                                 Missouri Court of Appeals
                                             Southern District
                                                 Division One


DAVID LYNN SCOTT and DONNA SCOTT,                             )
                                                              )
        Plaintiffs-Appellants,                                )
                                                              )
vs.                                                           )       Nos. SD35181 and SD35184
                                                              )
RICHARD HICKS and JAN HICKS,                                  )       Filed January 8, 2019
                                                              )
        Defendants-Respondents.                               )

                      APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY

                                             Honorable Calvin R. Holden

AFFIRMED

        David Lynn (“Lynn”) Scott and Donna Scott, husband and wife (collectively

“Appellants”), appeal the trial court’s judgment granting a motion for judgment notwithstanding

the verdict (“JNOV”) filed by Richard Hicks and Jan Hicks, husband and wife (collectively

“Respondents”). 1 That judgment declared that Appellants’ adverse possession claim to

approximately 314 acres of land (the “disputed property”) was not supported by substantial

evidence and awarded Respondents immediate possession of the property. In one point relied

on, Appellants claim that the trial court erred in “granting [Respondents’] motion for [JNOV]

and entering judgment in favor of [Respondents], because the evidence supporting each element


1
 Because of shared last names, surnames are used as needed for clarity and ease of reference. No familiarity or
disrespect is intended.

                                                         1
of the adverse possession claim, specifically those claimed insufficient by the trial court; hostile,

open and notorious, and exclusive, was sufficient to support the verdict, when taken in the light

most favorable to the verdict.” Finding that Appellants did not make a submissible case in that

they failed to adduce substantial evidence supporting the “hostile” element of their adverse

possession claim, we affirm.

                     Applicable Principles of Review and Governing Law

       Our review is limited to a determination of whether Appellants made a submissible case.

Keveney v. Mo. Military Academy, 304 S.W.3d 98, 104 (Mo. banc 2010). “In order to make a

submissible case, each element of a plaintiff’s claim must be supported by substantial evidence.”

Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 26 (Mo. banc 2013). In determining whether a

case was submissible, this court considers the evidence and all reasonable inferences drawn

therefrom in the light most favorable to the plaintiff and disregards all contrary evidence and

inferences. Id. However, we will not supply missing evidence or give the plaintiff the benefit of

unreasonable, speculative, or forced inferences. Steward v. Baywood Villages Condominium

Ass’n, 134 S.W.3d 679, 682 (Mo.App. 2004). Moreover,

       “‘[w]hen we say that a plaintiff is entitled to a favorable view of the whole
       evidence, we do not mean that material facts testified to by plaintiff may be
       ignored.’” Williams v. Kansas City Transit, Inc., 339 S.W.2d 792, 797–98 (Mo.
       1960) (quoting Brooks v. Stewart, 335 S.W.2d 104, 110 (Mo. 1960)). A party is
       bound by his or her own testimony on matters of fact (other than estimates of
       time, distance, or location) unless corrected or explained. Id. at 798; Brandt v.
       Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993); Zabol v. Lasky, 555 S.W.2d 299,
       304 (Mo. banc 1977); Wuerz v. Huffaker, 42 S.W.3d 652, 655, 657–58 (Mo.App.
       2001). This is because a party’s testimony “‘may be of such a character as to
       have all the force and effect of a judicial admission by which he is bound
       notwithstanding the testimony of other witnesses to the contrary.’” Correale v.
       Hall, 9 S.W.3d 624, 629 (Mo.App. 1999) (quoting Goggin v. Schoening, 199
       S.W.2d 87, 92 (Mo.App. 1947)).

