In the Missouri Court of Appeals Western District
CHARLES E. COPPER JR. AND ANITA J. COPPER, Appellants, WD85620 OPINION FILED: June 27, 2023 v.
MINTER D. RINGEN AND DIANE E. RINGEN, AS CO-TRUSTEES OF THE MINTER D. RINGEN AND DIANE E. RINGEN FAMILY TRUST, U/A DATED MARCH 25, 2021, Respondents.
Appeal from the Circuit Court of Johnson County, Missouri The Honorable Brent F. Teichman, Judge
Before Division Three: Janet Sutton, Presiding Judge, Cynthia L. Martin, Judge, and Edward R. Ardini, Jr., Judge
Charles E. Copper ("Mr. Copper") and Anita J. Copper ("Mrs. Copper")
(collectively, "the Coppers") appeal the trial court's judgment in favor of Minter D.
Ringen ("Mr. Ringen") and Diane E. Ringen ("Mrs. Ringen") (collectively, "the
Ringens") on the Coppers' petition for quiet title by adverse possession and on the
Ringens' counterclaim for ejectment. Finding no error, we affirm. Factual and Procedural Background 1
In 1990, Mr. Ringen approached Michael Wutke ("Wutke"), a friend who owned
and lived on thirty-five acres of rural land outside of Knob Noster in Johnson County,
Missouri, about purchasing a portion of his property. Mr. Ringen and Wutke reached an
agreement for the sale of 5.4 acres located in the southwest corner of Wutke's thirty-five-
acre tract. A survey was obtained that legally described the 5.4-acre tract, and a
conveyance deed was signed and recorded in 1990. Shortly thereafter, Wutke erected a
boundary fence which ran north to south along the eastern boundary of the land sold to
the Ringens. The Ringens built a home on their 5.4-acre tract.
In 1998, the Coppers expressed interest in purchasing the remaining property
owned by Wutke. However, they were unable to obtain a loan in the amount Wutke
desired. Wutke proposed selling a portion of his remaining land to the Ringens to reduce
the acreage to be sold to the Coppers. The Ringens and the Coppers were receptive to
this idea, which contemplated increasing the size of the Ringens' parcel to approximately
ten acres, while selling the remaining acreage including Wutke's house, (approximately
twenty-five acres) to the Coppers.
Wutke "measured north the amount of feet it would take to square off a little under
five acres" to add to the Ringens' 5.4-acre tract. He arranged for a surveyor to
memorialize his measurements, resulting in a 4.59-acre tract situated immediately north
1 In the appeal of a bench-tried case, we view the evidence and reasonable inferences that may be drawn therefrom in the light most favorable to the judgment, disregarding evidence and inferences to the contrary. Sweeney v. Ashcroft, 652 S.W.3d 711, 721 (Mo. App. W.D. 2022) (citation omitted). 2 of the Ringens' existing tract. Wutke informed the Coppers that he was having the
property he intended to sell to the Ringens surveyed so that there would be "corner points
and boundary markers."
While Mr. Copper was overseas, Wutke walked the property he intended to sell to
the Coppers with Mrs. Copper. Wutke showed Mrs. Copper most of the property
boundaries, except for a portion of the boundary for the 4.59-acre parcel he intended to
sell to the Ringens. Heavy brush and precipitation made it difficult to reach this
boundary, though Wutke offered to walk Mrs. Copper to the boundary. Mrs. Copper
declined. Wutke informed Mrs. Copper that the contemplated property boundaries for
the additional parcel he intended to sell the Ringens would be surveyed and there would
be "good survey markers there before we close." Mrs. Copper advised that they could
look at the boundary lines after the survey. Wutke also showed Mrs. Copper the fence he
had built along the east line of the Ringens' original 5.4-acre tract, and explained, "this
fence over here is [the Ringens'] property boundary between us."
