appellants' first
dismissal motion. U.S. Bank's position was that it had
standing and that the 2003 case would " not determine
[U.S. Bank's] rights to its property because that case
concerns only property against which Coverdell has asserted a
claim, and it is a different property." Appellants'
motion was denied in March 2012.
that same month, Appellants filed another motion to dismiss
or stay the case (" Appellants' second dismissal
motion" ). This motion also cited Brink and
added that Lienholders had intervened in the 2003 case. U.S.
Bank's response suggested that in the 2003 case,
Appellants claimed " part of the land encumbered
by" the U.S. Bank deed of trust and, in the instant
case, U.S. Bank made " claims concerning parcels in
which [Appellants] have no claim."
adopted U.S. Bank's response, and it also filed its own
suggestions, adding that the pleadings in the 2003 case only
dealt with " the eastern half of the peninsula" and
that the land in the 2011 case " lies entirely in the
west half of the peninsula" and south of it. HCW
Entities moved to strike Appellants' second motion to
dismiss on the ground that Appellants had not been granted
leave to file a second motion.
6, 2012, U.S. Bank filed its motion for summary judgment
based on Count I of its amended petition addressing Lots 1,
3, 4, and 6; a statement of uncontroverted facts; and a
memorandum of law. At a June 8, 2012 hearing, the trial court
informed the parties that the instant case was to be "
litigated first" before the 2003 case, and
Appellants' second dismissal motion was treated as having
15, 2012, Appellants filed an answer to Arvest's amended
petition that presented no separate counter-claim. On July
26, 2012, Appellants filed a response to U.S. Bank's
summary judgment motion asserting that there was " a
genuine issue of material fact[,]" requesting additional
time to complete discovery, and including an affidavit of
counsel representing Appellants. None of these filings
included a response by Appellants to the specifically
numbered paragraphs of uncontroverted facts asserted in U.S.
Bank's summary judgment motion.
August 2012, Appellants filed a response to U.S. Bank's
amended petition that included, inter alia,
Appellants' claim. At a hearing on September 14, 2012,
the trial court sustained Branson's motion to require
Appellants to make their claims more definite and certain,
granted Appellants " 20 days . . . to file sufficient
facts[,]" and took U.S. Bank's summary judgment
motion under advisement.
September 19, 2012, the trial court entered U.S. Bank's
interlocutory judgment that, in addition to making the
decrees already summarized, found that " Coverdell's
claims to property south of the base of the Peninsula, as
that phrase has been used by the parties, is derived from a
quit claim deed from W.F. Hoke and Vera Hoke to
[Tori]" that set " out a legal description for more
property than the Hokes received from [their predecessors in
title]; approximately twenty seven acres more." The
subsequent deed from Tori to Coverdell was found to "
also [describe] more property than [Tori] could
have held title to." The trial court also found that
Appellants failed to file a response to U.S. Bank's
summary judgment motion that complied with Rule 74.04. U.S.
Bank's interlocutory judgment did not dispose of all
claims in the case, and it was not designated as final even
in regard to the claims it did address.
October 3, 2012, Appellants filed an " AMENDED CLAIM
AGAINST PLAINTIFF AND OTHER DEFENDANTS TO QUIET TITLE AND
ADVERSE POSSESSION" that added new factual allegations
to Appellants' claim, but retained Properties A and B as
the disputed properties. At the end of October 2012, Branson
moved for summary judgment on its cross-claim, specifically
seeking to quiet title in itself as to Lot 1 and in Empire as
to Lots 2 and 6, along with a judgment in Branson's favor
on Appellants' claim. Branson also filed a statement of
specifically numbered uncontroverted facts, along with
suggestions supporting its motion.
November 21, 2012, Arvest filed its motion for summary
judgment on Count I of its amended petition concerning Lots 1
and 6, a statement of uncontroverted facts, and supporting
suggestions. HCW Entities joined in this motion.
January 17, 2013, Coverdell filed motions to strike, or,
alternatively, that he be granted additional time to respond
to the motions for summary judgment. On this same date,
Coverdell moved to set aside U.S. Bank's interlocutory
judgment, or, alternatively, to be granted additional time
for conducting discovery and preparing a response to U.S.
Bank's summary judgment motion. On June 14, 2013,
Coverdell filed a similar motion that sought yet more time to
respond to the summary judgment motions. That same day,
Coverdell also moved to dismiss " the 2011 Case in its
entirety, including all parties and claims," based upon
" the doctrine of mootness[.]" Coverdell argued
that " the parties, issues and subject matter are
identical in the 2003 and 2011 Cases and the 2003 Case has
already been fully resolved by virtue of the May 29, 2013
hearing and the Orders subsequently entered, making any
subsequent ruling by this Court unnecessary, ineffectual and
21, 2013, Coverdell filed responses to the summary judgment
motions that included responses to the uncontroverted facts
set forth in those motions. During a hearing that took place
that same day, the trial court heard argument from the
parties concerning U.S. Bank's motion to certify its
interlocutory judgment as final, the motions for summary
judgment filed by Branson and Arvest, and Coverdell's
assertion that " [p]art of" the property he claimed
had been acquired by the Hokes through adverse possession.
U.S. Bank's judgment certifying its interlocutory
judgment as final was entered by the trial court later that
day, and Appellants timely filed separate notices of appeal.
Branson's and Arvest's judgments were also entered,
and they contained the decrees as described above. Appellants
timely filed separate notices of appeal as to these
Point on Appeal
sole point contends that " any judgment" in the
2011 case favoring Respondents was " void" because
" the trial court lacked authority and jurisdiction to
decide this matter in that Empire, Branson, HCW, U.S. Bank
and Arvest lacked standing as parties in this case[.]"
The point is nearly identical to the one it presented in its
appeal of the 2003 case. Except for record citations,