Property Law

Editor:
Paul F. Sherman, Esquire

Constitutionality of §§ 523.039 and 523.061, RSMo, concerning condemnation awards enhanced by homestead taking was properly pled and preserved with reference to Article I, § 26 of the Missouri Constitution (first impression) to transfer to the Missouri Supreme Court (subsequently dismissed by parties). City of Richmond Heights v. Gasway, et al., No. 95791 (Mo. App. E.D., September 20, 2011), Mooney, J.

Condemnation action with exceptions filed by both to commissioner’s assessment of $264,717.00. Jury assessed $300,000.00, but at Respondents’ request pursuant to §§ 523.039 and 523.061, RSMo, the trial court found a homestead taking and increased jury’s award by another 25%, or $75,000.00, plus prejudgment interest so that the judgment totaled $413,519.92. This appeal follows on several grounds, but only constitutionality of §§ 523.039 and 523.061, RSMo, is addressed with reference to Article I, § 26 of the Missouri Constitution (award exceeds “just compensation”).

Held: Constitutional issue preserved, case transferred to Missouri Supreme Court for exclusive constitutional jurisdiction.
Note that the constitutional issue was real and substantial, not pretextual, and was raised at the earliest opportunity and at each step of the judicial process with good pleading and reference to specific sections so the trial court could rule the issue, and did.

Postscript:
Case was argued before the Supreme Court November 30, 2011 as #SC92039, but dismissed after argument on joint motion of parties.   


For statute of limitations purposes “capable of ascertainment” is measured with an objective standard of a reasonably prudent person having notice of potentially actionable negligence. Ball v. Friese Construction Co., No. 95984 (Mo. App. E.D., September 20, 2011),
Sullivan, J.


Ball appeals entry of summary judgment by the trial court in favor of Friese on Ball’s petition for breach of implied warranty of habitability, fraud and violations of the Missouri Merchandising Practices Act for the reason such claims were barred by the statute of limitations.

The construction contract to build the home is dated June 26, 2000. Sale of the home closed March 29, 2001. Appellant Ball complained of basement cracks in December 2001. A structural engineer’s report followed, dated September 3, 2002, and was exchanged. More letters were exchanged between parties in December 2005 and in 2006 Respondent denied there were defects in the home. Appellant had further testing in 2009 by GeoTest. Appellant filed this lawsuit May 28, 2010. Respondent sought summary judgment July 13, 2010 on the grounds Appellant’s claims could be ascertained in 2002, the five-year limit period had expired. The trial court agreed and so did the appellate court.

Held: Affirmed.
Section 516.100’s “capable of ascertainment” interpretation is an objective standard which is measured by the reasonably prudent person having notice of potentially actionable injury. Appellant is late because these issues began in December 2001 and were reported by others in 2002 because the damage could be discovered then. Waiting seven (7) years was not excused even if the damage was continuing because the measure is the result of a single wrong identified in December 2001.


Constructive and actual notice supports easement so that if its exact location is destroyed in its attempted removal on the ground by one denying its existence, the trial court has authority to re-establish same in a convenient and reasonably accessible location. Chisholm v. MBM, LLC, No. 30947 (Mo. App. S.D., September 20, 2011), Scott, J.

The Chisholms bought a vacation home at Lake Taneycomo in 1999, accessible since 1960 via a private gravel road through adjoining Riverlake Resort. A driveway easement for road access across the resort had been in writing since April 1964 (recorded April 1965), and used by Chisholms’ predecessors. MBM bought the Resort in 2006, the access was visible and the driveway easement was revealed in title work. MBM took part of the driveway to build condos. The trial court entered its judgment compelling MBM to restore the easement and this appeal followed.

Held: Affirmed.
Both actual and constructive notice supports the trial court’s findings. The judgment’s legal description is supported.


Summary judgment in support of adverse possession is difficult to support as a matter of law because an adverse possession determination is itself so fact-intensive. Bilyeu, et al. v. Vaill, No. 31243 (Mo. App. S.D., September 28, 2011), Barney, J.

Appellants Vaill claim an easement for a road within a 30-foot wide strip of land in dispute originally granted by deed to predecessors in title in 1908 and intervening conveyances to Appellants in 1966. Appellants never used it as a road but intend to do so. Respondents filed suit to enjoin such use and quiet title, claiming Crider acquired title by deed to same in 1992 and that all had acquired title by adverse possession. Appellants responded the property was “wild land” and not subject to adverse possession. The trial court granted Respondents’ motion for summary judgment on adverse possession grounds and this appeal followed.

Held: Reversed and Remanded.
Reliance upon pleadings is insufficient and contrary to Rule 74.04(e). In addition, adverse possession itself is particularly fact-intensive so that summary judgment is not favored, facts in dispute remain.


Both negligent misrepresentation and fraudulent misrepresentation require proof of justifiable reliance which cannot be met in reliance on predictions of an independent third party’s future acts. Massie v. Colvin, et al., No. 31085 (Mo. App. S.D., January 23, 2012), Scott, J.

