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Property Law

Paul F. Sherman, Esquire

Dismissal of petition under a time bar reversed where damages were not ascertainable until foreclosure actually commenced. Warren County Concrete, L.L.C. v. Peoples Bank & Trust Co., et al., No. 94936 (Mo. App. E.D.,  April 12, 2011), Norton, P.J.
Plaintiff closed on October 31, 2003 on the purchase of property from Hunt Concrete encumbered by Hunt's Deed of Trust securing Peoples Bank note.  Title Company delivered a payoff check but received no Release.  On July 27, 2009 Plaintiff received Notice of Trustee's Sale of the property and filed this suit November 18, 2009.  The trial court dismissed the petition as time barred (five years per Section 516.120, RSMo.) and this appeal followed.  On appeal dismissal was reversed and remanded because Plaintiff's damages were not ascertainable until foreclosure commenced in 2009.

Judgment for defendant in partition action affirmed where defendant offered sufficient evidence to rebut co-ownership.  Hoth v. Hoth, No. 30751 (Mo. App. S.D., April 11, 2011), Scott, C.J.
Plaintiff and Defendant had been married, then divorced, then remarried, then divorced again.  They ended up cohabitating from 1998 to 2008.  In 2006 Defendant bought a house and five acres with his own money.  Plaintiff paid nothing.  Plaintiff, Defendant and Defendant's mother lived there together until Plaintiff moved out and filed this partition action.  Apparently Defendant had put the house in the name of both he and Plaintiff "in case something happened" to him.  The trial court found the parties to be tenants in common, but Defendant its sole owner.  Plaintiff claimed Defendant had donative intent.  Judgment affirmed for Defendant because Defendant offered evidence sufficient to rebut co-ownership.  Plaintiff admitted she paid nothing for the property.  In effect, a beneficiary deed of sorts.

Where Plaintiff is sufficiently notified of Defendant's exculpatory clause in lease, Defendant may be exempt from future negligence.  Easley v. Gray Wolf Investments, LLC d/b/a AAA Mini Storage, No. 94922 (Mo. App. E.D., April 5, 2011), Hoff, J.
Plaintiff Easley rented a storage unit from Defendant to store furniture, signing a rental agreement that required Plaintiff insure his own contents and hold Defendant harmless.  Plaintiff purchased insurance and paid rent for two years.  When Plaintiff came back to empty his unit the drywall ceiling had fallen and water damaged his furniture.  Plaintiff's insurer refused his claim due to lack of maintenance and Plaintiff filed suit against Defendant.  At trial Defendant put on no evidence, relying on the lease itself.  The trial court found Defendant had breached its duty to maintain the premises and this appeal followed.  On appeal the issue is whether the lease's exculpatory clause releasing Defendant for its own future negligence is enforceable. 
Where clear, unambiguous and conspicuous a party may be exempt from one's own future negligence where explicitly provided.  The lease included an addendum that included in capital letters "TENANTS STORE GOODS AT THEIR OWN RISK."  The lease did not require Defendant maintain the building.  Therefore, Plaintiff was sufficiently notified.  Judgment for Plaintiff reversed.

Injunction and declaratory judgment action properly dismissed where Plaintiffs seek to overturn city ordinance prohibiting parking on a public thoroughfare.  Allen v. City of Greenville, Missouri, No. 30594 (Mo. App. S.D., March 23, 2011), Barney, P.J.
Allen, Bennett, McClure, Molloy and Witte (collectively "Plaintiffs") filed suit to enjoin and for declaratory judgment, calling the ordinance illegal and seeking damages for a City of Greenville (hereinafter "City") ordinance which prohibits Plaintiffs from parking in front of their properties on Maple Street.  The trial court dismissed their petition for failure to state a claim, asserting Plaintiffs failed to plead any personal property right to park that they were deprived of.  While Plaintiffs have a right to ingress and egress their property, and the City has a police power right to limit to reasonable access, but what Plaintiffs seek is to protect parking along a public thoroughfare which is not the same as access.
Dismissal affirmed.

