THE EMPIRE DISTRICT ELECTRIC COMPANY v. DOUGLAS L. COVERDELL, and CITY OF BRANSON ( 2019 )

THE EMPIRE DISTRICT ELECTRIC )
COMPANY, )
)
Respondent, )
)
v. ) No. SD 35226
) Filed: December 5, 2019
DOUGLAS L. COVERDELL, )
)
Appellant, )
)
and )
)
CITY OF BRANSON, ET AL., )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Timothy W. Perigo, Special Judge
AFFIRMED
The trial court granted summary judgment in favor of HCW Development
Company, LLC; HCW Private Development, LLC; and HCW North, LLC (collectively,
HCW) and against Douglas Coverdell (Coverdell) on his claim for adverse possession of
approximately 27 acres of property, which includes portions of the Branson Landing in
Branson, Missouri.1 Following entry of summary judgment in favor of HCW, a joint
motion seeking to have the ruling on Coverdell’s adverse possession claim reduced to a
final judgment was filed by three other parties also involved in the underlying dispute with
Coverdell: the City of Branson (Branson); Empire District Electric Company (Empire);
and Central Bank of Branson (Central). The trial court granted the joint motion and entered
a final judgment disposing of all claims against all parties. Coverdell appealed from that
judgment, raising four points of alleged error. For the reasons stated below, we affirm.
Factual and Procedural Background
This is the third time the underlying dispute has been before us on appeal. See
Empire Dist. Elec. Co. v. Coverdell, 344 S.W.3d 842, 844 (Mo. App. 2011) (Empire I);
Empire Dist. Elec. Co. v. Coverdell, 484 S.W.3d 1, 4 (Mo. App. 2015) (Empire II). By
way of overview, the underlying dispute originated from a 2003 action in which Coverdell
prevailed against Empire in quieting title to an initial 3.36-acre tract located north of the
property at issue. The purported property description of that 3.36-acre tract submitted by
Coverdell, however, included a large tract of property south of the initial tract, together
totaling 27 acres and encompassing portions of the Branson Landing. That property
description was incorporated into the 2010 judgment. Empire and Branson appealed from
that judgment. Empire I, 344 S.W.3d at 844.
In Empire I, this Court reversed the judgment in that civil case on the ground of
plain error. Based on Coverdell’s judicial admissions at trial that the dispute concerned
only the 3.36 acres “up north,” our opinion in Empire I held that the 2010 judgment
1
The judgment against Coverdell was also against Coverdell Enterprises, Inc.
(CEI). CEI filed a separate notice of appeal, so its points of alleged error are not addressed
in this opinion.
2
quieting title in Coverdell “in what appears to be a 27 acre tract of land was in error” and
the judgment affected Branson’s substantial rights, resulting in a manifest injustice. Id. at
851-52. We reversed the 2010 judgment and remanded the cause. We instructed the trial
court to permit Branson to amend its pleadings and to freely permit amendment of the
pleadings of Empire and Coverdell, without prejudice to the rights of third parties to
intervene in the litigation as the Rules of Civil Procedure might provide. Id. at 853.
Following remand, pursuant to the opinion and mandate in Empire I, Coverdell
took the position that his claims were not limited to the 3.36 acres that were the subject of
his judicial admissions. Instead, he asserted that he had always been claiming the full 27
acres, which he referred to as “Properties A and B.” Property A includes Property B, which
Coverdell alleged that he conveyed by deed to Coverdell Enterprises, Inc. (CEI). Because
Property A includes the entirety of Property B, we use the phrase “Property A” to refer to
the full 27-acre tract at issue in this appeal.2 Coverdell claimed ownership of this entire
tract by deed (Count I) and by adverse possession (Count II). Consistent with this Court’s
mandate in Empire I, additional interested parties sought and were granted intervention.
2
The property description of Property A was included in the appendix of Empire
II. To be very clear, because this entire 27-acre tract of Property A is at issue in this appeal,
we repeat its description here:
All that part of the SE¼ of the NW¼ situate on the right bank of Roark
Creek and that part of the NE¼ of the SW¼ in Section 33, Township 23,
Range 21, EXCEPT a tract of land more particularly described as beginning
at the NE corner of Park Addition to the City of Branson, Missouri thence
North 2º 19’ West to the Southerly bank of Roark Creek; thence in a
Southerly direction with the Easterly and Southerly bank of said Roark
Creek to the Northerly line of said Park Addition, thence Easterly to the
point of beginning all bearings being referenced to the centerline of
Sycamore Street as being due North and South.
Empire II, 484 S.W.3d at 34; see also Empire I, 344 S.W.3d at 847 (reciting the same
property description when tracing the history of Coverdell’s deed).
3
These included lienholders U.S. Bank and Arvest Bank. Thereafter, Branson, U.S. Bank
and Arvest Bank filed motions for summary judgment against Coverdell and CEI. They
both failed to timely respond. The trial court entered summary judgments in favor of
Branson, U.S. Bank and Arvest Bank, and against Coverdell and CEI on the Count I deed-
based claims. The trial court also dismissed the Count II claim of Coverdell for adverse
possession. Coverdell and CEI appealed, resulting in our opinion and mandate in Empire
II, 484 S.W.3d at 1.
In Empire II, we held that the entry of summary judgment on the deed-based claims
of Coverdell and CEI was proper. This Court reversed, however, as to the dismissal of
Coverdell’s claim for adverse possession. We based the reversal on the inability to
determine, from the property description of Property A, whether it “matched up with or
overlapped specific portions” of other property described in the motions for summary
judgment:
We cannot tell from the face of the summary judgments whether a claim by
Coverdell that he had acquired [Property A] by adverse possession would
be precluded by the uncontested facts set forth in the summary judgment
motions that were constructively admitted by him due to his failure to
controvert them.
Empire II, 484 S.W.3d at 34. We remanded the matter to the trial court “for further
proceedings limited to the resolution of Coverdell’s claim for adverse possession of
[Property A.]” Id.3
On the same day this Court decided Empire II, we decided a companion case
brought in 2011 by lienholders U.S. Bank and Arvest Bank to quiet title to certain tracts of
3
Coverdell could not convey title to property he did not own. Because CEI’s deed
to Property B came from Coverdell, CEI’s purported ownership interest in Property B
would be determined by whether Coverdell could prove he owned Property B by adverse
possession.
