Lemon v. Hopkins

682 S.W.3d 772

Gary Joe LEMON, Appellant,

v.Chad N. HOPKINS and Stacie A. Hopkins, Respondents.

WD 85652

Missouri Court of Appeals, Western District.

OPINION FILED: September 26, 2023

Appeal from the Circuit Court of Cass County, Missouri, The Honorable Patrick W. Campbell, Judge

Patrick A. Hamilton, Lenexa, KS, Attorney for Appellant.

Michelle W. Burns, Olathe, KS, Attorney for Respondents.

Before Division Three: Alok Ahuja, Presiding Judge, and Karen King Mitchell and Edward R. Ardini, Jr., Judges

Karen King Mitchell, Judge

Gary Lemon appeals from the entry of summary judgment in favor of Chad and Stacie Hopkins¹ on Lemon’s claim of malicious prosecution arising from the Hopkinses’ 2015 lawsuit to quiet title to land, by adverse possession (the 2015 lawsuit). Lemon raises three points on appeal. He argues the motion court erred in granting summary judgment because (1) genuine issues of material fact exist as to whether the Hopkinses had probable cause to initiate the 2015 lawsuit, (2) an affidavit offered by the Hopkinses and relied on by the court in granting summary judgment was inadmissible, and (3) genuine issues of material fact exist as to whether the 2015 lawsuit was motivated by malice. Because there are genuine issues of material fact as to whether the Hopkinses had probable cause to initiate the 2015 lawsuit and whether they acted with malice, summary judgment was inappropriate. We reverse and remand.

Background²

[1] On July 21, 2005, the Hopkinses acquired approximately forty acres of land in Cass County, Missouri, from Stacie’s grandparents (Grandparents), who had owned the property for decades. On May 9, 2007, Lemon acquired roughly forty acres of land, which partially adjoined the Hopkinses’ property. In the summer of 2015, a dispute arose between the parties regarding ownership of two tracts of Lemon’s property—the Northeast Access Triangle (used by the Hopkinses to access twenty acres of their property on which they raise cattle) and the Southeast Driveway Strip (used by the Hopkinses to access their residence) (collectively, the disputed property).

On July 23, 2015, the Hopkinses signed an Access License Agreement (ALA) granting them a temporary, nonexclusive, nontransferrable license to use the disputed property for ingress and egress, beginning July 27, 2015, and ending December 31, 2015.³ Less than a month later, on August 18, 2015, Lemon’s counsel informed the Hopkinses that their access to the Southeast Driveway Strip would terminate October 31, 2015. Counsel for the Hopkinses responded by proposing that Lemon grant them an easement over the disputed property, but the parties were unable to reach an agreement.

On September 29, 2015, the Hopkinses filed the 2015 lawsuit against Lemon and his then wife;⁴ the lawsuit included claims for adverse possession (Count I), trespass (Count II), and a temporary injunction (Count III). In support of their adverse possession claim, the Hopkinses alleged, among other things, that they and their predecessors in interest had used the disputed property "for ingress, egress, livestock, travel and other purposes for in excess of 40 years."⁵ The Lemons filed an answer and counterclaims for declaratory judgment (Count I), quiet title (Count II), statutory trespass (Count III), and common law trespass (Count IV).

On July 14, 2016, the Hopkinses dismissed their claims in the 2015 lawsuit without prejudice. The parties subsequently moved for entry of a consent judgment quieting title to the disputed property in the Lemons’ favor and, on September 1, 2017, the court entered a consent judgment resolving Counts I (declaratory judgment) and II (quiet title) of the Lemons’ counterclaims. The consent judgment stated, "The Hopkins[es]’ claim for adverse possession is barred because [of] the Hopkins[es]’ and their predecessors-in-interest’s permissive use of the [d]isputed [p]roperty granted and given by the Lemons and their predecessors-in-interest."⁶

On June 24, 2020, Lemon sued the Hopkinses for malicious prosecution and civil conspiracy. After more than a year and a half of discovery, the Hopkinses moved for summary judgment on both claims. In support of their motion, the Hopkinses offered an affidavit from counsel who represented them in the 2015 lawsuit (counsel’s affidavit). Among other things, counsel’s affidavit attested to the affiant’s belief that, when the 2015 lawsuit was filed, (1) the Hopkinses had acquired the disputed property by adverse possession, (2) they had probable cause to file the 2015 lawsuit, and (3) they did so without malice.

