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The Empire District Electric Co. v. Coverdell

Court of Appeals of Missouri, Southern District, Second Division

December 5, 2019

DOUGLAS L. COVERDELL, Appellant, and CITY OF BRANSON, ET AL., Respondents.

          APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Timothy W. Perigo, Special Judge.


          JEFFREY W. BATES, J.

         The 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.[1] 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 affirm.

         Factual and Procedural Background

         This is 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.

         In 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.

         Following 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.[2] 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.

         In 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 controvert them.

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.[3]

         On the 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. at 404.

         HCW was 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).

         Significantly, 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.

         Before 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.

         After 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.

         Coverdell 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.

         Point 1 - Summary Judgment

         Coverdell's 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).[4] 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).

         "Facts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses 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").[5]

         A 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.

         Coverdell's 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.[6] "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.

         In 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 deed).[7]

         In 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, Coverdell admitted:

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 actions.[8]
The 1993 Lawsuit … was dismissed with prejudice by the Court [on September 16, 1993]. No post trial motion was filed or ...

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