On May 28, 1998, Wutke and the Coppers signed a contract for the sale of thirty-
five acres, "less 10 acres more or less in the Southwest corner. (Pending Survey.)". On
June 24, 1998, Whitehead & Associates prepared a survey of the additional 4.59 acres
which was to be sold to the Ringens. That survey was delivered to the bank prior to the
Coppers closing on their purchase from Wutke on June 30, 1998. The survey identified
the 4.59-acre tract that Wutke intended to sell to the Ringens. That tract, along with the
Ringens original 5.4-acre tract, was intended as the 10 acres to be excluded from the
3 description of the land being conveyed by Wutke to the Coppers. The Coppers moved
into Wutke's house on July 21, 1998.
The additional 4.59-acre tract reflected in the survey was sold by Wutke to the
Ringens on August 11, 1998. The 4.59-acre tract is contiguous to and immediately north
of the Ringens' original 5.4-acre tract purchased in 1990. The tracts purchased by the
Ringens combine to form an "L" shape, as the width of the 4.59-acre tract is narrower
than the width of the 5.4-acre tract. The Coppers' twenty-five-acre tract lies to the east
and north of the boundaries of the Ringens' contiguous tracts.
The Ringens' tracts are heavily wooded, though both tracts have pockets of
pasture. One pocket of pasture lies in the northwest corner of the 4.59-acre tract
purchased by the Ringens in 1998. Another pocket of pasture lies along the eastern
boundary of the 5.4-acre tract purchased by the Ringens in 1990, and thus immediately
west of the boundary fence Wutke erected in 1990.
The Coppers claim that between 1998 through 2020, they mowed and baled hay
on these pockets of pasture in order to feed their horses. They did so until September,
2020, when the Ringens told the Coppers to remove hay bales, old vehicles and trailers
the Coppers had placed on the pastures.
On November 4, 2020, the Coppers filed a petition against the Ringens for quiet
title by adverse possession in the Circuit Court of Johnson County, Missouri. They
claimed to have taken title by adverse possession to two tracts (the "disputed parcels").
The first tract is a rectangular-shaped parcel along the Ringens' side of the boundary
fence built by Wutke in 1990 on the eastern line of the Ringens' 5.4-acre tract ("front
4 parcel"). The front parcel includes a pocket of pasture and a substantial wooded area on
the north, west, and south sides of the pasture. The east side of the pasture is contiguous
to pasture owned by the Coppers that lies to the east of the boundary fence. The second
tract is a square-shaped parcel in the northwest corner of the Ringens' 4.59-acre tract.
("back parcel"). The back parcel is primarily pasture, with woods on the west, south, and
east sides of the pasture. The north side of the pasture is contiguous to pasture owned by
the Coppers. The Coppers' petition did not include a legal description for either of the
disputed parcels, and instead attached two "Google Earth" aerial photographs with added
"lines" to demark the purported boundaries of the disputed parcels.
During a bench trial on June 23, 2022, the Ringens testified that in August or
September, 1998, they invited their new neighbors, the Coppers, over to their home to eat
chocolate cake so they could get to know one another. Mr. Ringen recalled:
That's when we told them, well, we've got these two parcels of land and there's an open area and there's another one there, and you have four horses. It would be okay with us if you want to bale the hay off of each of those two and you can continue to do that year after year without asking.
The Coppers claimed that this conversation never occurred. Instead, Mrs. Copper
testified that "two or three years after" they purchased their land in 1998 and began
cultivating the two pastures, Mr. Ringen told her that the front parcel looked nice after
the Coppers removed the hay, and gave the Coppers permission to continue mowing the
hay on that parcel. Mrs. Copper testified at trial that at the time of this conversation, she
did not know for sure who owned the front parcel, but that she did not question Mr.
Ringen's claim of ownership.