Id. “It is well-settled that a party is bound by his own testimony [that] is not corrected or

explained.” Ewanchuk v. Mitchell, 154 S.W.3d 476, 481 (Mo.App. 2005). A plaintiff’s

                                                  2
uncorrected or unexplained testimony admitting material facts has been characterized as a type

of uncontested evidence. See White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010)

(evidence is uncontested when a party has admitted through the party’s individual testimony the

basic facts of other party's case). “In such cases, the issue is legal, and there is no finding of fact

to which to defer.” Id. In other words, such facts must be accepted as conclusively proven. All

Am. Painting, LLC v. Fin. Sols. & Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010).

        In order to prevail on their adverse possession claim, Appellants had to prove their

possession of the disputed property was: (1) hostile and under a claim of right; (2) actual; (3)

open and notorious; (4) exclusive; and (5) continuous for a period of ten years. Watson v.

Mense, 298 S.W.3d 521, 526 (Mo. banc 2009). The failure to establish any one of the elements

will necessarily defeat the claim. White v. Matthews, 506 S.W.3d 382, 388 (Mo.App. 2016).

“Adverse possession presents mixed questions of law and facts, and the principles or elements to

prove such a case are considered with the view that every property may be unique and each case

must be decided in light of its own unique circumstances.” Weaver v. Helm, 941 S.W.2d 801,

804–05 (Mo.App. 1997).

                                     Factual and Procedural History

        Viewed in accordance with the above principles, the facts relevant to this appeal are as

follows. 2 Lynn was born in 1952 and thereafter lived with his parents, David and Margaret

Scott, on their family farm in Niangua, Webster County, Missouri. Lynn resided in his parents’

home on the farm for twenty-three years. When Lynn was born, his parents owned 80 acres of

farmland, and David ran a dairy farm on the land. Later, Margaret inherited a nearby 110 acres


2
 While Lynn testified at trial, Donna did not. Moreover, Donna made no attempt during trial to correct or explain
any part of Lynn’s testimony. Rather, as made clear in Appellants’ closing arguments, Donna implicitly adopted
and explicitly relied upon Lynn’s testimony to establish the basis for their joint claim, as husband and wife, of
adverse possession to the disputed property.

                                                         3
from her parents, and David used this land to grow hay and pasture livestock. When Lynn was

around ten years old, he began helping David on the farm.

        When Lynn turned fourteen years old, he began clearing pastures and milking cows

located on the 110 acres belonging to Margaret’s parents that Margaret later inherited in 1980.

Then in 1968, David bought an additional 68 acres of land from Margaret’s aunt and uncle,

which was located next to the original 80 acres. After this purchase, David and Margaret had a

total of around 260 acres of land. In 1970, Lynn graduated high school but stayed home to work

on the farm. In 1971, David bought 210 acres of land, which laid on the two sides of the 110

acres. Following this purchase, the Scott farm totaled 470 acres, and there have been no

additions since then. 3 However, the Scotts have sold some acres here and there.

        In the early 1970s, David stopped working on the farm as much as he previously did as

he held another job. During this time, Lynn took over most of the farm duties, including haying,

tending crops and livestock, milking, and transacting farm business. Throughout this time, Lynn

considered himself in a partnership with David as they shared expenses and income. Appellants

married in 1975, and Lynn took over all of the day-to-day activities of running the farm due to

David’s age and closeness to retirement. Following their marriage, Appellants moved into an old

house on the farm.

        Sometime around 1981, David retired. In 1981, Lynn signed a quitclaim deed conveying

216.5 acres of the disputed property to David and Margaret. David and Margaret had previously

deeded this same land to Lynn, but they decided to place the land in a trust and “deed it back”

later since David and Margaret were concerned about what would happen if Appellants’

marriage did not last. During 1981, Appellants became solely responsible for all of the disputed


3
 The disputed property contains the 110 acres that Margaret inherited from her parents, and the 210 acres that David
bought in 1971, minus five parcels of land that were conveyed between 1993-1995, for a total of around 314 acres.

                                                         4
property’s income and expenses, and as such, reported all items on their tax returns and have

continued to do so since then. While David would rake hay for Lynn approximately once a year

until he died in 1983, Margaret did not help on the disputed property because she was physically

unable to do so. Since 1981, Margaret has not had any involvement with the disputed property.