Where a partial taking occurs, the proper measure of valuation is the difference between the fair market value before and after the taking.  Glaize Creek Sewer District of Jefferson County, Missouri v. Gorham, No. 94958 (Mo. App. E.D., March 22, 2011), Sullivan, P.J.
Defendants Gorham live in Jefferson County.  In 2008, Plaintiff Sewer District filed to condemn a permanent sewer easement (15 feet wide and 161 feet long) and temporary construction easement through Defendants' backyard.  Plaintiff cut down trees and used a 30 foot wide easement in Defendants' backyard for six (6) months.  The jury found Defendants' damages to be $0 and this appeal followed.
Plaintiff's expert was allowed to testify over Defendants' objection whether or not the easement had an adverse impact on Defendants' property.  He testified it did not and expressed no opinion as to value difference for damage purposes.  To the contrary, Defendants' expert testified to a before and after value differential of $29,000.
Defendants' expert relied on comparable sales data to conclude damages while Plaintiff's expert had no data and therefore lacked foundation.  An expert's opinion must be founded upon substantial information.  Where a partial taking occurs, that proper measure is the difference in fair market value before and after the taking.  The trial court is reversed and a new trial ordered on the issue of damages.

Claim of adverse possession properly dismissed where Plaintiffs requested permission to use property, destroying claim of "adverse" use.  Hirsch v. Ebinger, No. 94432 (Mo. App. E.D., March 8, 2011), Gaertner, Jr., P.J.
Plaintiffs filed in 2005 for a prescriptive easement declaration over "Log Cabin Road" and an existing gravel driveway across Defendants' property to reach their own land in Franklin County.  In 2004 Defendants built a barn across the gravel drive and this lawsuit was commenced.  The trial court entered judgment for Defendants and this appeal followed on one point: whether Plaintiffs' use was proven "continuous, uninterrupted, visible and adverse" for ten years by clear and convincing evidence. 
Regarding "visible" use, was Plaintiffs' use shown to have been open and notorious?  Plaintiff Ben Hirsch testified he was not aware of anyone seeing him use this way prior to 1988.  Defendants purchased their property in 1988.  Defendants testified that Plaintiffs asked them for permission to use the road each time Defendants used it since 1988, which destroys any claim of adverse use.  Accordingly, the trial court's judgment for Defendants is supported by substantial evidence and is affirmed.

Defendant not required to pay condo assessments, where assessments were paid to a manager of the association, but where the money went is unclear.  Reyner v. Crawford, No. 94788 (Mo. App. E.D., March 1, 2011), Ahrens, J.
This was a bench-tried case on Plaintiffs' Second Amended Petition alleging Defendant failed to pay condo assessments, breach of fiduciary duties and mismanagement of the two-unit condominium Association, seeking also to foreclose a lien on Defendant for unpaid assessments.  Defendant counterclaimed.  The trial court entered judgment in favor of Defendant on all counts and Plaintiff appealed.
The trial court found Defendant did not owe assessments for the years claimed because Defendant paid his son Rainey, who managed the Association with Plaintiff.  What Rainey did with that money was not clear, but Defendant paid it.  While Plaintiff thought at all times Rainey actually owned the condo unit (actually Defendant was the owner), Rainey and Plaintiff handled the Association's affairs, not Defendant.  There was no evidence Defendant benefitted from or authorized Rainey to misappropriate Defendant's assessment payments.  However, where Plaintiff was able to show that Defendant benefitted from a leaky roof repair, although unilaterally repaired by Plaintiff, Defendant is responsible to Plaintiff for the reasonable value of that repair which Defendant received.

Judgment affirmed except as to a unilateral roof repair benefit, remanded with instructions that portion only.

