SUPREME COURT OF MISSOURI

en banc

MARCIA GREEN, ) Opinion issued August 11, 2020

 )

Respondent, )

 )

v. ) No. SC98262

 )

MEHRDAD FOTOOHIGHIAM, )

 )

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY

The Honorable Robert L. Koffman, Special Judge

Mehrdad Fotoohighiam appeals the circuit court's entry of partial summary judgment 

on the issue of liability in favor of Marcia Green.1 Because the Rule 74.04(c) paragraphs and 

responses demonstrated there were no genuine issues of material fact and that Marcia was 

entitled to judgment as a matter of law, the circuit court did not err in entering partial summary 

judgment in Marcia's favor. The circuit court's judgment is affirmed.2 

Factual Background and Procedural History

While asleep in her mobile home, noises from outside Marcia's door woke her. Once 

out of bed, Marcia realized her mobile home was on fire. To escape the blaze, she broke a 

 1 For ease of reference, the parties used their first names in briefing and in oral argument. This opinion 

will do the same. No disrespect or familiarity is intended. 

2 Mehrdad was represented by different counsel on appeal than during the summary judgment and 

trial stage. 
2

window in her bedroom and jumped out head-first to safety. Marcia sustained several injuries,

including lacerations, burns, and respiratory complications attributable to smoke and carbon 

monoxide inhalation. Additionally, her mobile home and all personal property inside were

destroyed. 

Marcia sued Mehrdad, James Hall, David Reed, Electenergy Technologies, Inc., and 

ETI, L.L.C.,3 alleging Mehrdad and the other defendants conspired4 to set her mobile home 

on fire, causing Marcia mental and physical harm as well as property damage. Following 

discovery, Marcia moved for partial summary judgment against Mehrdad on the issue of 

liability. Pursuant to Rule 74.04, Marcia included with her motion a statement of 

uncontroverted material facts containing the following allegations: (1) Mehrdad owns a 

mobile home adjacent to Marcia's lot; (2) Scotty Christopher and Hall performed work on 

Mehrdad's property; (3) Mehrdad offered Hall and Christopher $500 to set Marcia's mobile 

home on fire; (4) Mehrdad told a former employee, Louis Spano, that he hired Hall and Reed 

to set Marcia's mobile home on fire; and (5) Marcia's mobile home was actually burned down, 

causing her damage. Each of these allegations cited to deposition testimony or an affidavit

supporting it. 

Additionally, included with the documents supporting the statement of uncontroverted 

material facts were portions of Mehrdad's deposition testimony that were not cited or 

otherwise referenced by Marcia. These included the following exchange: 

 3 Mehrdad is the president of Electenergy and ETI. 

4 Marcia's first amended petition alleged the following causes of action: (1) negligence; (2) assault; 

(3) battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional 

distress; (6) trespass; (7) malicious trespass; and (8) civil conspiracy. 
3

Q: Have you ever met James Hall before?

A: Yes 

....

Q: Have you ever met David Reed?

A: No.

Q: Have you ever met Scotty Christopher?

A: Nope. 

Nevertheless, Mehrdad failed to file a response to Marcia's motion for partial summary 

judgment. The circuit court entered partial summary judgment as to liability in Marcia's favor. 

In its order, the circuit court noted Mehrdad's failure to timely respond resulted in an

admission to all facts set forth in Marcia's statement of uncontroverted facts. The circuit court 

also relied on the fact that Mehrdad asserted his Fifth Amendment right to remain silent when 

asked certain questions during his deposition; therefore, it assumed any answers that would 

have been given would have been adverse to Mehrdad. Ultimately, the circuit court held:

The evidence presented has not been denied as required under Supreme Court 

Rule 74.04 (c) (1). The undenied facts are that [Mehrdad] paid others in a 

conspiracy to burn down the dwelling of [Marcia]. Those co-conspirators did 

burn that dwelling down causing [Marcia] damage. There is no contravention 

of these ultimate issues. They are found to be true. [Marcia] is therefore entitled 

to judgment as a matter of law.

