 

am the missnurt Qtuurt of appeals
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DIVISION THREE
MICHAEL F LEISHOUR, et al., ) ED101507
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
V. ) lZSL—CC01826
)
NRT MISSOURI, LLC, et al. ) Honorable Tom W. DePriest, Jr.
)
Respondents. ) Filed: June 23, 2015

Introduction
Audrey Silberman (Silberman) appeals the trial court’s summary judgment in
favor of NRT Missouri, LLC, Gail Ruebsam, and Jane Nuckolls (collectively,
Respondents) on Siiberman’s negligence claim. Because her claim was time-barred by
the applicable statute of limitations, we afﬁrm.
Background
On January 1, 2008, Silberman’s neighbors, Michael and Melissa Fleishour (the
Fleishours), entered into a contract to buy property adjacent to Silberman’s property. The
sale was scheduled to close on February 21, 2008. Silberman alleged that sometime
before closing, she notiﬁed both the buyers’ and seller’s agents, Gail Ruebsam and Jane

Nuckolls, that she had a claim of adverse possession as to a small strip of property

 

located at the boundary line between Silberman’s property and the property the
Fleishours had contracted to purchase. The closing took place as scheduled, and the
F leishours alleged they had no notice of Silberman’s adverse possession claim at the time
of closing.

After closing, Silberman unsuccessfully attempted to negotiate execution of a
deed for the property she claimed from the Fleishours. She states that her attorney sent
the Fleishours a letter on April 25, 2008, demanding a deed for the property she claimed
by adverse possession, which she says the Fleishours refused sometime in June of 2008.
On June 17, 2008, Silberman ﬁled her claim of adverse possession in the circuit court,
and on February 26, 2010, the court entered judgment in her favor. On May 16, 2012, the
Fleishours ﬁled suit against Respondents, including claims of fraudulent
misrepresentation, negligent misrepresentation, breach of contract, and professional
negligence, all based on the allegation that Respondents knew of Silberman’s adverse
possession claim but failed to inform the Fleishours of such claim before closing.

On April 29, 2013, Silberman ﬁled a motion to intervene in the Fleishours’ suit
against Respondents, which the trial court denied. Silberman moved to reconsider, and
the trial court allowed Silberman to ﬁle her petition for damages on July 17, 2013.
Silberman’s petition contained a single claim of negligence against Respondents, alleging
that by failing to notify the Fleishours of Silberman’s adverse possession claim before
closing, Respondents deprived Silbernian of opportunities short of litigation that could
have occurred before closing regarding her adverse possession claim.

Respondents ﬁled a motion for summary judgment on Silberman’s negligence

claim, arguing that Respondents did not owe Silberman any duty of care, and Silberrnan’s

 

 

alleged damages were not proximately caused by Respondents. Respondents also argued
that Silberman’s claim was time—barred under the applicable statute of limitations. The
trial court granted Respondents’ motion for summary judgment on each ground asserted
in the motion. This appeal follows.
Standard of Review

Our review of a trial court’s summary judgment is essentially de novo. ﬂ
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp, 854 S.W.2d 371, 376 (Mo.
banc 1993). We review the record in the light most favorable to the party against whom
summary judgment was entered, taking the non-movant’s facts as true and granting the
non-movant the beneﬁt of all reasonable inferences from the record. I_d. We must afﬁrm
the trial court’s summary judgment if it is sustainable on any ground asserted in the
motion. Russo v. Kelm, 83S S.W.2$ 568, 569 (Mo. App. ED. 1992).

Discussion

Silberman raises three points on appeal, each arguing that the trial court erred in

granting summary judgment in favor of Respondents. The third point is dispositive.
Point III

Silberman argues that the trial court erred in finding that her ciaim was time-

barred. Silberman’s claim of negligence was governed by a ﬁve-year statute of

limitations. Section 516.120.4'; see also Warren County Concrete, LLC v. Peoples Bank

& Trust (30., 340 S.W.3d 289, 291 (Mo. App. ED. 2011). Under Section 516.100, the
limitations period commences when the cause of action accrues. Accrual takes place “not

. . when the wrong is done or the technical breach of . . . duty occurs, but when the
damage resulting therefrom is sustained and is capable of ascertainment . . . .” Section

I All statutory references are to RSMo. (2000), unless otherwise indicated.

3

 

 

 

 

 

516.100. in other words, “when a plaintiff has some notice or awareness that he has
suffered an injury or that another individual has committed a legal wrong which may
resuit in harm to the plaintiffu” the plaintiff’s cause of action accrues, and the limitations
period begins to run. Warren County Concrete, 340 S.W.3d at 291.

Here, the trial court found that the limitations period began to run at closing, in
February of 2008. Thus, the trial court concluded that when Silberman ﬁied her claim on
April 29, 2013,2 the ﬁve-year limitations period had run. Because Silberman had notice
of her potential damages by April 25, 2008 at the latest, we afﬁrm.

