Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Gerald D.
McBeth, Circuit Judge.
S. GENISIO, Joplin, MO, for Appellant Coverdell, Enterprises,
W. COCKERHAM, St. Louis, MO, and EDWARD D. ROBERTSON JR,
Jefferson, City, MO, for Appellant Douglas Coverdell.
B. CHRISTENSEN, Springfield, MO, for Respondent Empire
E. HOLDENER, St. Louis, MO, for Respondents City of Branson
and U.S. Bank.
HOLSTEIN, and JAMES E. MEADOWS, Springfield, MO, for
Respondent City of Branson.
L. SAUERWEIN, Clayton, MO, for Respondent U.S. Bank.
RODGERS, Springfield, MO, for Respondent Arvest Bank.
SHEFFIELD, P.J. - CONCURS, GARY W. LYNCH, J. - CONCURS.
BURRELL, J. -
opinion and our related opinion issued this same date in
U.S. Bank, N.A. v. Coverdell,
__ S.W.3d __, 483 S.W.3d 390, Nos. SD32844, SD32845, SD32934,
SD32935 (Oct 30, 2015), address appeals by defendants Douglas
L. Coverdell (" Coverdell" ) and Coverdell
Enterprises, Inc. (" CEI" ; collectively "
Appellants" ) challenging summary judgments against them
that declared Appellants have no ownership rights in portions
of land abutting Roark Creek and Lake Taneycomo in the
Branson Landing subdivision. This opinion addresses
Appellants' appeals related to a 2003 lawsuit (" the
2003 case" ) filed by The Empire District Electric
Company (" Empire" ). Our companion U.S.
Bank opinion addresses Appellants' appeals related
to a subsequent lawsuit filed in 2011 (" the 2011
the second time that the 2003 case has been before us. Based
on a rare finding of plain error in a civil case, we reversed
a 2010 judgment quieting title to land in Appellants ("
the 2010 judgment" ), and we remanded the case.
Empire Dist. Elec. Co. v. Coverdell, 344 S.W.3d 842,
844 (Mo. App. S.D. 2011) (Empire I). Our general
remand in that opinion expressly permitted a defendant, the
City of Branson (" Branson" ) " to amend its
pleadings and [it instructed the trial court] to freely
permit the amendment of pleadings of both Empire and
[Appellants] should they choose to do so without prejudice to
the rights of third parties to intervene in the litigation as
the rules of civil procedure may provide." Id.
following claims asserted after that remand are pertinent to
our review: Empire claimed in its second amended petition
(" the amended petition" ) that: (1) based upon
deeds, or alternatively adverse possession, it owned two
properties which, as discussed below, we will reference as
" Eastern Peninsula" and " Branson Town"
; (2) Branson and two intervenor banks may have some security
or other interest in these properties, and (3) the other
named defendants, including Appellants, had no interest in
these properties. Branson's subsequent cross-claim
was phrased in terms of land within the Branson Landing
development, and it alleged, based upon deeds or,
alternatively, adverse possession, that Empire owned Lots 2,
3, and 6; Branson owned Lots 1 and 4; and Branson leased the
lots owned by Empire. The two intervenor banks, Arvest Bank
(" Arvest" ) and U.S. Bank (collectively "
separately claimed that they each held a deed of trust that
secured financing for lessees -- originally $90,000,000 as to
U.S. Bank's interest, and $3,956,250 as to Arvest's
interest. These interests, taken together, encumbered part of
Lots 1, 3, 4, and 6. Empire, Branson, U.S. Bank, and Arvest
(collectively " Respondents" ) claimed that
Appellants had no interest in the properties identified by
claimed that: Coverdell received " Property A" via
a warranty deed, which as we understand it, may be regarded
by Coverdell as overlapping part of the peninsula and an area
south of the peninsula in Branson Landing; Coverdell then
conveyed a smaller portion of Property A (described as "
Property B" ) to CEI; and in the alternative, Coverdell
adversely possessed both Properties A and B.