4
land included in the 2010 judgment. See U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390
(Mo. App. 2015). After the lienholders obtained judgments as to certain lots, Coverdell
appealed. Id. at 394. This Court reversed and remanded, directing the trial court to stay
the 2011 case, pending a final resolution of the instant case. Id. at 404.
HCW was among the parties involved in the 2011 companion case, but not in the
instant case. HCW first became involved in late 2003 when HCW Development Company,
LLC began leasing land from Branson to be developed as the Branson Landing. Following
remand of Coverdell’s adverse possession claim in Empire II, HCW requested and was
granted leave to intervene in this case. Thereafter, HCW filed their motion for summary
judgment, memorandum in support, statements of 30 uncontroverted material facts and
additional material facts (HCW’s SUMF).
Significantly, HCW’s SUMF began with facts that cleared up the confusion in
Empire II. As mentioned previously, this Court could not tell from the face of the three
previous summary judgments whether, and to what extent, Coverdell’s admissions applied
to the same real estate Coverdell described as Property A. In Coverdell’s response to
HCW’s SUMF, he admitted that: (1) the property at issue in this litigation was “Property
A as described in [his] reasserted Claims”; (2) Property A as described “is the Branson
Landing”; and (3) that Property A is set forth in Exhibit A, which is a survey that
graphically depicts the real property to which he claims to have acquired title through
adverse possession. There is no question that Coverdell is claiming adverse possession of
the entire 27-acre tract described as Property A. HCW’s motion sought summary
judgment, inter alia, on the ground that Coverdell cannot show the continuous ten-year
time period required to show adverse possession of Property A as a matter of law.
5
Before the trial court ruled on HCW’s motion, Central, as the successor in interest
to Arvest Bank, filed a motion to intervene. Coverdell did not object, and the trial court
granted the motion. At this point in the litigation, the parties involved in the adverse
possession dispute with Coverdell were HCW, Branson, Empire, and Central.
After extensive briefing on the matter, the trial court entered summary judgment in
favor of HCW and against Coverdell on his claim of adverse possession of Property A.
Soon thereafter, upon the joint motion of Branson, Empire and Central, the trial court
entered final judgment as to all parties on the grounds that the effect of the judgment, which
held that Coverdell could not as a matter of law meet the elements of adverse possession,
was dispositive of the entirety of Coverdell’s claim, thereby terminating the litigation as to
all parties.
Coverdell presents four points on appeal. He contends the trial court erred by: (1)
granting HCW’s motion for summary judgment; (2) entering judgments in favor of HCW,
Branson, Empire and Central because “these parties lack standing”; (3) permitting HCW
to intervene in the litigation; and (4) entering final judgment in favor of Branson, Empire,
and Central. Additional facts will be included below as we address each of Coverdell’s
four points.
Point 1 – Summary Judgment
Coverdell’s first point challenges the summary judgment in favor of HCW. A
summary judgment shall be granted “[i]f the motion, the response, the reply and the sur-
reply show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6); Schnurbusch v. W. Plains
6
Reg’l Animal Shelter, 507 S.W.3d 675, 679 (Mo. App. 2017).4 If, as a matter of law, the
trial court’s judgment is sustainable on any theory, it should be affirmed on appeal.
Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011); see ITT Commercial
Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 387-88 (Mo. banc 1993).
“We view the record in the light most favorable to the non-moving party, drawing all
inferences in that party’s favor.” Progressive Max Ins. Co. v. Hopkins, 531 S.W.3d 649,
651 (Mo. App. 2017); see also Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 920 (Mo. App.
2004).
“Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-
paragraphs-and-responses framework.” Jones v. Union Pac. R.R. Co., 508 S.W.3d 159,
161 (Mo. App. 2016) (italics in original); see Alvis v. Morris, 520 S.W.3d 509, 511-12
(Mo. App. 2017) (we review the undisputed material facts established by the process set
forth in Rule 74.04(c)). Facts in support of the moving party’s motion are accepted as true
unless contradicted by the non-moving party’s response to the summary judgment motion.
ITT, 854 S.W.2d at 376. Rules 74.04(c)(2) and (c)(4) require the non-movant to “support
denials with specific references to discovery, exhibits, or affidavits demonstrating a
genuine factual issue for trial.” Central Trust & Inv. Co. v. Signalpoint Asset Mgmt.,
LLC, 422 S.W.3d 312, 320 (Mo. banc 2014). If a denial is not properly supported as
required by these subparts of the rule, the fact is deemed admitted. Central Trust, 422
S.W.3d at 320; see, e.g., Progressive Max Ins. Co., 531 S.W.3d at 650 n.1 (because non-
movant’s response failed to comply with Rule 74.04(c)(2), the factual allegations in
4
All rule references are to Missouri Court Rules (2018) unless otherwise specified.
All statutory references are to RSMo (2000).
7
movant’s statement of uncontroverted material facts “are deemed admitted, and we must
treat them as true for purposes of this opinion”).5
A defending party, such as HCW, may establish a right to summary judgment by
showing: (1) facts negating any one of the claimant’s elements facts; (2) the claimant, after
an adequate period of discovery, has been unable, and will not be able, to produce evidence
sufficient to allow the trier of fact to find the existence of any one of the claimant’s
elements; or (3) the undisputed facts support each of the necessary elements of the
defending party’s properly pleaded affirmative defense. ITT, 854 S.W.2d at 381. “Each
of these three means establishes a right to judgment as a matter of law.” Lindsay, 136
S.W.3d at 920. Because the propriety of summary judgment is purely an issue of law, we
review the grant of a summary judgment de novo. Id. at 919.
Coverdell’s point contends the trial court erred by granting HCW’s motion for
summary judgment “without allowing discovery because there is no legal basis” for ruling
5
Rule 74.04(c)(2) states that “[t]he response shall set forth each statement of fact
in its original paragraph number and immediately thereunder admit or deny each of
movant’s factual statements.” Of the 30 factual statements in HCW’s SUMF, Coverdell
admitted 10. This is a proper Rule 74.04(c)(2) response. Coverdell “objected” to 15 of the
factual statements and denied them based upon the objection. These were improper
responses for two reasons. First, the plain language of Rule 74.04(c)(2) does not permit an
objection to a factual statement. See id.; cf. Rule 57.01(c)(3) and Rule 58.01(c)(3), which
permit information to be withheld because of an objection. Second, Coverdell’s denials
were not supported by “specific references to the discovery, exhibits or affidavits that
demonstrate specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2).
