JACOB MARSHALL SAMANTHA MARSHALL v. LEIGH MARSHALL DEANNA NEEDHAM (2026)

Plaintiffs Jacob and Samantha Marshall (collectively referred to as “Appellants”) filed a petition against defendants Leigh Marshall and Deanna Needham (collectively referred to as “Respondents”) concerning certain real estate (the “Property”) previously owned by the parties’ now deceased antecedent family members, Leonard and Bonnie Stapp (collectively referred to as “Decedents”). Respondents moved for and the circuit court granted summary judgment in their favor on each of the five claims raised by Appellants in their petition. Finding merit in all of Appellants’ eight points on appeal contending that summary judgment was inappropriate, we vacate the circuit court's judgment and remand for further proceedings consistent with this opinion.

Summary Judgment Practice and Principles of Review

The granting of summary judgment is an issue of law which we review de novo. Jungers v. Webster Elec. Coop., Inc., 577 S.W.3d 498, 500 (Mo.App. 2019). Such granting is appropriate if “the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6), Missouri Court Rules (2025) “The record is viewed in the light most favorable to the non-movant.” Smith v. Aquila, Inc., 229 S.W.3d 106, 112 (Mo.App. 2007).

“Summary judgment is based on facts established pursuant to a movant's statement of uncontroverted material facts [“SUMF”] under Rule 74.04(c)(1), and the non-movant's responses under Rule 74.04(c)(2).” Bracely-Mosley v. Hunter Eng'g Co., 662 S.W.3d 806, 810 (Mo.App. 2023). Under that framework, the movant's SUMF “must state with particularity each material fact as to which the movant claims there is no genuine issue, with specific references to supporting pleadings, discovery, exhibits or affidavits.” Id. “The non-movant's response must either admit or deny, with specific references to discovery, exhibits, or affidavits demonstrating specific facts showing there is a genuine issue, each of the movant's statements of fact.” Id.

Facts enter the summary judgment record “only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework.” Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo.App. 2016). “A summary judgment motion which fails to set forth each material fact in separately numbered paragraphs and fails to specifically reference supporting documentation is defective.” Hanna v. Darr, 154 S.W.3d 2, 5 (Mo.App. 2004). Additionally, “[e]ven if uncontroverted, conclusory statements and legal conclusions are not ‘facts’ for purposes of Rule 74.04.” Amoroso v. Truman State Univ., 683 S.W.3d 298, 303 (Mo.App. 2024) (internal quotation marks omitted).

“If the non-movant files a statement of additional material facts [“Additional SUMF”], the process repeats itself, but with the non-movant stating material facts, supported in the same manner, to which the movant must respond.” Bracely-Mosley, 662 S.W.3d at 810. “If the movant does not properly deny an additional statement of fact, that fact is admitted.” Johnson v. Usera, 695 S.W.3d 272, 282 (Mo.App. 2024).

A defending party moving for summary judgment is entitled to such a judgment in its favor if that party shows one of the following based on the Rule 74.04(c) record:

(1) facts negating any one of the claimant's elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense.

Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005). When a plaintiff seeks relief under multiple theories, summary judgment on the entire case cannot be granted unless the defending party is entitled to judgment as a matter of law on every pleaded theory. See, e.g., Williams v. Hutcheson Enters., Inc., 699 S.W.3d 244, 251 (Mo.App. 2024); Smith v. Taney Cnty., 552 S.W.3d 745, 751 (Mo.App. 2018); Childress Painting & Assoc., Inc. v. John Q. Hammons Hotels Two, L.P., 106 S.W.3d 558, 563 (Mo.App. 2003).

