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The Empire District Electric Co. v. Coverdell

Court of Appeals of Missouri, Southern District, Second Division

October 30, 2015

THE EMPIRE DISTRICT ELECTRIC COMPANY, Plaintiff-Respondent,
v.
DOUGLAS L. COVERDELL, and COVERDELL ENTERPRISES, INC., Defendants-Appellants, and CITY OF BRANSON, MISSOURI, Defendant-Respondent, and ARVEST BANK, and BANK OF AMERICA, N.A., n/k/a U.S. BANK, N.A., Intervenors-Respondents, and COMMUNITY BANK OF THE OZARKS, Defendant

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          APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Gerald D. McBeth, Circuit Judge.

         CHARLES S. GENISIO, Joplin, MO, for Appellant Coverdell, Enterprises, Inc.

         ROBERT W. COCKERHAM, St. Louis, MO, and EDWARD D. ROBERTSON JR, Jefferson, City, MO, for Appellant Douglas Coverdell.

         JOSHUA B. CHRISTENSEN, Springfield, MO, for Respondent Empire District.

         SARAH E. HOLDENER, St. Louis, MO, for Respondents City of Branson and U.S. Bank.

         JOHN C. HOLSTEIN, and JAMES E. MEADOWS, Springfield, MO, for Respondent City of Branson.

         WILLIAM L. SAUERWEIN, Clayton, MO, for Respondent U.S. Bank.

         LYNN C. RODGERS, Springfield, MO, for Respondent Arvest Bank.

         MARY W. SHEFFIELD, P.J. - CONCURS, GARY W. LYNCH, J. - CONCURS.

          OPINION

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         DON E. BURRELL, J. -

         This opinion and our related opinion issued this same date in U.S. Bank, N.A. v. Coverdell,

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__ 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.[1] 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 case" ).

         Overview

         This is 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. at 853.

         The 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.[2] 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[3] (collectively " Lienholders" ),

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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 Respondents.

         Appellants 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.

         Finding 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 lots.

         Points on Appeal

         CEI's sole point contends that " any judgment" favoring Empire, Branson, Lienholders, and a non-party CEI identifies as " HCW" [4] 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[.]"

         Coverdell 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" [5]; and (4) " in dismissing Count II of Coverdell's claim" for adverse possession " because res

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judicata did not apply and" his " claim properly set out all the elements of an adverse possession claim."

         Finding 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." [6]

         Pending Motions

         Before 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.

         Respondents 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).

         Branson, 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,[7] 84.01(a), and

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84.19 by being untimely, including additional documents not contained in the record, and " misrepresent[ing] the contents of the documentation[.]" [8]

         The 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.

         Procedural History

         All of 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.[9] As a result, we relate the portions of the procedural history necessary to provide an understanding of Appellants' complaints.

         Before 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

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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." Id.

         During 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.

         Branson 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 [2010] judgment and remand of the cause to the trial court for further proceedings." Id.

         Such

[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 issues.

Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 634 (Mo. banc 2013).

         After 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

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deny any interest in these lots to Coverdell and CEI.

         U.S. 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[.]"

         Branson's 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 Landing[.]"

         Also in 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." [10] 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 discussed infra.

         Count 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."

         Branson filed a motion to dismiss Appellants' claims with supporting suggestions. The suggestions asserted that Appellants'

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claims were based on a 1999 deed conveyed by Tori to Coverdell, but a suit by Tori[11] 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. [Signature.]"

         Empire 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.

         After a 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."

         On May 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

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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.

         On June 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 included.[12]

         At a 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.

         In 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." [13] 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.

         Branson's 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 Peninsula" )

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was held by Empire. Land specifically described in Branson's uncontroverted facts and referred to as " the 'Branson Town Deed Tract'" [14] (" 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."

         Branson 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[.]" [15]

         In 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" ).[16]

         U.S. 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.

         In 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

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[were] due on [or] before April 15, 2013."

         The 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.

         On 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.[17] 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.

         On 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."

         On 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."

         After 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.

         On 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

Page 14

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 responses thereto.

         The 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 thereto.

         At a 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 motions."

         The 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 judgment.
[Branson's counsel]: We're not going to have any more argument?
THE COURT: I'll listen to people.
[Branson's counsel]: You're not granting any extension? Okay.
[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 ...

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