The Hopkinses also offered testimony as to their belief that they had acquired the disputed property through adverse possession and could use that property for ingress and egress. Their belief was based, in part, on Grandparents’ decades-long use of the disputed property for similar purposes. With respect to Grandparents’ use of the disputed property, the Hopkinses offered Stacie’s affidavit, which stated, in part:

My grandfather, Donald Shipley, who owned and was therefore the predecessor in interest to the property owned by m[e] and my husband which is part of the property discussed in this litigation, used the driveway and that corner of Plaintiff's property (the [d]isputed [p]roperty) for decades prior to 2005 in the same manner that my husband, defendant Chad N. Hopkins and I used it to access our back 20 acres for access to take care of cattle.

Lemon filed a response, citing, among other things, an interrogatory answer in which he stated that, in September 2007, he "granted Chad permission to use the disputed property." Lemon also claimed that, on July 10, 2015, he posted a "No Trespassing - No Squatter’s Rights or Adverse Possession" sign on or near the disputed property. And Lemon pointed to the consent judgment’s reference to permissive use of the disputed property by both the Hopkinses and Grandparents.

[2, 3] The court granted summary judgment to the Hopkinses.⁷ This appeal follows. Additional facts will be provided in the analysis, as necessary, to address Lemon’s points on appeal.

The Standard for Granting Summary Judgment and for Appellate Review

[4, 5] Summary judgment is warranted where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Vescovo v. Kingsland, 628 S.W.3d 645, 653 (Mo. App. W.D. 2020) (quoting Messina v. Shelter Ins. Co., 585 S.W.3d 839, 842 (Mo. App. W.D. 2019)).

The moving party establishes the right to judgment as a matter of law by demonstrating one of the following: (1) facts negating any one of the claimant’s elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant’s elements; or (3) facts necessary to support[movant’s] properly pleaded affirmative defense.

Id. (quoting Clark v. Ruark, 529 S.W.3d 878, 881-82 (Mo. App. W.D. 2017)). To make this showing, the movant must attach to the motion for summary judgment a statement of uncontroverted material facts that "state[s] with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts." Rule 74.04(c)(1).⁸ Even if uncontroverted, conclusory statements and legal conclusions "are not ‘facts’ for purposes of Rule 74.04, and cannot form the factual basis for summary judgment." Metro. Nat’l Bank v. Commonwealth Land Title Ins. Co., 456 S.W.3d 61, 68 (Mo. App. S.D. 2015).⁹

"We review the grant of summary judgment de. novo." Vescovo, 628 S.W.3d at 653.

Analysis

[6, 7] The elements of a malicious prosecution claim are:

(1) the commencement or prosecution of the proceedings against the present plaintiff; (2) its legal causation or instigation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage by reason thereof.

Id. at 654 (quoting Impey, 553 S.W.3d at 352). "‘Actions for malicious prosecution are disfavored under Missouri law,’ thus, ‘strict and clear proof of all [ ] elements’ is required." Id. (quoting Impey, 553 S.W.3d at 352-53). The motion court concluded that, as to the probable cause and malice elements of Lemon’s malicious prosecution claim, there were no genuine issues of material fact and the Hopkinses were otherwise entitled to judgment as a matter of law.¹⁰

Lemon raises three points on appeal. First, he argues the motion court erred in granting summary judgment in that genuine issues of material fact exist as to whether the Hopkinses had probable cause to file the 2015 lawsuit because Lemon had previously given them permission to use the disputed property, thereby negating any claim for adverse possession. Second, Lemon asserts the court erred in granting summary judgment because, in doing so, the court relied on counsel’s affidavit which was inadmissible. Third, Lemon claims the court erred in granting summary judgment because genuine issues of material fact exist as to whether the Hopkinses brought the 2015 lawsuit out of malice. For ease of discussion, we address Lemon’s points out of order, beginning with Point II.

I. Counsel’s affidavit in support of the Hopkinses’ motion for summary judgment was admissible (Point II).

[8] Lemon argues that the motion court erred by considering counsel’s affidavit because it did not comply with Rule 74.04(e), was based on hearsay, and includ- ed impermissible legal opinions and, therefore, was inadmissible. Lemon moved to strike the Hopkinses’ motion for summary judgment because it relied on counsel’s affidavit. The court denied Lemon’s motion to strike but ordered that all or part of nineteen statements in counsel’s...