McLallen v. Tillman

386 S.W.3d 837, 2012 Mo. App. LEXIS 1315, 2012 WL 4888315
CourtMissouri Court of Appeals
DecidedOctober 16, 2012
DocketNo. SD 31659
StatusPublished
Cited by8 cases

This text of 386 S.W.3d 837 (McLallen v. Tillman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLallen v. Tillman, 386 S.W.3d 837, 2012 Mo. App. LEXIS 1315, 2012 WL 4888315 (Mo. Ct. App. 2012).

Opinion

JEFFREY W. BATES, J.

Plaintiffs Debbie and Monty McLallen (the McLallens) appeal from a summary judgment quieting title to property located along the Elk River in defendants Judy and Stephen Geigle (the Geigles).1 The title dispute arose out of 1984, 1998 and 2002 deeds conveying property “lying North and West of Elk River.” In 1984, the Elk River consisted of two distinct channels. More water flowed through the [839]*839southern channel than the northern channel. At some point in the 1990s, more water began to flow through the northern channel than the southern channel. Although none of the foregoing deeds explicitly stated which channel constituted the intended boundary line, the trial court decided that the legal descriptions in these deeds were not ambiguous.

On appeal, the McLallens present four points for decision, the first of which is dispositive. In Point I, the McLallens contend the trial court erred in granting summary judgment to the Geigles because the legal description in the deeds contained a latent ambiguity by failing to identify which channel of the Elk River was intended to be the boundary line. The McLal-lens argue that this latent ambiguity presents a genuine issue of material fact as to the parties’ intent which requires a trial to resolve. We agree. The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.2

A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 919 (Mo.App.2004).3 Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). Consequently, this Court does not defer to the trial court’s decision to grant summary judgment. Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App.2007). Instead, we use the same criteria the trial court should have employed in initially deciding whether to grant the Geigles’ motion. Id.; see ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

As our Supreme Court explained in ITT, Rule 74.04 distinguishes between a motion for summary judgment filed by a “claimant” and by a “defending party.” ITT, 854 S.W.2d at 380. Here, the Geigles were defending parties.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, 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) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381 (italics in original); see Amerstar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005). “The moving party bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. banc 2009). Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. ITT, 854 S.W.2d at 377.

Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). We view the record in the light most favorable to the party against whom judgment was en[840]*840tered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT, 854 S.W.2d at 376. “A genuine issue of material fact” exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008). The following summary of facts has been prepared in accordance with these principles.

There are three deeds relevant to the issues presented by this appeal. In 1984, Bob and Donna Mott conveyed the following real estate to Judy Geigle by warranty deed:

All that part of the East Half (E'/¿) of the Northwest fractional Quarter (NWyfi of Section 4, Township 21, Range 32, McDonald County, Missouri, lying North and West of Elk River. Except county road.

When this deed was executed and recorded in 1984, the Elk River consisted of two channels. More water flowed through the southern channel than the northern channel. An area approximately eight acres in size lay between the two channels. This land, which is the subject of this lawsuit, will be referred to as the disputed eight acres.

At some point in the 1990s when Judy Geigle owned the above-referenced property, more water began to flow through the northern channel than the southern channel. In 1998, Stephen and Judy Geigle executed a warranty deed conveying the following real estate to Deanna Pittman:

All that part of the East Half (E-½) of the Northwest fractional Quarter (NW-y<0 of Section 4, Township 21N, Range 32W, McDonald County, Missouri, lying North and West of Elk River, EXCEPT county road, and subject to all easements, rights of way, covenants, and restrictions of record, if any....

In 2002, Deanna Pittman and Barbara and Maurice Burlison executed a warranty deed conveying the following real estate to Monty McLallen and Debbie Hehner (now McLallen):

All that part of the East Half of the Northwest fractional Quarter of Section 4, Township 21 North, Range 32 West, McDonald County, Missouri, lying North and West of Elk River....

At the time of this conveyance, the two channels of the Elk River still existed, and more water flowed through the northern channel than the southern channel.

The trial court granted summary judgment to the Geigles and quieted title to the disputed eight acres in them. The judge decided that “the 1998 Missouri Warranty Deed from [the Geigles] to Pittman is not ambiguous on its face and therefore did not convey to Pittman any land lying south and east of the Elk River.”

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386 S.W.3d 837, 2012 Mo. App. LEXIS 1315, 2012 WL 4888315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclallen-v-tillman-moctapp-2012.