THE EMPIRE DISTRICT ELECTRIC COMPANY,            )
  a Kansas Corporation,                          )
and WESTAR GENERATING, INC.,                     )
  a Kansas Corporation,                          )
                                                 )
                    Respondents,                 )
                                                 )
       vs.                                       )       No. SD35856
                                                 )
JOHN THOMAS SCORSE, as trustee under that )              FILED: January 13, 2020
certain Trust Agreement dated November 17, 1976, )
and its unknown successors and assigns,          )
and JOHN THOMAS SCORSE, individually, and )
his unknown heirs and assigns,                   )
                                                 )
                    Appellant.                   )

         APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY
                          Honorable Kevin L. Selby, Judge
AFFIRMED
       John Scorse challenges the denial of his bench-tried adverse-possession
claim, charging that the record conclusively established his right to relief as a
matter of law. We disagree and affirm the judgment. 1




1Rule references are to Missouri Court Rules (2016). We must view the trial record most
favorably to the judgment, ignoring all contrary evidence and inferences. Village at
Deer Creek Homeowners Ass’n v. Mid-Continent Cas. Co., 432 S.W.3d 231, 239
(Mo.App. 2014). For reader context, however, we will mention some evidence not strictly
favorable to the judgment.
                                      Background
       The “Disputed Property” is a near-trapezoidal tract below, 15 acres of hilly,
heavily-timbered, “wild Ozark property” bordered on the south by Shoal Creek and
on the west by land the Scorse family bought in 1975 and where they have long
raised cattle.




       The Disputed Property is unsuitable for cattle grazing due to its topography
and lack of pasture. There is a clear distinction and difference between the Scorses’
meadow and the Disputed Property’s brush, large timber, and downed trees. The
Disputed Property is not in the Scorses’ chain of title and Scorse makes no claim to
that tract by deed or record title.
       Respondents (the “Utilities”) operate a power plant north of the Disputed
Property. In 1999, they bought some 200 acres, including the Disputed Property,
from Carl and Grace Elkans’ larger tract for future plant expansion and direct
access to Shoal Creek and had the land surveyed and pinned. The Elkans insisted
that the Utilities lease all 200 acres back to them until their ranch manager Ron
Scott retired, so their ranch operations continued until December 2005.
       In 2008, the Utilities started to fence the boundaries of these 200 acres.
They found no functional or clearly-visible border fencing on the Disputed
Property, just a few old wooden fence posts and some strands of barbed wire
primarily on the ground, running through the woods along parts of the tract’s north

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and west sides. The Utilities bulldozed trees and fenced the tract’s east side, then
notified Scorse that they planned to fence the boundary with his land. Scorse
disputed the property line and removed fencing that the Utilities built along the
property line of record.
       In 2015, Scorse clouded the Disputed Property’s title by purporting to deed
it to a family trust. The Utilities sued to quiet title. Scorse counter-petitioned on
an adverse-possession theory and sought summary judgment on his claim. That
motion failed, but per Rule 74.04(d) the court certified certain paragraphs of
Scorse’s statement of uncontroverted material facts (“SUMF”) as “not in
substantial controversy” and “established for all purposes of this litigation,
including trial.” These “Rule 74.04(d) facts” are central to Scorse’s arguments on
appeal. 2
       At trial, the Utilities proved ownership of the Disputed Property through
deeds of record, the Elkans’ recorded affidavit of possession, testimony from a
licensed title examiner, their payment of assessed property taxes since 1999, and
plat books showing ownership by the Elkans and then by the Utilities. The Utilities
also offered extensive testimony against Scorse’s adverse-possession claim. The
court ultimately entered a 39-page judgment, replete with findings of fact and
conclusions of law, quieting title in the Utilities, rejecting Scorse’s adverse-