“When the [circuit] court's order does not state the reasons for its grant of summary judgment, we presume that the [circuit] court based its decision on the grounds raised in the movant's motion for summary judgment.” Johnson, 695 S.W.3d at 281 (internal quotation marks omitted). It follows, therefore, that “[a] motion for summary judgment shall summarily state the legal basis for the motion.” Rule 74.04(c)(1) (emphasis added). The failure to comply with this requirement generally “warrants a [circuit] court's denial of a summary judgment motion and warrants an appellate court's reversal of the grant of summary judgment.” McClain ex rel. Rutledge v. Carpio, 338 S.W.3d 361, 369 n.8 (Mo.App. 2011) (internal quotation marks omitted). “Nevertheless, if the issues and the documents in support of those motions are clear to the litigants, the [circuit] court, and the appellate court, the failure to comply with Rule 74.04 does not per se preclude the granting of summary judgment nor the affirming of such a judgment.” Id. (internal quotation marks omitted); see, e.g., Bruckerhoff v. City of Perryville, 681 S.W.3d 303, 307 (Mo.App. 2023) (exercising discretion to review legal basis for summary judgment not included in the motion where the parties addressed the said basis in their Rule 74.04 statements of material facts, related responses, and dueling legal memoranda).

The Summary Judgment Record

Respondents’ SUMF is comprised of twelve numbered paragraphs. The first numbered paragraph is comprised of several subparagraphs that address allegations raised by Appellants in their petition filed on August 4, 2022. Appellants admitted only those subparagraphs that included specific references to paragraphs of Appellants’ petition. Said references were only to paragraphs found in the general-allegations-common-to-all-counts portion of Appellants’ petition, not the portions of the petition addressing each of Appellants’ five claims. Based upon Appellants’ admissions, their petition alleges as follows: Appellants “entered into an oral agreement” with Decedents in 2009 to “transfer ownership of the [P]roperty described in [Appellants’] petition upon certain conditions requiring maintenance of the [P]roperty and rehabilitating a dilapidated residence on the subject [P]roperty to a habitable standard”; Leonard Stapp was the last of the two Decedents to pass away, which occurred on September 3, 2020; and that following Leonard Stapp's death, Appellants contacted Respondents and “occupied the [P]roperty, under claim of right, and adverse to [Respondents].” Appellants also admitted numbered paragraph 7, which concerns the probate proceeding for the estate of Leonard Stapp and states that an application of letters of administration in the probate proceeding was filed on November 22, 2020, and a final judgment was thereafter issued on August 24, 2021. Paragraph 7 specifically referenced documentation from the probate proceedings, denominated “Exhibit 100[,]” which was the only exhibit Respondents appended to their SUMF.

The remaining numbered paragraphs in Respondents’ SUMF, and Appellants’ responses thereto, lack the clarity found in the foregoing paragraphs and responses. Of those remaining paragraphs, we first address paragraph 1's final subparagraph, as well as paragraphs 3 through 6, all of which attempt to summarize the five claims raised by Appellants in their petition. Specifically, the SUMF describes claim 1 as a “claim to the [P]roperty by reason of adverse possession”; describes claim 2 as seeking “declaratory judgment to declare an oral agreement for land transfer as valid under a theory of full performance”; describes claim 3 as seeking “specific performance of the alleged oral agreement with Decedent[s] under a theory of promissory estoppel”; describes claim 4 as seeking “restitution and unjust enrichment or constructive trust”; and describes claim 5 as a claim for “fraud against [Respondents].” Appellants observed that said descriptions failed to include any reference to specific paragraphs of Appellants’ petition. In responding to these paragraphs, Appellants admitted that the claims in their petition speak for themselves. Regarding claim 1, Respondents also stated, again without any specific reference, that the allegations in Appellants’ petition “establish that they were occupying and/or utilizing the [P]roperty under permission and oral commitment” at all relevant times preceding the death of Decedents. Appellants denied this statement, referencing specific paragraphs in their petition that “expressly allege that from and after 2011, [they] possessed the subject [P]roperty believing that they were the owners thereof as a matter of right by reason of performance of oral agreement, and not merely permissive tenants.” Appellants also referenced deposition testimony from Jacob Marshall and Respondents for the proposition that Appellants have believed and have treated the Property as if they owned it.