Grant of Defendant's Motion for Summary of Judgment affirmed where Plaintiff's royalty interest in property was terminated.  One cannot create a greater mineral rights interest than one holds as less than a fee owner.  Willits, et al. v. Peabody Coal Company, LLC, et al., No. 94777 (Mo. App. E.D., December 28, 2010), Baker, J.
Plaintiffs commenced this action for breach of contract and declaratory judgment against Defendants Peabody Coal, et al. for failure to pay coal mining royalties on 6,000+ acres of Kentucky land, plus declare future royalties.  The land was sold by Plaintiffs' father to Beaver Dam Coal, who then leased back original coal mining rights to Plaintiffs' father in 1946.  The trial court granted Defendants' motion for summary judgment and denied Plaintiffs' motion for partial summary judgment.  This appeal followed.
Factually, the royalty agreements at issue were executed in Kansas, the minerals are in Kentucky and Defendants are headquartered in Missouri.  Originally, Plaintiffs' father assigned the coal leases ("Beaver Dam Lease") to Rough River Coal Co., his own company.  In 1947 Rough River assigned the coal leases to Alston Coal, another of his companies.  But in 1954 he entered into new royalty agreements with Alston Coal, releasing the previous royalty arrangements.  However, in 1954 Alston Coal (tenant in common) did not have a fee simple interest in any of the land described in the 1954 Royalty Agreements.  Defendant Peabody acquired Alston Coal in 1956.  Plaintiffs acquired their royalty interests from their parents in 1956.  In 2002 Defendant Peabody Coal acquired Beaver Dam Coal, becoming the owner of the land.  In 2007 Beaver Dam coal terminated the coal leases then held by Central States Coal by agreement.  Ultimately, the land was owned by Defendant Peabody Coal or Defendant Armstrong and both stopped paying royalties to Plaintiffs in April 2008.
An overriding royalty interest is one created out of the working interest in a mineral lease and cannot be greater than the lease itself.  If an overriding royalty interest is to survive the demise of the lease itself an agreement must so provide, but these agreements did not.  Alston Coal's tenancy in common was extinguished when acquired by Defendant Peabody whom itself ultimately acquired severalty ownership of the land.  A case of first impression in Missouri and Kentucky, a royalty interest created by a tenant in common could not bind the subsequent fee simple owner of the entirety.  Therefore, the royalty interests of Plaintiffs have terminated with the termination of the Beaver Dam leases and the tenancy in common ownership.  One cannot create greater rights in mineral interests than it held as less than a fee owner. 

Defendant's motion to set aside default judgment properly denied where the motion was not verified. Defendant's verified motion to reconsider damages improperly denied where no proof of damages was provided in the trial court.  Court of  5 Gardens Condominium Association v. 10330 Old Olive, LLC, No. 94576  (Mo. App. E.D., December 14, 2010), Gaertner, Jr., P.J.
On December 30, 2008 Plaintiff filed for breach of contract and suit on account alleging Defendant (successor in interest) breached an easement agreement to pay 31% of Common Operating Costs, an amount calculated to be $23,536.56.  On August 24, 2009 Defendant did not appear and default was entered for $35,977.54 principal, plus interest and attorney's fees.  On October 12, 2009 Defendant filed its motion to set aside the default, unverified and without affidavits, denied November 12, 2009.  In a motion to reconsider Defendant raised for the first time that no hearing or proof was made of damages when default was taken, again denied.  This appeal follows.
Regards Defendant's motion to set aside, Rule 74.05(d) is interpreted to require verification or proof by affidavits or sworn testimony - none of this Defendant provided - therefore Defendant's Motion was without basis.
However, Defendant did verify its motion to reconsider, treated as a motion for new trial.  The ruling is at the trial court's discretion and Defendant's first point on appeal is denied.
Did the trial court err in awarding damages in default on August 24, 2009?  Defendant did not raise this issue until its motion to reconsider, not properly preserved.  However, the plain error rule applies in this instance.  There must be proof of damages, but the record reflects this was not done - just the allegations of the petition (unverified).  The plain error rule applies because there wasn't even "a modicum of probative evidence to support the award of damages."  Case remanded for hearing on the issue of damages. 
Affirmed in part, reversed in part and remanded.

