White v. Matthews, ED 103636
| Decision Date | 27 December 2016 |
| Docket Number | ED 103636 |
| Parties | Kenneth WHITE and Eleanor White, Appellants, v. George MATTHEWS, Respondent. |
| Court | Missouri Court of Appeals |
Brian J. McNamara, Farmington, MO, for appellants.
Michael J. Hackworth, Jason M. Cox, Hackworth, Ferguson & Thompson, L.L.C., Piedmont, MO, for respondent.
Kenneth and Eleanor White, husband and wife ("Plaintiffs"), appeal the trial court's grant of summary judgment in their quiet title and trespass causes of action against their neighbor, George Matthews ("Defendant"). We reverse and remand.
This appeal involves a dispute over ownership of a strip of rural land, consisting of 2.44 acres, running along the common boundary of the two abutting tracts of land owned by Plaintiffs and Defendant. The southern border of Defendant's property ("Tract B") abuts the northern border of Plaintiffs' property ("Tract A"), and the strip of land in dispute apparently runs east-west between their respective properties ("Tract C").
Tract A is a parcel of land sitting in Madison County, consisting of approximately 42 acres. For purposes of this appeal, the chain of title of Tract A traces back almost 50 years, and ownership of Tract A was always vested in certain members of the Neighbors Family until acquisition by Plaintiffs.
First, at some point in the distant past, Jessie and Rose Neighbors, husband and wife, acquired Tract A and began to possess the same. Second and thereafter, upon the death of Jessie and Rose Neighbors (circa mid to late 1990s),1 ownership of Tract A was vested in Jessie and Rose Neighbors' son, James Neighbors. Third, in March 2009, upon the death of James Neighbors, ownership of Tract A was vested in the brother of James Neighbors, Richard Neighbors, via a beneficiary deed. Fourth, in September 2010, Plaintiffs—who appear to have owned property in close geographical vicinity to Tract A, Tract B, and Tract C for over 40 years2 —acquired ownership of Tract A from Richard Neighbors.
Tract B is a parcel of land located in Madison County and rests north of Tract A. In February 1993, Defendant acquired ownership of Tract B, via a quit claim deed.3
Tract C—the disputed property at issue—is a rural strip of land, approximately 2.44 acres in size. Tract C runs east-west, along the common boundaries of Tract A and Tract B. For purposes of this appeal, Tract C has never been a separate piece of land included in its own deed; rather the land comprising Tract C is legally included in the quit claim deed, supra, for Tract B. Alternatively stated, it is undisputed Tract C is not included in the deed for Tract A that was acquired by Plaintiffs in September 2010.
At some point in time during the course of the Neighbors Family4 ownership of Tract A, it is undisputed a fence existed between Tract A and Tract B ("Original Fence"). Without dispute, this Original Fence was erected so as to cause Tract A to encompass Tract C. As a result of the Original Fence, the Neighbors Family, up to and including Richard Neighbors, exercised possession of Tract C. However, the record on appeal is void of any evidence regarding any written contract or agreement between any member of the Neighbors Family and Defendant recognizing Defendant's consent for the Neighbors Family to use and possess Tract C.
Upon a thorough review of the litigants' briefs and the record on appeal, this court is unable to find any evidence in the record to determine the year in which the Original Fence was erected or the individual who erected and/or maintained the Original Fence. The record is also silent as to the purpose for the placement of the Original Fence. Nevertheless, Defendant appears to argue the Original Fence was a fence of "convenience;" whereas Plaintiffs did not and do not plead any rationale for the location of the Original Fence.5 As discussed, infra, the foregoing produces a firm impression with this court that genuine issues of disputed fact, indeed, require resolution.
On June 16, 2010, in preparation of selling Tract A,—prior to Plaintiffs' acquisition of Tract A—Richard Neighbors (then, the current owner of Tract A) commissioned a land survey so as to verify the property lines. The land survey revealed the Original Fence incorrectly demarcated the property lines of Tract A and Tract B. At the request of Richard Neighbors, Defendant removed the Original Fence and constructed a new fence along the proper property lines, as set forth in the land survey ("New Fence").