Appellants also observed that paragraphs 2 and 8 through 12 of Respondents’ SUMF contain legal arguments and conclusions. Generally, these paragraphs assert that permissive use and occupancy does not give rise to a claim for adverse possession; that certain statutes of limitation bar Appellants’ claims because Appellants did not file any claim within six months following the letters of administration and because they did not file any claim within one year of Leonard Stapp's death; that the oral agreement alleged by Appellants between themselves and Decedents is unenforceable against Respondents, the heirs of Leonard Stapp as established by Exhibit 100; that Appellants have not met the ten-year requirement for adverse possession because Respondents have only owned the property since 2021 as established by Exhibit 100; and that Respondents are entitled to summary judgment in their favor on all of Appellants claims. In answering these paragraphs, Appellants again denied that their use of the Property was permissive with references to specific paragraphs in their petition and party affidavits, admitted that that they did not file any claims during the aforementioned probate proceedings, and admitted that their petition and Exhibit 100 speak for themselves.

In their response to Respondents’ SUMF, Appellants also included an Additional SUMF comprising five numbered paragraphs. The first four paragraphs generally state that Respondents received title to the Property “on paper” through the aforementioned probate proceedings and that Decedents and Respondents knew of and did not object to the “improvements” Appellants made to the Property over the course of many years. These first four paragraphs contain specific references to the depositions of Respondents and Jacob Marshall's answers to interrogatories. The fifth numbered paragraph, referencing specific paragraphs of Appellants’ petition, states that Appellants’ claims 2 through 5 allege claims against Respondents based upon their own conduct, and not simply the conduct of Decedents. Appellants allege that Respondents knew of the oral agreement between Appellants and Decedents and promised Appellants they would honor the agreement and convey the Property to Appellants, yet Respondents have refused to make and have no intention of making said promised conveyance. No filing by Respondents responding to Appellants’ Additional SUMF appears in the record.

A motion for summary judgment accompanied Respondents’ SUMF, stating, without further elaboration, that summary judgment was appropriate as to all of Appellants’ claims “for the reason that there is no genuine issue as to material facts and [Respondents] are entitled to have a judgment entered as a matter of law in view of the documentary evidence and [SUMF] submitted with this motion which are attached hereto and incorporated herein.” Additionally, the parties submitted briefs specifically discussing four legal grounds that, according to Respondents, support summary judgment. We arrange and summarize those legal grounds as follows: (1) two non-claim statutes of limitation in the probate code, both affirmative defenses, bar all of Appellants’ claims because Appellants never filed a claim against the estate of Leonard Stapp within the time limits provided thereby; (2) the statute of frauds, also an affirmative defense, provides a separate basis barring Appellants’ claims “arising from” Decedents’ agreement with Appellants to transfer ownership of the Property because that agreement was not in writing; (3) Decedents granted Appellants permission to use and occupy the Property, negating the hostility element of adverse possession, thereby providing a separate basis for defeating that claim; (4) Respondents have only owned the property since August 24, 2021, negating the ten-year element of adverse possession, thereby providing an additional separate basis for defeating that claim.

Ultimately, the circuit court issued a judgment granting Respondents’ motion. The judgment does not indicate under which of the four aforementioned grounds the circuit court determined that summary judgment was appropriate.

Discussion

The Probate Code Statutes of Limitation

We begin with Appellants’ third and fifth through eighth points, which challenge the circuit court's judgment on the basis that the probate code statutes of limitation bar Appellants’ claims. Those statutes of limitation, specifically sections 473.360.1 and 473.444.1, RSMo (2016), provide, in pertinent part, that “all claims against the estate of a deceased person” are “forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent” if not filed in the probate division of the circuit court within specified time limits. The time limits upon which Respondents relied are “six months after the date of the first published notice of letters testamentary or of administration[,]” section 473.360.1, and “one year following the date of the decedent's death,” section 473.444.1. Here, it is an uncontroverted material fact that Appellants did not file any “claims” against Leonard Stapp's estate.