merit in one of Coverdell's points, we reverse the
summary judgments at issue in this opinion and remand the
matter for further proceedings limited solely to
Coverdell's claim that he acquired Properties A and B (as
described in Appellants' answer to Empire's second
amended petition and in their responses to Branson's and
U.S. Bank's cross-claims (" Appellants'
reasserted claims" )) by adverse possession. If, on
remand, that claim is found to be meritorious, the trial
court is instructed to decide the extent to which such
adverse possession precludes quieting title in favor of
Branson and Empire as to any part of any Branson Landing
sole point contends that " any judgment" favoring
Empire, Branson, Lienholders, and a non-party CEI identifies
as " HCW"  was " void" because "
the trial court lacked authority and jurisdiction to decide
this matter" in that the entities " lacked standing
as parties in this case[.]"
brings four points that claim the trial court erred: (1)
" in sustaining all respondents' motions for summary
judgment on grounds that Coverdell failed to timely respond
because" discovery under the direction of a special
master had not been completed; (2) " in rendering any
judgment in this case because" it did not " permit
an indispensable party to intervene" ; (3) " in
dismissing Coverdell's Count I" stating " a
cause of action in quiet title against Empire" when
Coverdell had a general warranty deed to the property in
question and Empire had failed to record a previous dismissal
with prejudice of the grantor's suit against Empire and
Branson " as required by section 511.320"
; and (4) " in dismissing Count II
of Coverdell's claim" for adverse possession "
judicata did not apply and" his " claim
properly set out all the elements of an adverse possession
merit only in Coverdell's contention that his claim for
adverse possession was wrongly dismissed, we reverse the
following summary judgments identified by title, date, and
the movant for summary judgment: (1) " JUDGMENT" on
June 4, 2013 upon Arvest's motion (" Arvest's
judgment" ); (2) " AMENDED JUDGMENT" on June
4, 2013 upon U.S. Bank's motion (" U.S. Bank's
judgment" ); and (3) " AMENDED JUDGMENT" on
June 11, 2013 upon Branson's motion (" Branson's
judgment" ). We will refer collectively to these
judgments as " the summary judgments."
we proceed to an analysis of Appellants' points, we need
to address multiple motions taken with the case. Coverdell
asks this court to strike Lienholders as parties because they
lack standing and, consistent with our analysis of standing
infra, we deny that request.
move for a dismissal of CEI's appeal on the grounds that:
CEI is not an aggrieved party, the legal file violates Rule
81.12(a)-(c), and CEI's brief violates Rule 84.04(c),(d)
and (e). Branson, Arvest, and Empire all seek the dismissal
of Coverdell's appeal based upon arguments that the legal
file violates Rule 81.12(a)-(c) and his brief violates Rule
84.04(c) and (e).
Arvest, and U.S. Bank move to strike an affidavit executed by
Terry Dody in November 2013 (" the Dody affidavit"
) that was included in Coverdell's appendix to his reply
brief because it violates the requirements of Rules 81.12 and
84.04 governing the record on appeal. Finally, Branson and
Arvest request sanctions against Coverdell ranging from
dismissal of his appeal to other relief " deem[ed] just
and appropriate" on the grounds that his response to the
motion to strike the Dody affidavit violated Rules
55.03, 84.01(a), and
84.19 by being untimely, including additional documents not
contained in the record, and " misrepresent[ing] the
contents of the documentation[.]" 
various motions filed by Respondents rightly identify
significant violations of Rule 84 that have made it extremely
difficult for this court to analyze and resolve
Appellants' error claims. Nonetheless, our preference is
to decide cases on their merits whenever possible, and we
choose to do so here. See Comp & Soft, Inc. v.
AT & T Corp., 252 S.W.3d 189, 194 (Mo. App. E.D. 2008).
The Dody affidavit, however, executed after the notices of
appeal were filed in July 2013, is hereby stricken as
requested by Branson, Arvest, and U.S. Bank because it was
not a part of the record before the trial court. See
Sleater v. Sleater, 42 S.W.3d 821, 822 n.1 (Mo. App.
