Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Timothy W.
Perigo, Special Judge.
JEFFREY W. BATES, J.
trial court granted summary judgment in favor of HCW
Development Company, LLC; HCW Private Development, LLC; and
HCW North, LLC (collectively, HCW) and against Douglas
Coverdell (Coverdell) on his claim for adverse possession of
approximately 27 acres of property, which includes portions
of the Branson Landing in Branson, Missouri. Following entry
of summary judgment in favor of HCW, a joint motion seeking
to have the ruling on Coverdell's adverse possession
claim reduced to a final judgment was filed by three other
parties also involved in the underlying dispute with
Coverdell: the City of Branson (Branson); Empire District
Electric Company (Empire); and Central Bank of Branson
(Central). The trial court granted the joint motion and
entered a final judgment disposing of all claims against all
parties. Coverdell appealed from that judgment, raising four
points of alleged error. For the reasons stated below, we
and Procedural Background
the third time the underlying dispute has been before us on
appeal. See Empire Dist. Elec. Co. v. Coverdell, 344
S.W.3d 842, 844 (Mo. App. 2011) (Empire I);
Empire Dist. Elec. Co. v. Coverdell, 484 S.W.3d 1, 4
(Mo. App. 2015) (Empire II). By way of overview, the
underlying dispute originated from a 2003 action in which
Coverdell prevailed against Empire in quieting title to an
initial 3.36-acre tract located north of the property at
issue. The purported property description of that 3.36-acre
tract submitted by Coverdell, however, included a large tract
of property south of the initial tract, together totaling 27
acres and encompassing portions of the Branson Landing. That
property description was incorporated into the 2010 judgment.
Empire and Branson appealed from that judgment. Empire
I, 344 S.W.3d at 844.
Empire I, this Court reversed the judgment in that
civil case on the ground of plain error. Based on
Coverdell's judicial admissions at trial that the dispute
concerned only the 3.36 acres "up north," our
opinion in Empire I held that the 2010 judgment
quieting title in Coverdell "in what appears to be a 27
acre tract of land was in error" and the judgment
affected Branson's substantial rights, resulting in a
manifest injustice. Id. at 851-52. We reversed the
2010 judgment and remanded the cause. We instructed the trial
court to permit Branson to amend its pleadings and to freely
permit amendment of the pleadings of Empire and Coverdell,
without prejudice to the rights of third parties to intervene
in the litigation as the Rules of Civil Procedure might
provide. Id. at 853.
remand, pursuant to the opinion and mandate in Empire
I, Coverdell took the position that his claims were not
limited to the 3.36 acres that were the subject of his
judicial admissions. Instead, he asserted that he had always
been claiming the full 27 acres, which he referred to as
"Properties A and B." Property A includes Property
B, which Coverdell alleged that he conveyed by deed to
Coverdell Enterprises, Inc. (CEI). Because Property A
includes the entirety of Property B, we use the phrase
"Property A" to refer to the full 27-acre tract at
issue in this appeal. Coverdell claimed ownership of this entire
tract by deed (Count I) and by adverse possession (Count II).
Consistent with this Court's mandate in Empire
I, additional interested parties sought and were granted
intervention. These included lienholders U.S. Bank and Arvest
Bank. Thereafter, Branson, U.S. Bank and Arvest Bank filed
motions for summary judgment against Coverdell and CEI. They
both failed to timely respond. The trial court entered
summary judgments in favor of Branson, U.S. Bank and Arvest
Bank, and against Coverdell and CEI on the Count I deed-based
claims. The trial court also dismissed the Count II claim of
Coverdell for adverse possession. Coverdell and CEI appealed,
resulting in our opinion and mandate in Empire II,
484 S.W.3d at 1.
Empire II, we held that the entry of summary
judgment on the deed-based claims of Coverdell and CEI was
proper. This Court reversed, however, as to the dismissal of
Coverdell's claim for adverse possession. We based the
reversal on the inability to determine, from the property
description of Property A, whether it "matched up with
or overlapped specific portions" of other property
described in the motions for summary judgment:
We cannot tell from the face of the summary judgments whether
a claim by Coverdell that he had acquired [Property A] by
adverse possession would be precluded by the uncontested
facts set forth in the summary judgment motions that were
constructively admitted by him due to his failure to
Empire II, 484 S.W.3d at 34. We remanded the matter
to the trial court "for further proceedings limited to
the resolution of Coverdell's claim for adverse
possession of [Property A.]" Id.
same day this Court decided Empire II, we decided a
companion case brought in 2011 by lienholders U.S. Bank and
Arvest Bank to quiet title to certain tracts of land included
in the 2010 judgment. See U.S. Bank, N.A. v.
