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2006 WL 1912830
July 13, 2006
Summary of Opinion
The Martens brought action against record owners seeking to quiet title to property by adverse possession. Claimants had used the acres in question to run sheep and pasture horses. They had fenced the parcel, placed “no trespassing” signs. Respondents had recognized the fences and never objected. Judgment on jury verdict was in favor of claimants defeating the claims of the owners of record. This court affirms holding that claimants had made their case for adverse possession.
Text of Opinion
Respondents Walt and Wanda Martens, husband and wife ("Respondents"), filed a petition in the Circuit Court of Christian County against Appellants Mark and Lori White (a/k/a Lori Bender), husband and wife ("Appellants"), seeking to quiet title by adverse possession to a 13.672-acre parcel of property ("Contested Property") and seeking injunctive relief from continuing trespass. In accordance with a jury verdict, a judgment was entered in favor of the Respondents. Appellants timely filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial, which were both overruled. Appellants then filed this appeal of the Order and Judgment Quieting Title, alleging that the trial court committed four errors. We affirm.
1) Factual and Procedural Background
In early 1973, John Newby, a realtor for MacGowan and Company, showed the Respondents a tract of
land in
After closing, Respondents lived on the property and used the land over to the east fence. Respondents pastured horses and raised sheep on the land and also maintained and improved the east fence. Respondents let many people use their land for hunting and posted "no trespassing" signs around the property, including on the east fence, in order to keep uninvited persons off the land.
At the time Respondents purchased their land in 1973, the property immediately to the east of and adjacent to Respondents' land was owned by Mr. and Mrs. Baker. The Bakers later sold this tract to Mr. and Mrs. Goossen, who thereafter sold it to Mr. and Mrs. Bilyeu. Although the legal description in each of the deeds by which the Bakers, Goossens, and Bilyeus obtained title included the Contested Property, these owners of the adjacent property in fact recognized Respondents' east fence as the boundary between the two adjoining parcels and never indicated or caused any problem with that boundary.
In 1990, Appellant Mark White purchased this land from the Bilyeus. The legal description in the deed from the Bilyeus to White included the Contested Property. No title search was conducted before the transfer of property from the Bilyeus to White. Marvin Allen, an expert in certifying chains of title, examined the chain of title and testified at trial that the Kessinger Affidavit of Adverse Possession was duly recorded in 1973 and appeared in the chain of title to White's property.
In 2004, Respondents started logging on the Contested Property. Appellant Mark White stopped the loggers and then began making phone calls to Respondents regarding the land. In April of 2004, Respondents noticed a portion of the east fence had been cut down, and they were unable to put their sheep out. Respondents then filed this lawsuit.
This matter was tried to a jury over the course of three days. The jury returned its verdict in favor of the Respondents and against Appellants on Respondents' claim of adverse possession and trespass, for which they assessed damages at $837.50. The trial court thereafter entered its Order and Judgment Quieting Title. Appellants timely filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial, which were both denied by the trial court. Appellants then timely filed this appeal asking for relief from the Judgment, alleging four errors by the trial court.
2) Sufficiency of the Evidence
In their first point on appeal, Appellants argue that the trial court erred in failing to grant Appellants' Motion for Judgment Notwithstanding the Verdict ("JNOV") because there was not sufficient evidence to support the jury's verdict. Appellants argue that Respondents (who were the plaintiffs in the trial court) failed to prove that they maintained actual, hostile, open and notorious, exclusive, or continuous possession of the Contested Property for at least ten years prior to the filing of the lawsuit.
a) Deficient Point Relied On
In this point relied on,
Appellants actually complain of five alleged errors, in that they contend that
there is no substantial evidence to support any one of the five elements necessary
for adverse possession. Each point should contain only one allegation of error.
Grouping multiple contentions about different issues together into one point
relied on is a violation of Rule 84.04(d).