E.D. 2001). Respondents' other motions are denied.
Appellants' points challenge procedural determinations,
not whether Respondents were entitled to their summary
judgments as a matter of law based upon the uncontroverted
material facts presented by Lienholders and
Branson. As a result, we relate the portions of
the procedural history necessary to provide an understanding
of Appellants' complaints.
the 2010 judgment was entered, Branson had successfully moved
" to sever all the issues relating to the western half
of the peninsula" located at the convergence of Roark
Creek and Lake Taneycomo. A bench trial was held concerning
this portion of real estate, and Branson received a judgment
in 2004 (" the 2004 judgment" ) that quieted title
in its favor " 'as to the western portion' of
the peninsula[.]" Empire I, 344 S.W.3d at
847-48. That judgment was not appealed. Id. at 848.
This left " the eastern portion of the property alleged
in [Empire's p]etition" to be tried at a later date.
Id. at 844, 847-48. After the 2004 judgment was
entered, Empire dismissed its petition without prejudice.
Id. at 848. That dismissal did not end the lawsuit
because Appellants' claims from their " Answer and
Counterclaim" remained to be decided. Id. For
some reason not readily apparent, Branson was no longer being
included in notices sent by
the other parties when various pleadings were filed, and it
was not an " active participant" in the 2010 jury
trial on Appellants' counterclaims that resulted in the
2010 judgment. Id. Indeed, " [o]nly Empire and
[Appellants] were active participants in this trial."
the 2010 trial between Empire and Appellants, Appellants'
counsel made statements that the trial was about the "
'east side of the peninsula[,]'" which had
nothing to do with Branson's ownership claims.
Id. at 851-52. We held in Empire I that
these statements by Appellants' counsel "
constituted judicial admissions." Id. at 852.
" After hearing evidence and argument, the jury returned
a verdict in favor of [Appellants]." Id. at
848. Despite the limited area of land Appellants' counsel
said was at issue during the trial, the judgment that
purported to implement the jury's verdict appeared to
address more than just the eastern portion of the peninsula;
it also " appear[ed] to include a much larger tract of
real property adjacent to the south boundary of the
peninsula." Id. at 848-49.
also successfully argued in Empire I that " the
2010 [j]udgment divested Branson of its rights in certain
property awarded to [Coverdell,]" id. at 850,
and the erroneous judgment also possibly affected the rights
of third parties. Id. at 852. We found that the
plain error that produced the 2010 judgment " affected
substantial rights of Branson as party to the
litigation[,]" and the nature of the error made it
" impossible to determine the effect Branson's lack
of active involvement in the [post-2004] litigation may have
had on Empire and the way it tried its case."
Id. at 852-53. As a result, " justice and the
requirement of a fair trial for all parties require[d] the
reversal of the entirety of the  judgment and remand of
the cause to the trial court for further proceedings."
[a] general remand leaves all issues not conclusively decided
open for consideration at the new trial. Butcher v.
Main, 426 S.W.2d 356, 358 (Mo. 1968). At retrial
following a general remand, new evidence may be produced.
Id. If the additional evidence introduced at the
retrial presents a different case from that presented at the
original trial to the appellate court, the circuit court
" will be bound by the prior decision only so far as the
principles of law then declared are applicable to the new
state of facts." Murphy [ v.
Barron ], 286 Mo. 390, 228 S.W. [492,] 495 [(Mo.
1920)]. Moreover, a mandate is controlling only as to issues
addressed therein; a lower court is free to act as to other
Smith v. Brown & Williamson Tobacco Corp., 410
S.W.3d 623, 634 (Mo. banc 2013).
our general remand, Arvest intervened in January 2012, based
upon a December 2005 deed of trust it acquired from Solutions
Bank (" Arvest deed of trust" ) that secured a note
for $3,956,250 to be paid by HCW North. Arvest also asserted
that HCW North had subleased from HCW Development certain
property included within the 2010 Judgment, and it claimed
that HCW Development had leased this same property from
Branson. After Empire filed an amended petition in April
2012, Arvest answered, and it was then granted leave to file
a cross-claim. This cross-claim sought judgment, inter
alia, quieting title in Branson as to " all of Lot
1" and in Empire as to " all of Lot 6[,]"
subject to the relevant leasehold interests of Branson, HCW
Development, HCW North, and the relevant lien of Arvest. The
cross-claim also asked that the judgment
deny any interest in these lots to Coverdell and CEI.