Plaintiff Massie sued Defendants Colvin (“Sellers”) and Defendant United Country (“Agent”) for misrepresentation in the sale of a farm. Plaintiff wanted the land fenced and gated so the contract reflected. Before closing Plaintiff was informed neighbor Jones had an access easement across, which was also referenced in the title commitment and warranty deed. Plaintiff closed anyway. Defendants Colvin then fenced and included a gate across the road easement. Jones later objected, filed suit against Plaintiff and obtained judgment for $3,500 plus removal of the gate. Plaintiff then filed this action against Defendants Sellers (fraudulent misrepresentation) and Defendant Agent (negligent misrepresentation). Summary judgment was then ruled in favor of all Defendants and this appeal followed.

Held: Affirmed.
Plaintiff had no right to rely on any representation by the Defendants as to what neighbor Jones might do in the future. Predictions about an independent third party’s future acts do not constitute actionable misrepresentation. Therefore, no justifiable reliance element was met.


Quiet title concerns the better title as between the parties in dispute, and bona fide purchaser status is defeated by notice, whether actual or constructive. Casady v. Fehring, No. 31252 (Mo. App. S.D., January 25, 2012), Francis, Jr. J.

On August 15, 1997, the Casadys sold a house and 26 acres to Claudia Jensen (“Claudia”) by Warranty Deed, recorded August 18, 1997. In 2005 the Casadys sought to repurchase two of those acres from Claudia. The two acres were surveyed out and released by the Bank on April 29, 2005. At title company’s request the Casadys filed a Quit Claim Deed to Claudia for the 26 acres, then Claudia deeded the two acres to the Casadys for $20,000. Unfortunately, the Warranty Deed was recorded two minutes earlier than the Quit Claim Deed. After Claudia died, Appellants Fehring contracted to buy 24 acres from her estate. However, at time of sale, October 12, 2007, the Personal Representative Deed erroneously contained the original 26 acres for $209,000. The trial court quieted title in the Casadys to the two acres and this appeal followed.           

Held: Affirmed.
Fehrings’ claim of superior title fails because substantial evidence supports the Fehrings having actual notice of Casadys’ interest in the two acres. Record title supported the Casadys even though the recording sequence was backwards and the Fehrings’ realtor file clearly identified the two acres as belonging to the Casadys.


Contract issues reduced or limited via admissions made beginning with opening statement of counsel at trial cannot be complained about later on appeal. Pierson v. Kirkpatrick, d/b/a A-1 Home Inspection, No. 31157 (Mo. App. S.D., January 26, 2012), Barney, J.

Respondents agreed in 2005 to purchase the Walkers’ home in Springfield, then hired Appellant to perform the home inspection for $265.00, performed March 20, 2005. After closing fire-related roof and attic issues were discovered during remodeling. Count I was for negligent inspection, Count II for breach of contract in failing to find the fire-damaged attic and Count III concerned breach of a settlement agreement. Apparently the Walkers settled with Respondents prior to trial. On appeal, Appellant claims error of the court in ignoring a limitation clause in the inspection contract limiting Appellant’s contractual liability to return the $265.00 fee paid. After bench trial the court found in favor of Respondents in the amount of $5,700 plus costs. This appeal followed.

Held: Affirmed.
Regarding the limitation clause in the inspection contract, in the transcript document Appellant admitted at trial his obligation to pay for the reasonable cost of the repairs of the damage. Appellant conceded his inspection was improperly performed. In opening, Appellant’s counsel admitted the inspection was improperly done and that $3,300.00 should fix it. Therefore the limitation clause argument was rendered irrelevant beginning with the opening statement of Appellant’s counsel at trial.


Purchaser at third-offering delinquent tax sale is required to provide notice to Owner in accordance with § 140.405 and file affidavit to commence 90-day redemption so that failure precludes issuing a collector’s deed. Brock v. Caldwell, No. 31206 (Mo. App.
S.D., January 27, 2012), Lynch, J.


This was Plaintiff Brock’s (“Purchaser”) action to quiet title claimed via a Collector’s Deed after a third-offering delinquent tax sale, §§ 140.250-504, RSMo. Defendant Caldwell (“Owner”) held record title to Sikeston property (“Property”). Purchaser bid for Property and paid delinquent taxes for County Collector of $3,672.09 on August 28, 2006. Owner did not redeem and Collector Deed of Property to Purchaser was issued and recorded March 28, 2007. Purchaser demanded Owner vacate, then filed this action to quiet title and eject Owner. Trial court ruled for Owner and this appealed followed.

Held: Reversed and remanded with directions.
Dispositive was that Purchaser failed to comply with notice required by § 140.405 in that no purchaser affidavit was filed so that the 90-day redemption period was never commenced. This affidavit, when properly filed, shows of record Purchaser’s proper notice compliance and starts the 90-day redemption period, but this was not done according to Purchaser’s sworn testimony. Accordingly, Purchaser was not entitled to a collector’s deed of the property.