5 Mr. Copper testified that he mowed and baled the hay on the disputed parcels
every summer from 2000 to 2020. Mr. Ringen acknowledged that Mr. Copper baled the
hay "maybe not every year, but yes, mostly." Mr. Copper claimed that he also
maintained the rest of the disputed parcels by weed eating along the edges of the wooded
areas, as well as clearing dead limbs and trees. Mr. Ringen testified that he never saw the
Coppers in the wooded areas of either of the disputed parcels until 2020, and that there
were never signs of any type of routine maintenance or upkeep other than the mowing
and removal of hay in the two pastures consistent with the permission he had given the
Coppers.
The Coppers testified that in 1998 when they purchased their property, they did
not know where their property boundaries were, and that they still do not know where
their property boundaries lie. Mr. Copper acknowledged that he knew some of Wutke's
remaining land was being sold to the Ringens in 1998 in order to render affordable the
property being purchased by the Coppers. However, Mr. Copper testified that "no one
ever gave [him] a survey of those acres [or] ever told [him] what the acres were." Mr.
Copper acknowledged that he never followed up with the Ringens or Wutke to determine
the boundaries of the land owned by the Ringens. Instead, Mr. Copper testified that after
he and Mrs. Copper purchased land from Wutke, he baled hay from the two disputed
parcels, believing them to be a part of his property "because nobody stopped me." Mr.
Copper denied that the fence Wutke built in 1990 was ever used as a boundary fence
between the Coppers' land and the Ringens' land, and instead testified that he used the
6 fence to keep his horses enclosed. Mr. Copper testified that he still does not know how
many acres he and Mrs. Copper own.
The Ringens presented testimony from Mark Holt ("Holt"), a licensed professional
surveyor, who testified to the accuracy of the surveys of the Ringens' land which were
prepared in 1990 and 1998. Holt located all existing monuments for those surveys, and
he also identified markers on the property lines between the Ringens' and the Coppers'
land, on the Ringens' property corners, and along the Ringens' northern property line.
Holt testified that all of the corners he located were within an inch of where the 1990 and
1998 surveys indicated.
Mr. Ringen testified that he and Mrs. Ringen enjoyed walking in the wooded area
of the front parcel and on over through the pasture to the boundary fence between their
property and Wutke's (later the Coppers') property, and that prior to Wutke's sale of land
to the Coppers, the pasture on the front parcel had not been mowed. When the Ringens
purchased the additional 4.59-acre tract land from Wutke to the north of the 5.4-acre tract
in 1998, they utilized the area in several ways. They planted a garden and had a brush
pile that they would occasionally burn to have wiener roasts with their children, and they
rode four-wheelers from their home and into the pasture.
Tax records and testimony from the Johnson County, Missouri Assessor and
Collector at trial established that the Ringens' 5.4-acre tract and 4.59-acre tract have
always been assessed for tax purposes to the Ringens, and that the Ringens have made all
tax payments on the property. Exhibit A, a property ownership map produced by the
7 Johnson County, Missouri Assessor, 2 was admitted into evidence. Mr. Copper
acknowledged that the map identifies the tracts for which the Ringens have been assessed
taxes by Johnson County, and that the disputed parcels are within areas identified on
Exhibit A as property owned by the Ringens.
The trial court took the parties' claims under advisement and on July 8, 2022,
entered judgment in favor of the Ringens on the Coppers' claim of adverse possession,
and in favor of the Ringens on their claim for ejectment ("Judgment"). The trial court
concluded:
The Court finds that there is no substantial nor credible evidence to find that the Coppers physically possess the entire disputed property. To the extent their occasional occupation was without color of title, they must show physical possession of the entire area claimed in order to prevail. To the extent the Coppers may have believed that the disputed property was theirs, the same would be insufficient to constitute adverse possession as their belief would be a "mere or mental enclosure of land." Additionally, the Court finds that the Coppers' possession was not hostile as the permission granted [to] them by the Ringens to continue to mow and remove hay from the disputed tracts defeats this element.