Defendant claims the construction of the New Fence was performed prior to Plaintiffs' acquisition of Tract A. On the contrary, Plaintiffs presented evidence that conflicted with Defendant's assertions and evidence. First, Plaintiffs pled Richard Neighbors, in 2009 and in the presence of Defendant, represented to Plaintiff Kenneth White the Original Fence demarcated the accurate property line for Tract A. Second, during his deposition,6 Plaintiff Kenneth White revealed he had inspected Tract A prior to the sale, and at the time of that inspection the Original Fence was standing. These two separate facts resulted in Plaintiff Kenneth White purportedly believing Tract C was included in Tract A when he purchased the same, even though Tract C was not included in the deed of Tract A. Upon a thorough review of the litigants' briefs and the record on appeal, this court is unable to determine the date on which the New Fence was erected and whether the New Fence was constructed prior to Plaintiffs' acquisition of Tract A.
Almost three years after the purchase of Tract A, in July 2013, Plaintiffs commenced a cause of action for quiet title and injunction against Defendant, claiming they were the rightful owners of Tract C—the 2.44 acres of land between the New Fence and where the Original Fence stood. Plaintiffs averred Tract C should be awarded to them because their predecessors in title (one or more members of the Neighbors Family) had adversely possessed Tract C.
Subsequently, Defendant filed a motion for summary judgment, contending Plaintiffs failed to meet the required elements of adverse possession. Specifically, Defendant claimed Plaintiffs' predecessors in interest—three of whom are now deceased—had not satisfied the hostility element of adverse possession. In support thereof, Defendant presented the affidavits of Richard Neighbors and Lorna Neighbors–Cole.7 Both affidavits attested that the Neighbors Family never "adversely possessed or claimed title" to Tract C and the Neighbors Family use of Tract C "was with the consent and permission of" Defendant. Defendant elected not to proffer an affidavit of his own in support of his motion for summary judgment, nor did Defendant testify or present any argument at a hearing on the record.
In response thereto, Plaintiffs objected, on the basis of hearsay, to Defendant's reliance upon the affidavits of Richard Neighbors and Lorna Neighbors–Cole. In particular, Plaintiffs maintained neither Richard Neighbors nor Lorna Neighbors–Cole could attest to the belief or understanding of their predecessors in interest, James Neighbors, Jessie Neighbors, or Rose Neighbors, regarding the use of Tract C or the purpose of the Original Fence line. Accordingly, Plaintiffs averred that insomuch as Defendant presented no admissible evidence to defeat the "hostility" element of adverse possession there remained genuine issues of material fact precluding the grant of summary judgment in favor of Defendant.
In a written judgment, the trial court granted Defendant's motion for summary judgment ("Judgment"). In its Judgment, the trial court reasoned no genuine issues of material fact remained because Defendant presented sufficient evidence that Plaintiffs' immediate predecessor in title, Richard Neighbors, had used Tract C with Defendant's consent and permission. The trial court also stated Defendant pled that the Original Fence was known not to mark the actual property line and that it was just a "fence of convenience." As such, in granting summary judgment in favor of Defendant and against Plaintiffs, the trial court found Plaintiffs failed to satisfy all the necessary elements of adverse possession.
This appeal follows.
Plaintiffs offer one point on appeal, arguing that the trial court erred in granting Defendant's motion for summary judgment based upon the trial court's conclusion that the use of Tract C by Plaintiffs' predecessors in interest was with Defendant's consent and permission and that Plaintiffs failed to meet all of the requirements of adverse possession. Accordingly, Plaintiffs maintain there remain genuine issues of material fact regarding the same. We agree.
Upon appeal from a trial court's grant of summary judgment, the standard of review by an appellate court is de novo . ITT Com. Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) ; see also Crowe v. Horizon Homes, Inc., 116 S.W.3d 618, 621 (Mo. App. E.D. 2003) (). This court not does defer to the trial court's grant of summary judgment, but, rather, "we use the same criteria the trial court should have employed in initially deciding whether to grant summary judgment." Hearod v. Baggs, 169 S.W.3d 198, 202 (Mo. App. S.D. 2005) ; see also Rule 74.04. We review the facts "in the light most favorable to the party against whom judgment was entered" and "accord the non-movant the benefit of all reasonable inferences from the record." ITT Com. Fin. Corp., 854 S.W.2d at 376.
"Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." Id. As the defending party in a quiet title cause of action, Defendan...
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