Scott v. Hicks

• Decision Date: 08 January 2019
• Docket Number: Nos. SD 35181,SD 35184,s. SD 35181
• Citation: 567 S.W.3d 266
• Parties: David Lynn SCOTT and Donna Scott, Plaintiffs-Appellants, v. Richard HICKS and Jan Hicks, Defendants-Respondents.
• Court: Missouri Court of Appeals

567 S.W.3d 266

David Lynn SCOTT and Donna Scott, Plaintiffs-Appellants,

v.Richard HICKS and Jan Hicks, Defendants-Respondents.

Nos. SD 35181

SD 35184

Missouri Court of Appeals, Southern District, Division One.

Filed January 8, 2019

Attorney for Appellants: David C. Vaughn III, The Law Office of David C. Vaughn III, Springfield, Missouri.

Attorneys for Respondents: Shawn T. Briner and Jennifer A. Briner, BRINER LAW GROUP, LLC, Chesterfield, Missouri.

GARY W. LYNCH

David Lynn ("Lynn") Scott and Donna Scott, husband and wife (collectively "Appellants"), appeal the trial court’s judgment granting a motion for judgment notwithstanding the verdict ("JNOV") filed by Richard Hicks and Jan Hicks, husband and wife (collectively "Respondents").¹ That judgment declared that Appellants' adverse possession claim to approximately 314 acres of land (the "disputed property") was not supported by substantial evidence and awarded Respondents immediate possession of the property. In one point relied on, Appellants claim that the trial court erred in "granting [Respondents'] motion for [JNOV] and entering judgment in favor of [Respondents], because the evidence supporting each element of the adverse possession claim, specifically those claimed insufficient by the trial court; hostile, open and notorious, and exclusive, was sufficient to support the verdict, when taken in the light most favorable to the verdict." Finding that Appellants did not make a submissible case in that they failed to adduce substantial evidence supporting the "hostile" element of their adverse possession claim, we affirm.

Applicable Principles of Review and Governing Law

Our review is limited to a determination of whether Appellants made a submissible case. Keveney v. Mo. Military Academy , 304 S.W.3d 98, 104 (Mo. banc 2010). "In order to make a submissible case, each element of a plaintiff’s claim must be supported by substantial evidence." Delacroix v. Doncasters, Inc. , 407 S.W.3d 13, 26 (Mo. banc 2013). In determining whether a case was submissible, this court considers the evidence and all reasonable inferences drawn therefrom in the light most favorable to the plaintiff and disregards all contrary evidence and inferences. Id. However, we will not supply missing evidence or give the plaintiff the benefit of unreasonable, speculative, or forced inferences. Steward v. Baywood Villages Condominium Ass'n , 134 S.W.3d 679, 682 (Mo. App. 2004). Moreover,

" ‘[w]hen we say that a plaintiff is entitled to a favorable view of the whole evidence, we do not mean that material facts testified to by plaintiff may be ignored.’ " Williams v. Kansas City Transit, Inc. , 339 S.W.2d 792, 797–98 (Mo. 1960) (quoting Brooks v. Stewart , 335 S.W.2d 104, 110 (Mo. 1960) ). A party is bound by his or her own testimony on matters of fact (other than estimates of time, distance, or location) unless corrected or explained. Id. at 798 ; Brandt v. Pelican , 856 S.W.2d 658, 664 (Mo. banc 1993) ; Zabol v. Lasky , 555 S.W.2d 299, 304 (Mo. banc 1977) ; Wuerz v. Huffaker , 42 S.W.3d 652, 655, 657–58 (Mo. App. 2001). This is because a party’s testimony " ‘may be of such a character as to have all the force and effect of a judicial admission by which he is bound notwithstanding the testimony of other witnesses to the contrary.’ " Correale v. Hall , 9 S.W.3d 624, 629 (Mo. App. 1999) (quoting Goggin v. Schoening , 199 S.W.2d 87, 92 (Mo. App. 1947) ).

Id. "It is well-settled that a party is bound by his own testimony [that] is not corrected or explained." Ewanchuk v. Mitchell , 154 S.W.3d 476, 481 (Mo. App. 2005). A plaintiff’s uncorrected or unexplained testimony admitting material facts has been characterized as a type of uncontested evidence. See White v. Dir. of Revenue , 321 S.W.3d 298, 308 (Mo. banc 2010) (evidence is uncontested when a party has admitted through the party’s individual testimony the basic facts of other party's case). "In such cases, the issue is legal, and there is no finding of fact to which to defer." Id. In other words, such facts must be accepted as conclusively proven. All Am. Painting, LLC v. Fin. Sols. & Assocs., Inc. , 315 S.W.3d 719, 723 (Mo. banc 2010).

