DocketNumber: No. SD 31966
Citation Numbers: 393 S.W.3d 100
Judges: Francis, Lynch, Rahmeyer
Filed Date: 1/23/2013
Status: Precedential
Modified Date: 10/2/2021
The Empire District Electric Company (“Empire”) appeals the trial court’s grant of summary judgment in favor of David H. Fandel and Dawn C. Fandel, as Trustees
Factual and Procedural Background
On May 6, 2010, the Trust filed its “Petition for Quiet Title, Adverse Possession, Termination of Easement, and Damages for Inverse Condemnation” against Empire. In its petition, the Trust set out that it purchased — via quitclaim deed — a certain parcel of real estate (“the disputed property”) from Adobe L.L.C., on December 18, 2007, and recorded that deed on March 3, 2008.
Count I of [the Trust’s] Petition is barred by [section] 516.090, [RSMo Cum.Supp.2006,] which provides, in part, ‘this section shall be construed to prohibit any judgment granting adverse possession to a claimant where the defendant possesses an interest in land described in the recorded deed and is a public utility as defined in [s]ection 386.020.’ Empire states that it possesses an interest in the [disputed] property which is described in the recorded deed, and that it is a public utility as defined in [s]ection 386.020, such that [s]ection 516.090[, RSMo Cum.Supp.2006,] prohibits any judgment granting adverse possession to [the Trust].[4]
The Trust filed its “Motion for Summary Judgment on Counts I and II and Statement of Facts” on June 9, 2011. The Trust asserted it had adversely possessed the disputed property through its predecessors from 1982 to 2000 and in support of its claim, it offered the affidavits of two of those predecessors. Based on the aforementioned affidavits, the Trust maintained in its motion for summary judgment that
possession of the [disputed [property above 708 feet by the Trust and its predecessors in title was open, hostile, notorious and continuous for periods greater than 10 years before section 516.090 was amended (S.B. 1045, enacted June 12, 2006, effective 90 days after adjournment) to confer immunity to public utilities against divestment of title through the application of the doctrine of adverse possession.
It further related the “Trust and its predecessors in title have always paid real estate taxes on all or substantial portions of the [disputed [property and maintained it[,]” while Empire has “paid taxes on a portion of the [disputed [property only for years 1998, 2006, 2007, 2008 and 2009[,] ... but not any improvements on the [disputed [p]roperty (other than electrical power equipment).”
The trust relied upon the affidavits of Ronnie J. Kliewer and Gordon Forsythe to prove up the element of actual possession in its predecessors. In oral argument, the Trust admitted the affidavits might have been used by the trial court to infer a conclusion of actual possession and intent to exclude others from control.
In its response to the motion for summary judgment, Empire denied through proof that the Trust received title to the property from Adobe, L.L.C., in that it was the property owner pursuant to the 1913 deed from the Hoenshels; “the language in the 191 [3] Deed ‘all for lake purposes in connection with the dam being
The trial court entered its judgment on December 12, 2011. As for Count I, the request for a declaratory judgment, the trial court found “there is a patent ambiguity in the [1911 and 1913 deeds between Empire’s predecessor in interest and the Hoenshels] and that parole evidence is necessary to interpret them. Thus, there are genuine issues in controversy and summary judgment is denied as to Count I.” As for Count II, the adverse possession count, the trial court concluded, based in part on Empire Dist. Elec. Co. v. Gaar, 26 S.W.3d 370 (Mo.App. S.D.2000), that section 516.090 “affects substantive property rights and should only be applied prospectively.” As such, it found that because the statutory period for acquiring adverse possession is ten years, “title became vested in [the Trust’s] predecessors in title by adverse possession on January 4, 1992.” It then concluded “[t]he pleadings on file, together with [the Trust’s] Affidavits in support of [its] Motion for Summary Judgment for Count II, show there is no genuine issue as to any material fact as to Count II and thus [the Trust] is entitled to judgment in [its] favor upon Count II ... as a matter of law.” The trial court found that “any interests] of ... Empire in the [disputed [property as conveyed by the Hoenshel-Ozark Power deeds, have been terminated by adverse possession and have vested in the [Trust] above the elevation of 708 feet above mean sea level.” This timely appeal followed.