The case proceeded to a jury trial on the issue of damages only. The jury returned a 

verdict of $250,000 in actual damages and $2,500,000 in punitive damages. After Mehrdad's 

post-trial motions were overruled, he appealed, primarily arguing the circuit court erred in 

granting partial summary judgment regarding liability because Marcia's inclusion of his 

surplus deposition testimony controverted material facts on which she based her summary 
4

judgment motion. The court of appeals disagreed and affirmed the circuit court's judgment. 

This Court granted transfer and has jurisdiction. Mo. Const. art. V, § 10. 

Standard of Review

This Court outlined the standard of review for summary judgment in Goerlitz v. City 

of Maryville:

The trial court makes its decision to grant summary judgment based on the 

pleadings, record submitted, and the law; therefore, this Court need not defer to 

the trial court's determination and reviews the grant of summary judgment de 

novo. In reviewing the decision to grant summary judgment, this Court applies 

the same criteria as the trial court in determining whether summary judgment 

was proper. Summary judgment is only proper if the moving party establishes 

that there is no genuine issue as to the material facts and that the movant is 

entitled to judgment as a matter of law. The facts contained in affidavits or 

otherwise in support of a party's motion are accepted as true unless contradicted 

by the non-moving party's response to the summary judgment motion. Only 

genuine disputes as to material facts preclude summary judgment. A material 

fact in the context of summary judgment is one from which the right to judgment 

flows.

. . . . 

The record below is reviewed in the light most favorable to the party against 

whom summary judgment was entered, and that party is entitled to the benefit 

of all reasonable inferences from the record. However, facts contained in 

affidavits or otherwise in support of the party's motion are accepted as true 

unless contradicted by the non-moving party's response to the summary 

judgment motion.

333 S.W.3d 450, 452-53 (Mo. banc 2011) (internal quotation marks and citations omitted).

"In addition, the 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). 

Facts not properly supported under Rule 74.04(c)(2) or (c)(4) are deemed admitted." Cent.

Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320 (Mo. banc 2014). 
5

Analysis

Mehrdad argues the circuit court erred in granting Marcia partial summary judgment 

because portions of his deposition testimony attached to Marcia's statement of uncontroverted 

material facts created an issue of material fact that precludes Marcia from receiving partial

summary judgment even though Mehrdad failed to respond to the summary judgment motion 

let alone cite the circuit court to this testimony in such a response. 

Summary judgment practice in Missouri is governed by Rule 74.04 and this Court's 

decision in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 

(Mo. banc 1993). As the movant, Marcia "must establish that there is no genuine dispute as 

to those material facts upon which [she] would have had the burden of persuasion at trial. " 

ITT, 854 S.W.2d at 381 (internal quotation marks omitted). To accomplish this showing, the 

movant must attach to the motion for summary judgment a statement of uncontroverted 

material facts that "state[s] with particularity in separately numbered paragraphs each material 

fact as 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." Rule 74.04(c)(1).5 Additionally, the movant must attach to the statement of 

 5 The version of Rule 74.04 in effect at the time of ITT did not require the movant to submit a separate 

statement of uncontroverted material facts or to attach specific exhibits in support of the summary 

judgment motion. Instead, the rule provided:

The motion shall state with particularity the grounds therefor and shall be served at least 

ten days before the time fixed for the hearing. Prior to the day of hearing the adverse 

party may serve opposing affidavits. The judgment sought shall be entered forthwith if 

the pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.

Rule 74.04(c) (1988). Rule 74.04 was amended in 1994 to require the movant's motion to "state with 

particularity in separately numbered paragraphs each material fact as to which the movant claims 

there is no genuine issue, with specific references to the pleadings, discovery or affidavits that 
6

uncontroverted material facts all discovery, exhibits, or affidavits that support the summary 

judgment motion. Id. 

After the movant makes this submission, the non-movant is required to file a response 

either admitting or denying the movant's material facts. Specifically, 

The response shall set forth each statement of fact in its original paragraph 

number and immediately thereunder admit or deny each of movant's factual 

statements. A denial may not rest upon the mere allegations or denials of the 

party's pleading. Rather, the response shall support each denial with specific 

references to the discovery, exhibits or affidavits that demonstrate specific facts 

showing that there is a genuine issue for trial. Attached to the response shall be 

a copy of all discovery, exhibits or affidavits on which the response relies. A 

response that does not comply with this Rule 74.04(c)(2) with respect to any

numbered paragraph in movant's statement is an admission of the truth of 

that numbered paragraph.

