Most Missouri litigators are well-versed in citing to ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., for Missouri’s summary judgment standard. ITT has governed summary judgment for almost three decades, despite revisions to Missouri Rule of Civil Procedure 74.04(c)(1)-(2) in 1994. Finally, in August, 2020, the Supreme Court of Missouri revised certain portions of ITT’s outdated summary judgment guidance, especially in regard to the body of facts upon which trial courts must rely when deciding motions for summary judgment.
Under ITT’s framework, trial courts analyzing summary judgment had an obligation to look to facts anywhere in the record in order to determine if any genuine disputes of material fact existed, even if neither the movant nor non-movant cited to such facts in their summary judgment filings.
Green v. Fotoohighiam upended this framework by establishing that facts come into a summary judgment record only via numbered paragraphs and responsive filings, per Rule 74.04(c). In fact, the Missouri Supreme Court explained that:
summary judgment principles do not require the circuit court or any appellate court to sift through the entire record to identify disputed issues, which, in turn, would cause a court to impermissibly act as an advocate for a party. Moreover, requiring a court to comb through the entire record to determine if any disputed issues of material fact existed would render the 1994 amendments to Rule 74.04 meaningless.
Green was not the first case to address these issues, and in fact, Missouri trial courts have applied both of the above frameworks over the past decades. But Green was the Missouri Supreme Court’s first time clarifying these rules and the first time that the Court formally (partially) overruled ITT, and its progeny, like Street v. Harris.
In Green, Plaintiff Marcia Green (“Plaintiff”) brought suit against Defendants Mehrdad Fotoohighiam (“Defendant”), James Hall, David Reed, Electenergy Technologies, Inc., and ETI, LLC, for allegedly conspiring to burn down her mobile home while she slept inside. Plaintiff’s amended petition included claims for negligence, assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass, malicious trespass to personalty, and conspiracy.
At the close of discovery, Plaintiff moved for partial summary judgment against Defendant as to the issue of liability (as opposed to damages). Defendant filed no response and the trial court granted Plaintiff’s motion, having found:
The evidence presented has not been denied as required under Supreme Court Rule 74.04(c)(1). The undenied facts are that [Defendant] paid others in a conspiracy to burn down the dwelling of [Plaintiff]. Those co-conspirators did burn that dwelling down causing [Plaintiff] damage. There is no contravention of these ultimate issues. They are found to be true. [Plaintiff] is therefore entitled to judgment as a matter of law.
Plaintiff’s evidence in support of her statement of uncontroverted material facts included portions of Defendant’s deposition testimony. Plaintiff though, did not cite to any portion of Defendant’s deposition testimony in her (numbered paragraph) statement of facts, and Defendant also failed to cite to the deposition testimony insofar as he failed to reply whatsoever to Plaintiff’s summary judgment filings.
Defendant appealed the trial court’s grant of partial summary judgment on the basis that Plaintiff’s inclusion of Defendant’s surplus deposition testimony controverted material facts on which Plaintiff based her motion for summary judgment. In this testimony, Defendant had stated that he never met certain individuals allegedly involved in the conspiracy to burn down Plaintiff’s mobile home. The Court of Appeals denied Defendant’s appeal, and the Missouri Supreme Court took up the case.
The Missouri Supreme Court began its analysis by citing to Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, for the proposition that a “non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4).” The Court went on to emphasize that based upon Rule 74.04(c), the corpus of facts upon which a trial court must weigh a motion for summary judgment is strictly limited to properly supported facts in the movant’s statement of uncontroverted material facts and properly supported facts in the non-movant’s responsive filings.
Critically, the Court explained that a non-movant cannot create a genuine issue of disputed fact via facts in the record that are not cited in the non-movant’s response to the movant’s statement of uncontroverted material facts:
The fact this deposition testimony was part of the entire record at the circuit court is of no consequence because motions for summary judgment are decided only on those facts—along with properly cited pleadings, discovery, exhibits, or affidavits—referenced in Rule 74.04(c) paragraphs and responses, not the entire trial court record.
The implications of Green’s framework are significant and may require additional case law to fully flesh out. For example, when analyzing a motion for summary judgment, a court not only may, but must, ignore affidavits that are already in the record, unless the facts from such affidavits are included in the moving or non-moving party’s numbered paragraph fact statement Rule 74.04(c) requires. This is true regardless of whether an affidavit clearly contradicts facts stated in a moving party’s statement of facts, at least under a strict reading of Green. Only time will tell whether Missouri courts will carve out exceptions to avoid such harsh results. In the interim, Missouri litigators are well-advised to familiarize themselves with this new summary judgment framework, as to not fall victim to its harsh effect.
William R. Wurm is an associate in Thompson Coburn’s Business Litigation practice group.
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