According to Lynn, Margaret simply “liked to get out and look at crops and look at things” and,

as such, he “took her anywhere she wanted to go.” None of Appellants’ farming activities ever

went against Margaret’s wishes, and Margaret never asked Appellants to stop doing any

particular activity on the disputed property.

           Between 1993 and 1995, Lynn wanted to raise capital in order to build himself and his

family a new house near the disputed property, so he decided to sell five parcels of land. In

order to sell these parcels, however, Lynn needed for Margaret to sign each of the five deeds,

which she did for each sale.

           In 1999, Margaret signed a beneficiary deed conveying the disputed property to Lynn

upon Margaret’s death. 4 Lynn believed the reason for this beneficiary deed was so he would not

have to pay taxes upon Margaret’s death. Also in 1999, Margaret deeded Appellants title to

approximately 10 acres of land across the road from the disputed property for Appellants to build

a house.

           In 2007, due to a farming hardship, Appellants attempted to obtain a loan at the Seymour

Bank secured by the disputed property (the “2007 loan”). Lynn informed Margaret that he

“needed” her to sign the deed of trust (the “2007 Deed of Trust”) because the title was in her

name. Margaret complied and signed the deed of trust. Lynn made all of the payments on this

loan until 2013.



4
    The beneficiary deed also included other real estate not at issue in this case.

                                                              5
       In 2009, Lynn, Margaret, and Lynn’s son, Jared Scott, filed a lawsuit against Richard,

one of the Respondents, claiming that Richard’s cattle had trespassed on the disputed property.

Their petition alleged that Margaret was the title owner of the disputed property and Lynn and

Jared worked on the disputed property. As part of this lawsuit, Margaret, Lynn, and Jared signed

sworn answers to interrogatories, which included stating, “Jared L. Scott and [Lynn] Scott use

Plaintiff Margaret’s [sic] Scott’s land. Margaret is family, additionally, she allows us to use the

property and has deeded it to us in a beneficiary deed in the event of her death.” Margaret

further swore that Lynn and Jared “operate my family farm.” Furthermore, in a deposition for

this lawsuit, Lynn admitted that while Margaret “owned title” to the disputed property, he

“own[ed] possession.”

       In 2013, after trying to make a payment on the 2007 loan, Appellants learned that the

disputed property had been sold. It was discovered that on February 8, 2013, Respondents

received as grantees a General Warranty Deed from Margaret executed on her behalf by Jan

Nunn, Margaret’s attorney in fact under a power of attorney, and Lynn’s sister. The deed

described the disputed property in the same manner as that described in the 1999 beneficiary

deed and in the 2007 Deed of Trust. Respondents paid Margaret $385,000 for the disputed

property.

       Following this discovery, Appellants and Jared and Mary Scott, husband and wife, filed

this action. Their second amended petition asserted a claim that they had acquired title to the

disputed property through adverse possession and a claim for undue influence. Appellants

proceeded to trial on their second amended petition, wherein the trial court dismissed Jared and

Mary’s claims with prejudice and dismissed Appellants’ alternative claim of undue influence. At

the close of Appellants’ evidence, Respondents moved for a directed verdict, which the trial



                                                  6
court denied. Respondents renewed their motion for directed verdict at the close of all evidence,

which the trial court also denied. After closing arguments and deliberation, the jury returned a

verdict for Appellants, finding they had adversely possessed the disputed property.

       Following the adverse jury verdict, Respondents timely moved for a JNOV, and the trial

court granted the motion in its judgment, finding that Appellants did not make a submissible case

for adverse possession of the disputed property by failing to present substantial evidence

supporting that their possession of the disputed property was hostile, open and notorious, or

exclusive. Appellants timely appeal that judgment.