In order to prevail on their adverse possession claim, Appellants had to prove their possession of the disputed property was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of ten years. Watson v. Mense , 298 S.W.3d 521, 526 (Mo. banc 2009). The failure to establish any one of the elements will necessarily defeat the claim. White v. Matthews , 506 S.W.3d 382, 388 (Mo. App. 2016). "Adverse possession presents mixed questions of law and facts, and the principles or elements to prove such a case are considered with the view that every property may be unique and each case must be decided in light of its own unique circumstances." Weaver v. Helm , 941 S.W.2d 801, 804–05 (Mo. App. 1997).

Factual and Procedural History

Viewed in accordance with the above principles, the facts relevant to this appeal are as follows.² Lynn was born in 1952 and thereafter lived with his parents, David and Margaret Scott, on their family farm in Niangua, Webster County, Missouri. Lynn resided in his parents' home on the farm for twenty-three years. When Lynn was born, his parents owned 80 acres of farmland, and David ran a dairy farm on the land. Later, Margaret inherited a nearby 110 acres from her parents, and David used this land to grow hay and pasture livestock. When Lynn was around ten years old, he began helping David on the farm.

When Lynn turned fourteen years old, he began clearing pastures and milking cows located on the 110 acres belonging to Margaret’s parents that Margaret later inherited in 1980. Then in 1968, David bought an additional 68 acres of land from Margaret’s aunt and uncle, which was located next to the original 80 acres. After this purchase, David and Margaret had a total of around 260 acres of land. In 1970, Lynn graduated high school but stayed home to work on the farm. In 1971, David bought 210 acres of land, which laid on the two sides of the 110 acres. Following this purchase, the Scott farm totaled 470 acres, and there have been no additions since then.³ However, the Scotts have sold some acres here and there.

In the early 1970s, David stopped working on the farm as much as he previously did as he held another job. During this time, Lynn took over most of the farm duties, including haying, tending crops and livestock, milking, and transacting farm business. Throughout this time, Lynn considered himself in a partnership with David as they shared expenses and income. Appellants married in 1975, and Lynn took over all of the day-to-day activities of running the farm due to David’s age and closeness to retirement. Following their marriage, Appellants moved into an old house on the farm.

Sometime around 1981, David retired. In 1981, Lynn signed a quitclaim deed conveying 216.5 acres of the disputed property to David and Margaret. David and Margaret had previously deeded this same land to Lynn, but they decided to place the land in a trust and "deed it back" later since David and Margaret were concerned about what would happen if Appellants' marriage did not last. During 1981, Appellants became solely responsible for all of the disputed property’s income and expenses, and as such, reported all items on their tax returns and have continued to do so since then. While David would rake hay for Lynn approximately once a year until he died in 1983, Margaret did not help on the disputed property because she was physically unable to do so. Since 1981, Margaret has not had any involvement with the disputed property. According to Lynn, Margaret simply "liked to get out and look at crops and look at things" and, as such, he "took her anywhere she wanted to go." None of Appellants' farming activities ever went against Margaret’s wishes, and Margaret never asked Appellants to stop doing any particular activity on the disputed property.

Between 1993 and 1995, Lynn wanted to raise capital in order to build himself and his family a new house near the disputed property, so he decided to sell five parcels of land. In order to sell these parcels, however, Lynn needed for Margaret to sign each of the five deeds, which she did for each sale.

In 1999, Margaret signed a beneficiary deed conveying the disputed property to Lynn upon Margaret’s death.⁴ Lynn believed the reason for this beneficiary deed was so he would not have to pay taxes upon Margaret’s death. Also in 1999, Margaret deeded Appellants title to approximately 10 acres of land across the road from the disputed property for Appellants to build a house.

In 2007, due to a farming hardship, Appellants attempted to obtain a loan at the Seymour Bank secured by the disputed property (the "2007 loan"). Lynn informed Margaret that he "needed" her to sign the deed of trust (the "2007 Deed of Trust") because the title was in her name. Margaret complied and signed the deed of trust.

Lynn made all of the payments on this loan until 2013.

In 2009, Lynn, Margaret, and Lynn’s son, Jared Scott, filed a lawsuit against Richard, one of the Respondents, claiming that Richard’s cattle had trespassed on the disputed property. Their petition alleged that Margaret was the title owner of the disputed property and Lynn and Jared worked on the disputed property. As part of this lawsuit, Margaret, Lynn, and Jared signed sworn answers to interrogatories, which included stating, "Jared L. Scott and [Lynn] Scott use Plaintiff Margaret’s [sic] Scott’s land. Margaret is family, additionally, she allows us to use the property and has deeded it to us in a beneficiary deed in the event of her death." Margaret further swore that Lynn and Jared "operate my family farm." Furthermore, in a deposition for this lawsuit, Lynn admitted that while Margaret "owned title" to the disputed property, he "own[ed] possession."

In 2013, after trying to make a...