Robson v. Diem

• Decision Date: 24 August 2010
• Docket Number: No. WD 71084.,WD 71084.
• Citation: 317 S.W.3d 706
• Parties: Rick ROBSON, Appellant,v.Bobbi Jo DIEM, et al., Respondents.
• Court: Missouri Court of Appeals

317 S.W.3d 706

Rick ROBSON, Appellant,v.Bobbi Jo DIEM, et al., Respondents.

No. WD 71084.

Missouri Court of Appeals,

Western District.

Aug. 24, 2010.

COPYRIGHT MATERIAL OMITTED

Steven M. Leigh and Beverly M. Weber, Kansas City, MO, and Shawn T. Briner, St. Louis, MO, for Appellant.

Ryan Edward Shaw and John T. Coghlan, Kansas City, MO, for Respondents Bobbi Jo Diem and Abdulhamid Zlitni.

Scott D. Mosier, Chesterfield, MO, for Respondent Countrywide Home Loans, Inc., and Federal National Mortgage Association.

Before Division II: JOSEPH M. ELLIS, Presiding Judge, and JAMES M. SMART, JR., and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Appellant Rick Robson appeals the trial court's grant of summary judgment in favor of Countrywide Home Loans, Inc. (“Countrywide”) and Bobbi Jo Diem and Abdulhamid Zlitni (collectively, “the Diems”), and the denial of Robson's own motion for summary judgment. Robson's amended petition sought declaratory judgment quieting title to the property legally described as Lot 15 of Shelly Estates in Parkville, Missouri. The Diems filed a counterclaim against Robson seeking his ejectment and damages for trespass. We reverse the judgment of the trial court and remand for further proceedings.

Factual and Procedural Background¹

Until late December, 2002, Thomas Walker and Katherine Walker (“the Walkers”) owned two tracts of land located in Parkville, Platte County, Missouri. The tracts were legally described as:

TRACT I:

ALL OF LOT 20, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF. ALSO A STRIP OF LAND IN THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 51, RANGE 34, PLATTE COUNTY, MISSOURI, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 20; THENCE SOUTH 11 DEGREES 25 MINUTES 09 SECONDS EAST ALONG THE EAST LINE OF SAID LOT 20, 255.45 FEET MEASURED 251.60 FEET (PLAT) TO THE SOUTHEAST CORNER OF SAID LOT 20; THENCE SOUTHWESTERLY ON A CURVE TO THE LEFT HAVING A RADIUS OF 67.07 FEET, AN ARC DISTANCE OF 92.31 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT 20; THENCE NORTH 64 DEGREES 56 MINUTES 45 SECONDS WEST ALONG THE SOUTHWESTERLY LINE OF SAID LOT 20 AND ITS NORTHWESTERLY PROLONGATION THEREOF 367.73 FEET TO A POINT IN THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE NORTH 0 DEGREES 07 MINUTES 18 SECONDS WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER 79.04 FEET; THENCE NORTH 77 DEGREES 00 MINUTES 07 SECONDS EAST ALONG THE NORTH LINE OF SAID LOT 20 AND ITS WESTERLY PROLONGATION THEREOF 348.76 FEET TO THE POINT OF BEGINNING, EXCEPT ANY PART IN ROADS, IF ANY.

and

TRACT II:

ALL OF LOT 15, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF. AND A TRACT OF LAND 30.0 FEET IN WIDTH LYING WEST OF AND ADJACENT TO LOT 15, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 15, THENCE SOUTH 0 DEGREES 07 MINUTES 18 SECONDS EAST ALONG THE WEST LINE OF

SAID LOT 15, 314.72 FEET TO THE SOUTHWEST CORNER OF SAID LOT 15, THENCE SOUTH 77 DEGREES 07 MINUTES 7 SECONDS WEST 30.77 FEET TO A POINT IN THE WEST LINE OF THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 51, RANGE 34, PLATTE COUNTY, MISSOURI; THENCE NORTH 0 DEGREES 07 MINUTES 18 SECONDS WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER 321.86 FEET; THENCE SOUTH 89 DEGREES 34 MINUTES 54 SECONDS EAST 30.01 FEET TO THE POINT OF BEGINNING, EXCEPT ANY PART IN ROADS, IF ANY.

On December 3, 2002, the Walkers executed a real estate contract with Robson to sell Lot 15 to Robson. At the time, the lot was unimproved, and it was Robson's intention to build a residence on the lot.