Therefore, these 15 factual statements are deemed admitted by Coverdell’s improper
response. See Central Trust, 422 S.W.3d at 320. With respect to the other five factual
statements made by HCW, Coverdell again denied based on an objection, but also attached
exhibits to support its argument for adverse possession based upon his purported ability to
tack the years of possession of his predecessors in title. For reasons stated infra,
Coverdell’s tacking argument fails as a matter of law. Consequently, Coverdell’s attached
exhibits are not material to the judgment. See Goerlitz, 333 S.W.3d at 453 (“[a] material
fact in the context of summary judgment is one from which the right to judgment flows”).
8
against him on his adverse possession claim.6 “A party who seeks to establish title to real
property by adverse possession must prove that he possessed the land, and that his
possession 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.” Stratford v. Long, 430 S.W.3d
921, 924 (Mo. App. 2014); see Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009);
§ 516.010 (specifying the requisite possession must be “within ten years before the
commencement of such action”). “The statute of limitations applicable to adverse
possession claims does not apply to public lands, and, therefore, title to public property
cannot be claimed on the basis of adverse possession. § 516.090.” Rice v. Huff, 22 S.W.3d
774, 781 (Mo. App. 2000); Ben Brower Prop. Co., LLC v. Evella, LLC, 554 S.W.3d 504,
508 n.4 (Mo. App. 2018). To meet the burden of proof as to the ten-year requirement, the
years of possession “must be consecutive, although they need not immediately precede the
date of the suit to quiet title.” Conduff v. Stone, 968 S.W.2d 200, 203 (Mo. App. 1998).
“An adverse possession claimant may tack his possession to that of his predecessors in title
to establish the requisite ten year period.” Id.; Pike v. Williamson, 403 S.W.3d 608, 612
(Mo. App. 2011). “A claimant’s failure to prove even one of the elements of adverse
6
Although Coverdell’s point alleges error in granting summary judgment “without
allowing discovery[,]” Coverdell fails to develop this allegation in the argument section of
his brief and has therefore abandoned this claim. See Regions Bank v. Davis, 521 S.W.3d
283, 286 n.4 (Mo. App. 2017); Lack v. Payne, 151 S.W.3d 862, 867 (Mo. App. 2004).
Moreover, Coverdell maintained a different position below, explaining to the trial court at
a status hearing after remand of Empire II that if the court “were to say cut off the discovery
right now, we would be fine with that …. We’re ready to go.” It is well settled that this
Court will not permit a party to take an inconsistent position or complain on appeal about
an alleged error which he invited by his own conduct at trial. See Klineline v. Klineline,
481 S.W.3d 551, 554 (Mo. App. 2015); Ard v. Shannon Cty. Comm’n, 424 S.W.3d 468,
476 (Mo. App. 2014).
9
possession will defeat his claim.” Conduff, 968 S.W.2d at 203. The following facts are
relevant to this point.
In Count II of Coverdell’s claims, Coverdell alleged that he and his “predecessor
[in] title” adversely possessed Property A because:
(1) [they] “continuously occupied, repaired, maintained and improved
Property A … since 1907”; (2) [their] “possession of Property A … has
been hostile to the rights of all other parties in this action and under color
of title”; (3) [they] have “had actual possession” of these properties “during
all the time they have occupied said property”; (4) [their] occupation had
been “actual, open and notorious possession”; and (5) [their] possession had
been “continuous, uninterrupted” for “more than ten (10) consecutive
years.”
Empire II, 484 S.W.3d at 9. Coverdell’s predecessor in title was Tori, Inc. (Tori), a
company owned and controlled by Peter Rea. In September 1999, Tori, through Peter Rea
and his wife (collectively the Reas), executed a General Warranty Deed in favor of
Coverdell (the Tori deed).7
In HCW’s SUMF, Coverdell admitted that Tori and the Reas, personally and as
statutory trustees of Tori, filed suit on at least three occasions seeking to quiet title to
Property A. Coverdell further admitted that in 1993, the third lawsuit (the 1993 Lawsuit)
sought to quiet title to Property A by adverse possession, and that suit was dismissed by
the trial court with prejudice on September 16, 1993. Specifically, Coverdell admitted:
The real estate described in the 1993 Lawsuit petition was identical to the
legal description set forth as “Property A” in [Coverdell’s reasserted claim]
in this action.
7
In Empire I, this Court noted a possible mistake in the Tori deed’s property
description – the same description as Property A at issue here. That description was recited
in a quit claim deed Tori received from W.F. and Vera Hoke (the Hokes). Empire I, 344
S.W.3d at 847. We noted, however, “[w]hile we do not so hold, as best we can ascertain,
[the Hokes’ deed to Tori] appears to convey more to Tori, Inc. than was deeded to the
Hokes by the McBrides [the previous owners].” Id. at 847 n.8.
10
The Plaintiffs in the 1993 Tori, Inc. Lawsuit alleged in part as follows: “The
plaintiffs … have laid claim to all of the lands … within the description
aforesaid, and have owned and held the same in open, notorious, exclusive,
continuous, adverse, hostile possession under color of title for more than 31
years[.]”
On June 10, 1993, [Empire] filed a Motion to Dismiss asserting that the
Tori, Inc. plaintiffs had brought identical or similar lawsuits against
[Empire] in 1977 and 1983 and had voluntarily dismissed both actions.[8]
The 1993 Lawsuit … was dismissed with prejudice by the Court [on
September 16, 1993]. No post trial motion was filed or appeal was taken
after the dismissal[.]
Coverdell also admitted that Branson: (1) “exclusively possessed” a portion of Property A
as a lessee “since at least 1937”; and (2) acquired and owned all of the remaining portions
of Property A by December 31, 2002.9
In HCW’s summary judgment motion, HCW initially argued, and we agree, that
Coverdell’s admission that Branson “exclusively possessed” portions of Property A since
8
In each of the actions brought in 1977 and in 1983, the Reas filed the action and
five years later voluntarily dismissed the action.