We note that section 473.444 was enacted decades after section 473.360 and, as a result, is not addressed by much of the caselaw that we cite, infra, as part of this discussion. What is pertinent about the caselaw we cite, however, is how the word “claims” (used to identify what is time-barred by both section 473.360 and section 473.444, as quoted supra) is statutorily defined. The word “claims” is defined to “include liabilities of the decedent which survive whether arising in contract, tort or otherwise, funeral expenses, the expense of a tombstone, and costs and expenses of administration[.]” Section 472.010, RSMo Cum.Supp. (2019); see also Higgins v. McElwee, 680 S.W.2d 335, 340 (Mo.App. 1984) (stating that “[c]laims against the estate of a deceased person, as that phrase is used in [section] 473.360, refers to liabilities of the decedent which survive”). “ ‘Liability’ usually, if not always, means a debt or pecuniary obligation, and such must have existed against the decedent to form the basis of a ‘claim’ as used in the probate code.” Estate of DeBoeuf, 638 S.W.3d 923, 927 (Mo.App. 2021).

Appellants direct us to the case, Hayes v. Jayne, 498 S.W.2d 829 (Mo.App. 1973). That case illustrates a situation where a quiet title action involving land formerly owned by a person, who by the time the quiet title action was brought had passed away, did not qualify as a “claim” for purposes of the probate code. Id. at 830-32. The decedent, prior to her death, conveyed a piece of land to her son (who later predeceased the decedent) and his wife by warranty deed, but retained a life estate in the land. Id. at 831. Following the decedent's death, a dispute arose as to whether the deed had actually been delivered and whether the land belonged to the wife or a part of the decedent's estate. Id. Holding that that there was substantial evidence of delivery, the appellate court rejected a contention by the executor and beneficiaries of decedent's estate that the son's wife was time-barred from bringing her suit under section 473.360, RSMo (1969). Id. at 832. As the appellate court explained:

The simple answer to that contention is that respondent's suit is not a claim. Claims are liabilities of the decedent which survive. [The wife]’s suit is not founded upon any liability of the decedent. It seeks only to have determined whether the land involved belongs to [the wife] or the estate. Having found delivery of the deed in 1940 [the wife] was at that time vested with the remainder interest in the real estate to become effective upon [the decedent]’s death. [The decedent]’s life estate in the property terminated upon her death. The real estate involved was not an asset of decedent at the [time] of her death, nor an asset of the estate.

Id. (internal quotation marks, ellipsis, and citation omitted).

Our research has uncovered another such case, Bailey v. Richardson, 667 S.W.2d 720 (Mo.App. 1984). That case involved “an original action in equity seeking specific performance of an oral agreement to devise real property.” Id. at 720. The only issue on appeal was whether this “cause of action for specific performance [was] a ‘claim’ within the meaning of [section] 473.360[,] [RSMo (1978)].” Id. at 722. The western district of this Court held that “it is not” because the claimant sought “by specific performance (based upon an ante-mortem contractual right) the transfer of title to specific real property ․.” Id. Specifically, the western district stated that it is clear from authority by our high court in Strumberg v. Mercantile Trust Co., 367 S.W.2d 535 (Mo. 1963), and North v. Hawkinson, 324 S.W.2d 733 (Mo. 1959), “that action[s] for the recovery of specific property are not actions within the meaning and intent of [section] 473.360.” Bailey, 667 S.W.2d at 722 (emphasis added).

Appellants argue that none of the uncontroverted material facts in Respondents’ SUMF describe a “claim” within the meaning of section 472.010. We agree. As set out in Respondents’ SUMF, Appellants’ petition alleges they entered into an oral agreement with Decedents to transfer ownership of the Property “upon certain conditions”; namely, maintaining the Property and rehabilitating a residence thereon. Furthermore, Appellants’ Additional SUMF contains the uncontroverted material fact (by virtue of Respondents’ failure to deny it) that Appellants have been making “improvements” to the Property over many years. Respondents’ further admitted (again, by virtue of their failure to deny it) that they received title to the Property “on paper” through Leonard Stapp's estate.