Coverdell, 483 S.W.3d 390 (Mo. App. 2015). After the
lienholders obtained judgments as to certain lots, Coverdell
appealed. Id. at 394. This Court reversed and
remanded, directing the trial court to stay the 2011 case,
pending a final resolution of the instant case. Id.
among the parties involved in the 2011 companion case, but
not in the instant case. HCW first became involved in late
2003 when HCW Development Company, LLC began leasing land
from Branson to be developed as the Branson Landing.
Following remand of Coverdell's adverse possession claim
in Empire II, HCW requested and was granted leave to
intervene in this case. Thereafter, HCW filed their motion
for summary judgment, memorandum in support, statements of 30
uncontroverted material facts and additional material facts
HCW's SUMF began with facts that cleared up the confusion
in Empire II. As mentioned previously, this Court
could not tell from the face of the three previous summary
judgments whether, and to what extent, Coverdell's
admissions applied to the same real estate Coverdell
described as Property A. In Coverdell's response to
HCW's SUMF, he admitted that: (1) the property at issue
in this litigation was "Property A as described in [his]
reasserted Claims"; (2) Property A as described "is
the Branson Landing"; and (3) that Property A is set
forth in Exhibit A, which is a survey that graphically
depicts the real property to which he claims to have acquired
title through adverse possession. There is no question that
Coverdell is claiming adverse possession of the entire
27-acre tract described as Property A. HCW's motion
sought summary judgment, inter alia, on the ground
that Coverdell cannot show the continuous ten-year time
period required to show adverse possession of Property A as a
matter of law.
the trial court ruled on HCW's motion, Central, as the
successor in interest to Arvest Bank, filed a motion to
intervene. Coverdell did not object, and the trial court
granted the motion. At this point in the litigation, the
parties involved in the adverse possession dispute with
Coverdell were HCW, Branson, Empire, and Central.
extensive briefing on the matter, the trial court entered
summary judgment in favor of HCW and against Coverdell on his
claim of adverse possession of Property A. Soon thereafter,
upon the joint motion of Branson, Empire and Central, the
trial court entered final judgment as to all parties on the
grounds that the effect of the judgment, which held that
Coverdell could not as a matter of law meet the elements of
adverse possession, was dispositive of the entirety of
Coverdell's claim, thereby terminating the litigation as
to all parties.
presents four points on appeal. He contends the trial court
erred by: (1) granting HCW's motion for summary judgment;
(2) entering judgments in favor of HCW, Branson, Empire and
Central because "these parties lack standing"; (3)
permitting HCW to intervene in the litigation; and (4)
entering final judgment in favor of Branson, Empire, and
Central. Additional facts will be included below as we
address each of Coverdell's four points.
1 - Summary Judgment
first point challenges the summary judgment in favor of HCW.
A summary judgment shall be granted "[i]f the motion,
the response, the reply and the sur-reply show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law[.]"
Rule 74.04(c)(6); Schnurbusch v. W. Plains
Reg'l Animal Shelter, 507 S.W.3d 675, 679 (Mo.
App. 2017). If, as a matter of law, the trial
court's judgment is sustainable on any theory, it should
be affirmed on appeal. Goerlitz v. City of
Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011); see
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 387-88 (Mo. banc 1993). "We
view the record in the light most favorable to the non-moving
party, drawing all inferences in that party's
favor." Progressive Max Ins. Co. v. Hopkins,
531 S.W.3d 649, 651 (Mo. App. 2017); see also Lindsay v.
Mazzio's Corp., 136 S.W.3d 915, 920 (Mo. App. 2004).
come into a summary judgment record only via Rule
framework." Jones v. Union Pac. R.R. Co., 508
S.W.3d 159, 161 (Mo. App. 2016) (italics in original);
see Alvis v. Morris, 520 S.W.3d 509, 511-12 (Mo.
App. 2017) (we review the undisputed material facts
established by the process set forth in Rule 74.04(c)). Facts
in support of the moving party's motion are accepted as
true unless contradicted by the non-moving party's
response to the summary judgment motion. ITT, 854
S.W.2d at 376. Rules 74.04(c)(2) and (c)(4) require the
non-movant to "support denials with specific references
to discovery, exhibits, or affidavits demonstrating a genuine
factual issue for trial." Central Trust & Inv.
Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320
(Mo. banc 2014). If a denial is not properly supported as
required by these subparts of the rule, the fact is deemed
admitted. Central Trust, 422 S.W.3d at 320; see,
e.g., Progressive Max Ins. Co., 531 S.W.3d at
650 n.1 (because non-movant's response failed to comply
with Rule 74.04(c)(2), the factual allegations in
movant's statement of uncontroverted material facts
"are deemed admitted, and we must treat them as true for
purposes of this opinion").
defending party, such as HCW, may establish a right to
summary judgment by showing: (1) facts negating any one of
the claimant's elements facts; (2) the claimant, after an
adequate period of discovery, has been unable, and will not
be able, to produce evidence sufficient to allow the trier of
fact to find the existence of any one of the claimant's
elements; or (3) the undisputed facts support each of the
necessary elements of the defending party's properly
pleaded affirmative defense. ITT, 854 S.W.2d at 381.
"Each of these three means establishes a right to
judgment as a matter of law." Lindsay, 136
S.W.3d at 920. Because the propriety of summary judgment is
purely an issue of law, we review the grant of a summary
judgment de novo. Id. at 919.
point contends the trial court erred by granting HCW's
motion for summary judgment "without allowing discovery
because there is no legal basis" for ruling against him
on his adverse possession claim. "A party who seeks to
establish title to real property by adverse possession must
prove that he possessed the land, and that his possession
was: (1) hostile and under a claim of right; (2) actual; (3)
open and notorious; (4) exclusive; and (5) continuous for a
period of ten years." Stratford v. Long, 430
S.W.3d 921, 924 (Mo. App. 2014); see Watson v.
Mense, 298 S.W.3d 521, 526 (Mo. banc 2009); §
516.010 (specifying the requisite possession must be
"within ten years before the commencement of such
action"). "The statute of limitations applicable to
adverse possession claims does not apply to public lands,
and, therefore, title to public property cannot be claimed on
the basis of adverse possession. § 516.090."
Rice v. Huff, 22 S.W.3d 774, 781 (Mo. App. 2000);
Ben Brower Prop. Co., LLC v. Evella, LLC, 554 S.W.3d
504, 508 n.4 (Mo. App. 2018). To meet the burden of proof as
to the ten-year requirement, the years of possession
"must be consecutive, although they need not immediately
precede the date of the suit to quiet title."
Conduff v. Stone, 968 S.W.2d 200, 203 (Mo. App.
1998). "An adverse possession claimant may tack his
possession to that of his predecessors in title to establish
the requisite ten year period." Id.; Pike
v. Williamson, 403 S.W.3d 608, 612 (Mo. App. 2011).
"A claimant's failure to prove even one of the
elements of adverse possession will defeat his claim."
Conduff, 968 S.W.2d at 203. The following facts are
relevant to this point.
Count II of Coverdell's claims, Coverdell alleged that he
and his "predecessor [in] title" adversely
possessed Property A because:
(1) [they] "continuously occupied, repaired, maintained
and improved Property A … since 1907"; (2)
[their] "possession of Property A … has been
hostile to the rights of all other parties in this action and
under color of title"; (3) [they] have "had actual
possession" of these properties "during all the
time they have occupied said property"; (4) [their]
occupation had been "actual, open and notorious
possession"; and (5) [their] possession had been
"continuous, uninterrupted" for "more than ten
(10) consecutive years."
Empire II, 484 S.W.3d at 9. Coverdell's
predecessor in title was Tori, Inc. (Tori), a company owned
and controlled by Peter Rea. In September 1999, Tori, through
Peter Rea and his wife (collectively the Reas), executed a
General Warranty Deed in favor of Coverdell (the Tori
HCW's SUMF, Coverdell admitted that Tori and the Reas,
personally and as statutory trustees of Tori, filed suit on
at least three occasions seeking to quiet title to Property
A. Coverdell further admitted that in 1993, the third lawsuit
(the 1993 Lawsuit) sought to quiet title to Property A by
adverse possession, and that suit was dismissed by the trial
court with prejudice on September 16, 1993. Specifically,
The real estate described in the 1993 Lawsuit petition was
identical to the legal description set forth as
"Property A" in [Coverdell's reasserted claim]
in this action.
The Plaintiffs in the 1993 Tori, Inc. Lawsuit alleged in part
as follows: "The plaintiffs … have laid claim to
all of the lands … within the description aforesaid,
and have owned and held the same in open, notorious,
exclusive, continuous, adverse, hostile possession under
color of title for more than 31 years[.]"
On June 10, 1993, [Empire] filed a Motion to Dismiss
asserting that the Tori, Inc. plaintiffs had brought
identical or similar lawsuits against [Empire] in 1977 and
1983 and had voluntarily dismissed both
The 1993 Lawsuit … was dismissed with prejudice by the
Court [on September 16, 1993]. No post trial motion was filed