Bank's basis for intervention rested upon a November 2006
deed of trust executed by HCW Development and HCW Private as
security for HCW Private's payment of a note for
$90,000,000 (" U.S. Bank deed of trust" ). U.S.
Bank's subsequent answer to the amended petition
included, inter alia , a counterclaim and
cross-claim asserting that it had a substantial interest in
Branson Landing property lying south of the peninsula as the
holder of a leasehold deed of trust. This claim sought, among
other things, that title be quieted in Branson " to all
of Lots 1 and 4" and in Empire " to all of Lots 3
and 6" ; that HCW Private be decreed to have a leasehold
estate from Branson as to specifically described portions of
Lots 1, 3, 4 and 6; that U.S. Bank have a leasehold deed of
trust in the same property as that for HCW Private; and that
Coverdell and CEI have no rights as to " any part of
Lots 1, 3, 4 or 6[.]"
answer to the amended petition included a cross-claim
seeking, among other things, quiet title in itself to all of
Lots 1 and 4, and title in Empire to all of Lots 2, 3, and 6,
along with a decree that Coverdell and CEI have no interest
in " or right of possession to any of the Branson
April 2012, Appellants jointly filed a " CLAIM TO QUIET
TITLE OR, IN THE ALTERNATIVE, COUNTERCLAIM AND CROSS CLAIMS
AGAINST PLAINTIFF AND OTHER DEFENDANTS" that presented
six counts. The first two are relevant to this appeal, and we
will refer to them collectively as " Appellants'
claims."  Count I sought " [quiet] title
to Property A and Property B in the name of [Coverdell] and
[CEI]" based upon Appellants' deeds and alleged
judicial admissions by Branson's counsel regarding title
held by Coverdell's predecessor and the legal description
of that property (" Coverdell's claim for quiet
title" ). Appellants did not specifically identify in
this pleading which of its four stated separate legal
descriptions of property were descriptions of properties A
and B, but they eventually provided this information, as
II sought a declaration that Appellants " gained title
to Property A and Property B . . . by adverse
possession[.]" This count alleged that: (1) Appellants
" and their predecessors and title [sic] have
continuously occupied, repaired, maintained and improved
Property A and Property B since 1907" ; (2)
Appellants' " possession of Property A and Property
B has been hostile to the rights of all other parties in this
action and under color of title" ; (3) Appellants have
" had actual possession" of these properties "
during all the time they have occupied said property" ;
(4) Appellants' occupation had been " actual, open
and notorious possession" ; and (5) Appellants'
possession had been " continuous, uninterrupted"
for " more than ten (10) consecutive years."
filed a motion to dismiss Appellants' claims with
supporting suggestions. The suggestions asserted that
claims were based on a 1999 deed conveyed by Tori to
Coverdell, but a suit by Tori against Empire "
claiming title to the exact same tract of property described
by [Appellants]" in their present quiet title pleading
against Empire, Branson and others" (" Tori's
suit" ) was dismissed with prejudice in 1993 (" the
1993 dismissal" ), and, consistent with Rule 67.03,
res judicata barred the same type of claim by
Tori's successor in interest against Empire. Tori's
suit sought a declaration that it had the right to gift two
specifically described parcels, one of which generally
matched Appellants' description for Property A, to
Branson. The facts pleaded as supporting such a declaration
included both chain of deed transactions culminating with
Tori and the assertion that Tori and its predecessors have
held that parcel " in open, notorious, exclusive,
continuous, adverse, hostile possession under color of title
for more than 31 years next before the filing of this
petition[.]" The 1993 dismissal of Tori's suit came
by a hand-written docket entry that stated: " Cause
dismissed w/prej. at [plaintiff's] cost.
also filed a motion to dismiss Appellants' claims
asserting grounds similar to those raised by Branson as to
Appellants' deed claim, and it additionally argued that
Appellants' adverse-possession claim failed to allege
sufficient facts and did not specify Properties A and B.