The practical effect of the Judgment was to quiet title in favor of the Ringens as to the
5.4-acre tract and the 4.59 tract purchased from Wutke in 1990 and 1998, respectively,
which tracts are legally described in the Judgment. 3
The Coppers appeal.
2 Exhibit A indicates that it "is for tax purposes only" and "is not intended for conveyances, nor is it a legal survey;" however, at trial, the parties extensively referred to Exhibit A when describing the Ringens' and the Coppers' land. Moreover, the Johnson County assessor testified that his office creates maps "to the description in the deed . . . the best we can [and that] by and large," they are accurate. 3 The metes and bound legal descriptions for the Ringens' tracts are included in the trial court's Judgment, and need not be repeated here. 8 Standard of Review
The standard of review for a bench-tried civil case is set forth in Murphy v. Carron,
536 S.W.2d 30, 32 (Mo. banc 1976). Wright v. Nash, 652 S.W.3d 246, 252 (Mo. App. W.D.
2022). "We will affirm the trial court's judgment unless it is not supported by substantial
evidence, it is against the weight of the evidence, it erroneously declares the law, or it
erroneously applies the law. Id. (quoting Schieve v. Meyer, 628 S.W.3d 726, 731 (Mo.
App. W.D. 2021)).
Analysis
The Coppers raise two points on appeal. The first point asserts that the trial court
erred when it concluded that the actual possession and hostile possession elements of
their claim for adverse possession had not been established because the trial court
misapplied the law when it concluded that actual possession requires physical possession
of the entirety of a disputed parcel, and because the finding that possession of the
disputed parcels was not hostile since the Ringens granted the Coppers permission to
mow on the disputed parcels was against the weight of the evidence. The Coppers'
second point on appeal argues that the trial court's judgment in favor of the Ringens on
their claim for ejectment was in error because "it would be logically impossible for [the
Coppers] to be in actual and hostile possession for ejectment" if they "were not in actual
or hostile possession " for purposes of their adverse possession claim.
Point One
The Coppers' first point on appeal is impermissibly multifarious in violation of
Rule 84.04(d) in that it raises multiple, divisible claims of error by claiming both that the
9 Judgment was against the weight of the evidence and also that the trial court erroneously
applied the law with respect to two distinct elements of the adverse possession claim.
Jones v. Leath & Sons, Inc., 653 S.W.3d 629, 635 (Mo. App. W.D. 2022). "Multifarious
points on appeal are subject to dismissal, but we prefer to decide appeals on their merits
if we are able to discern the substance of the argument." Steinbach v. Maxion Wheels
Sedalia LLC, 637 S.W.3d 493, 501 n.4 (Mo. App. W.D. 2021) (citation omitted). We
have elected to do so here, and begin by addressing the Coppers' contention that the trial
court's finding that possession of the disputed parcels was not hostile was against the
weight of the evidence. Specifically, the Coppers contend this finding was against the
weight of the evidence because the Ringens' testimony at trial about a 1998 meeting
where permission was granted to the Coppers to mow the pastures on the disputed parcels
contradicted the Ringens' earlier deposition testimony on the subject.
To prevail on a claim of adverse possession, it was the Coppers' burden to prove
that their possession of the disputed parcels was "(1) hostile, that is under a claim of
right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for [ten] years
prior to the commencement of action." Coleman v. Hartman, 626 S.W.3d 289, 296 (Mo.
App. W.D. 2021) (quoting A2 Creative Group, LLC v. Anderson, 596 S.W.3d 214, 219
(Mo. App. W.D. 2020)). The "failure to prove even one of the elements of adverse
possession" defeats the Coppers' claim that they adversely possessed the disputed parcels.
Id. at 297.
"A grant of permission is inconsistent with the hostility element of adverse
possession." Daniels-Kerr v. Crosby, 484 S.W.3d 798, 802 (Mo. App. W.D. 2016)
10 (citing Rohner v. Beets, 396 S.W.3d 458, 462 (Mo. App. W.D. 2013)). "The claimant's
occupancy must be in defiance of, rather than in subordination to, the rights of others."