[FN1] In the Interest A.H., 963 S.W.2d 374,
379 (Mo.App.1998), overruled on other grounds by State ex rel. Stubblefield v. Bader, 66 S.W.3d 741 (
This Court has the discretion to review an appeal on the merits even when various parts of the brief do not comply with Rule 84.04. Gray v. White, 26 S.W.3d 806, 816 (Mo.App.1999). The points relied on should "state briefly and concisely what actions or rulings of the court are challenged and why, in the context of the case, the legal reasons identified support the claim of reversible error." Stickley v. Auto Credit, Inc. 53 S.W.3d 560, 562 (Mo.App.2001). As we are able to discern Appellants' claims of error, we choose to review those claims, in spite of the fact that the point relied on is deficient. Gray, 26 S.W.3d at 816.
b) Standard of Review
The standard of review of the
trial court's denial of a motion for judgment notwithstanding the verdict and a
motion for a directed verdict is essentially the same. Maldonado v. Gateway
Hotel Holdings, L.L.C., 154 S.W.3d 303,
307 (Mo.App.2003). Upon review, this Court must determine whether Respondents
made a submissible case.
c) Elements of Adverse Possession
Section 516.010, RSMo 2000 reads, in part:
No action for the recovery of lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person ... unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.
"Under this statute, a party claiming ownership by adverse possession must prove that their possession is: (1) hostile, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the ten-year period prior to the commencement of the action." Harness v. Wallace, 167 S.W.3d 288, 291 (Mo.App.2005). Appellants claim that Respondents did not provide sufficient evidence on any of the elements to support the jury's verdict. We disagree and deny point one.
i) Actual Possession
Actual possession is the present
ability to control the land and the intent to exclude others from such control. Dobbs v. Knoll, 92 S.W.3d 176, 180-81 (Mo.App.2002). "What acts
will characterize possession as 'actual' depend on the nature and location of
the property, the uses to which it can be applied and all the facts and
circumstances of a particular case." City of
Respondents presented evidence that they pastured sheep and ran horses on the Contested Property. Respondent Wanda Martens testified that she often sat on a bluff that was on the Contested Property to relax. Respondent Walt Martens testified that he maintained the east fence and made repairs on it as needed beginning in 1973 and thereafter. Respondents cut wood off the Contested Property to heat their home, and they logged the area twice. Respondents used the Contested Property in conjunction with the land for which they had legal title to live, work and engage in recreation. There was substantial evidence presented by the Respondents for a jury to conclude that Respondents exercised actual possession of the Contested Property beginning in 1973 and continuing thereafter.
ii) Hostile Possession
The hostile element is satisfied
by a possession that is antagonistic to the claims of all others, with an
intent to occupy the disputed land as one's own. Weaver v. Helm, 941
S.W.2d 801, 804 (Mo.App.1997). Another definition of hostile is that a
claimant's occupancy be in defiance of, rather than in subordination to, the
rights of others.
iii) Open and Notorious Possession
The open and notorious element
of adverse possession is satisfied by exercising visible acts of ownership on
the disputed property. Weaver, 941 S.W.2d at 804. Maintaining and
improving the property are examples of such visible acts of ownership.
iv) Exclusive Possession
"The fourth element is
exclusive possession, which means that the claimant holds the land for himself
and not for another." Thomas, 77 S.W.3d at 59. To meet this
requirement, Respondents must have shown that they "wholly excluded"
the owner from possession for the ten-year statutory period. Flowers, 979 S.W.2d at 470. However, sporadic use, temporary presence, or permissive
visits by others, including the record owner, will not defeat the exclusive
element. Machholz-Parks v. Suddath, 884 S.W.2d 705, 708 (Mo.App.1994).
Respondents' burden is to show that the disputed land was neither open to the
use of others nor jointly possessed with others.
v) Continuous Possession
The fifth and final element of
adverse possession is that the possession
be continuous for the statutory period of ten years. Flowers, 979 S.W.2d
at 470. The ten years must be consecutive, uninterrupted, and without lapse.