May 9, 2012 hearing in which these motions were raised, the
trial court gave Appellants until May 30, 2012 to file a
response " explaining why [the trial court] should not
grant Branson's [and Empire's] [m]otion[s]."
After the hearing, and before May 30, 2012, U.S. Bank and
Arvest also filed motions to dismiss Appellants' claims,
and Branson supplemented its motion to dismiss, asserting,
inter alia, that a " 'short and plain
statement of facts'" concerning Appellants'
claims was required under Rule 55.05. U.S. Bank's motion
included a claim that Appellants' claims " fail[ed]
to assert a sufficient factual basis . . . instead presenting
only elements of a cause of action or bald conclusory
allegations[,]" and its accompanying suggestions in
support contended that " [c]ompletely absent from Count
II is any assertion that [Appellants] ever entered, occupied,
possessed, asserted control over, or even stood in remote
proximity to whatever property they may be seeking to be
awarded by their pleading."
30, 2012, Appellants filed a response " in one
pleading" to the dismissal motions filed by Branson,
Empire, U.S. Bank and Arvest. This response claimed that none
of the parties filing the motions to dismiss had standing,
that Appellants' claims were not barred by res
judicata as a result of the 1993 dismissal, and that
" [o]nly Coverdell has presented a proper [d]eed to the
[p]roperty in question." The
response did not expressly assert anything regarding
Appellants' Count II adverse-possession claim. The
response also requested leave " to further amend
[Appellants'] pleadings in [the trial court,]" but
it did not address what additional information might be
pleaded, and it did not incorporate any such proposed
amendment. A hearing date for argument on the motions to
dismiss was set for July 19, 2012, but that hearing was
subsequently cancelled after Branson filed a reply objecting
to further argument.
8, 2012, the trial court entered an order sustaining
Branson's motion and dismissing Appellants' claims
with prejudice that did not detail the reasoning of the trial
court (" the June 2012 order" ). The trial court
subsequently granted Lienholders' motions to dismiss
Appellants' claims, and the dismissal granted in response
to U.S. Bank's motion was also denoted as having been
granted " with prejudice." In August 2012,
Appellants' reasserted claims were presented in their
answer to the amended petition and in responses to
Branson's and U.S. Bank's cross-claims. This time,
specific legal descriptions for Properties A and B were
hearing in August 2012, Community Bank's counsel argued
for reconsideration of the dismissal of Appellants'
claims, adding that if the 1993 dismissal of Tori's suit
was considered a judgment, then it had to be recorded within
eight months in order to be valid, citing section 511.320.
Following this argument, Appellants' counsel stated that
he " want[ed] to [state] on the record that we obviously
agree one hundred percent and advance the same
argument." In September 2012, the trial court dismissed
Appellants' claims again, and its order indicated:
Appellants' claims had already been dismissed; they were
filed out of time and without leave of court; and they were
barred by res judicata.
October 2012, Branson filed its motion for summary judgment
on its cross-claim for quiet title and against Appellants on
their " Amended Claim[s]" concerning a "
'breach of contract' claim and a fraud claim."
 Branson also filed a statement of
uncontroverted material facts (" Branson's
uncontroverted facts" ) with its motion and accompanying
suggestions in support. Branson's uncontroverted facts
purported to incorporate at least 25 exhibits (not counting
exhibits within exhibits) that included, inter alia,
deeds, affidavits, judgments, plats, leases, requests for
admissions, a map, and a promissory note.
