Empire Dist. Elec. Co. v. Coverdell

• Decision Date: 30 October 2015
• Docket Number: SD 32807 (consolidated),Nos. SD 32806,s. SD 32806
• Citation: 484 S.W.3d 1
• Parties: 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.
• Court: Missouri Court of Appeals

484 S.W.3d 1

The Empire District Electric Company, Plaintiff–Respondent,

v. Douglas L. Coverdell, and Coverdell Enterprises, Inc., Defendants–Appellants,andCity of Branson, Missouri, Defendant–Respondent,andArvest Bank, and Bank of America, N.A., n/k/a U.S. Bank, N.A., Intervenors–Respondents,andCommunity Bank of the Ozarks, Defendant.

Nos. SD 32806

SD 32807 (consolidated)

Missouri Court of Appeals, Southern District, Division Two .

Filed: Oct. 30, 2015

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.

DON E. BURRELL, J.

This opinion and our related opinion issued this same date in U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390 (Mo.App.S.D.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. Bank³ (collectively "Lienholders"), 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 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 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 the other parties when various pleadings were filed, and it was...