McLallen v. Tillman, SD 31659.

• Decision Date: 16 October 2012
• Docket Number: No. SD 31659.,SD 31659.
• Court: Missouri Court of Appeals
• Parties: Debbie McLALLEN and Monty McLallen, Plaintiffs–Appellants, v. John TILLMAN, Patricia Tillman, Craig Sanders, and Stephen A. Geigle and Judy Geigle, Defendants–Respondents.

386 S.W.3d 837

Debbie McLALLEN and Monty McLallen, Plaintiffs–Appellants,
v.
John TILLMAN, Patricia Tillman, Craig Sanders, and Stephen A. Geigle and Judy Geigle, Defendants–Respondents.

No. SD 31659.

Missouri Court of Appeals,
Southern District,
Division Two.

Oct. 16, 2012.

[386 S.W.3d 838]

John E. Price, Springfield, MO, for Appellants.

Willam G. Weber, Pineville, MO, for Respondents John, Patricia Tillman and Craig Sanders.

Thurston Thompson, Noel, MO, for Respondent Judy Geigle.

Stephen A. Geigle, Acting Pro Se.

JEFFREY W. BATES, J.

Plaintiffs Debbie and Monty McLallen (the McLallens) appeal from a summary judgment quieting title to property located along the Elk River in defendants Judy and Stephen Geigle (the Geigles).¹ The title dispute arose out of 1984, 1998 and 2002 deeds conveying property “lying North and West of Elk River.” In 1984, the Elk River consisted of two distinct channels. More water flowed through the

[386 S.W.3d 839]

southern channel than the northern channel. At some point in the 1990s, more water began to flow through the northern channel than the southern channel. Although none of the foregoing deeds explicitly stated which channel constituted the intended boundary line, the trial court decided that the legal descriptions in these deeds were not ambiguous.

On appeal, the McLallens present four points for decision, the first of which is dispositive. In Point I, the McLallens contend the trial court erred in granting summary judgment to the Geigles because the legal description in the deeds contained a latent ambiguity by failing to identify which channel of the Elk River was intended to be the boundary line. The McLallens argue that this latent ambiguity presents a genuine issue of material fact as to the parties' intent which requires a trial to resolve. We agree. The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. ²

A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 919 (Mo.App.2004).³ Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). Consequently, this Court does not defer to the trial court's decision to grant summary judgment. Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App.2007). Instead, we use the same criteria the trial court should have employed in initially deciding whether to grant the Geigles' motion. Id.; see ITT Commercial Finance Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

As our Supreme Court explained in ITT, Rule 74.04 distinguishes between a motion for summary judgment filed by a “claimant” and by a “defending party.” ITT, 854 S.W.2d at 380. Here, the Geigles were defending parties.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, 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) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381 (italics in original); see Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58–59 (Mo. banc 2005). “The moving party bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. banc 2009). Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court. ITT, 854 S.W.2d at 377.

Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). We view the record in the light most favorable to the party against whom judgment was entered,

[386 S.W.3d 840]

and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT, 854 S.W.2d at 376. “A genuine issue of material fact” exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008). The following summary of facts has been prepared in accordance with these principles.

There are three deeds relevant to the issues presented by this appeal. In 1984, Bob and Donna Mott conveyed the following real estate to Judy Geigle by warranty deed:

All that part of the East Half (E 1/2) of the Northwest fractional Quarter (NW 1/4) of Section 4, Township 21, Range 32, McDonald County, Missouri, lying North and West of Elk River. Except county road.

When this deed was executed and recorded in 1984, the Elk River consisted of two channels. More water flowed through the southern channel than the northern channel. An area approximately eight acres in size lay between the two channels. This land,...