                                             Discussion

       In their sole point on appeal, Appellants first argue the trial court erred in finding they

failed to present substantial evidence supporting that their possession of the disputed property

was hostile. We disagree.

       “Adverse possession for the statutory period establishes an indefeasible legal title in the

possessor, the title of the record owner is divested, and that title is not lost by abandonment, or

failure to assert it after it has been perfected.” City of South Greenfield, 591 S.W.2d at 161

(citing La Grange Reorganized Sch. Dist. No. R–VI v. Smith, 312 S.W.2d 135, 139 (Mo.1958)).

       Adverse… means that the one making the use shall not recognize in those as
       against whom it is claimed to be adverse an authority either to prevent or to
       permit its continuance. It is the non-recognition of such authority at the time a
       use is made which determines whether it is adverse.

Benson v. Fekete, 424 S.W.2d 729, 738 (Mo. banc 1968) (internal quotation marks omitted).

This “adverse” quality, as opposed to mere possession, is taken into account within the hostile

element of an adverse possession claim.

       “Missouri cases have consistently held that to satisfy the ‘hostile,’ i.e. under a ‘claim of

right’ element only requires that the adverse possessor show the intent to occupy the disputed


                                                  7
property as his own, exclusive of the rights of all others.” DeVore v. Vaughn, 504 S.W.3d 176,

181 (Mo.App. 2016) (emphasis added). The “hostility” element means that “the possession must

be opposed and antagonistic to the claims of all others, and the claimant must occupy the land

with an intent to possess it as his or her own.” Flowers v. Roberts, 979 S.W.2d 465, 469

(Mo.App. 1998) (emphasis added). To be hostile, it is not necessary to have actual malice,

hostility, indifference, or intent to take the property that belongs to another. DeVore, 504

S.W.3d at 181. The intent to possess, occupy, control, use, and exercise dominion over the

property is sufficient. Id. at 182.

         “Whether one’s possession of land is ‘hostile’ is a question of the claimant’s intent.”

White, 506 S.W.3d at 390. The claimant must occupy the land with the intent to possess it as his

own; his occupancy must be in defiance of, not in subordination to, the rights of others. Rohner

v. Beets, 396 S.W.3d 458, 461 (Mo.App. 2013). “Permissive use will not support a claim of

adverse possession because hostile possession is lacking.” Brokhausen v. Waubansee, 65

S.W.3d 598, 600 (Mo.App. 2002). “An adverse possessor does not recognize the authority of the

record titleholder to permit or to prevent his continued use of the property claimed.” Weaver v.

Helm, 941 S.W.2d 801, 805 (Mo.App. 1997). “Furthermore, the claim of right or ownership

must be unequivocal.” Id.

         In their brief, Appellants argue that substantial evidence supports that they began

adversely possessing the disputed property beginning in 1981. 5 Lynn testified that

approximately in 1981, his partnership with his father, David, ended. Lynn also testified that in

1981, Appellants deeded approximately 216.5 acres of the disputed property to David and

Margaret via a quitclaim deed. Lynn testified that David and Margaret had previously deeded


5
 Appellants conceded at trial that they could not establish adverse possession before 1981 but that their adverse
possession claim arose thereafter.

                                                          8
the 216.5 acres to him, but the three of them decided to deed it back to David and Margaret so

that David and Margaret could put the 216.5 acres into a trust and eventually deed it back to

Lynn. The reason for this transfer of title was that David and Margaret were concerned about

what would happen if Appellants’ marriage did not last and Lynn agreed with them. By deeding

the 216.5 acres of the disputed property to David and Margaret, Appellants acknowledged that

they were not adversely possessing the disputed property in 1981 because they knowingly and

intentionally transferred legal title to David and Margaret.