9
Dividing Property A into three parts – the Park Addition, Eastern Peninsula, and
Branson Town Company Tract, Coverdell separately admitted that:
The City of Branson has held record title to the Park Addition from and after at
least December 31, 2002. … The Eastern Peninsula and Branson Town
Company Tract … are owned by [Empire and] were used and occupied and
possessed as a park by the City of Branson known as North Beach Park for more
than thirty (30) years prior to the commencement of the Branson Landing
Development and since at least 1937 Branson has been in possession as a lessee.
Pursuant to said leases and for more than thirty (30) years prior to 2002 the City
of Branson has continuously and exclusively possessed, used and occupied North
Beach Park.
(Emphasis added; record references and paragraph numbers omitted); see also Empire I,
344 S.W.3d at 851-52 (concluding Coverdell judicially admitted he was not disputing
ownership of “the North Beach Park area”).
11
1937 necessarily negates his ability to prove this element of adverse possession and defeats
Coverdell’s claim to that property. See Flowers v. Roberts, 979 S.W.2d 465, 470 (Mo.
App. 1998) (defining “exclusive” possession as requiring claimant to hold land for himself
only); see also Machholz-Parks v. Suddath, 884 S.W.2d 705, 708 (Mo. App. 1994)
(burden remains on the claimant to prove that the ground was not open to the use of others).
With respect to the remaining portions of Property A that Coverdell admitted
Branson acquired and owned, HCW argued that, as a matter of law, Coverdell could not
prove the element of continuous possession for ten years.10 Based on relevant dates, HCW
maintained that Coverdell could not show continuous possession: (1) before September
16, 1993 by tacking on Tori and the Reas’ possession because their suit for adverse
possession of the same property was dismissed with prejudice on that date; and (2) after
September 16, 1993 through December 31, 2002, when Branson had acquired all of
Property A – a period of less than ten years – because once Branson, as a municipality,
owned the property, title to public property cannot be claimed on the basis of adverse
possession under § 516.090. We agree with these arguments.
The 1993 Lawsuit was dismissed with prejudice under Rule 67, governing
dismissals of actions. In 1993, the version in effect of Rule 67.01, addressing voluntary
dismissals, provided:
A civil action may be dismissed by the plaintiff without prejudice without
order of court any time prior to the introduction of evidence at the trial.
After the introduction of evidence is commenced, a plaintiff may dismiss
his action without prejudice only by leave of court or by written consent of
the adverse party. Leave of court shall be freely granted when justice so
10
As a practical matter, we note that Coverdell cannot show adverse possession
based on his alleged possession only. He purchased the property in September 1999, and
admitted by December 31, 2002 – only three years later – Branson had acquired or
exclusively possessed all of Property A.
12
requires. A party who has once so dismissed a civil action and
thereafter files another civil action upon the same claim shall be
allowed to dismiss the same without prejudice only (1) upon filing a
stipulation to that effect signed by the opposing party; or (2) on order of
the court made on motion in which the ground for said dismissal shall be
set forth.
Rule 67.01, Missouri Court Rules (1993) (emphasis added).11 Here, as this rule required,
there was no stipulation that any of the dismissals were without prejudice, and the trial
court clearly indicated the dismissal of the third suit was with prejudice.
A dismissal with prejudice pursuant to Rule 67.01 has the effect of an adjudication
on the merits and bars further suit by the plaintiff. N. Port Dev. Co. v. Graff, 763 S.W.2d
683, 685-86 (Mo. App. 1988); Ritter v. Aetna Cas. & Sur. Co., 686 S.W.2d 563, 564 (Mo.
App. 1985); see § 510.150 (“dismissal with prejudice operates as an adjudication upon the
merits”).12
Thus, as the third dismissal was with prejudice and effectively on the merits, Rule
67 operated to bar further suit by Tori and the Reas on their adverse possession claim as a
matter of law. See N. Port Dev. Co., 763 S.W.2d as 685-86. As of September 16, 1993,
Tori and the Reas could no longer establish their claim, nor could Coverdell tack years of
their alleged adverse possession before that date when they themselves were barred from
11
Since 1993, the same principles under Rules 67.01 through 67.03 have been
rearranged under different numbers, and additional rules have been added. See Rule 67,
Missouri Court Rules (2018).
12
See also Rule 67.03 (in 1993 providing that “[a] dismissal with prejudice bars
the assertion of the same cause of action or claim against the same party”); Vilsick v.
Standard Insulations, Inc., 926 S.W.2d 499, 501 (Mo. App. 1996) (“This rule extends res
judicata principles to cases dismissed with prejudice and serves as a mechanism to
terminate litigation”; however, “unlike the doctrine of res judicata, application of [then
Rule 67.03] does not require a prior adjudication on the merits.”); Rice v. Taylor-Morley-
Simon, Inc., 842 S.W.2d 926, 928-29 (Mo. App. 1992) (similar holding).
13
proving the same claim. See Conduff, 968 S.W.2d at 203 (tacking not allowed when
claimant could not show at the time of prior possession that predecessors could satisfy the
elements of adverse possession); see also Reynolds v. Brill, 302 S.W.3d 716, 720 (Mo.
App. 2010); Harris Land Dev., L.L.C. v. Fields, 139 S.W.3d 275, 279 (Mo. App. 2004);
Shuffit v. Wade, 13 S.W.3d 329, 336-37 (Mo. App. 2000); Flowers, 979 S.W.2d at 471-
72; Brinner v. Huckaba, 957 S.W.2d 491, 495-96 (Mo. App. 1997); Johnson Cty. Post
No. 2513, Veterans of Foreign Wars, Inc. v. Jackson, 519 S.W.2d 335, 337-38 (Mo. App.
1975).13 Consequently, Coverdell cannot tack the alleged possession of his predecessors
in title before September 16, 1993.