County Assessor not required to refund tax payments for property incorrectly assessed, because Assessor receives no money in tax payments. Collector not required to reimburse taxpayer where no evidence was presented of the amounts paid. S & P Properties, Inc. v. Daly, Collector of Revenue and Bushmeyer, Assessor, No. 94745 (Mo. App. E.D., December 7, 2010), Richter, C.J.
In 1993 the Missouri Highway and Transportation Commission paid the registry of the court to acquire the condemned properties, but notice of payment was not recorded (nor required) with the County Recorder.  The County Assessor continued to assess the same properties and in 1997 the County Collector foreclosed same for unpaid taxes, selling on the courthouse steps to Plaintiff S & P.  When S & P stopped paying taxes the County Collection foreclosed again, this time selling to Drury Development.  However, this time Drury learned the Commission owned the property and had the sale set aside.
S & P then sued the Sheriff who conducted the sale - the Sheriff was granted summary judgment.  S & P then amended and sued the Assessor and Collector trying to get its money back.  Because the Assessor just makes assessments, prepares tax bills, and has no authority to collect taxes, the Assessor was entitled to summary judgment.  The Assessor received no money.  While the trial court ordered both the Assessor and the Collector to pay S & P the $23,267 S & P had paid, judgment against the Collector only was affirmed.
The Collector's arguments on appeal were numerous and mostly denied.  Was S & P without legal interest for having lost the property subsequent through tax sale?  No, its original payment resulted in actual injury, and standing.  The money S & P paid went for back taxes owed the Collector.  The only point reversed as to the Collector was the vague reference to reimbursing S & P the taxes S & P did pay after acquiring the property because there was no evidence presented those amounts paid.  Otherwise judgment against the Collector was affirmed.
Judgment against Assessor reversed, and as against collection reversed only as to subsequent taxes not proven.  Affirmed as to remainder.

Judgment for damages for "loss of use" against defendant for installation of defective septic systems reversed in part, where no diminution evidence presented. Cason, Cason, Hatton and Hatton v. King, No. 30183  (Mo. App. S.D., November 18, 2010), Burrell, J.
Plaintiffs filed suit to recover damages from Defendant for installation of two defective septic sewer systems.  Plaintiffs Cason needed a new septic field to avoid a new seven-acre lake being built on their 100-acre cattle farm.  In 2000 Defendant installed same for $1,500.  A few weeks after Defendant's install, sewage was surfacing and multiple fixes didn't work in the years since so that Plaintiffs Cason hired a new contractor who fixed it in 2006 for $3,500.  Plaintiffs Cason couldn't use the lake, valuing its loss of use at $5,000, which was about one-half its cost to construct.
Plaintiffs Hatton paid Defendant $3,000 for their septic system. It too failed.  They later paid another $4,900 to fix same.
The trial court after bench trial awarded Plaintiffs Hatton $4,900 and Plaintiffs Cason $8,500.  Defendant appeals misapplication of the law awarding cost of repair damages without first determining which was less, cost of repair or diminution of value.
In this case the reasonable cost to conform the septic to workable specifications was $4,900 and $3,500, respectively, typical breach of contract damages.  However, in review of the cases similar consistent application of the rule of law to be applied is lacking.  Contrasting the case authorities, Plaintiffs were not obligated to present any diminution in value unless Defendant presented evidence that cost of repair was disproportionate, so the $4,900 and $3,500 actual damages awards stand.  However, the $5,000 "loss of use" is reversed because there was no diminution evidence presented and such damages are consequential.  Were they foreseeable?  The estimate of one-half of the cost of the lake as a consequence is speculation, remand for new trial on loss of use damages only.
Affirmed in part, reversed in part.

Lessor's consent not required for assignment of lessee's purchase option where lease did not preclude assignment.  When buyer of the option to purchase accepts assignment, a bilateral contract is created and the lease itself is at an end. Briar Road, L.L.C. v. Lezah Stenger Homes, Inc., No. 29930 (Mo. App. S.D., September 16, 2010), Lynch, P.J.
Stenger Homes and the Hulls entered into a written lease agreement with option to purchase on October 31, 2001, price set at $198,500 with credit of $56,000 allowed for non-refundable option payment.  The option deadline was extended to June 1, 2006.  In November 2005, The Hulls assigned their option to Plaintiff Briar Road, L.L.C. (Hulls were original members).  The Hulls then exercised their option March 24, 2006 intending to sell the property to another on April 14, 2006.  However, closing didn't occur because on April 6, 2006 Stenger Homes did not consent.  This matter was the subject of an earlier appeal, Briar Road, L.L.C. v. Lezah Stenger Homes, Inc., 256 S.W.3d 131 (Mo. App. 2008) which reversed summary judgment and remanded for trial.  After bench trial, the court ordered Stenger Homes to convey the property to Plaintiff and pay damages.  This appeal follows.
Was Stenger Homes' consent required for a valid assignment of the option to purchase?  No.  The lease did preclude assignment of the property "without the written consent of Stenger Homes, which consent shall not be unreasonably withheld."  However, once the buyer of the option accepts the assignment a bilateral contract is created and the lease itself is at an end. The trial court so found relying in part on concessions made in Defendant's own admissions at trial.
Judgment Affirmed.

