Sugar Ridge Props. v. Merrell

• Decision Date: 11 April 2016
• Docket Number: SD 33543,Nos. SD 33541,SD 33542,s. SD 33541
• Citation: 489 S.W.3d 860
• Parties: Sugar Ridge Properties, Plaintiff/Appellant/Respondent, v. George W. Merrell IV, Defendant/Respondent/Cross–Appellant, v. Black Island Farms, L.L.C., Intervenor/Respondent/Cross–Appellant.
• Court: Missouri Court of Appeals

489 S.W.3d 860

Sugar Ridge Properties, Plaintiff/Appellant/Respondent,

v.George W. Merrell IV, Defendant/Respondent/Cross–Appellant,

v.Black Island Farms, L.L.C., Intervenor/Respondent/Cross–Appellant.

Nos. SD 33541

SD 33542

SD 33543

Missouri Court of Appeals, Southern District, Division Two.

Filed April 11, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2016

Application for Transfer Denied June 28, 2016

Attorney for Appellant Sugar Ridge Properties: John M. Albright, Albright Law Ltd, of Poplar Bluff, Missouri

Attorney for Respondents Merrell and Black Island Farms: Daniel S. Cornacchione, Sr., Cornacchione Law Office, of Caruthersville, Missouri

GARY W. LYNCH

, J.

Sugar Ridge Properties (“Sugar Ridge”) filed a Petition in Action to Determine and Quiet Title against George Merrell IV, alleging that it was the owner in fee simple of a real estate parcel in Pemiscot County. Black Island Farms, LLC (referred to individually as “Black Island Farms” and collectively with Merrell as “Respondents”), intervened. Merrell and Black Island Farms each counterclaimed for damages based on Sugar Ridge's actions in excluding them from the land. The trial court granted judgment in favor of Respondents and all parties appeal. Because none of the parties' claims preserved anything for our appellate review, the judgment is affirmed.

Standard of Review

Our standard of review in quiet title actions is the same as in other court-tried cases and it is well established that such review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)

; McCord v. Gates, 159 S.W.3d 369, 373 (Mo.App.2004). We must affirm the judgment if it is supported by substantial evidence, it is not

against the weight of the evidence, and the trial court did not erroneously declare or apply the law. In reviewing the trial court's judgment [a]ll evidence and inferences are viewed in the light most favorable to the judgment, and all contrary evidence and inferences are disregarded. Further, [d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses upon appellate review of a case tried without a jury ... and the trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness' testimony. Plaintiffs in a quiet title suit must succeed on the strength of their own title and if they fail to prove, prima facie, that they hold record title, their cause must fail.

Belden v. Donohue, 325 S.W.3d 515, 517–18 (Mo.App.2010)

(internal citations and quotations omitted). The trial court's judgment is presumed correct, and the burden is on an appellant to demonstrate its incorrectness. Houston v. Crider, 317 S.W.3d 178, 186 (Mo.App.2010).

Factual and Procedural Background

Merrell conveyed his interest in a farm, described as “[t]he West Half of the Northeast Quarter of Section Fourteen (14), Township Eighteen North (18N) Range Twelve (12E)[,]” (the “Farm”) by general warranty deed dated and recorded on February 25, 2011, to DHJ Farms, LLC (“DHJ Farms”). On that same day, DHJ Farms conveyed the Farm by general warranty deed to Sugar Ridge, a general partnership.

At the time Merrell conveyed his interest in the Farm to DHJ Farms, Merrell also owned an adjacent 3.63–acre parcel situated in the Southeast Quarter of Section 14, specifically described as: “NE ¼, W ½, SE ¼ Section Fourteen (14) lying North of Interstate 155 ^{[1 ]} right of way, all contained in Section Fourteen (14), Township Eighteen (18), Range Twelve (12).”

By written agreement dated December 21, 2011, Merrell leased the 3.63–acre parcel to Black Island Farms and Timmy Anderson for agricultural purposes for an initial five-year term, which was renewable at the option of lessees for another five-year period, at an annual rent of $750. Black Island Farms leased the tract from Merrell for the purpose of cultivating elderberry crops and plant stock.

After Sugar Ridge acquired the Farm, however, it proceeded to plant and farm cotton on Merrell's 3.63–acre parcel. By letter dated April 2, 2012, Merrell requested that Sugar Ridge “cease and desist all activity” on his property, advising that the parcel at issue was his property and had been leased to Black Island Farms.