uncontroverted facts included that, based on a series of
described transactions, title to land specifically described
therein concerning a tract referred to as " the
'Eastern Peninsula'" (" Eastern
was held by Empire. Land specifically described in
Branson's uncontroverted facts and referred to as "
the 'Branson Town Deed Tract'"  ("
Branson Town" ) was also asserted to be held by Empire
by deed. Branson stated that it had leased Eastern Peninsula
and Branson Town from Empire, " since at least
1937[,]" the lease was renewed in 2004, and this land
was used and possessed exclusively by Branson as a park
" for more than thirty (30) years prior to commencement
of the Branson Landing Development[.]" Additionally,
Branson claimed it was an uncontroverted fact that " no
person or entity other than [Branson] has been observed
exercising any possession, right, title, interest or control
over" this park and Appellants " have judicially
admitted that since at least 1937 Branson has been in
possession of the property described in the 1937 and 2004
leases from Empire."
also asserted as uncontroverted facts that the 2004 judgment
quieted title in Branson to specifically described land
referred to as the " the 'Western
Peninsula'" (" Western Peninsula" ) and
that Branson also owned land specifically described and also
referred to as " [B]lock[s] 3, 4, and 5 of Park
Addition" (" Park Addition" ) based upon a
series of described transactions. Branson's asserted
uncontroverted facts additionally included that " [i]n
2004, the entire Peninsula, [Branson Town] and Park Addition
were replatted and renamed Branson Landing Subdivision,
[Western Peninsula and Park Addition] being Lot 1 and owned
in fee by Branson, and [Eastern Peninsula and Branson Town]
being Lot 2 and Lot 6 and owned in fee by Empire[.]"
November 2012, U.S. Bank filed its motion for summary
judgment on Count I of its counterclaim and cross-claim for
quiet title. U.S. Bank also filed a statement of
uncontroverted material facts (" U.S. Bank's
uncontroverted facts" ) with its motion and supporting
suggestions. Those asserted facts purported to incorporate by
reference 11 exhibits, including inter alia,
judgments and deeds that had also been filed in the 2011
Case. U.S. Bank described the property at issue in its motion
as " being part of Lots 1, 3 and 4 . . ., less certain
excepted tracts, together with Tracts B-1 and B-2 of Lot 6 .
. . as is more particularly described in the Retail Property
Description incorporated herein by reference as 'Exhibit
A'" (" Retail Tract" ).
Bank's uncontroverted facts included that Appellants'
claims asserted adverse possession " to land lying both
South of the Base of the Peninsula and on the Eastern [h]alf
of the Peninsula" and that such claims had been
dismissed with prejudice.
December 2012, the trial court entered a scheduling order
(" scheduling order" ) directing that any
additional motions for summary judgment be filed " on or
before February 28, 2013[.]" The parties were given
" until March 28, 2013, to respond to the [m]otions for
[s]ummary [j]udgment[,]" and " [a]ll [r]eplies in
[s]upport of [m]otions for [s]ummary [j]udgment
[were] due on [or] before April 15, 2013."
following month, the trial court granted Branson's motion
for the appointment of a special master. The order provided
that the special master was " to rule on any discovery
disputes or objections or attend any depositions . . . and to
report any rulings to" the trial court. An amended order
was issued in February 2013 that broadened the special
master's duties to also include making recommended
rulings " on all pre-trial motions, including, but not
limited to dispositive motions and motions for summary
judgment[.]" Later that month, Coverdell moved to vacate
the scheduling order.
March 1, 2013, Arvest filed its motion for summary judgment
on its cross-claim with its included statement of
uncontroverted material facts (" Arvest's
uncontroverted facts" ). Those asserted facts included
that Appellants did not have " any right, title or
interest in any part of Lot 1[.]" Further, two
specifically described pieces of land in the northwest part
of Lot 1, " 'HCW North-1'" and "
'HCW North-2'" (collectively " Northwest
Tracts" ), were stated as being leased by "
HCW," subleased by HCW North, and encumbered by
Arvest's deed of trust. Arvest's
uncontroverted facts drew upon twelve exhibits, including,
inter alia, affidavits, a sublease, a deed of trust,
and an assignment, as well as other exhibits referenced in
U.S. Bank's statement of uncontroverted facts.