Assuming arguendo, Coverdell could show adverse possession of Property A after
September 16, 1993, he still falls short of proving such possession for the requisite ten-
year period. See § 516.010. Coverdell admits Branson had acquired all remaining portions
of Property A (not otherwise exclusively possessed) less than ten years later, by December
31, 2002. After that date, title to public property cannot be claimed on the basis of adverse
possession pursuant to § 516.090. In pertinent part, this statute states:
Nothing contained in any statute of limitation shall extend to any lands
given, granted, sequestered, or appropriated to any public, pious, or
charitable use, or to any lands belonging to this state.
13
We find further support for our decision in the general rule that “an adverse
occupant cannot tack the possession of a prior occupant to perfect adverse title in himself
or herself where predecessor … could not claim the land adversely. An adverse claimant
must take the predecessor’s possession with all the infirmities attaching to it where he or
she seeks to tack such possession to his or her own.” 2 C.J.S., Adverse Possession § 156
(2018) (footnotes omitted); see generally Byrnes v. Scaggs, 247 S.W.2d 826, 831 (Mo.
1952) (discussing when “minimum requirements of justice would demand that [grantee]
step into the shoes of his grantor or predecessor in title”).
14
Id.; see Rice, 22 S.W.3d at 781.
We are unpersuaded by Coverdell’s contrary argument. He argues that § 516.090,
by its own terms, treats municipalities differently than the State. According to Coverdell,
“while the specific use to which the property is placed may not be relevant if the State of
Missouri is the owner, when the owner is a city or other municipality, such as the City of
Branson, the land must be put to a public, pious or charitable use” and there is “no argument
or evidence for how the use of the disputed property could conceivably be considered
public, pious or charitable.” In support of his argument, Coverdell relies exclusively on
City of Gainesville v. Gilliland, 718 S.W.2d 553 (Mo. App. 1986). In Gilliland, however,
this Court actually rejected a similar argument, and held that under § 516.090, a
municipality’s title to land could not be lost through adverse possession, regardless of
whether the city owned land in proprietary or governmental capacity. Id. at 564-66. We
relied, in part, on the underlying rationale for the statute, enacted in 1865, as stated in
Dudley v. Clark, 164 S.W. 608 (Mo. 1914):
Prior to that statute this state had, through its statutes, adopted the public
policy of allowing the limitations to run against the state and municipalities.
It was found to be a ruinous public policy, for under it school lands, roads,
parks, streets, etc., were lost to the state and public through the laches or
ignorance of the public or of officials representing it. Is it not learned at the
fireside that what is everybody’s business is nobody’s business? To put a
stop to that mischief was one of the main objects of that statute.
Id. at 612; Gilliland, 718 S.W.2d at 564. Here, § 516.090 clearly applies to prohibit
adverse possession of the land owned by Branson. See Gilliland, 718 S.W.2d at 565; see
also City of Pacific v. Ryan, 28 S.W.2d 652, 654 (Mo. 1930); City of Poplar Bluff v. Knox,
410 S.W.2d 100, 103 (Mo. App. 1966).
15
In sum, based on Coverdell’s admissions that Branson exclusively possessed or
acquired all of Property A by December 31, 2002 – less than ten years after September 16,
1993 – Coverdell cannot show his alleged adverse possession for the requisite ten-year
period to support his claim. See § 516.010; Conduff, 968 S.W.2d at 203. Coverdell,
therefore, cannot prove adverse possession of Property A. See Conduff, 968 S.W.2d at
203 (claimant’s failure to prove even one of the elements of adverse possession will defeat
his claim). Contrary to Coverdell’s argument, there was a legal basis to grant summary
judgment against him on his adverse possession claim. The trial court did not err in doing
so. Point 1 is denied.
Point 2 – Standing of All Parties
Coverdell’s second point contends the trial court erred by entering judgments in
favor of HCW, Branson, Empire, and Central “because the trial court lacks authority and
jurisdiction in that these parties lack standing and therefore the judgments in their favor are
void.” The law of the case, clearly established by our prior holdings in Empire II,
forecloses re-examination of this point.
“The doctrine of law of the case governs successive appeals involving substantially
the same issues and facts, and applies appellate decisions to later proceedings in that case.”
Am. Eagle Waste Indus., LLC v. St. Louis Cty., 379 S.W.3d 813, 825 (Mo. banc 2012);
Williams v. Kimes, 25 S.W.3d 150, 153 (Mo. banc 2000). A previous holding constitutes
law of the case, precluding relitigation of issues on remand and subsequent appeal.
Williams, 25 S.W.3d at 154. The decision of a court is the law of the case for all points
presented and decided, as well as for matters that arose prior to the first adjudication and
could have been raised but were not. Id.; see also Soderholm v. Nauman, 466 S.W.3d
16
610, 618 (Mo. App. 2015) (this rule applies to matters decided by the appellate court’s
opinion, either directly or by implication). The doctrine of law of the case is necessary to
ensure uniformity of decisions, protect the parties’ expectations, and promote judicial
economy. Walton v. City of Berkeley, 223 S.W.3d 126, 129 (Mo. banc 2007).
In previous appeals related to tracts of land included in the 2010 judgment, this
Court has repeatedly rejected points and supporting arguments nearly identical to those
Coverdell presents in Point 2 of the instant appeal. In Empire II, CEI challenged the
standing of HCW, Empire, Branson, and lienholders. CEI argued that “[t]he trial court
erred in rendering any judgment in this case in favor of Empire, Branson, HWC [sic], U.S.
Bank and Arvest because the trial court lacked authority and jurisdiction to decide this
matter in that Empire, Branson, HCW, U.S. Bank and Arvest lacked standing as parties in
this case and therefore the judgment is void.” Empire II, 484 S.W.3d at 19. We denied
CEI’s point primarily because “the supporting argument fail[ed] to present an
understandable explanation of or test for standing supported by citations to authority that
are linked to claimed deficiencies on the part of Respondents.” U.S. Bank, 483 S.W.3d at
397-98; see Empire II, 484 S.W.3d at 19-20. In the 2011 companion case, we denied
essentially the same point and supporting arguments, again presented by CEI, for the same
reasons articulated in Empire II. U.S. Bank, 483 S.W.3d at 397-98.14
Here, like CEI in Empire II and the 2011 companion case, Coverdell yet again
raises a standing challenge with a deficient point that “focuses on behavior of [Empire,
14
As we acknowledged in our disposition of the appeal, CEI challenged HCW’s
standing in Empire II despite the fact that HCW was not yet a party to the underlying case.
