Rodgers v. Threlkeld

Decision Date12 October 1999
Citation22 S.W.3d 706
Parties(Mo.App. W.D. 1999) Curtis C. Rodgers and Linda J. Rodgers, Husband and Wife, Respondents, v. Robert G. Threlkeld and Margean Threlkeld, Husband and Wife, Appellants. WD56759
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Macon County, Hon. Ronald M. Belt

Counsel for Appellant: Wayne E. Schirmer

Counsel for Respondent: G. Edwin Proctor, Jr.

Opinion Summary: Opinion modified by Court's own motion on November 23, 1999. This substitution does not constitute a new opinion.

Robert G. and Margean Threlkeld appeal from the judgment of the Circuit Court of Macon County granting summary judgment to the respondents, Curtis C. and Linda J. Rodgers, on their petition to quiet title, based on adverse possession, to a small tract of land, which was located in Macon County, Missouri, and was the subject of a boundary dispute between the parties, and on the appellants' counterclaim to eject the respondents from the property.

The appellants raise four points on appeal. The appellants claim in Points I, II and III that the circuit court erred in granting the respondents' motion for summary judgment as to their quiet title action because: (1) the pleadings, depositions, and supporting affidavits relied upon by the respondents for summary judgment did not establish that there were no genuine disputes as to the material facts on which they had the burden of persuasion at trial in order to succeed on their quiet title action based on adverse possession; (2) the affidavits offered in support of the respondents' motions for summary judgment did not comply with Rule 74.04; and (3) the respondents did not comply with Rule 74.04 in that they did not plead undisputed facts sufficient to defeat the appellants' affirmative defense to the respondents' quiet title action. In their Point IV, the appellants claim that the trial court erred in entering summary judgment for the respondents on their quiet title action because the legal description used in its judgment quieting title in the respondents is at odds with the one found in the pleadings, depositions, and supporting affidavits relied upon by the respondents for summary judgment.

Division Three holds: In Point III, which is dispositive of this appeal, the appellants claim that the trial court erred in granting summary judgment to the respondents on their quiet title action because they did not comply with Rule 74.04, in that they did not plead undisputed facts sufficient to defeat the appellants' affirmative defense to the respondents' quiet title action.

To be entitled to summary judgment under Rule 74.04, the respondents, as movants, must have established that (1) there is no genuine dispute as to the material facts on which they have the burden of persuasion at trial, and (2) based on these undisputed facts, they are entitled to judgment as a matter of law. To make a prima facie case for summary judgment, the respondents also were required under Rule 74.04 to negate any affirmative defense properly pled by the appellants. The appellants properly raised an affirmative defense, and a review of the record reflects that the respondents did not make any allegations as to the appellants' affirmative defense or mention it in any respect in their motion for summary judgment. Thus, the respondents failed to comply with Rule 74.04(c)(1).

Although not every failure to comply with Rule 74.04(c)(1) will result in the reversal of a summary judgment, the facts on which the respondents were relying to negate the appellants' affirmative defense must be clear to this court and readily ascertainable from the record. Because the respondents did not satisfy the requirements of Rule 74.04(c)(1) and the record here was not developed sufficiently to allow us to determine the question of the appellants' affirmative defense, we find that the trial court erred in granting summary judgment to the respondents.

Ulrich, P.J., and Howard, JJ., concur.

Edwin H. Smith, Judge

Opinion modified by Court's own motion on November 23, 1999. This substitution does not constitute a new opinion.

Robert G. and Margean Threlkeld appeal from the judgment of the Circuit Court of Macon County granting summary judgment to the respondents, Curtis C. and Linda J. Rodgers, on their petition to quiet title, based on adverse possession, to a small tract of land, which was located in Macon County, Missouri, and was the subject of a boundary dispute between the parties, and on the appellants' counterclaim to eject the respondents from the property.1

The appellants raise four points on appeal. In their first three points, they attack the trial court's grant of summary judgment as to both the respondents' quiet title action and the appellants' counterclaim for ejectment. In doing so, however, they do not specifically discuss the propriety of summary judgment as to their ejectment counterclaim, but only the propriety of summary judgment with respect to the respondents' suit for quiet title. In taking this approach, we assume that they are relying on the fact that the success of their appeal, as to the denial of their counterclaim, is wholly dependent on whether the trial court was correct in granting the respondents' motion for summary judgment on their action to quiet title.

The appellants claim in Points I, II and III that the circuit court erred in granting the respondents' motion for summary judgment as to their quiet title action because: (1) the pleadings, depositions, and supporting affidavits relied upon by the respondents for summary judgment did not establish that there were no genuine disputes as to the material facts on which they had the burden of persuasion at trial in order to succeed on their quiet title action based on adverse possession; (2) the affidavits offered in support of the respondents' motions for summary judgment did not comply with Rule 74.04;2 and (3) the respondents did not comply with Rule 74.04 in that they did not plead undisputed facts sufficient to defeat the appellants' affirmative defense to the respondents' quiet title action. In their Point IV, the appellants claim that the trial court erred in entering summary judgment for the respondents on their quiet title action because the legal description used in its judgment quieting title in the respondents is at odds with the one found in the pleadings, depositions, and supporting affidavits relied upon by the respondents for summary judgment.

We reverse and remand.

Facts

The respondents have owned approximately 6,000 acres of land located in Randolph and Macon Counties since 1981. In 1997, the appellants purchased a tract of land adjoining the western side of the respondents' property. When the property was surveyed, the appellants discovered that a fence was located approximately 375 feet to the west of the eastern boundary of their property. The appellants tore down the fence and erected a new one on what was surveyed as their eastern boundary line. Soon thereafter, the respondents tore down the appellants' fence and put up a new wire fence in the same vicinity of the old fence.

On March 13, 1998, the respondents filed a petition to quiet title to the disputed land in the Circuit Court of Macon County, Missouri, alleging that they had acquired the land through adverse possession, as provided in section 516.010.3 In their petition, the respondents, in addition to their request to quiet title to the land, prayed for injunctive relief and damages. In their answer to the petition, the appellants denied the respondents' allegations of adverse possession and alleged an affirmative defense that a portion of the disputed tract of land was "railroad right-of-way property and therefore lands granted and appropriated to a public use and that such portion of property [was] not subject to adverse possession as set forth in 516.090 RSMo." In their answer, the appellants also pled a counterclaim for ejectment.

On October 23, 1998, the respondents filed a motion for partial summary judgment as to their petition to quiet title and for full summary judgment on the appellants' counterclaim for ejectment. In their motion, the respondents did not address the appellants' affirmative defense. On December 9, 1998, the circuit court sustained the respondents' motions for partial and full summary judgment, after which the respondents dismissed their claim for monetary damages.

This appeal follows.

Standard of Review

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.

When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

Because our disposition of the appellants' Point III is dispositive of their appeal, we will address it alone. In Point III, the appellants claim that the trial court erred in granting summary judgment to the respondents on their quiet title action because they did not comply with Rule 74.04, in...

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    ...law but also whether as a matter of law she has overcome the affirmative defenses advanced by the Commissioner.5 See Rodgers v. Threlkeld, 22 S.W.3d 706, 710 (Mo.App.1999). If the facts, viewed in such a manner, do not entitle Betts-Lucas to judgment as a matter of law, then we must reverse......
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    ...by adopting an absolute or per se rule precluding summary judgment for failure to comply with Rule 74.04(c)(1)." Rodgers v. Threlkeld, 22 S.W.3d 706, 710-11 (Mo.App. W.D.1999). "[W]hen the issues and the documents in support of the motion are clear to the litigants, the trial court, and the......
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