Rodgers v. Threlkeld, WD 60486.

• Decision Date: 06 August 2002
• Docket Number: No. WD 60486.,WD 60486.
• Citation: Rodgers v. Threlkeld, 80 S.W.3d 532 (Mo. App. 2002)
• Parties: Curtis C. RODGERS and Linda J. Rodgers, Respondents, v. Robert G. THRELKELD and Margean Threlkeld, Appellants.
• Court: Missouri Court of Appeals

80 S.W.3d 532

Curtis C. RODGERS and Linda J. Rodgers, Respondents, v.Robert G. THRELKELD and Margean Threlkeld, Appellants.

No. WD 60486.

Missouri Court of Appeals, Western District.

August 6, 2002.

Wayne E. Schirmer, Moberly, for Appellant.

Robert Lee Knapp, Independence, for Respondent.

RONALD R. HOLLIGER, Judge.

This case comes to us for the second time on an appeal from a grant of summary judgment in favor of the plaintiffs on a claim of adverse possession.In 1981, the Rodgers, the appellants in this matter, purchased a 6,000 acre parcel of property in Macon County, Missouri.At the time of purchase there was a north-south fence along a portion of the western border of the parcel, terminating at the north end at an east-west railroad right-of-way held by the Burlington Northern Railroad.The Rodgers claim that they believed that the fence formed the western boundary of their property.

The Threlkelds purchased a parcel of property that adjoined the western border of the Rodgers' property.After the purchase was made, the Threlkelds had the property surveyed and discovered that the north-south fence was not a boundary fence.Instead, 9.48 acres of the Threlkelds' property lay on the eastern side of the fence.They subsequently tore down that fence and had a second fence erected along the surveyed property line.The Rodgers removed this second fence and erected a third fence, allegedly in the vicinity of the first fence.

The Rodgers, in response, filed suit, asking the trial court to quiet title in their favor under the doctrine of adverse possession.The Threlkelds counter-claimed, seeking the ejectment of the Rodgers and damages for the removal of the second fence.The Threlkelds also asserted, as an affirmative defense, that part of the disputed tract was not subject to adverse possession because it lay within the railroad right-of-way.

The Rodgers moved for summary judgment, which was granted by the trial court.That first judgment was reversed and remanded because the summary judgment motion failed to address the Threlkelds' affirmative defense.Rodgers v. Threlkeld,22 S.W.3d 706(Mo.App.1999)(hereinafter "Rodgers I").After remand, the Rodgers filed an amended petition, essentially identical to their original petition, save in one respect.The amended petition alleged a different legal description of the property that excluded the portion of the tract where the railroad right-of-way was located.This amendment was apparently undertaken to render the Threlkelds' affirmative defense irrelevant.

Sometime later, cross-motions for summary judgment were filed by the parties.After hearing argument, the trial court entered summary judgment in favor of the Rodgers on their quiet title action and dismissed the Threlkelds' ejectment claim.This appeal follows.

The Threlkelds present four points on appeal.First, the Threlkelds contend that the trial court erred in sustaining the Rodgers' motion for summary judgment because that motion failed to establish the lack of a genuine dispute of material fact regarding the elements of their adverse possession claim.Specifically, the Threlkelds argue that there were no undisputed facts shown that the Rodgers had maintained open, notorious, exclusive, hostile, actual and continuous possession of the tract for a period of ten years.

Our review of a trial court's grant of summary judgment is de novo.Rodgers I,22 S.W.3d at 709.We review the evidence in the light most favorable to the nonmoving party.Id.Only when the evidence, viewed in that light, shows that the movant is entitled to judgment as a matter of law, may we affirm.Id.If there remains a genuine dispute of material fact, summary judgment is inappropriate, and we must reverse.Kramer v. Ins. Co. of N. Am.,54 S.W.3d 613, 615(Mo.App.2001).

Given the heavily factual nature of adverse possession claims, it is difficult to conceive of a circumstance where a claimant asserting adverse possession could succeed upon his or her claim through the mechanism of summary judgment.SeeEstate of Heidt,785 S.W.2d 668, 670(Mo.App.1990)("As a general observation, summary judgment, especially for the plaintiff, is rarely appropriate in cases involving proof of such elusive facts as intent, motive, fraud, duress, undue influence, mental capacity, and the like — which must in nearly every case be proved by circumstantial evidence.").See alsoRogers v. Ill. Cent. R.R. Co.,833 S.W.2d 426(Mo.App.1992)(where affidavits or other sworn statements require evaluative judgment between two rationally possible conclusions, summary judgment should be denied).To prevail, the Rodgers' motion must first set forth undisputed facts which support each and every element of their adverse possession claim.Machholz-Parks v. Suddath,884 S.W.2d 705, 707-08(Mo.App.1994).Those elements are five in number.First, the possession must be actual.There must be physical control and use of the disputed property for the statutory period.SeeWykle v. Colombo,457 S.W.2d 695, 700(Mo.1970);City of S. Greenfield v. Cagle,591 S.W.2d 156, 160(Mo.App.1979).Second, the possession of the disputed tract must be hostile to other competing claims to the property.Third, that possession must be open and notorious, such that those individuals having competing claims to the property actually know or should have known of that possession.Fourth, possession must be exclusive, such that others with competing claims to the property are wholly excluded from the property.SeeMachholz-Parks,884 S.W.2d at 708(citingLohrmann v. Carter,657 S.W.2d 372(Mo.App.1983)).Lastly, the possession must be continuous for the statutory period of ten years.

To some extent, the facts that would be marshaled in support of a claim to adverse possession may support more than one element.For example, evidence that shows use of the property during the statutory period would likely support the actual possession element, but it may also tend to support the element of open possession.However, if the Rodgers failed to marshal sufficient facts with regard to any one of the above elements, then their motion for summary judgment cannot prevail.SeeMachholz-Parks,884 S.W.2d at 708 only when each of those elements is supported by competent evidence does the burden shift to the non-movant to establish that there is a dispute of material fact.SeeITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,854 S.W.2d 371, 381(Mo. banc 1993).

In Rodgers Iwe did not consider whether the Rodgers had made a prima facie showing of their entitlement to summary judgment.See22 S.W.3d at 712.A close review of the record before the trial court reveals that the Rodgers have failed to carry their initial burden of presenting facts that support all of the elements of their claim.Specifically, there are serious deficiencies in the evidence presented by the Rodgers regarding their use of the...