Appellants argue that Respondents never indicate for what period of time they possessed the Contested Property. However, uncontested evidence revealed that the Kessinger Affidavit of Adverse Possession was filed in 1973 when Respondents took possession of their home and the land which included the Contested Property. Respondents testified that they began using the Contested Property at that time and that their use of the land had not changed, even up to the time this litigation was commenced. Because the Respondents' actions of possession as previously discussed were consistent and continuous from the time they took possession of the land in 1973, Respondents would have been vested with title as early as 1983, and Appellants' predecessors in title would have, correspondingly, been divested of their title at that same time. This is well before Appellant Mark White purchased the adjacent property in 1990.
Appellants focused a large part of their evidence at trial and their argument in their brief on appeal on Appellants' actions and Respondents' alleged lack of actions regarding the Contested Property from the time that Appellant Mark White purchased the adjacent property in 1990 and thereafter. However, this evidence and argument does not have any bearing on whether or not the Respondents made a submissible case for adverse possession for a time period that concluded well before Appellant Mark White purchased his property. There is substantial evidence to support that Respondents' possession of the Contested Property was continuous for the ten-year period immediately following their purchase of the land in 1973.
Finding that each element of adverse possession is supported by substantial evidence, point one is denied.
3) Jury Instruction
In Appellants' second point on appeal, they argue that the trial court erred in denying Appellants' Motion for New Trial because Jury Instruction Number 7 was confusing and misled the jury into finding for Respondents. The Appellants contend that the five elements of adverse possession set forth in instruction number seven should have been separated using the conjunction "and" rather than with commas as submitted to the jury.
a) Standard of Review
The question of whether or not a jury was properly instructed is a question of law. Hosto v. Union Elec. Co., 51 S.W.3d 133, 142 (Mo.App.2001). In order for this Court to reverse a jury verdict on the ground of instructional error, it must appear that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction. Williams v. Fin. Plaza, Inc., 23 S.W.3d 656, 658 (Mo.App.2000). As such, it must be shown not only that an error occurred but that prejudice resulted. The party claiming instructional error has the task of showing "that the instruction as submitted misdirected, misled or confused the jury." Hein v. Oriental Gardens, Inc., 988 S.W.2d 632, 634 (Mo.App.1999).
b) Discussion
If an applicable MAI [FN2] instruction exists, Rule 70.02(b) mandates its exclusive use. The parties in this case agree that there is no applicable MAI instruction. Therefore, the appropriate test for an instruction is governed by Rule 70.20(a), which requires that the instruction to be given be "simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts." "An instruction not in the MAI, and therefore improvised, must conform to the theory of MAI: that the statement follow the substantive law and can be readily understood." Piva v. Gen. American Life Ins. Co., 647 S.W.2d 866, 876 (Mo.App.1983).
The instruction as given to the jury read:
Instruction 7
On the claim of Plaintiffs for adverse possession against Defendants your verdict must be for Plaintiffs if you believe:
For at least ten years prior to the filing of this lawsuit on May 14, 2004, Plaintiffs Wanda Martens and Walt Martens and their predecessors in title had and maintained the actual, open and notorious, exclusive, continuous and hostile possession under a claim of right in and to the land described in Plaintiff's Exhibit 17.
Respondents offered the instruction to which the Appellants objected. Appellants did not offer an alternative instruction.
Appellants support their contention of error by asserting that the conjunction "and" between each element is required to eliminate any confusion in the jurors' minds, and allowing the elements to be separated by commas opens the instruction up to two different constructions, i.e., "continuous" and "hostile" are the last two elements in a list of five, versus "continuous and hostile" are a single element in a list of four. This argument has no merit. The latter construction is not supported by any grammatical rule of English of which we are aware, and Appellants cite us to none. In addition, Appellants fail to cite us to any authority supporting that the listing of the five elements using commas and the conjunction "and" before the last element as in instruction number seven is not proper, grammatically or otherwise.