On December 5, 2002, the Walkers executed a real estate contract with Sharla Johnson to sell Lot 20 to Johnson, which had an address of 12318 N.W. 65th Street, Parkville, Missouri. Lot 20 had been improved with a single-family residence, and Johnson paid a total of $235,000 to the Walkers. On December 23, 2002, at the closing of the sale to Johnson, the Walkers executed a warranty deed in order to convey Lot 20. The warranty deed, however, which was not prepared by the Walkers nor by Johnson, inadvertently included the legal property descriptions of both Lot 20 and Lot 15. On the same date, Johnson executed a deed of trust to First Magnus Financial Corporation (“First Magnus”) to secure a loan of $223,000 that First Magnus made to Johnson so that she could purchase the property. The First Magnus deed of trust also mistakenly included the legal descriptions to both Lot 20 and Lot 15. Although both the Walkers and Johnson signed the documents required for the various transactions, both the Walkers and Johnson later stated in affidavits that they were unaware of the mistake in the legal descriptions and that their intention was that only Lot 20 be conveyed to Johnson. Johnson also stated that only Lot 20 was to be secured by the First Magnus deed of trust.²

On February 27, 2003, the Walkers executed and delivered to Robson a warranty deed conveying Lot 15 to Robson.

On September 8, 2003, a scrivener's affidavit was recorded attempting to correct the warranty deed from the Walkers to Johnson so that the legal description would include only Lot 20. The scrivener's affidavit was executed by Annette F. Elms, an employee of Premiere Land Title, who was the trustee to First Magnus under the deed of trust Johnson executed with First Magnus. ³

On approximately November 30, 2003, Robson began constructing a residence on Lot 15. No one requested Robson to quit possession of Lot 15 claiming an interest in the property. The Robson residence now has as its address 12315 N.W. 66th Street, Parkville, Missouri.

Johnson ultimately defaulted on her loan and on May 5, 2004, Millsap & Singer, P.C., as successor trustee under the First Magnus deed of trust, foreclosed on the First Magnus deed of trust.⁴ Only Johnson was given notice of the foreclosure sale. The foreclosure sale resulted in a successor trustee's deed, which contained the same erroneous legal description (including both Lot 15 and Lot 20), to Federal National Mortgage Association (“FNMA”), the successful purchaser.

On August 5, 2004, FNMA executed a special warranty deed to the Diems. This deed contained the legal descriptions of both Lot 20 and Lot 15, but only listed the address of Lot 20.⁵ On October 19, 2005, the Diems executed a deed of trust to Home Loan Center, Inc., d/b/a Lending Tree Loans (“Home Loan Center”) to secure the repayment of $228,000. This deed of trust was recorded on November 9, 2005. The Home Loan Center deed of trust contains the legal description of both Lot 20 and Lot 15, although it again lists only the address of Lot 20. On January 25, 2006, the Diems executed a “second mortgage” deed of trust to First Horizon Home Loan Corporation to secure a note for $28,500. This deed of trust also lists as the “property address” the address of Lot 20, and includes the legal descriptions of both Lot 15 and Lot 20.

On April 25, 2008, Robson filed his first amended petition to quiet title pursuant to section 527.150, RSMo 2000,⁶ and for unjust enrichment/compensation for improvements.⁷ Countrywide, successor to First Magnus, raised as affirmative defenses that Robson lacked standing to seek the relief he requested and that he was estopped from contesting title to Lot 15 because he was on notice as of February 27, 2003, the date the Johnson deed was executed and recorded, that Lot 15 had already been conveyed to Johnson. The Diems raised as an affirmative defense that they were bona fide purchasers of Lot 15. Robson, the Diems, and Countrywide submitted cross-motions for summary judgment to the trial court.

On May 18, 2009, the trial court granted Countrywide's motion for summary judgment, finding that Robson has no interest in Lot 15 and that the Diems are the record owners of Lot 15. The trial court also granted summary judgment to the Diems on their claim for ejectment against Robson. The trial court denied Robson's motion for summary judgment. Robson appeals.

Standard of Review

This court's review of the trial court's grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment are the same as those which the trial court should use to determine whether the motion for summary judgment should be sustained initially. Id. Initially, the defendants to Robson's quiet title action could have shown that they were entitled to summary judgment if they had shown: (1) facts negating any element of Robson's quiet title action; (2) that Robson, after an adequate period of discovery, would have been unable to produce evidence sufficient to establish any of the elements of his quiet title action; or (3) that there was no dispute as to any facts necessary to support one of the defendants' properly pleaded affirmative defenses. See Shifflette v. Mo. Dep't of Natural Res., 308 S.W.3d 331, 333 (Mo.App. W.D.2010). The propriety of summary judgment is a matter of law, and as such we do not defer to the trial court's order granting summary judgment. ITT, 854 S.W.2d at 376. We review the record in the light most favorable to the party against whom summary judgment was entered, according him the benefit of all reasonable inferences from the record. Shifflette, 308 S.W.3d at 333.

Robson also appeals the trial court's denial of his motion for summary judgment. “Generally, an order denying a motion for summary judgment is not a final judgment and therefore is not reviewable on appeal.” Stone v. Crown Diversified Indus. Corp., 9 S.W.3d 659, 664 (Mo.App. E.D.2000). In some cases, however, the denial of a motion for summary judgment is reviewable, because “the merits of [the] motion are intertwined with the propriety of an...