Common law immunity does not apply to Sheriff and Deputy, where Missouri statute specifically allows a cause of action for refusal or neglect. Duvall v. Tawney and Jones, No. 93888 (Mo. App. E.D., September 14, 2010), Sullivan, P.J.
Plaintiff obtained default judgment against Maxey for $200,000 on March 10, 2006.  A writ of execution was issued March 13, 2006 that was served by Defendant Jones (Deputy) who mistakenly failed to levy believing he was serving a garnishment and left so that the 30 day execution period passed without execution.  Defendant Jones doesn't know what if any property subject to execution was then present.  Plaintiff sued Defendant Jones and Defendant Tawney (Sheriff) in violation of Section 513.340, RSMo.  The trial court granted Defendants' motion for summary judgment.
At issue was whether judicial immunity applies to the Sheriff and Deputy following a Judge's Order?  Common law immunity can be modified by legislation and Section 513.340 does allow a cause of action for refusal or neglect.  Thus immunity does not apply.  However, facts remain about what property was available to levy against so summary judgment is reversed and the case remanded.

Easement limited to what is contained in the deed - easement for ingress and egress to swim, fish and temporarily park watercraft does not allow holder of easement to build a boat dock. Grider and Grider v. Tingle, et al., No. 28753 (Mo. App. S.D., September 13, 2010), Bates, J.
Plaintiffs filed suit on September 14, 2005 to quiet title, eject, for trespass damages and injunctive relief due to slander of title and for declaratory relief.  This arose at Lake of the Ozarks and concerned lakefront development and waterfront easements.  Plaintiffs purchased their Lot 1 in 2000 and added a boat dock.  Defendants purchased Lot 4 in 2004 and, wanting their own dock, asked Plaintiffs for permission to tie a new dock on to Plaintiffs' dock - but were refused.  Defendants then obtained their own dock permit and connected same to Plaintiffs' dock and anchor, limiting access to the area, using a Warranty Deed newly obtained from another and recorded in January 2005 to the easement area (clouding the title to Lot 1) and this lawsuit followed.  The trial court decided Defendants have an easement for ingress and egress only, and not for a boat dock. Defendants were ordered ejected from their boat ramp and dock, and enjoined from making improvements. Nominal damages were granted for trespass.  On appeal identification of the dominant and servient estates was essential.  The land below the 662 foot contour line had been conveyed to Union Electric with Land Company retaining an easement before the lake was created.  What had originally been an 8-acre parcel was further conveyed and thereafter presented only one (1)  lot contiguous due to further subdividing two acres into six lots so that Plaintiffs' lot 1 was in the end the only contiguous, appurtenant and dominant lot to the lakebed easement (servient).  Sale and conveyance changed those entitled so that Defendants' easement is limited to that contained in their deed for their lot which allowed ingress and egress only to the lake.  Extrinsic evidence was allowed to determine intent and confirmed the use made had been for ingress and egress to swim, fish and temporarily park watercraft, there was no evidence of a boat dock use in the past.   Therefore, Defendants' easement by deed was for right of passage only.
Judgment: Affirmed.

Contract for deed that expressly provides that the seller of property keeps all sums paid by buyer if buyer breaches contract found valid and unambiguous.  McClain, f/k/a Burke, and Dillon v. Hartley, No. 93184 (Mo. App. E.D., August 31, 2010), Richter, C.J.
Defendant Seller owned property on which a permanently affixed mobile home was situated, subject to a Bank's Deed of Trust.  Plaintiffs Buyers in March 2005 entered into a Contract for Deed with Defendant Seller to buy same for $82,900 with $22,900 down and monthly payments thereafter.  According to Contract, once paid the Seller was to provide Buyers a General Warranty Deed.  Buyers were to provide proof of real estate taxes paid and maintain insurance.  Buyers failed to make payments when due, failed to maintain insurance and pay taxes so the Bank foreclosed on November 30, 2007, and the property was acquired by another.  Buyers then filed suit for breach of contract, quantum meruit, negligent misrepresentation and fraud.  The trial court found for Buyers on quantum meruit in the amount of Buyers' down payment plus the last four payments due and Seller appeals.
While the trial court found the contract for deed ambiguous, the Court of Appeals determined it was not.  It provides that if Buyers breach then Seller keeps all sums paid.  The trial court then concluded Seller was unjustly enriched keeping the money paid, but such a theory was not pled.  Reversed and remanded for new trial.