2 Two observations are in order as to these Rule 74.04(d) facts. First, Scorse properly
complains that the court ignored these somewhat in making arguably contrary findings in
its judgment after hearing the evidence. We have disregarded those findings to the extent
they conflict with previously-certified Rule 74.04(d) facts, but only to that extent.
    On the other hand, Scorse cannot fairly claim that his “enclosure” theory was factually
established per Rule 74.04(d) and not contested at trial. His SUMF paragraphs 5-7
asserted that an existing fence line had visibly enclosed the Disputed Property within the
bounds of his family’s land purchase back in 1975, a circumstance supportive of “open and
notorious” possession. See, e.g., Heigert v. Londell Manor, Inc., 834 S.W.2d 858,
865 (Mo.App. 1992). SUMF paragraphs 10, 45, 46, and 58 also made passing reference to
such “enclosure.” The court initially deemed all those paragraphs to be Rule 74.04(d)
facts, but wholly reversed that ruling when the Utilities demonstrated that such
“enclosure” assertions were directly controverted by other evidence and remained in
substantial controversy. Seemingly missed in that purging was another passing
“enclosure” reference in paragraph 49, upon which Scorse now seizes to assert that
“enclosure” was an undisputed fact, a claim contrary to the fairly-viewed record and
inconsistent with Scorse’s presentation of evidence at trial. At any rate, Scorse concedes
that fence enclosure was merely evidence, but not conclusive proof, of the contested
ultimate fact of “open and notorious” possession, a distinction further discussed infra.

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possession claim, and expressly finding Scorse’s testimony “not credible” in
various respects.
                            General Legal Principles
       To win title by adverse possession, Scorse had to prove possession of the
Disputed Property that was (1) hostile; (2) actual; (3) open and notorious; (4)
exclusive; and (5) continuous for ten years prior to the action. Trokey v. R.D.P.
Dev. Group, L.L.C., 401 S.W.3d 516, 524-25 (Mo.App. 2013). Failure to prove
even one of these five elements defeated his claim. Id. at 525. We presume the
court ruled against Scorse correctly and Scorse must prove otherwise. Id. at 524.
                                    Discussion
       Scorse asserts, as a matter of law, that uncontested facts conclusively proved
each element of his adverse-possession claim “long before” the 1999 Elkans-to-
Utilities sale, so the Elkans “lacked any title to transfer ….” Yet the “facts” Scorse
cites are really items of evidence that a fact-finder normally weighs with and
against all other evidence to determine the ultimate (or in summary-judgment
parlance, material) facts from which a right to judgment flows.
       These distinctions and their importance are worth reviewing. “Ultimate
facts” and summary judgment “material facts” are equivalent concepts (emphasis
below ours):
          •    “Ultimate facts are those the jury must find to return a verdict for
               the plaintiff.” R.M.A. by Appleberry v. Blue Springs R-IV
               Sch. Dist., 568 S.W.3d 420, 425 (Mo. banc 2019).
          •    “A material fact in the context of summary judgment is one from
               which the right to judgment flows.” Goerlitz v. City of
               Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011).
          •    “[M]aterial facts are those ultimate facts that constitute the
               elements of a cause of action or affirmative defense, sometimes
               referred to as ‘elements facts.’” Custer v. Wal-Mart Stores E. I,
               LP, 492 S.W.3d 212, 215 (Mo.App. 2016).
       “Evidentiary facts” differ, generally playing a subordinate persuasive role:
          •    “A proper verdict-directing instruction submits only the ultimate
               facts, not evidentiary details.” Blanks v. Fluor Corp., 450
               S.W.3d 308, 395 (Mo.App. 2014).



