Phelan v. Rosener

• Citation: 511 S.W.3d 431
• Decision Date: 28 February 2017
• Docket Number: No. ED 104677,ED 104677
• Parties: Michael P. PHELAN; Michael Phelan, Trustee of the Michael P. Phelan Revocable Living Trust dated May 14, 2004; and Seamless Investments, LLC, Plaintiffs/Appellants, v. Ernest W. ROSENER, Jr.; Summit Springs at Wild Horse I, LLC; and Summit Springs at Wild Horse II, LLC, Defendants/Respondents.
• Court: Court of Appeal of Missouri (US)

511 S.W.3d 431

Michael P. PHELAN; Michael Phelan, Trustee of the Michael P. Phelan Revocable Living Trust dated May 14, 2004; and Seamless Investments, LLC, Plaintiffs/Appellants,

v.Ernest W. ROSENER, Jr.; Summit Springs at Wild Horse I, LLC; and Summit Springs at Wild Horse II, LLC, Defendants/Respondents.

No. ED 104677

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: February 28, 2017

Thomas J. O'Toole, Jr., Sarah Wright Rubenstein, Conor P. Neusel, St. Louis, MO, for Plaintiffs/Appellants.

Dean C. Nichols, James D. Ribaudo, St. Louis, MO, for Defendants/Respondents.

SHERRI B. SULLIVAN, P.J.

Introduction

Michael P. Phelan; Michael Phelan, Trustee of the Michael P. Phelan Revocable Living Trust Dated May 14, 2004; and Seamless Investments, LLC (collectively Appellants) appeal from the trial court's summary judgment against them on their claims for declaratory judgment and to quiet title and in favor of Ernest W. Rosener, Jr.; Summit Springs at Wild Horse I, LLC; and Summit Springs at Wild Horse II, LLC (collectively Respondents) on Respondents' counterclaims for declaratory judgment and to quiet title. We affirm.

Factual and Procedural Background

Appellant Michael Phelan is trustee of the Michael P. Phelan Revocable Living Trust and is the sole member and owner of Seamless Investments, LLC. Appellants are the owners of real property located at 18823 Cliffview Lane, 18833 Cliffview Lane, 18841 Cliffview Lane, and 170 Centaur Road in Wildwood, Missouri. Respondent Ernest W. Rosener, Jr. is the owner of Respondents Summit Springs at Wild Horse I, LLC and Summit Springs at Wild Horse II, LLC. Respondents are the owners of real property located at 18913 and 18971 Wild Horse Creek Road in Wildwood, Missouri. Appellants' and Respondents' properties abut a private roadway known as Cliffview Lane.

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Prior to July 2, 1982, the properties in question were owned by John C. McPheeters and Constance B. McPheeters (McPheeters), with the exception of 18913 Wild Horse Creek Road.

On July 2, 1982, the McPheeters, as Grantors, and the McPheeters and an individual named Hugh M. Cannon, as Trustees, created the Road Maintenance Agreement (RMA) wherein it declared:

Whereas, there is a private roadway easement over the land described in Exhibit B, which provides ingress and egress to the property described in Exhibit A, and

Whereas, Grantor contemplates the sale of tracts of land comprising the property described in Exhibit A, and by this Agreement intends to provide for the present and future maintenance of the roadway for the benefit of the present and future owners of the tracts to be sold and the future owners of any part or portion of such tracts;

Now Therefore, in consideration of the premises, the covenants, contained herein, and the mutual benefit to be derived by the parties, the Grantors, for themselves, their successors, heirs and assigns, and for and on behalf of all persons who may hereafter own all or any part of the land described in Exhibit A, agree with the Trustees as follows...

The RMA provides for the appointment of trustees and the collection of assessments. The RMA further provides:

This Agreement shall be binding on the Grantors, the named Trustees, the present and future tract owners, their heirs, successors, assigns and personal representatives, and the covenants and agreements contained herein shall run with the land described herein. It is further intended this Agreement shall run with the land described and be binding however such land shall be divided and subdivided, whether into greater or fewer tracts than herein contemplated, provided however that no tract which does not now or in the future have access to the roadway shall be neither benefitted nor burdened by this Agreement.

Exhibit A sets forth a metes and bounds legal description of two tracts of land: 37.32 acres which included what would eventually become 18833 Cliffview Lane and 18841 Cliffview Lane;¹ and 30.906 acres which would become 170 Centaur Road and 18971 Wild Horse Creek Road.² Exhibit B provides a metes and bounds legal description of the entirety of Cliffview Lane, beginning at Wild Horse Creek Road on the east and ending in a circle with a 50–foot radius on the west end.³ The road easement extends over 18833 Cliffview, 18841 Cliffview, and onto 170 Centaur Road and 18971 Wild Horse Creek Road.⁴ The RMA was recorded with the St. Louis County Recorder of Deeds on July 7, 1982.