Id. (quoting Cooper v. Carns, 263 S.W.3d 729, 733 (Mo. App. W.D. 2008)).
"A judgment is against the weight of the evidence only if the trial court could not
have reasonably found, from the evidence at trial, the existence of a fact that is necessary
to sustain the judgment." Nash, 652 S.W.3d at 254 (quoting Meseberg v. Meseberg, 580
S.W.3d 59, 65 (Mo. App. W.D. 2019)). In judging credibility and assigning weight to the
evidence and testimony, the trial court "is free to believe none, part, or all of the
testimony of any witness." Id. (quoting Cerna-Dyer v. Dyer, 540 S.W.3d 411, 415 (Mo.
App. W.D. 2018)). And, when the evidence presents different, but reasonable
conclusions, we must defer to the trial court's assessment of that evidence. Id. (citation
omitted).
As the party asserting an against-the-weight-of-the-evidence challenge, the
Coppers must follow a four-step analytical process:
(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identify all the favorable evidence in the record supporting the existence of that proposition;
(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court's credibility determinations, whether explicit or implicit; and,
(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.
11 Reichard v. Reichard, 637 S.W.3d 559, 588-59 (Mo. App. W.D. 2021) (quoting Interest
of B.K.F., 623 S.W.3d 792, 796-97 (Mo. App. W.D. 2021)).
Although the Coppers' brief identifies a factual proposition which is necessary to
sustain the Judgment--that the Ringens granted the Coppers permission to continue
mowing and baling the hay on the disputed parcels--their brief fails to complete the rest
of the required analysis for an against-the-weight-of-the-evidence challenge. The
Coppers have not attempted to address the second step of the analysis as they have not
identified the favorable evidence in the record supporting the finding that the Ringens
granted them permission to mow the pastures on the disputed parcels. The Coppers thus
ignore that both Mr. and Mrs. Ringen testified at trial that they had a meeting with the
Coppers in 1998, and that during that meeting, the Ringens gave the Coppers permission
to mow the pastures on disputed parcels for hay. And the Coppers ignore that at trial,
Mrs. Copper agreed that Mr. Ringen did give them permission to mow and bale the hay
on at least one of the disputed parcels, albeit "two or three years after" they purchased the
property. Mrs. Copper's testimony alone contradicts the Coppers' claim that their use of
the disputed parcels was hostile.
In disregard of the favorable evidence that supports the trial court's finding, the
Coppers' brief instead argues that the finding is against the weight of the evidence
because the Ringens' trial testimony about the 1998 meeting contradicted testimony given
by the Ringens in pretrial depositions. However, the Coppers' brief fails to explain how
the Ringens' testimony purportedly changed. Instead the Coppers' brief summarily
alleges that: (1) Mrs. Ringen testified in her deposition that Mr. Ringen and Mr. Copper
12 met and reached an agreement concerning the Coppers mowing the hay on the disputed
parcels, but "changed her testimony at trial, claiming to remember things more clearly at
trial than during her deposition;" and (2) Mr. Ringen "similarly [] claimed a meeting
between himself and [Mr. Copper] where an agreement was had during his deposition but
told a significantly different version of events during trial."
Even assuming there were material differences between the Ringens' deposition
and trial testimony, the conflicts, if any, have not been resolved by the Coppers in
accordance with the trial court's explicit or implied credibility determinations. As a
result, the Coppers have failed to address the third analytical step required to raise an
against-the-weight-of-the-evidence challenge.
Finally, the Coppers have not engaged in the fourth step of the required analysis
for an against-the-weight-of-the-evidence challenge, as they have not explained why the
favorable evidence is so lacking in probative value that it fails to induce belief in the
proposition that the Ringens granted the Coppers permission to mow and bale hay on the
disputed parcels. Instead, they assert, without citation to any authority, that absent
corroboration of the Ringens' trial testimony, or a contemporaneous writing reflecting an
agreement to permit the Coppers to mow and bale the disputed parcels, "serious
consideration as to what the weight of the evidence supports" is required.