Id. at 5 n.4. HCW was a party to the 2011 companion case. On appeal of that case, we
rejected CEI’s claim that HCW lacked standing. U.S. Bank, 483 S.W.3d at 397-98.
17
Branson, HCW, and lienholders] that occurred before the 2010 Judgment was entered.”
Empire II, 484 S.W.3d at 19. Because this appeal involves substantially the same issues
and facts as the prior appeals in Empire II and the 2011 companion case, our decisions
upholding the standing of Branson, Empire, and parties claiming an interest through them,
such as Central and HCW, constitute law of the case.15
Despite this Court’s clear holdings, Coverdell contends that his rehashing of settled
arguments in Point 2 is “not prohibited by the law of the case doctrine[.]” We disagree. It
is true that “[t]he question of a party’s standing can be raised at any time[.]” State ex rel.
Mathewson v. Bd. of Election Comm’rs of St. Louis Cty., 841 S.W.2d 633, 634 (Mo. banc
1992). However, Missouri appellate courts have not hesitated to apply the doctrine of law
of the case to preclude re-examination of decided standing issues. See Nance v. Maxon
Elec., Inc., 425 S.W.3d 926, 931 (Mo. App. 2014); In re Estate of Corbin, 166 S.W.3d
102, 107-08 (Mo. App. 2005). Coverdell’s claim was raised and rejected in previous
appeals involving substantially the same facts, issues, and parties. Accordingly, we
conclude that Branson, Empire, Central, and HCW do not lack standing.
Coverdell “cannot have multiple bites at the apple in attempting to determine this
issue favorably.” Am. Eagle, 379 S.W.3d at 825. Because Coverdell’s claim of error
15
Although not strictly necessary to our decision, we note that our opinion in
Empire II did not reject challenges to standing based on briefing deficiencies alone. In
denying Coverdell’s motion to strike U.S. Bank and Arvest as parties, we adopted a broad
interpretation of § 527.150, holding that a party has “a legally protectable interest sufficient
to bring a suit to quiet title if that party would stand to acquire or lose their stake in the
property by the court’s judgment.” Empire II, 484 S.W.3d at 23. Consequently, we found
that lienholders, such as U.S. Bank, Arvest, and their successors in interest, hold an
“interest” sufficient to establish standing in an action under § 527.150.1. Empire II, 484
S.W.3d. at 24. This reasoning lends further support to our conclusion that Central and
HCW have standing in this case.
18
amounts to nothing more than an expression of disagreement with appellate determinations
that are the law of the case, his point is without merit. Point 2 is denied.
Point 3 – Intervention of HCW
Coverdell’s third point contends the trial court erred by “permitting [HCW] to
intervene in the litigation because their intervention is unsupported and contrary to the
evidence and constitutes an erroneous application of the law[.]”16 Coverdell contends
HCW’s motion to intervene should not have been granted because: (1) the motion was
untimely; (2) they lack a direct ownership interest in the property; (3) their claims are
preserved in a collateral action; and (4) their interests are protected by existing parties.
Finding that none of these contentions have merit, we address each in turn.
This Court will affirm the trial court’s decision concerning intervention as a matter
of right unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Johnson v. State, 366 S.W.3d 11,
20 (Mo. banc 2012); see also Myers v. City of Springfield, 445 S.W.3d 608, 611 (Mo. App.
2014). Intervention should generally be allowed with considerable liberality. Johnson,
366 S.W.3d at 20.
Rule 52.12(a) governs intervention as of right. In the absence of a statute conferring
an unconditional right to intervene, Rule 52.12(a)(2) requires an entity seeking to intervene
as a matter of right to file a timely motion and demonstrate: “(1) an interest relating to the
16
Coverdell combines into the same point relied on a substantial-evidence
challenge and a misapplication-of-law challenge. These are distinct claims of error that
should be presented in separate points. Ivie v. Smith, 439 S.W.3d 189, 199 n.11 (Mo. banc
2014). Failure to do so preserves nothing for appellate review. Id.; see J.A.R. v. D.G.R.,
426 S.W.3d 624, 630 n.10 (Mo. banc 2014); Rule 84.04. We grant review ex gratia, but
again caution appellate counsel to follow the mandatory dictates of Rule 84.04.
19
property or transaction which is the subject of the action; (2) that the applicant’s ability to
protect the interest is impaired or impeded; and (3) that the existing parties are inadequately
representing the applicant’s interest.” State ex rel. Nixon v. Am. Tobacco Co. Inc., 34
S.W.3d 122, 127 (Mo. banc 2000) (citation omitted). “The proposed intervenor carries the
burden of establishing the presence of all three elements required for intervention as a
matter of right.” Id. “When an applicant satisfies these elements, however, the right to
intervene is absolute and the motion to intervene may not be denied.” Id. The rule “should
be liberally construed to permit broad intervention[.]” Allred v. Carnahan, 372 S.W.3d
477, 482 (Mo. App. 2012) (citation omitted); see State ex rel. St. Joseph, Mo. Ass’n of
Plumbing, Heating and Cooling Contrators, Inc. v. City of St. Joseph, 579 S.W.2d 804,
806 (Mo. App. 1979).
Before we address Coverdell’s specific claims of error regarding HCW’s
intervention, we note that Coverdell’s intervention argument as a whole is unpersuasive
because he posited the opposite argument to this Court in Empire II. See Id. at 26-27.
Coverdell contended in his Empire II appellate brief that the trial court erred because it
“failed to permit an indispensable party to intervene in this litigation[.]” In support of his
point, Coverdell alleged that “various corporate entities” should have been permitted to
intervene because “[i]ntervention of interested parties was expressly permitted by this
Court in [Empire I]. … [T]he trial court was required to order that these entities … be
made parties to the suit, based on the representations that they have an interest in the real
estate which is the subject matter of the instant litigation.” We denied the point on appeal
because Coverdell failed to expressly name the alleged “indispensable” party, specify
whether such a party was asserting a present claim to the property, or provide citations to
20
the record in support of his claims. Empire II, 484 S.W.3d at 28-29. Coverdell now takes
the opposite position by arguing that a similarly situated corporate entity should not have
been allowed to intervene. It is well settled that this Court will not permit a party to take
an inconsistent position or complain on appeal about an alleged error which he invited by
his own conduct. See Klineline v. Klineline, 481 S.W.3d 551, 554 (Mo. App. 2015); Ard
v. Shannon Cty. Comm’n, 424 S.W.3d 468, 476 (Mo. App. 2014).