On March 27, 2012, Sugar Ridge filed the instant action petitioning to quiet title to real property it described as “[t]hree (3) acres located in Section 14, Township 18 North, Range 12 East[ ]” in Pemiscot County, naming Merrell as defendant. Sugar Ridge alleged that when it purchased property from DHJ Farms on February 25, 2011, the legal description contained in the general warranty deed omitted the three-acre tract. Sugar Ridge further alleged “no one is in possession of said property adversely to” Sugar Ridge, “and no one is claiming title to the property adversely to” Sugar Ridge. Sugar Ridge, through counsel, applied for service by publication, falsely alleging that the last-known address of the defendant was “unknown.” Legal notice was published in The Steele Enterprise, a weekly newspaper, for four consecutive issues beginning April 12, 2012. After Merrell failed to answer or defend the action brought against him within forty-five days, a default judgment was entered against him on June 5, 2012, quieting title to the three acres in Sugar Ridge, as owner in fee simple. The legal description of the 3.63–acre parcel within the default judgment was described as:

A part of the Northwest Quarter of the Southeast Quarter (NW ¼ SE ¼) of Section 14, Township 18 North, Range 12 East of the Fifth Principal Meridian, Pemiscot County, Missouri and being further described as follows: Beginning at the Northeast (NE) corner of the said NW ¼ SE ¼ and run thence South 00°>19'47‘ East 448.99 feet to the North right of way line of Interstate Highway I–155; thence North 57°41'00? West 837.62 feet along said right of way line; thence North 89°56'00? East 705.29 feet to the point of beginning and containing 3.63 acres, more or less, subject to easements of record, if any.

Merrell moved to set aside the default judgment on July 5, 2012, alleging that during the first five months of 2012, although he was in the state of Hawaii, personal service could have been obtained, in that John W. Turnage III, the general partner for Sugar Ridge, should have known how to contact Merrell either through an agent who remained at Merrell's residence while he was away or through “many other family members in the Hayti, Pemiscot County, area.” Merrell informed the court that John W. Turnage and he grew up together and then lived only a quarter of a mile apart.

On August 6, 2012, Black Island Farms, moved to intervene and set aside the default judgment, alleging that it was the lessee in a lease agreement with Merrell for the parcel at issue and had been denied the benefits of the lease agreement. The trial court granted its motion on January 25, 2013, and at the same time, set aside the default judgment previously entered in favor of Sugar Ridge. On March 22, 2013, Black Island Farms counterclaimed against Sugar Ridge alleging that Sugar Ridge had denied access to the parcel at issue and prevented Black Island Farms from planting a crop of elderberries beginning in December 2011 and continuing “through the 2013 planting season,” resulting in a loss of expected income from the harvesting of crops and plant stock.

Merrell also counterclaimed against Sugar Ridge, alleging damages for loss of rental income, damage to Merrell's “general business reputation in the community,” and seeking punitive damages for Sugar Ridge's “wanton and wreckless [sic ] behavior.”

On May 20, 2013, Merrell moved for a finding and order of contempt against Sugar Ridge, alleging that after the trial court on April 1, 2013, had directed that no party use the land in question, Sugar Ridge had applied fertilizer to the same parcel and “tractor tread marks” were evident on the ground. By written order issued May 20, 2013, the trial court “specifically ordered that no party trespass upon, farm, poison, fertilize, or otherwise have any use of the land” at issue until further order of the trial court.

Subsequently, on May 28, 2013, Merrell moved a second time for a finding and order of contempt, alleging that Sugar Ridge had planted cotton seed on the 3.63–acre parcel at issue and that “[t]he intended use of the land in question by [Merrell] and [Black Island Farms] is very specific[,] and improper fertilization could irreparably damage the soil.” On June 4, 2013, the trial court ordered that Sugar Ridge “shall disk up the crop planted on the ground at issue in this case to such a point as to assure that any crop growing there is destroyed.”

Trial was held March 10, 2014, on Sugar Ridge's petition to quiet title, Merrell's counterclaim, Black Island Farm's counterclaim, and Merrell's two motions for an order of contempt. Merrell testified that he never intended to transfer the 3.63 acres when he sold the Farm but intended to keep it because he was having conversations with Black Island Farms about the lease agreement. In addition, Merrell was dealing with Drury Signs (“Drury”) for an easement to place a sign on a portion of his land, which ultimately resulted in a sign easement on the 3.63–acre parcel on May 2, 2011. In connection with that easement, Drury conducted an independent survey, and it confirmed that Merrell was the title owner of the 3.63–acre parcel.

Black Island Farms intended to use the 3.63 acres to grow elderberries. Terry Durham, a consultant on elderberries at the University of Missouri, was an expert witness in this case and testified as follows: The soils and climate of Southeast Missouri are similar to soils in Arkansas in which elderberries grow very well. There is a large local market for elderberries because of a limited supply; ninety-five percent are currently imported from Europe. Elderberries are currently being heavily researched because of their medicinal value. There is scientific evidence to...