Appellants' reliance on Kirkendall v. Townsend, 559 S.W.2d 561 (Mo.App.1977), is misplaced. Kirkendall addressed the issue of the failure to include the word "and" in a MAI instruction as mandated by MAI. The reasoning in Kirkendall is not applicable to a not-in-MAI instruction. We do not find instruction number seven to be erroneous. However, even if it was erroneous, such error would not require reversal, because Appellants have failed to demonstrate any prejudice.
Appellants argue that by using commas, it misled the jury into reaching their verdict and that the "possibility of juror confusion is substantial." However, Appellants offer no substantive proof, citation to authority, or reasoned argument for this allegation. The trial court provided the jury with a definitional instruction as to each of the five elements. There was a separate definitional instruction for "continuous," as well as one for "hostile." We find that Appellants failed to meet their burden of establishing how the tendered instruction misled the jury and, therefore, failed to establish any prejudice. Point two is denied.
4) Plain Error Review of Admission of Certain Evidence
Appellants' points three and four argue that the trial court erred in denying Appellants' Motion for New Trial because Plaintiffs' Exhibits 8 and 8A (the Kessinger Affidavit of Adverse Possession) and Exhibit 9 (Kessinger Certificate and Plat of Survey) should not have been admitted as evidence, in that such exhibits were hearsay, irrelevant, and confusing, and they misled the jury into finding for Respondents by leading the jury to believe Respondents had some legal right in and to the Contested Property.
Since both of these points involve the same legal principles, we will address them together. However, as a prerequisite for our examination of the merits of Appellants' argument, we must first determine if these issues were properly preserved for appellate review.
Appellants filed a motion in limine asking the trial court to deny the admission of Exhibits 8, 8A and 9. The trial court overruled this motion and determined that the evidence was admissible. During trial, when Respondents offered each of these exhibits into evidence, Appellants' counsel affirmatively stated, "No objection."
It has been well established that claims of error cannot be considered by an appellate court unless they were properly preserved for appeal. Wagner v. Piehler, M.D, 879 S.W.2d 789, 793 (Mo.App.1994). Error in the admission of evidence may not be raised on appeal where no objection is made when the evidence is introduced at trial. Kovacs v. Kovacs, 869 S.W.2d 789, 792 (Mo.App.1994). Failure to object to the introduction of evidence at a trial preserves nothing for review. Holtmeier v. Dayani, 862 S.W.2d 391, 404 (Mo.App.1993). Further, a motion in limine to exclude evidence does not preserve the issue for review if no objection is made at trial when the evidence is offered. Sooter v. Magic Lantern, Inc., 771 S.W.2d 359, 362 (Mo.App.1989). By itself, a motion in limine is interlocutory and will not be reviewable on appeal absent a proper objection during the course of the trial. Wagner, 879 S.W.2d at 792.
Appellants admit that by not
objecting they failed to preserve the issue for review and ask this Court to
review the issue as plain error under Rule 84.13(c). [FN3] An appellate court may review an issue
using plain error if it determines that a "manifest injustice" or "miscarriage
of justice has resulted from plain error." Collins v. Hertenstein, 90 S.W.3d 87, 98 (Mo.App.2002). Plain
error review assigns a greater burden to Appellants, because it is greater than
prejudicial error, and it will rarely provide the basis for overturning the
judgment of the trial court in civil cases. Davolt v.
Respondents correctly argue that an announcement of "no objection" when evidence is sought to be admitted, leaves no room for even plain-error appellate review. McCormack v. Capital Elec. Constr. Co., Inc., 159 S.W.3d 387, 398 (Mo.App.2004). Even if the admission of these exhibits was erroneous, an issue we do not decide, Appellants led the trial court into this claimed error by affirmatively stating, "No objection." Now the Appellants are asking this Court to paint the trial court with error for not countermanding Appellants' stated lack of objection, sua sponte determining that the exhibits were not admissible in evidence, and sua sponte denying their admission into evidence. This we will not do. Failure to preserve an objection to the admission of evidence waives review by this Court, except for plain error review, and affirmatively announcing "no objection" waives even plain error review. We deny plain error review. Therefore, Appellants' points three and four are denied.
5) Decision
The judgment of the trial court is affirmed.
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