Coverdell’s point first asserts that HCW’s intervention was erroneous because the
motion was untimely. He contends that HCW’s request to intervene in August 2016 was
“categorically unreasonable” because HCW acquired an interest in the property at issue in
2003 – approximately 13 years earlier, during the same year the underlying case
commenced, and long before “numerous judgments had been entered in the litigation.”
It is within a trial court’s discretion to determine whether a motion to intervene is
timely. Frost v. White, 778 S.W.2d 670, 673 (Mo. App. 1989). When considering the
issue of timeliness, the trial court must determine both “whether substantial justice
mandates the allowance of intervention [and] whether existing parties to the case will be
prejudiced if intervention is permitted.” Id.
HCW argues that their intervention was not untimely because the adverse
possession claim on which it intervened had not been filed until 2012, and there was no
need to intervene prior to 2016, as HCW was a defendant in the 2011 companion case.
Accordingly, HCW argues that when the 2011 case was stayed by this Court, their interest
was no longer sufficiently protected, and substantial justice then mandated intervention.
HCW’s arguments are well taken. Coverdell does not explain how he was prejudiced by
HCW’s intervention. Moreover, our Supreme Court has upheld the grant of motions to
21
intervene following both entry of judgment and remand to the trial court. See Frost v.
Liberty Mut. Ins. Co., 813 S.W.2d 302, 303 (Mo. banc 1991); see also Breitenfeld v. Sch.
Dist. of Clayton, 399 S.W.3d 816, 836-37 (Mo. banc 2013) (the intervenors were properly
permitted to intervene despite appellant’s argument that the underlying litigation “had been
proceeding for years”). Considering the complex procedural posture of this case and
closely related litigation, we cannot say that HCW’s intervention here was untimely.
Coverdell next contends HCW’s interest relating to the subject of the action is
insufficient. An interest, for purposes of intervention as of right, “means a concern, more
than mere curiosity, or academic or sentimental desire.” In re Liquidation of Prof’l Med.
Ins. Co., 92 S.W.3d 775, 778 (Mo. banc 2003). “An interest necessary for intervention as
a matter of right does not include a mere, consequential, remote or conjectural possibility
of being affected as a result of the action, but must be a direct claim upon the subject matter
such that the intervenor will either gain or lose by direct operation of judgment.” Am.
Tobacco Co., 34 S.W.3d at 128. When a party claims intervention as a matter of right,
they are asserting that they may be legally bound or prejudiced by any judgment entered in
the case. State ex rel. Reser v. Martin, 576 S.W.2d 289, 290-91 (Mo. banc 1978).
HCW claims, and the trial court found, “an interest in the real estate at issue in this
action by virtue of the Master Lease dated October 7, 2003 and its related subleases[.]”
Pursuant to the 2003 Master Lease, Branson leased certain real estate to HCW
Development Company, LLC, including property which is the subject of this case. HCW
has invested more than $150 million in developing the property at issue. Despite this
substantial investment, Coverdell contends that HCW does not possess an interest
22
sufficient for intervention because HCW’s leasehold interest is not “an immediate and
direct ownership interest in the disputed property.”
Coverdell points us to no authority in support of the contention that a fee ownership
interest is required for intervention in a quiet title action. Indeed, in Empire II we held
that “[c]ontrary to Coverdell’s contention … that sections 527.150.1 and .2 create a narrow
statutory scheme to determine title to real estate among the competing potential owners”
of property, the quiet title statute is very broad, “providing that almost any issue concerning
an interest in realty may be decided in a quiet title action.” Id. at 23-24 (internal quotations
and citation omitted). Coverdell’s argument is also refuted by Toombs v. Riley, 591
S.W.2d 235 (Mo. App. 1979). In Toombs, the Court held that a prior grantor of the land
at issue in a quiet title dispute was entitled to intervene as a matter of right under Rule
52.12(a)(2). In doing so, the Court explained that the “interest” required for intervention
under the rule “is a practical direction for the disposition of litigation to encompass as many
presumptively affected persons as may be compatible with the avoidance of multiple suits
and the demands of due process.” Id. at 236. The trial court properly found that HCW has
sufficient interest to intervene as a matter of right.
Given that HCW has an interest in the pending litigation, we now turn to whether
the disposition of the underlying action “may as a practical matter impair or impede
[HCW’s] ability to protect that interest.” Rule 52.12(a). Coverdell contends that HCW’s
preserved claims in the 2011 companion case sufficiently protect its interest. On appeal of
the 2011 companion case, however, we recognized that the overlap between the cases is
“significant” and “[i]n both cases, Coverdell claimed ownership of [Property A] by adverse
possession.” U.S. Bank, 483 S.W.3d at 403-04. We also acknowledged that a “significant
23
clash” exists between the summary judgments in the companion case and the judgments
entered in Empire II. U.S. Bank, 483 S.W.3d at 404. The 2011 companion case was
stayed for the very reason that its outcome could be affected by the ultimate disposition of
the instant case. The trial court did not err by inferring that HCW’s ability to protect their
interest could be practically impeded if they were not permitted to actively participate in
the instant case.
Finally, Coverdell contends that Branson and Empire adequately protect HCW’s
interests. However, it is well settled that the fact that two parties are on the same side of
the dispute is not enough, in and of itself, to preclude intervention. Allred, 372 S.W.3d at
486. Additionally, the interests of the intervenor and existing parties need not be wholly
adverse. Underwood v. St. Joseph Bd. of Zoning Adjustment, 368 S.W.3d 204, 210 (Mo.
App. 2012). Rather, determination of whether a proposed intervenor’s interest is
adequately represented by an original party to an action usually turns on whether there is
an identity, or divergence of interest, between the proposed intervenor and the party.
