Martens v. White
| Decision Date | 13 July 2006 |
| Docket Number | No. 27138.,27138. |
| Citation | 195 S.W.3d 548 |
| Parties | Walt MARTENS and Wanda Martens, Plaintiffs-Respondents, v. Mark WHITE and Lori Bender, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Patricia J. Shilling, The Styron Law Firm, Ozark, MO, for appellants.
Paul F. Sherman, Mann, Walter, Bishop & Sherman, P.C., Springfield, MO, for Respondents.
Respondents Walt and Wanda Martens, husband and wife ("Respondents"), filed a petition in the Circuit Court of Christian County against Appellants Mark and Lori White (a/k/a Lori Bender), husband and wife ("Appellants"), seeking to quiet title by adverse possession to a 13.672-acre parcel of property ("Contested Property") and seeking injunctive relief from continuing trespass. In accordance with a jury verdict, a judgment was entered in favor of the Respondents. Appellants timely filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial, which were both overruled. Appellants then filed this appeal of the Order and Judgment Quieting Title, alleging that the trial court committed four errors. We affirm.
In early 1973, John Newby, a realtor for MacGowan and Company, showed the Respondents a tract of land in Christian County, Missouri. This property consisted of a house and land upon which Newby had personally hunted and cut wood. Newby told Respondents that the legal description was for 172 acres, but that the actual boundary of the land being offered for sale extended beyond that described in the legal description east to the fence which was the actual property line and which included the Contested Property. Respondents signed a contract to purchase the land on March 28, 1973, with an understanding that a survey was to be obtained before closing. Closing occurred on June 15, 1973, and Respondents were provided with a survey prepared by Christian County Surveyor, Henry Kessinger. Kessinger also provided them with an "Affidavit of Adverse Possession." Both the survey and the affidavit included the Contested Property. These were provided at the request of the Respondents, who had asked Newby to correct the description of the land as a condition of their purchase.
After closing, Respondents lived on the property and used the land over to the east fence. Respondents pastured horses and raised sheep on the land and also maintained and improved the east fence. Respondents let many people use their land for hunting and posted "no trespassing" signs around the property, including on the east fence, in order to keep uninvited persons off the land.
At the time Respondents purchased their land in 1973, the property immediately to the east of and adjacent to Respondents' land was owned by Mr. and Mrs. Baker. The Bakers later sold this tract to Mr. and Mrs. Goossen, who thereafter sold it to Mr. and Mrs. Bilyeu. Although the legal description in each of the deeds by which the Bakers, Goossens, and Bilyeus obtained title included the Contested Property, these owners of the adjacent property in fact recognized Respondents' east fence as the boundary between the two adjoining parcels and never indicated or caused any problem with that boundary.
In 1990, Appellant Mark White purchased this land from the Bilyeus. The legal description in the deed from the Bilyeus to White included the Contested Property. No title search was conducted before the transfer of property from the Bilyeus to White. Marvin Allen, an expert in certifying chains of title, examined the chain of title and testified at trial that the Kessinger Affidavit of Adverse Possession was duly recorded in 1973 and appeared in the chain of title to White's property.
In 2004, Respondents started logging on the Contested Property. Appellant Mark White stopped the loggers and then began making phone calls to Respondents regarding the land. In April of 2004, Respondents noticed a portion of the east fence had been cut down, and they were unable to put their sheep out. Respondents then filed this lawsuit.
This matter was tried to a jury over the course of three days. The jury returned its verdict in favor of the Respondents and against Appellants on Respondents' claim of adverse possession and trespass, for which they assessed damages at $837.50. The trial court thereafter entered its Order and Judgment Quieting Title. Appellants timely filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial, which were both denied by the trial court. Appellants then timely filed this appeal asking for relief from the Judgment, alleging four errors by the trial court.
In their first point on appeal, Appellants argue that the trial court erred in failing to grant Appellants' Motion for Judgment Notwithstanding the Verdict ("JNOV") because there was not sufficient evidence to support the jury's verdict. Appellants argue that Respondents (who were the plaintiffs in the trial court) failed to prove that they maintained actual, hostile, open and notorious, exclusive, or continuous possession of the Contested Property for at least ten years prior to the filing of the lawsuit.
In this point relied on, Appellants actually complain of five alleged errors, in that they contend that there is no substantial evidence to support any one of the five elements necessary for adverse possession. Each point should contain only one allegation of error. Grouping multiple contentions about different issues together into one point relied on is a violation of Rule 84.04(d).1 In the Interest A.H., 963 S.W.2d 374, 379 (Mo.App.1998) overruled on other grounds by State ex rel. Stubblefield v. Bader, 66 S.W.3d 741 (Mo. banc 2002). Appellate courts are not obligated to review an appeal on the merits when the brief violates the requirements of Rule 84.04 and may dismiss the appeal. Weisenburger v. City of St. Joseph, 51 S.W.3d 119, 125 (Mo.App.2001). However, "the procedural rules are to be liberally construed to promote justice and minimize the number of cases disposed of on technical grounds." Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 639 (Mo.App.2001).
This Court has the discretion to review an appeal on the merits even when various parts of the brief do not comply with Rule 84.04. Gray v. White, 26 S.W.3d 806, 816 (Mo.App.1999). The points relied on should "state briefly and concisely what actions or rulings of the court are challenged and why, in the context of the case, the legal reasons identified support the claim of reversible error." Stickley v. Auto Credit, Inc. 53 S.W.3d 560, 562 (Mo. App.2001). As we are able to discern Appellants' claims of error, we choose to review those claims, in spite of the fact that the point relied on is deficient. Gray, 26 S.W.3d at 816.
The standard of review of the trial court's denial of a motion for judgment notwithstanding the verdict and a motion for a directed verdict is essentially the same. Maldonado v. Gateway Hotel Holdings, L.L.C., 154 S.W.3d 303, 307 (Mo. App.2003). Upon review, this Court must determine whether Respondents made a submissible case. Id. "This Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence." Nemani v. St. Louis University, 33 S.W.3d 184, 185 (Mo. banc 2000). When reasonable minds can differ on the questions before the jury, we will not disturb the jury's verdict, and judgment notwithstanding the verdict is not appropriate. Echard v. Barnes-Jewish Hospital, 98 S.W.3d 558, 565 (Mo.App.2002). We "will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion." Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc.2000); LaRose v. Washington University, 154 S.W.3d 365, 369 (Mo.App. 2004).
Section 516.010, RSMo 2000 reads, in part:
No action for the recovery of lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.
"Under this statute, a party claiming ownership by adverse possession must prove that their possession is: (1) hostile, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the ten-year period prior to the commencement of the action." Harness v. Wallace, 167 S.W.3d 288, 291 (Mo.App.2005). Appellants claim that Respondents did not provide sufficient evidence on any of the elements to support the jury's verdict. We disagree and deny point one.
Actual possession is the present ability to control the land and the intent to exclude others from such control. Dobbs v. Knoll, 92 S.W.3d 176, 180-81 (Mo.App.2002). "What acts will characterize possession as `actual' depend on the nature and location of the property, the uses to which it can be applied and all the facts and circumstances of a particular case." City of South Greenfield v. Cagle, 591 S.W.2d 156, 160 (Mo.App.1979). The actual possession element of adverse possession is less strict for wild, undeveloped land than it is for developed property, because the nature, location and potential uses for the property may restrict the type of affirmative acts of ownership. Luttrell v. Stokes, 77 S.W.3d 745, 749 (Mo.App. 2002).
Respondents presented evidence that they pastured sheep and ran horses on the Contested Property. Respondent Wanda Martens testified that she often sat on a bluff that was on the Contested...
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