Hepler Broom, LLC

Takin’ It To The Street: Facts and Evidence in Summary Judgment Motions

December 17, 2020

Following a brief departure by the Court of Appeals for the Eastern District, the Missouri Supreme Court recently clarified in Green v. Fotoohighiam that courts should not stray beyond the facts and evidence set forth in a movant’s statement of uncontroverted material facts when considering a motion for summary judgment. 606 S.W.3d 113 (Mo. banc 2020).

Missouri Rule Governing Summary Judgements

Summary judgments in Missouri are governed by Rule 74.04, which contains strict requirements for establishing the uncontroverted material facts which may support a summary judgment. In addition to filing a legal memorandum explaining why summary judgment should be granted, Rule 74.04(c) instructs the movant that they must “state with particularity in separately numbered paragraphs each material fact 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.” If the non-movant wishes to deny one of the movant’s facts, then they must support the denial with references to admissible evidence. A failure to do so results in the fact being deemed admitted as true.

Appellate Court Ruling in the Street Case

In 2016, the Missouri Court of Appeals for the Eastern District took a broad view of what materials may be considered by the courts under Rule 74.04(c) and reversed a summary judgment based on a consideration of the entire record rather than confining its review of the facts to the numbered paragraphs framework. In Street v. Harris, the plaintiff sued homeowners after their dog allegedly knocked her down. 505 S.W.3d 414 (Mo. E.D. 2016). The homeowners filed a motion for summary judgment and alleged in their statement of uncontroverted material facts that the dog had never previously knocked anyone down and attached an affidavit in support of that fact. Id. at 416. The plaintiff failed to respond, so the trial court deemed the fact admitted and entered judgment in the homeowners’ favor. On appeal, however, the Court of Appeals noted that the homeowners also submitted the plaintiff’s deposition transcript in support of other facts and that deposition testimony included a statement by the plaintiff that the homeowners once told her the dog had in fact knocked someone down before. Id. The Court of Appeals held that this inconsistency created a dispute of material fact and reversed the summary judgment. Id. at 417.

Supreme Court Ruling in Green Overrules Appellate Court Ruling in Street

The Missouri Supreme Court recently had occasion to consider this same issue and held that Street went beyond the scope of Rule 74.04. In Green, the plaintiff sued her neighbor for personal injuries she sustained while fleeing a fire at her mobile home, alleging that the neighbor conspired with others to start the fire. 606 S.W.3d at 114. The plaintiff then filed a motion for summary judgment on the issue of liability alone and, in accordance with Rule 74.04(c), submitted a statement of uncontroverted material facts in which she alleged that the neighbor offered $500 to two individuals to set her mobile home on fire. Each numbered paragraph was supported by deposition testimony or affidavit. Id. at 114-15.

The neighbor did not timely respond to the motion for summary judgment, leading the trial court to declare each of the plaintiff’s alleged facts as uncontroverted and, accordingly, hold that the neighbor paid others to burn the plaintiff’s home down and was liable for the loss. Id. at 115. On appeal, the neighbor pointed to his deposition testimony included in the plaintiff’s summary judgment filings in which the neighbor denied having ever met the two individuals who set the home on fire. Relying on Street, he argued that a genuine issue of material fact existed because the deposition testimony contradicted the plaintiff’s assertion that he knew the two individuals who burned the home down. Id.

The Missouri Supreme Court rejected the neighbor’s argument and, in the process, overruled Street. The court reiterated that “[f]acts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework,” so in considering a motion for summary judgment, a court must “determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate [movant’s] right to judgment regardless of other facts or factual disputes.” Id. at 117-118 (emphasis in original). Because the portion of the neighbor’s deposition transcript in which he denied knowing the two individuals “was not cited or otherwise referenced in any Rule 74.04(c) paragraph or response,” the court could not consider that uncited testimony because to do so would “cause a court to impermissibly act as an advocate for a party” by sifting through the entire record to identify a factual dispute. Id. at 118. Accordingly, the summary judgment was affirmed.

The Takeaway

While the Green decision may seem directed more towards trial court judges than litigants, it serves as a reminder of the crucial role played by the statement of uncontroverted material facts when engaged in summary judgment practice. What Green makes clear is that judges are to consider only the numbered paragraphs and the evidence specifically cited as support of each paragraph in determining whether the facts establish a right to judgment, so a non-movant must take care to properly respond to each asserted fact and support any denials with specific references to the evidence, because the court will not scour the record to save you from an adverse judgment.

COVID-19 Updates

HeplerBroom is pleased to announce that its physical offices have reopened. While the health and safety of our clients, employees, and families, remain our top priority, HeplerBroom attorneys and staff are returning to our offices on full-time or modified schedules. Our offices are open to visitors and clients with scheduled appointments, with appropriate screening of visitors and social-distancing protocols. HeplerBroom will continue to follow CDC recommendations for cleaning and sanitizing.

We are very proud of the dedicated efforts of our attorneys and staff to provide great service and work product to our clients during the pandemic. This would not have been possible without the incredible support provided by the HeplerBroom IT Department and other essential personnel who supported our personnel and clients from the office locations while the rest of our teams worked remotely.

If you have questions about visiting our offices, please do not hesitate to contact us. We look forward to seeing you in person again in the near future.