Allred, 372 S.W.3d at 486-87.
As a lessee and developer, HCW has a uniquely critical interest in seeing that the
litigation is concluded in a timely fashion. HCW is the only party to the case that has an
interest in the property at issue through the Master Lease, and it has a substantial economic
investment in the property. Therefore, HCW’s interest is divergent with those of the
existing parties. In accordance with this unique standing, HCW demonstrated a more
aggressive representation strategy than the other parties by filing its motion for summary
judgment soon after intervening. Where the first two prerequisites for intervention as of
right are met, the third element requires only a “minimal showing” that the representation
24
may be inadequate. Toombs, 591 S.W.2d at 237. Under these circumstances, HCW has
demonstrated the “minimal showing” that the other parties’ representation may be
comparatively inadequate.
HCW timely moved to intervene and satisfied the requisite elements of intervention
as of right. Consequently, their right to intervene was absolute and could not be denied.
Am. Tobacco Co., 34 S.W.3d at 127; Allred, 372 S.W.3d at 488. The trial court did not
err in granting HCW’s motion for leave to intervene. Point 3 is denied.
Point 4 – Final Judgment
Coverdell’s fourth point claims error in the trial court’s entry of final judgment.
The trial court entered final judgment as to all parties following the grant of summary
judgment in favor of HCW and against Coverdell on his adverse possession claim.
Coverdell contends the entry of final judgment is “improper” and “denies [Coverdell] of
his due process rights” because Empire, Branson, and Central “are not moving parties
entitled to judgment as a matter of law and their joint motion does not comply with the
Missouri Rules of Civil Procedure applicable to summary judgment motions.” Coverdell’s
failure to show prejudice stemming from the trial court’s entry of final judgment is fatal to
his argument under this point.
The main thrust of Coverdell’s argument is that because Empire, Branson, and
Central declined to either file their own motions for summary judgment or join in HCW’s
motion, they were not entitled to relief through the trial court’s entry of final judgment.
This argument is without merit because it disregards the preclusive effect of the trial court’s
grant of HCW’s motion for summary judgment. As discussed above in Point 1, the trial
court properly found that, as a matter of law, Coverdell cannot establish the elements
25
necessary for a finding of adverse possession of Property A. Due to the unique procedural
posture of this case together with the nature of quiet title actions, such a finding was entirely
dispositive of the sole remaining claim in the case, thereby terminating the litigation as to
all parties.
In Empire II, this Court mandated that the case be remanded to the trial court for
the second time “for further proceedings limited to the resolution of Coverdell’s claim for
adverse possession of [Property A].” Id. at 34 (emphasis added). “[W]here an appellate
court remands with specific directions, the trial court is duty-bound to render a judgment
that strictly conforms to that mandate. The court is without power to modify, alter, amend,
or otherwise depart from those directions.” Pope v. Ray, 298 S.W.3d 53, 57 (Mo. App.
2009) (emphasis in original; internal citations omitted). Per the directive of our narrow
remand, the proceedings were set to terminate upon the determination of the merits of
Coverdell’s adverse possession claim.
As the party claiming ownership by adverse possession, the burden of proof was on
Coverdell. Watson, 298 S.W.3d at 526. Moreover, we reiterated in Empire I that in quiet
title actions “[t]he claimant must rely upon the strength of his own title and not upon the
weaknesses in the title of his opponent.” Empire I, 344 S.W.3d at 852-53; Ortmeyer v.
Bruemmer, 680 S.W.2d 384, 395 (Mo. App. 1984). Because Coverdell had to rely
exclusively on the strength of his own claim of ownership to prevail, the trial court’s
finding that he was unable to demonstrate the requisite adverse possession elements was
fatal to the entirety of his claim, regardless of which adverse party moved for judgment.
The trial court’s grant of HCW’s motion for summary judgment resolved Coverdell’s claim
for adverse possession of Property A, thereby fully satisfying Empire II’s mandate and
26
disposing of the only claim remaining in the case. The finding against Coverdell precluded
further action in excess of Empire II’s directive. See Pope, 298 S.W.3d at 57. Thus, the
trial court was free to enter final judgment as to all parties.
In arguing that the trial court was not permitted to enter final judgment, Coverdell
relies on the premise that the joint motion for entry of final judgment was, in effect, a
motion for summary judgment intended to “circumvent the legal requirements applicable
to summary judgment proceedings[.]” This argument is unpersuasive. HCW’s motion for
summary judgment was thoroughly briefed, argued, considered by the trial court, and
responded to by all parties. Coverdell fails to articulate any manner in which he may have
proceeded differently had Empire, Branson, or Central filed individual motions for
summary judgment or joined in HCW’s motion. Nor has he suggested, on appeal or during
any stage of the litigation below, any way such a difference in procedure could have altered
the final outcome of the case. Indeed, the foregoing analysis affirms that Branson, Empire,
and Central’s joint motion for entry of final judgment was precisely that – a motion to
simply “make clear that the Judgment and the legal effect thereof fully resolves and
disposes of Count II in its entirety, which is the only Count that remained pending
following the November 17, 2015 Mandate, and thus the matter is ripe for appeal as to all
parties and issues before the Court.”
Even assuming, arguendo, it would have been procedurally preferable for the trial
court to require Branson, Empire, and Central to either file their own motions for summary
judgment or formally join HCW’s motion, “we are primarily concerned with the
correctness of the trial court’s result, not the route taken by the trial court to reach that
result.” Surrey Condo. Ass’n, Inc. v. Webb, 163 S.W.3d 531, 536 (Mo. App. 2005).
27
“[A]ppellate review is for prejudice, not mere error.” Heritage Warranty Ins., RRG, Inc.
v. Swiney, 244 S.W.3d 290, 294 (Mo. App. 2008). Rule 84.13(b) does not permit this
Court to reverse a trial court’s judgment unless we find “that error was committed by the
trial court against the appellant materially affecting the merits of the action.” Id. (emphasis
added). After more than 15 years of protracted litigation, it is evident that Coverdell cannot
establish ownership of Property A by deed, adverse possession, or otherwise. The trial
court did not err in entering final judgment in favor of HCW, Empire, Branson, and Central.
Point 4 is denied.
The judgment of the trial court is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
28