The parties disagree as to the date on which the limitations period began to run.
Following is a summary of the timeline relevant to our analysis:

January 1, 2008 — Fleishours entered contract to purchase
property neighboring Siiberman

Between January 1 and February 21, 2008 — Silberinan notiﬁed
real estate agents Gail Ruebsam and Jane Nuckolis of her
adverse possession claim

February 21, 2008 — Fleishours’ purchase of property closed

April 25, 2008 — Silberman’s attorney sent letter to Fleishours
demanding deed to disputed property3

June 2008 — Fleishours rejected Silberman’s demand for deed

2 Respondents argue here that Silberinan’s motion to intervene was not sufﬁcient to commence the action,
but rather it commenced 011 July 17, 20i3, when the trial court gave Silberman leave to ﬁle her petition.
We need not decide which ﬁling legally constituted the connnencement of Silberman’s suit because in
Respondents’ uncontroverted facts ﬁled with their motion for summary judgment, they stated that
Silberman initially ﬁled her petition on April 29, 2013, and Silberman admits this fact in her statement of
additional uncontroverted facts. This therefore is an undisputed fact in the summary judgment record.

3 Silberman asselts this fact in her brief, but the letter is not included in the legal ﬁle. While we do not
ordinarily consider facts not contained in the legal ﬁle as evidence, where both parties concede them as true
in their briefs, we may. ﬂ Rogers v. Hester ex rel. Milis, 334 S.W.3d 528, 541 (Mo. App. SD. 2011); E
alﬂ Salvation Army; Kan. v. Bank of Am., 435 S.W.3d 661, 670 11.10 (Mo. App. W.D. 2014) (“Except
where conceded as true by the opposing party, statements asserted in a party’s brief that are not supported
by the record on appeal supply no basis for review"). Respondents accepted the date of the letter from
Silberman’s attorney in their brief.

 

 

June 17, 2008 — Silberman ﬁled adverse possession claim
against F leishours

February 26, 2010 — Silberman obtained judgment for disputed
property against Fleishours

May 16, 2012 — Fleishours filed suit against Respondents NRT
Missouri, LLC, Gail Ruebsam, and Jane Nuckolls

April 29, 2013 — Silberman moved to intervene in Fleishours’
suit

The damages Silberman claimed were essentially that Respondents’ failure to
notify the Fleishours of her adverse possession claim left her without the ability to
resolve her claim prior to closing without litigation. She claimed that had the Fleishours
known of her adverse possession claim before closing, the sale would not have closed
and the option of pursuing negotiations to clear the title would have been available.
Speciﬁcally, her petition alleged that “[t]he negligence of [Respondents] deprived . . .
Silberman of her valuable right to have her claim addressed prior to the sale regardless of
the outcome” (emphasis added). Given this, her alleged damages accrued at the date of
sale in February of 2008.

Silberman argues nevertheless that she did not know she had suffered these
damages until she investigated the potential problem after closing and received “actual
notice that a conveyance was not going to be voluntarily forthcoming” from the
Fleishours in June 2008, when the Fleishours affirmatively rejected her request fora deed
to the property she claimed by adverse possession. However, the damages she alleged in
her petition were not the failed negotiations after sale, but the lost opportunities to resolve

the claim prior to sale. By June 2008, the sale had closed. Her decision to attempt

 

negotiations after closing had no effect on the fact that the alleged lost ability to negotiate
prior to closing had already occurred.

Moreover, Silberman claims that her attorney sent her request to the Fleishours
for a deed to the property she claimed by adverse possession on April 25, 2008. Such a
demand indicates that Siiberman knew the Fleishours had completed the sale of the
property by that date and were the owners of the disputed strip of land, thus she knew that
her ability to negotiate clearing the title before sale had already lapsed". At that point,
Silberrnan certainly had notice of the particular damage she claimed in her petition and
that it may result in harm to her. & Warren County Concrete, 340 S.W.3d at 291.
Therefore, even assuming that the earliest Silberman ascertained this damage was when
her attorney sent the letter on April 25, 2008; her suit, ﬁled on April 29, 2013, still was

not ﬁled within ﬁve years. The trial court did not err in concluding her claim was barred

by Section 516.120. Point denied?

4 At oral argument, counsel for Silberman also indicated that Silberman, who “had experience and training
in the real estate sales business,” was aware that the property sale closed no later than a month after the
February 21, 2008 closing:

Judge Gaertner: “When did {Silberman} ﬁnd out the closing occurred?”

Attorney Metzler: “Well, that’s a good question. We’re not exactly certain. The closing occurred on
February 21st. The best that we state in our pleadings is that shortly thereafter she noticed a woman over
there and there was some indication that there was a move in taking place. I’m not certain whether that was
two days, two weeks or a month. But, I’m assuming that they didn’t wait a month. The best guess is
somewhere within a week of the time of the closing.”

Judge Gaertner: “So, you’re saying that it’s at least within one month of the closing that she found out a
closing had occurred, correct?”

Attorney Metzler: “Oh, I would say that would be a certainty.”

5 The trial court also determined in its judgment that Silberman failed to establish Respondents owed her a
duty of care, that Respondents did not proximately cause any of Silberman’s alleged damages, and that her
alleged damages were speculative. Silberman contests each of these findings in her remaining points.
Because we afﬁrm based on the statute of limitations, we do not examine these other grounds. Russo v.
Ke_hn, 835 S.W.2s 568, 570 (Mo. App. ED. 1992) (ﬁnding where summary judgment sustained on one
ground, court need not consider appellant’s remaining points). We note only that it is unlikely Silbertnan
would have prevailed even had her petition been timely ﬁled.

6

Conclusion
Without determining the validity of Silberman’s negligence claim, we ﬁnd that
even had it been meritorious, it was not ﬁled within the applicable ﬁve-year statute of
limitations. Thus, the trial court did not err in granting summary judgment in favor of

Respondents. We afﬁrm.

 

Kurt S. Odenwald, Pl, concurs.
Robert G. Dowd, Jr., J ., concurs.

 