March 5, 2013, Coverdell filed a supplement to his motion to
vacate the scheduling order that informed the trial court
" of two recently discovered lawsuits, one in St. Louis
County, styled HCW Development Co., LLC v. Tri-Lakes
Title & Escrow, LLC, et al., . . . and the other in the
United States District Court for the Western District of
Missouri[,] Southern Division, styled City of Branson v.
First American Title Insurance Company, et. al [.]"
He asserted that " these lawsuits contain material
information which is not only relevant to the issues
currently pending before [the trial court], but they also
provide an additional justification for the discovery which
Coverdell has been attempting to conduct, including the
taking of multiple depositions."
March 8, 2013, counsel for the parties in both the 2003 case
and the 2011 case appeared before the special master. In the
course of addressing discovery issues, counsel for U.S. Bank
stated that responses to summary judgment motions were due on
March 28, 2013 under the existing scheduling order. The
special master stated, " I don't think the March
28th date's going to make it, and that's partially my
fault because I kind of told everybody to put things on hold
until we could get together and talk about it."
counsel for some of the parties addressed their concerns, the
special master stated that a deadline would be made for any
summary judgment motions to be filed on June 3, 2013. After
additional discussion, the special master stated a deadline
for responses to such motions as July 1, 2013, and that two
weeks thereafter would be permitted for filing a sur-reply.
Another proceeding before the special master was set for
March 26, 2013, but no transcript of any such proceeding has
been included in the record on appeal.
April 5, 2013, Coverdell filed a motion for an extension of
time to respond to Arvest's summary judgment motion which
asserted that his " response [was] due April
3, 2013." Coverdell indicated that his reasons included
a desire to conduct additional discovery, but he made no
reference to the dates that the special master announced
would govern the timing of summary judgment motions and
special master's report and recommendations filed on
April 9, 2013 did not contain any filing deadlines for
summary judgment motions and responses, and it did not
contain any recommended ruling on Coverdell's
supplemented motion for the scheduling order to be vacated or
his motion for an extension of time to respond to
Arvest's summary judgment motion. No party cites to any
other written order in the record that would reflect the
dates mentioned by the special master on March 8, 2013 or
that contains any different dates related to the summary
judgment motions. And while Coverdell filed objections to the
special master's recommendations, he did not include any
challenge to the deadlines announced by the special master
for the filing of summary judgment motions and responses
hearing before the trial court on April 24, 2013,
Appellants' counsel objected to the taking up of any
" substantive motions[,]" stating that his "
client [sic]" relied on what the special master said in
March 2013 about " a new scheduling order."
Appellants' counsel understood that the parties were
" going to have the discovery done before we take up any
dispositive motions" and depositions were to be "
all done, then, by June 3rd." Counsel for the bankruptcy
trustee argued that his " client" had relied on
" things . . . as a result of the [s]pecial
[m]aster" and wanted " time to respond to those
trial court announced that a hearing would be held on May 29,
2013, and the following exchange occurred:
[Branson's counsel]: What are we going to do on the 29th?
THE COURT: I'm going to rule.
[Branson's counsel]: You're going to what?
THE COURT: I'm going to rule on the motions for summary
[Branson's counsel]: We're not going to have any more
THE COURT: I'll listen to people.
[Branson's counsel]: You're not granting any
[Appellants' additional counsel]: Judge, just so I'm
clear, we can't file anything, then?
THE COURT: I guess you could file a response, but --
[Attorneys for Coverdell, U.S. Bank, Branson, Arvest then
argue whether additional responses should be allowed.]
[Appellants' additional counsel]: It seems to me
there's enough confusion with [the special master]
getting involved, and out, and all the rest of it, that you
ought to at least take some papers. If you want to put them
at the bottom of the birdcage --
THE COURT: Okay.
[Appellants' counsel]: That went on the bottom.
[Appellants' additional counsel]: -- that's okay,
too, but we would request the opportunity to file something
prior to that hearing.
[Appellants' counsel]: And, Judge, we can do it by May
20th. If they need to respond, they ...