           By signing the quitclaim deed, Appellants conveyed whatever rights, titles, and interests

they may have possessed to David and Margaret. 6 See Humphrey v. Sisk, 890 S.W.2d 18, 21

(Mo.App. 1994) (“a quitclaim deed is as effective as any other deed for the purpose of

transferring title”). Thus, Appellants knowingly and intentionally recognized, through their grant

of legal title by deed, the superior rights of David and Margaret, and as such, Appellants were

not hostilely possessing the 216.5 acres of the disputed property at that time. See Teson v.

Vasquez, 561 S.W.2d 119, 127 (Mo.App. 1977).

           The general rule is that, in order to make continuity of possession after the
           delivery of the deed the basis of an adverse holding, the grantor must, by words,
           acts, or conduct, apprise the grantee that he is claiming title and possession of the
           land against the covenants of his deed; for, until such notice is expressly or
           impliedly given to the grantee, he will be entitled to rest secure upon the legal
           presumption that the continued possession of the land by the grantor is in
           subservience to the grant.

Reinheimer v. Rhedans, 327 S.W.2d 823, 830 (Mo. 1959).



6
    Following the legal description in that quit claim deed, the habendum clause provided:
           TO HAVE AND TO HOLD THE SAME, with all the rights, immunities, privileges and
           appurtenances thereto belonging, unto [David and Margaret] and unto their heirs and assigns
           forever; so that neither [Lynn and Donna] nor their heirs nor any other person or persons, for them
           or in their name or behalf, shall or will hereinafter claim or demand any right or title to the
           aforesaid premises or any part thereof, but they and each of them shall, by these presents, be
           excluded and forever barred.


                                                            9
       As for the remaining part of the disputed property, the 110 acres inherited by Margaret

from her parents that is surrounded on two sides by the deeded 216.5 acre tract, Lynn testified

that he and David were in a “partnership[,]” which supports that he and David initially had

permission to possess and use all of the disputed property. Even though Lynn stated that his

partnership with David ended in approximately 1981, Lynn’s use of the disputed property

remained permissive until Lynn distinctively and positively asserted a right hostile to David or

Margaret’s title, which Lynn never did. See Homan v. Hutchinson, 817 S.W.2d 944, 948

(Mo.App. 1991); Williams v. Diederich, 223 S.W.2d 402, 404 (1949) (“[i]f possession was

permissive at its inception, then it remained so until the hostile claim was brought home to the

true owner”). Appellants’ possession of the disputed property in 1981, therefore, was not hostile

because a “grant of permission is inconsistent with the hostility element of adverse possession.”

Daniels-Kerr v. Crosby, 484 S.W.3d 798, 802 (Mo.App. 2016).

       Appellants adduced substantial evidence that they possessed and farmed the disputed

property from 1981 until trial. They fail, however, to point us to any evidence in the record, and

our review finds none, supporting that between 1981 and 1993 they spoke any words, took any

actions, or engaged in any conduct to apprise either David or Margaret that the character of their

continued possession of the disputed property had deviated in any respect from their initial

permissive possession consistent with David and Margaret’s legal title acquired either by

Appellants’ quit claim deed to them or Margaret’s inheritance from her parents. See

Reinheimer, 327 S.W.2d at 830. Moreover, Appellants’ admitted and uncontested evidence of

their actions in 1993 and thereafter conclusively prove that their possession of the disputed

property during the 1981-1993 period was not hostile as to David or Margaret’s legal title.




                                                10
        Between 1993 and 1995, Lynn wanted to build a new house for his family. In order to

raise funds for construction, Lynn needed to sell five parcels of the then-somewhat larger

disputed property. However, in order to sell these five parcels, Lynn testified that he “needed”

Margaret’s signature consenting to the sale. Thereafter, Margaret consented and repeatedly

proceeded to sign, over that two-year period, all five deeds making those conveyances. Lynn

conceded that Appellants would not have been able to sell the five parcels had Margaret not

signed the deeds.