On July 2, 1982, the same day the RMA was created, the McPheeters conveyed a portion of their land, 18841 Cliffview, to Appellants' predecessor in title. The conveyance included an easement for ingress and egress over the entirety of the Cliffview Lane easement identical to that in the RMA.

On May 2, 1983, the McPheeters conveyed 18823 and 18833 Cliffview to Appellants' predecessor in title, which included an easement over the entirety of Cliffview Lane and was taken "[s]ubject to building lines, easements, conditions and restrictions of record[.]"

On January 4, 1984, the McPheeters conveyed 170 Centaur to Appellants' predecessor in title and 18971 Wild Horse Creek to Respondents' predecessor in title. An express easement over Cliffview Lane was not included in the deeds.

Appellants acquired 18833 Cliffview in April 2007, and 18841 Cliffview and 170 Centaur in May 2014. The deeds for 18833 and 18841 Cliffview include an express easement over Cliffview Lane. Respondents acquired 18913 and 18971 Wild Horse Creek in August 2007.

In January 2015, Appellants filed an Amended Petition seeking a declaratory judgment (Count I), quiet title (Count II), damages for trespass (Count III), and injunctive relief (Count IV) against Respondents alleging neither 18913 nor 18971 Wild Horse Creek had any right to use the Cliffview Lane easement.

Respondents filed an Amended Counterclaim seeking declaratory relief and to quiet title to the Cliffview Lane easement with regard to 18913 Wild Horse Creek (Counts I and II) and to 18971 Wild Horse Creek (Counts III and IV), a prescriptive easement (Count V), and for damages (Count VI).

The parties filed cross-motions for partial summary judgment. After the trial court initially denied the motions based upon a finding there were disputed issues of material fact, the parties filed a Joint Motion for Reconsideration. In the Joint Motion, the parties agreed the RMA was signed by the parties' predecessors in title; was recorded with the St. Louis County Recorder of Deeds on July 2, 1982; provided a metes and bounds description of an easement over Cliffview Lane; and provided a metes and bounds description of multiple properties including 18971 Wild Horse Creek. The parties agreed "that the interpretation of the legal significance of the [RMA] is a matter that should be decided by this [c]ourt as a matter of law" and moved the court to make a legal finding as to whether the RMA granted an easement over Cliffview Lane for the benefit of the property located at 18971 Wild Horse Creek. Upon the parties' Joint Motion, the court concluded the RMA was created with the intent to provide for the present and future maintenance of Cliffview Lane by the present and future owners of the tracts and that it granted 18971 Wild Horse Creek an easement over Cliffview Lane. The court entered judgment in favor of Respondents on Counts III and IV of their Amended Counterclaim and against Appellants on Counts I and II of their Amended Petition. The remaining claims between the parties were subsequently resolved with judgment being entered in favor of Respondents on Counts I and II of their Amended Counterclaim regarding 18913 Wild Horse Creek Road, while Count III of Appellants' Amended Petition and Counts V and VI of Respondents' Amended Counterclaim were dismissed. This appeal follows.

Points on Appeal

In their first point on appeal, Appellants argue the trial court erred in denying their motion for partial summary judgment and in granting Respondents' motion for partial summary judgment because the undisputed material facts demonstrate Appellants have a valid easement over Cliffview Lane and Respondents do not, in that Appellants' deed grants them an express easement to use Cliffview Lane; the RMA could not have created an easement as a matter of law because a property owner cannot grant itself an easement on his own land; the RMA did not create an easement as a matter of law because the agreement contains no words of grant or conveyance; and even if they had attempted to do so, the McPheeters could not have lawfully granted 18971 Wild Horse Creek an easement over Cliffview Lane, as the McPheeters no longer owned the land on which the lane sits at the time they transferred 18971 Wild Horse Creek to Respondents' predecessor in title.

In their second point on appeal, Appellants argue the trial court erred in granting Respondents' motion for partial summary judgment because the terms of the RMA are ambiguous and there is a genuine issue of material fact as to whether the RMA expressly grants an easement over Cliffview Lane to Respondents, in that the agreement contains no words of creation, grant, or dedication of an easement; provides only for the maintenance of the lane; and fails to define the term "access."

Standard of Review

Appellate review of the grant of summary judgment is de novo . ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Ashford Condo., Inc. v. Horner & Shifrin, Inc. , 328 S.W.3d 714, 717 (Mo. App. E.D. 2010). We will affirm the trial court's judgment if it is sustainable on any theory. Citibrook II, L.L.C. v. Morgan's Foods of Missouri, Inc. , 239 S.W.3d 631, 634 (Mo. App. E.D. 2007). "Because our review is de novo , the trial court's order may be affirmed in this Court on an entirely different basis than that posited at trial." ITT Comm. Fin. Corp. , 854 S.W.2d at 387–88.

We will uphold summary judgment on appeal only where there is no genuine issue...