The Coppers have not sustained their burden to establish that the trial court's
finding that the Ringens granted the Coppers permission to mow and bale hay on the
disputed parcels was against the weight of the evidence. Consequently, we find no error
13 in the trial court's conclusion that the Coppers' possession of the disputed parcels was not
hostile for purposes of their adverse possession claim.
As a result, we need not address, and deny as moot, the Coppers' second
contention that the trial court committed legal error because it used the wrong legal
standard to conclude that the Coppers did not have actual possession of the disputed
parcels. Coleman, 626 S.W.3d at 297 (holding that the "failure to prove even one of the
elements of adverse possession" defeats the claim).
Point One is denied.
Point Two
In their second point on appeal, the Coppers assert that the trial court erred when it
granted the Ringens' claim for ejectment because "it would be logically impossible for
[the Coppers] to be in actual and hostile possession for ejectment" in light of "the trial
court's previous finding that [the Coppers] were not in actual or hostile possession of the
same land" for purposes of their adverse possession claim.
The premise of the Coppers' point on appeal is fatally flawed. "A prima facie case
for ejectment can be established . . . by showing: (1) proof of title in the plaintiff; and (2)
defendant's retention of possession of said property under no valid right after a demand
for surrender has been made." Farm Properties Holdings, L.L.C. v. Lower Grassy Creek
Cemetery, Inc., 208 S.W.3d 922, 928 (Mo. App. S.D. 2006) (quoting Hearod v. Baggs,
169 S.W.3d 198, 203 (Mo. App. S.D. 2005)) (citing section 524.080). Though
possession of premises by a party under no valid right is an essential element of a claim
for ejectment, there is no requirement that the possession be hostile, that is with "the
14 intent to occupy the disputed property as his own, exclusive of the rights of all others"
for a continuous period of ten years. DeVore v. Vaughn, 504 S.W.3d 176, 182 (Mo. App.
W.D. 2016) (emphasis added). Nor is there any authority for the proposition that the
possession required to support an action for ejectment is the functional equivalent of the
"actual possession" required to support a claim of adverse possession, proof of which
may vary depending on the nature of the disputed premises.
In fact, where the record title of disputed parcels is clear, as in this case, 4 the only
defense to a claim of ejectment is a claim of adverse possession. Courtner v. Putnam, 30
S.W.2d 126, 130 (Mo. 1930) (uncontroverted evidence indicated that plaintiff held record
title to land in dispute and therefore defendant's only defense in plaintiff's ejectment
action was a claim of adverse possession of the land in dispute). The Coppers had the
burden to prove all elements of their claim of adverse possession, and failed to do so, as
we have already explained. Indian Creek Land Co. v. Bradford, 82 S.W.2d 589, 591
(Mo. 1935) (in suit for ejectment where plaintiff held record title and defendants claimed
title only by adverse possession, defendants carried the burden of proof of all elements on
their claim of adverse possession).
4 The Coppers acknowledge that the Ringens were conveyed 5.4 acres in 1990 and 4.59 acres in 1998 from Wutke, as evidenced by recorded deeds which were attached as exhibits to the Coppers' petition, and which were introduced into evidence at trial. The boundaries for the Ringens' tracts were established by surveys that were confirmed by a professional surveyor who testified at trial. The Coppers concede that the disputed parcels are on the Ringens' land. The Coppers have never claimed that they own all or any part of the disputed parcels by virtue of their conveyance deed from Wutke, and have only claimed that they own the disputed parcels because they have been adversely possessed from the Ringens--the record title holders.
15 The trial court did not err in entering judgment in favor of the Ringens on their
claim for ejectment.
Point Two is denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________ Cynthia L. Martin, Judge
All concur