Summary judgment in favor of plaintiff Association reversed where the original association holding a lien was dissolved before assignment of the liens to the plaintiff Association, and questions of material fact remain. DeBaliviere Place Association, Inc. v. Veal, No. 93306 (Mo. App. E.D., June 22, 2010), Gaertner, Jr., J.
The Original Plaintiff Association incorporated in 1977    to maintain and administer common areas, enforce covenants and restrictions and collect assessments for the residents of DeBaliviere Place.  The Declaration provides each unit owner pay a charge which "shall be a continuing lien" on the land, originally $48 per living unit annually.  After 90 days delinquent the Board may take steps necessary to collect same.  The Original Association dissolved in 1992.  Defendant Veal bought in 1997 subject to the lien of all taxes and assessments for 1997 and thereafter.  The Plaintiff Association formed in 2003 and billed Defendant for assessments due 1997 through 2003, but Defendant failed to pay.  Plaintiff Association filed its lien in February 2005 (before receiving the purported Assignment) at $48 per unit per year for 68 units in the amount of $25,505.72, including lien fees, late fees and attorney fees due January 1, 2005.  The petition was filed in December 2005 but Defendant was not served.  In June 2006, the Original Association purportedly assigned all rights to the Plaintiff Association so that the Plaintiff Association amended its petition in March 2007 to so reflect and sought judgment on Defendant's 92 units between 1998 and 2007 for quantum meruit and to foreclose the liens.  This Amended Petition was served on Defendant Veal.  Defendant denies the Plaintiff Association was lawfully authorized and asserts that Defendant was not liable during the timeframe when there was no lawful association.  Defendant Veal counterclaimed for slander of title and declaratory judgment to cease enforcement activities.  On May 22, 2007 Plaintiff Association filed another petition (2007 Petition) requesting foreclosure of its liens.  These two Petitions were later consolidated and the Plaintiff Association moved for summary judgment, including that Defendant Veal has not paid for assessments since his ownership began in 1997.  Defendant Veal denied he owed and denied that Plaintiff Association had used money for his benefit.  The trial court granted Plaintiff Association summary judgment, entering judgment for $70,856 in back assessments plus $13,000 attorney fees and interest of $35,004.26 and ordered the lien foreclosed and published for sale the properties.  Defendant Veal asserted four points on appeal.  Plaintiff's summary judgment was reversed on appeal for reasons including that genuine issues of material fact remained. 
For one, facts remained as to whether Plaintiff's bylaws were followed in making the assignment, or how winding up the original Association occurred.  Another fact noted was that the assignment occurred in June 2006, so that Plaintiff's seeking to enforce for liens prior would be improper.  Under Section 355.691 a dissolved corporation may not carry on new business.  What then the legal effect of the assignment?  An assignment is consistent with winding up.  However, in this case while one can rescind the Original Association's dissolution, this must have been done within ten (10) years of 1992 dissolution.  Section 335.507.4, RSMo. 1986 (no longer time limited as per 1995 amendment).   Therefore, if the Original Association ceased to exist before the Assignment, then the Assignment is not valid.   If the Assignment is not valid then neither are the liens.  What about quantum meruit?  Whether Defendant Veal received services or not is disputed.  This receipt of services argument is germane to the quantum meruit claim.  In sum, genuine issues do remain as to quantum meruit and Defendant Veal's Counterclaims, including slander of title.
Judgment is entered in favor of Defendant Veal on the Plaintiff Association's claims for unpaid assessments and for foreclosure.  Summary judgment is reversed and remanded.

The Missouri Bar Courts Bulletin, 11-May