        As of the first sell-off in 1993, Appellants’ possession of the disputed property could not

have been hostile to Margaret’s legal title for the requisite ten-year period because Appellants

acknowledged at that time they could not do what they wanted to do with the land; i.e., sell a part

of the disputed property without Margaret’s consent. See Weaver, 941 S.W.2d at 805 (“[a]n

adverse possessor does not recognize the authority of the record titleholder to permit or to

prevent his continued use of the property claimed.”). Furthermore, by voluntarily, knowingly,

and intentionally seeking Margaret’s permission, in the form of her signature as grantor on the

deeds, Appellants recognized and deferred to her legal title to the disputed property at that time.

This action establishes that their claim by possession at that time was in subordination of, not in

defiance of, Margaret’s title. See Weaver, 941 S.W.2d at 805. While Appellants’ evidence at

trial focused almost exclusively upon their lengthy possession of the disputed property, it has

been previously observed by our supreme court, however, that “[p]ossession of land in

recognition of a lack of title is insufficient ever to ripen into title by adverse possession.”

Reinheimer, 327 S.W.2d at 831 (quoting Riebold v. Smith, 150 S.W.2d 599, 602 (Mo.App.

1941)). Appellants’ possession of the disputed property, therefore, had not become hostile as to




                                                  11
Margaret’s legal title as of 1993 or at any time thereafter through 1995, when Margaret conveyed

the fifth sell-off.

         In 1999, Margaret signed a beneficiary deed conveying the disputed property to Lynn

upon her death. Lynn testified that a beneficiary deed was “a way of conveying ownership from

one person to another upon death.” Lynn further testified that he did not file an adverse

possession lawsuit against Margaret because he “[saw] no purpose in that” since he “already

owned [the disputed property]” and that “[the disputed property] was in a beneficiary deed to

me.” Lynn believed that he “earned” the disputed property and that it would pass to him upon

Margaret’s death. Lynn stated that he was fine with this arrangement as he did not want to take

title to the disputed property because he wanted to avoid paying capital gains taxes. Appellants’

knowing and intentional acquiescence in and support of Margaret’s actions at that time and her

title right to direct the disposition of the disputed property upon her death, in order to secure for

themselves a financial tax benefit, is Appellants’ recognition of Margaret’s legal title to the

disputed property at that time and the subservience of their possessory rights to her legal title.

See Reinheimer, 327 S.W.2d at 831; Weaver, 941 S.W.2d at 805. Therefore, Appellants’

possession of the disputed property had not become hostile to Margaret’s legal title as of 1999.

        In 2007, Appellants attempted to obtain a loan from Seymour Bank. Appellants needed a

loan in order to pay off another loan that was past due. In applying for this loan, the application

asked Appellants to list their assets under a column titled “ASSETS[.]” Under the “Real Estate

Owned” section of the “ASSETS” column, Appellants listed they owned a market value of

$170,000 in real estate. Lynn testified that this $170,000 valuation was based solely on

Appellants’ home and the ten acres upon which it was located. For Appellants to receive the

desired loan, however, Lynn testified that he “needed” Margaret to pledge the disputed property



                                                  12
that was titled in her name as collateral. Because of this, Margaret submitted a loan application,

which also included a column titled “ASSETS[.]” Under the “Real Estate Owned” section of the

“ASSETS” column, Margaret listed she owned a market value of $750,000 in real estate,

specifically a “farm and home[.]” Lynn acknowledged that Margaret’s loan application,

specifically the real estate owned, was accurate since the disputed property was “titled to her”

and that he had no objection to the disputed property being titled to her. Additionally, Lynn

testified that Appellants would not have been able to receive a loan had Margaret not pledged her

property as collateral.

       Appellants’ exclusion of the disputed property in their loan application was a voluntary,

knowing, and intentional recognition that their possession of the disputed property was

subservient to a “recognized, superior claim of another,” i.e., Margaret’s record legal title.