In their fifth point, Appellants characterize claim 2 in their petition as a claim “for enforcement of an oral land transfer agreement[.]” As is relevant to such a claim, “[a] person who enters into a contract for sale of a piece of real property with the legal owner of the property acquires equitable title.” Robson v. Diem, 317 S.W.3d 706, 713 (Mo.App. 2010). As is also relevant, if Appellants’ improvements are proven to satisfy the conditions of said agreement, “an equitable title is the right in the party to whom such title belongs to have the legal title transferred to him [or her] upon the performance of a specified condition.” Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599, 603 (Mo.App. 1984). “A purchaser under such a contract, being considered in equity as the owner of the real estate involved, may maintain an action to quiet title.” Hamilton v. Linn, 200 S.W.2d 69, 70 (Mo. 1947) (emphasis added); see also State ex rel. City of St. Louis v. Baumann, 153 S.W.2d 31, 34 (Mo. banc 1941) (stating that “the purchaser is regarded as the owner and the vendor as holding the legal title in trust for him [or her]” (emphasis added)). Such a claim “for enforcement of an oral land transfer agreement” that seeks to establish ownership of specific property is not a “claim” for purposes of the probate code statutes of limitation. See Bailey, 667 S.W.2d at 722; Hayes, 498 S.W.2d at 832.

As also set out in Respondents’ SUMF, Appellants’ petition further asserts that they “occupied the Property, under claim of right, and adverse to [Respondents].” In their third point, Appellants characterize claim 1 in their petition as a claim for “adverse possession[.]” As relevant to such a claim, “[o]nce the ten-year period has run and the other adverse elements are satisfied, the possessor is vested with title and the record owner is divested.” Kohler v. Bolinger, 70 S.W.3d 616, 619 (Mo.App. 2002) (emphasis added). Again, such a claim asserting ownership by “adverse possession” of specific property, is not a “claim” for purposes of the probate code statutes of limitation. See Bailey, 667 S.W.2d at 722; Hayes, 498 S.W.2d at 832.

In their sixth, seventh, and eighth points, Appellants characterize claims 3, 4, and 5 in their petition, respectively, as claims for “promissory estoppel”; “restitution, unjust enrichment, and constructive trust”; and “fraud[.]” To the extent that these claims seek the recovery of the Property as opposed to monetary relief, Bailey, as already noted, seems to indicate that those claims would fall outside the probate code statutes of limitation. See 667 S.W.2d at 722.

We need not, however, determine whether Bailey is applicable. Regardless as to the specific manner and type of relief Appellants seek in claims 3, 4, and 5, we note that Appellants’ Additional SUMF addresses these claims and states (again, without any denial from Respondents) that they are based upon the conduct of Respondents occurring after the death of Leonard Stapp. More specifically, Respondents promised to convey the Property to Appellants during the probate process but then, during and after the probate process, refused to do so. Appellants direct us to authority from our high court suggesting that Appellants’ “fraud” claim—apparently directed at Respondents, not against any surviving liability of Leonard Stapp—falls outside the probate code statutes of limitation. See Hamilton, 200 S.W.2d at 71 (stating that the limitations period barring claims against an estate did not apply where the “plaintiffs are not seeking a recovery of this sum from [the decedent]’s estate but from the defendants on the ground of conspiracy and fraud”). Furthermore, in light of Hamilton, we see no reason why the probate code statutes of limitation would apply to Appellants’ “promissory estoppel” claim, which, just like the “fraud” claim, is also apparently directed only at Respondents, based upon their allegedly unfulfilled promise.

Only Appellants’ “restitution, unjust enrichment, and constructive trust” claim remains. We address this claim separately because we wish to note that this Court previously analyzed an unjust enrichment claim in the context of section 473.444, RSMo (2000), in Consolidated Grain & Barge, Co. v. Hobbs, 397 S.W.3d 467, 470 n.2, 475-76 (Mo.App. 2013). The unjust enrichment claim in that case arose “from [the decedent's] failure to deliver crops to [the plaintiff] required by seven contracts in [the decedent's] name alone.” Id. at 475. The plaintiff alleged “that failure, in some manner, resulted in the unjust enrichment of [the decedent] and, through [the decedent], his heirs.” Id. This Court observed that this claim “clearly [was] a claim against [the decedent]’s probate estate ․.” Id. Ultimately, the claim was time-barred as it was not filed against the decedent's probate estate within one year of his death. Id. at 475-76.