Standard of Review
Appellate review of a grant of summary judgment is de novo. Kinnaman-Carson v. Westport Ins. Corp., 283 S.W.3d 761, 764 (Mo. banc 2009). Summary judgment will be upheld on appeal if there is no genuine issue of material fact and movant is entitled to judgment as a matter of law. ITT Comm’l Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). When the moving party in a summary judgment motion is the claimant or plaintiff that party “must establish that there is no genuine dispute as to those material facts upon which the ‘claimant’ would have had the burden of persuasion at trial.” Id. at 381. Thereafter, the non-movant may not rest upon the allegations and denials of the pleadings, but rather must use affidavits, depositions, answers to interrogatories, or admissions on file to show the existence of a genuine issue for trial. Id.
Under our standard of review, we review “the record in the light most favorable to the party against whom summary judgment was entered.” Kinnaman-Carson, 283 S.W.3d at 764. “ ‘The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.’ ” Id. (quoting ITT Comm’l, 854 S.W.2d at 376). Summary judgment is an extreme and drastic remedy and we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. ITT Comm’l, 854 S.W.2d at 377.
Analysis
In its Point III, Empire asserts the trial court erred because it erroneously applied the law as to adverse possession in that the Trust failed to prove actual possession. We agree. In order to establish its claim for adverse possession, the Trust was required to prove actual, hostile, open and notorious, exclusive, and continuous possession of the disputed property for ten years. Sibley v. Eagle Marine Industries, Inc., 607 S.W.2d 431, 433 (Mo. banc 1980).
“Actual possession” requires evidence from a claimant “showing the present ability to control the land and [the] intent to exclude others from control.” Compton v. Cain, 829 S.W.2d 75, 78 (Mo.App. S.D.1992) (internal quotation and citation omitted).
Here, the affidavits the Trust relied upon are insufficient to demonstrate actual possession as required for adverse possession. The affidavits do not provide any evidence the Trust’s predecessors intended to exclude others from the land, nor any intent to exclude others from controlling the property. Each affidavit simply asserts that no one else was in possession of the property. This is particularly troubling when the Trust admits that on this issue, the trial court must have inferred this element from the affidavits. We observe that if an underlying issue is one of motivation, intent, or some other subjective fact, it is particularly inappropriate for summary judgment. Ganaway v. Shelter Mut. Ins. Co., 795 S.W.2d 554, 562 (Mo.App. S.D.1990).
This error becomes even more pronounced when we consider our standard of review which requires us to review the record in the light most favorable to the
We conclude that the trial court did err in entering summary judgment in favor of the Trust because it concluded the Trust’s predecessors demonstrated actual possession of the property to support adverse possession. That proof was not present as submitted by the Trust and, therefore, the Trust did not establish it was entitled to judgment as a matter of law.
Because disposition of this appeal is completed by our analysis of Point III, it is not necessary to reach Empire’s first two points.
The judgment of the trial court is reversed and remanded for further proceedings.
. There is a lakeside resort operated upon the disputed property.
. The Trust traces its interest in the disputed property from the foreclosure of a deed of trust between the Hoenshels and Vernon Todd in 1914.
. In addition to the 1913 deed, there was an earlier deed between the Hoenshels and Ozark Power & Water that contained numerous mentions of the grant of flowage rights and an amount of consideration of $300. Empire asserted in its pleadings that the earlier 1911 deed was a flowage deed granting Empire an easement over the disputed property and that the later 1913 deed, for which $1,200 in consideration was paid, granted fee ownership of the property to Empire with an easement to the Trust's predecessor in interest.
4. Prior to the amendment of section 516.090, RSMo Cum.Supp.2006, the previous version of the statute simply stated: "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." § 516.090. The 2006 amendment added a second sentence to the statute: "This section shall be construed to prohibit any judgment granting adverse possession to a claimant where the defendant possesses an interest in land described in a recorded deed and is a public utility as defined in section 386.020 ... [.]" § 516.090, RSMo Cum.Supp. 2006.
Hereinafter when cited, § 516.090 references RSMo Cum.Supp.2006.
. Empire admitted throughout these proceedings that it has no written records of its physical possession of the disputed property nor does it have all the tax records from the years it paid taxes on the disputed property.