Porter v. Posey, 592 S.W.2d 844, 850 (Mo.App. 1979). Likewise, Appellants’ admitted

necessity for Margaret to pledge the disputed property as collateral for their loan was a knowing

and intentional acknowledgment that Margaret had not been divested of title to the disputed

property as of that date and therefore, that Appellants’ possession of the disputed property had

not been hostile during any ten-year period on or before that date. See Nutting v. Reis, 326

S.W.3d 127, 130 (Mo.App. 2010) (“[t]he adverse possessor is vested with title and the record

owner is divested once the ten-year period has run”).

       In 2009, Margaret, Lynn, and Jared filed a petition against Richard alleging that

Richard’s cattle had trespassed on the disputed property. In this petition, Margaret, Lynn, and

Jared all specifically alleged that “Margaret [] is the title owner of property in Webster County,

Missouri which is the subject of this lawsuit.” Additionally, Margaret, Lynn, and Jared all stated

that Lynn and Jared “works [sic] and farms [sic] the subject land described above.”



                                                 13
Furthermore, Margaret, Lynn, and Jared signed sworn answers to interrogatories, in which all

three stated: “Jared [] and [Lynn] use Plaintiff Margaret’s [] land. Margaret is family,

additionally, she allows us to use the property and has deeded it to us in a beneficiary deed in the

event of her death.” Margaret further swore that Lynn and Jared “operate my family farm.”

Lastly, in a deposition, Lynn admitted that Margaret owned about 470 acres. At trial in this

action, Lynn testified that his prior deposition testimony was correct because Margaret “owned

title” while he “own[ed] possession.” 7 This uncontested evidence establishes that Appellants’

use of the disputed property had been and continued to be permissive, not hostile, in 2009

because Appellants voluntarily, knowingly, and intentionally continued to recognize Margaret as

the titleholder of the disputed property. See Newbill v. Forrester-Gaffney, 181 S.W.3d 114, 120

(Mo.App. 2005); White, 506 S.W.3d at 390.

         Because Appellants failed to adduce substantial evidence supporting the “hostile”

element of their adverse possession claim to the disputed property for any requisite ten-year

period, they did not make a submissible case, which requires all five adverse possession elements

be supported by substantial evidence. 8 See White, 506 S.W.3d at 388; Delacroix, 407 S.W.3d at

26. The trial court did not err in granting Respondents’ motion for JNOV on this basis.

Appellants’ point is denied.




7
  This testimony illustrates Appellants’ misapprehension of the nature of an adverse possession claim, which
concerns the time at which legal title is divested from the record title owner and is vested in the adverse possession
claimant. See City of South Greenfield, 591 S.W.2d at 161. Both cannot hold legal title at the same time. An
adverse possession claimant’s voluntary, knowing, and intentional recognition and assertion that another has legal
title to property is inconsistent and incompatible with that claimant’s assertion that he or she has acquired that legal
title by adverse possession. The two assertions are mutually exclusive. See, e.g., Reinheimer, 327 S.W.2d 823, 831
(Mo. 1959) (claim of dower not only falls short of a claim of unequivocal ownership or title, but it is inconsistent
with such a claim). Similarly, Appellants’ claim to “own possession” of the disputed property falls well short of a
claim of unequivocal ownership and title in the face of Margaret’s admitted continued ownership of legal title.
8
  Because the hostile element of Appellants’ adverse possession claim was not supported by substantial evidence
and thereby defeats their claim, we need not address Appellants’ arguments in their point as to whether other
elements of their claim were supported by substantial evidence.

                                                          14
                                                   Decision

        The trial court’s judgment is affirmed. 9



GARY W. LYNCH – OPINION AUTHOR

DON E. BURRELL, JR., P.J. – concurs

NANCY STEFFEN RAHMEYER, J. – concurs




9
 Because we affirm the trial court’s judgment, we need not and do not address Respondents’ cross-appeal
challenging the trial court’s denial of their Motion for New Trial.

                                                       15