The unjust enrichment claim in Hobbs is altogether different than Appellants’ “restitution, unjust enrichment, and constructive trust” claim as described in the summary judgment record. That record does not suggest that Appellants’ unjust enrichment claim in any way accrued under or against Leonard Stapp and, through him, Respondents were unjustly enriched. To the contrary, as we have already observed, Appellants’ Additional SUMF suggests this claim initially arose against Respondents. Hobbs is not controlling.

In sum, the summary judgment record fails to demonstrate that the probate code statutes of limitation bar any of Appellants’ claims as a matter of law. Accordingly, Appellants’ third and fifth through eighth points, which respectively challenge summary judgment on the basis of said affirmative defense as to claims 1 through 5 in Appellants’ petition, are granted.

The Statute of Frauds

Appellants’ fourth point challenges the circuit court's judgment on the basis that the statue of frauds bars claim 2, which they characterize again in this point as a claim “for enforcement of an oral land transfer agreement[.]” In pertinent part, the statute of frauds provides:

No action shall be brought ․ to charge any person upon any agreement made ․ upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them ․ unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith ․.

Section 432.010, RSMo (2016).

At the outset, we note that Respondents’ summary judgment briefing argued that the statute of frauds bars Appellants’ claims “arising from” said oral agreement. Regardless of whether Respondents sought to challenge one or several of Appellants’ claims on this basis, neither Respondents’ SUMF, nor their summary judgment briefing, specifically identified which of Appellants’ five claims are barred thereby. The numbered paragraph in Respondents’ SUMF setting out said oral agreement, which Appellants admitted, is followed by a supporting reference only to the general-allegations-common-to-all-counts portion of Appellants’ petition. Although there are other paragraphs found in Respondents’ SUMF attempting to briefly describe the causes of action comprising Appellants’ five claims, those paragraphs were not supported by specific references to Appellants’ petition and are, therefore, defective. See Hanna, 154 S.W.3d at 5. Respondents’ SUMF is simply devoid of any specific references to the relevant portions of Appellants’ petition necessary to demonstrate which, if any, of Appellants’ five claims fall within and are barred by the statute of frauds.

Nevertheless, we treat this and Appellants’ other points relied on addressing claim 2 as concessions that claim 2 “arises from” said oral agreement. Appellants argue, however, that genuine issues of material fact exist as to whether the “full performance” exception to the statute of frauds applies. We agree. The statute of frauds has certain equitable exceptions, none of which Respondents addressed in their SUMF or their summary judgment briefing. These “[e]quitable exceptions to the [s]tatute of [f]rauds are well established and generally fall into three broad categories: (1) to prevent perpetration of a fraud by application of the bar of the statute; (2) by application of promissory estoppel; (3) where there has been partial or full performance.” Stander v. Szabados, 407 S.W.3d 73, 80 (Mo.App. 2013) (internal quotation marks omitted). “All three categories are somewhat related and generally can be said to be used to prevent fraud or gross injustice.” Id. (internal quotation marks omitted).

As already noted, Respondents’ SUMF states that Appellants assert that Decedents agreed to transfer the Property to Appellants if Appellants maintained the Property and rehabilitated a residence thereon. Furthermore, as also already noted, it is an undisputed material fact in Appellants’ Additional SUMF that they have been making “improvements” to the Property for many years.

The summary judgment record does not refute, let alone even address, whether Appellants’ improvements to the Property satisfy the equitable exceptions to the statute of frauds. The summary judgment record, therefore, fails to demonstrate that said affirmative defense bars Appellants’ claim 2 as a matter of law. Accordingly, Appellants’ fourth point is granted.