                                          4
           •   “[T]he facts that must be pleaded are the ultimate facts, not
               evidentiary facts.” R.M.A., 568 S.W.3d at 425.
           •   “Credible, believable, even uncontradicted proof of evidentiary
               facts may not prove a contested issue of ultimate fact to the fact-
               finder’s satisfaction.” Black River Elec. Coop. v. People’s
               Cmty. State Bank, 466 S.W.3d 638, 640 (Mo.App. 2015).
See also Columbia Mut. Ins. Co. v. Heriford, 518 S.W.3d 234 (Mo.App. 2017),
a summary-judgment case which addressed at length the distinction between any
item of evidence playing “a primary role as a material fact, where its mere existence
is a fact from which the right to judgment flows,” or only “a secondary, supporting
role to that of a material fact—where its existence directly or inferentially tends to
prove or disprove a particular material fact ….” Id. at 240-44.
       Scorse’s conclusive-proof theory cites only evidentiary facts, which makes a
difference, especially when Scorse bore the burden of persuasion. Black River,
466 S.W.3d at 640. 3 The ultimate facts – the five elements of Scorse’s adverse-
possession cause of action, each of which was Scorse’s burden to prove – remained
contested issues for determination at trial in light of Scorse’s other trial evidence,
the Utilities’ counter-proof, and the court’s evaluations of witness credibility and
relative evidentiary weight. 4
       As one example, consider the contested ultimate fact of “open and
notorious” possession – whether Scorse’s occupancy of the Disputed Property “was
conspicuous, widely recognized, and commonly known.” Bowles v. McKeon,
217 S.W.3d 400, 405 (Mo.App. 2007)(our emphasis). On one hand, the Utilities’
offered considerable evidence to the contrary which the court plainly credited. On


3Scorse’s SUMF (the source of his Rule 74.04(d) facts) suffered the failing we decried in
Custer. A proper SUMF focuses on material facts – the ultimate “elements” facts “that
constitute the elements of a cause of action or affirmative defense.” Custer, 492 S.W.3d
at 215. By contrast, Scorse’s SUMF listed 72 numbered paragraphs of evidentiary facts,
resulting in Rule 74.04(d) facts that likewise were evidentiary.
4 “One way a party contests an issue is by contesting the evidence…. [A] party can contest
evidence by putting forth evidence to the contrary, [but] also can contest evidence by
cross-examination, or by pointing out internal inconsistencies in the evidence,” etc.
White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010)(citations omitted).
“It is only when the evidence is uncontested that no deference is given to the trial court’s
findings.” Id. Even uncontradicted proof of evidentiary facts may not satisfactorily prove
a contested issue of ultimate fact. Black River, 466 S.W.3d at 640.

                                             5
the other hand, Scorse’s conclusive-proof theory rests primarily on an assertion
that we have rejected: fence “enclosure” of the Disputed Property as an established
Rule 74.04(d) fact. See footnote 2 supra.
      That leaves Scorse to argue that Rule 74.04(d) evidentiary facts about his
family’s activities on the Disputed Property (erecting deer stands, drawing water,
removing rocks for decorative purposes, marking various fence posts and trees
with purple paint to warn others not to trespass) conclusively notified the Elkans
of Scorse’s adverse-ownership claim.
      Yet the above ignores the Elkans’ sworn affidavit of record, admission of
which is not challenged on appeal, that:
          •   the Elkans physically possessed the Disputed Property
              continuously, openly, and exclusively from and after 1957;
          •   the Elkans maintained it;
          •   the Elkans exercised full dominion over it;
          •   the Elkans controlled it and intended to exclude others from
              control; and
          •   the Elkans considered themselves to be the true owners;
and further ignores:
          •   Ron Scott’s testimony that he visited the Disputed Property several
              times annually during his 34 years of managing the Elkans’ ranch,
              but never saw anyone there except the Utilities’ agents resetting
              poles; specifically never saw Scorse there; and was unaware that
              anyone disputed the Elkans’ record ownership.
          •   The trial court’s finding, which the record supports, that the
              Disputed Property “is so wild and undeveloped, numerous people
              from both sides of this dispute used the property at or near the
              same time and no one knew of the other persons’ presence or use.”
          •   The legal principle that in wild-land cases like this, the requirement
              of open and notorious possession “may actually be heightened in
              order to put a reasonable property owner on notice that an
              adversarial claim was being made against the property.” Luttrell
              v. Stokes, 77 S.W.3d 745, 751 (Mo.App. 2002).
      We need not belabor matters. The record did not conclusively establish the
ultimate fact issue of open and notorious possession (“conspicuous, widely


                                           6
recognized, and commonly known”) in Scorse’s favor. This failure alone dooms his
sole point and ends our inquiry. Trokey, 401 S.W.3d at 525. Judgment affirmed.


DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS




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