Adverse Possession's Hostility Element

Appellants’ first point challenges the circuit court's judgment on the basis that the summary judgment record negates the hostility element of Appellants’ claim 1 for “adverse possession[.]” Said hostility element is the second of the following five elements necessary for adverse possession:

First, the possession must be actual. There must be physical control and use of the disputed property for the statutory period․. Second, the possession of the disputed tract must be hostile to other competing claims to the property. Third, that possession must be open and notorious, such that those individuals having competing claims to the property actually know or should have known of that possession. Fourth, possession must be exclusive, such that others with competing claims to the property are wholly excluded from the property. Lastly, the possession must be continuous for the statutory period of ten years.

Rodgers v. Threlkeld, 80 S.W.3d 532, 534-35 (Mo.App. 2002) (internal citations omitted). Failing to establish any one of these elements is fatal to an adverse possession claim. White v. Matthews, 506 S.W.3d 382, 388 (Mo.App. 2016).

In their summary judgment briefing, Respondents argued that Appellants, in their petition, asserted that they entered into an oral agreement with Decedents for “permission” to use and occupy the Property. Respondents also cited Copper v. Ringen, 671 S.W.3d 409, 416 (Mo.App. 2023), for the propositions that “[a] grant of permission is inconsistent with the hostility element of adverse possession.” The grant of such “permission” in this case, according to Respondents, negates the hostility element of Appellants’ adverse possession claim.

We begin by observing that the numbered paragraph in Respondents’ SUMF containing the “permission” language upon which they rely lacks any specific reference to Appellants’ petition and, therefore, is defective. See Hanna, 154 S.W.3d at 5. Moreover, Appellants properly denied this paragraph with specific references to their petition and party depositions. Contrary to Respondents’ unsupported and defective assertion, Appellants’ petition asserts they believed that they were the “owners” of the Property “as a matter of right” and “not merely permissive tenants.” This assertion, if proven, is consistent with adverse possession's hostility element. See Thomas v. B.K.S. Dev. Corp., 77 S.W.3d 53, 60 (Mo.App. 2002) (stating hostility occurs when “the possession is opposed and antagonistic to the claims of all others, or when the claimant occupies the land with the intent to possess it as his own and not in subservience to a recognized, superior claim of another”).

Nothing in the summary judgment record negates Appellants’ assertion that they possessed the Property in a manner hostile to other competing claims, an element necessary to succeed on their claim 1. Accordingly, Appellants’ first point is granted.

Adverse Possession's Ten-Year Element

Finally, Appellants’ second point challenges the circuit court's judgment on the basis that the summary judgment record negates the ten-year element of Appellants’ claim 1 for “adverse possession[.]” As already noted, adverse possession “must be continuous for the statutory period of ten years[,]” Rodgers, 80 S.W.3d at 535, and failing to establish any one of the adverse possession elements is fatal to a claim, White, 506 S.W.3d at 388.

In their summary judgment briefing, Respondents argued that the ten-year element for adverse possession is negated because any adverse possession claim against them “could not have started to run until after they became owners [of the Property], on August 24, 2021.” Respondents cited no legal authority to support this argument, and this Court is unable to find any such support. What is required to satisfy this element, is that “[t]he ten years must be consecutive, uninterrupted, and without lapse.” Luttrell v. Stokes, 77 S.W.3d 745, 751 (Mo.App. 2002). “However, it is not necessary that the ten years be the ten years immediately preceding the filing of the lawsuit.” Id. “Once the ten-year statutory period has run, the adverse possessor is vested with the title and the record owner divested.” Id.; cf. Barnhart Prop., Inc. v. Carver, 891 S.W.2d 880, 882 (Mo.App. 1995) (affirming finding of adverse possession where the record owner of the property at issue acquired title in 1987, yet the elements of adverse possession, including the ten-year period, were already satisfied by 1969).

Nothing in the summary judgment record negates Appellants’ assertion that they continually possessed the Property for a ten-year period, another element necessary to succeed on their claim 1. Accordingly, Appellants’ second point is granted.

Decision

The circuit court's judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

BECKY J. WEST, J. – OPINION AUTHOR

JENNIFER R. GROWCOCK, C.J. – CONCURS BRYAN E. NICKELL, J. – CONCURS