Rule 74.04(c)(2) (emphasis added). 

 

demonstrate the lack of a genuine issue as to such facts." Rule 74.04(c)(1) (1994). In turn, the nonmovant 

shall serve a response . . . admit[ting] or deny[ing] each of movant's factual statements 

in numbered paragraphs that correspond to movant's numbered paragraphs, shall state 

the reason for each denial, shall set out each additional material fact that remains in 

dispute, and shall support each factual statement asserted in the response with specific 

references to where each such fact appears in the pleadings, discovery or affidavits.

Rule 74.04(c)(2) (1994). More importantly, the 1994 amendments made clear that the consequences 

of failing to timely respond to a motion for summary judgment is that the movant's statement of 

uncontroverted material facts is deemed admitted. Id. The rationale behind these amendments to 

Rule 74.04 was explained by the court of appeals in Osage Water Co. v. City of Osage Beach:

The desirability of clearly advising opposing parties and the court of the basis for a 

motion for summary judgment led our Supreme Court to amend Rule 74.04 in 1994 

so as to require particularity in motions for summary judgment with specific references 

to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue 

as to the facts upon which it is based.

58 S.W.3d 35, 44 (Mo. App. 2001). The court of appeals expanded on this explanation in Pemiscot 

County Port Authority v. Rail Switching Services, Inc.:

A year after ITT, our supreme court implemented Rule 74.04(c)'s now-familiar format 

of numbered paragraphs and responses to assist the judge in ruling on summary 

judgment motions by requiring such motions to conform to a specific form that will 

reveal the areas of dispute.

523 S.W.3d 530, 533 (Mo. App. 2017) (internal quotation marks omitted).
7

Marcia filed her motion for partial summary judgment, statement of uncontroverted 

material facts, and all supporting documents in compliance with Rule 74.04(c)(1). Mehrdad 

did not timely respond to Marcia's motion. Mehrdad filed a motion for leave to respond out 

of time, which the circuit court overruled. This resulted in his admission to all of Marcia's 

uncontroverted material facts. Rule 74.04(c)(2). Nonetheless, Mehrdad argues a genuine 

issue of material fact exists because his deposition testimony that was attached, but not cited 

by Marcia, demonstrates he did not know two of his alleged co-conspirators; therefore, Marcia 

is not entitled to judgment as a matter of law. This argument is incompatible with Rule 

74.04(c)(2). 

The court of appeals has aptly described the summary judgment principles underlying 

Rule 74.04 as follows:

[1] Facts come into a summary judgment record only via Rule 74.04(c)'s 

numbered-paragraphs-and-responses framework. [2] Courts determine and 

review summary judgment based on that Rule 74.04(c) record, not the whole 

trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a 

secondary role, and then only as cited to support Rule 74.04(c) numbered 

paragraphs or responses, since parties cannot cite or rely on facts outside the 

Rule 74.04(c) record. [4] [S]ummary judgment rarely if ever lies, or can 

withstand appeal, unless it flows as a matter of law from appropriate Rule 

74.04(c) numbered paragraphs and responses alone.

Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. 2016) (emphasis in original) 

(internal footnotes and quotation marks omitted). Taken together, these summary judgment 

principles require a court to "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." Pemiscot County Port Authority, 523 S.W.3d at 534 

(emphasis in original). 
8

These 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. Lackey v. Iberia R-V Sch. Dist., 487 

S.W.3d 57, 62 (Mo. App. 2016). 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. See supra n.5. 

Applying these principles to the case at hand, the facts on which the circuit court based 

its partial summary judgment were deemed admitted by Mehrdad when he failed to respond 

to the summary judgment motion in a timely manner. He is not permitted to rely on the 

uncited portions of his deposition testimony to create a genuine issue of material fact because 

it was not cited or otherwise referenced in any Rule 74.04(c) paragraph or response. 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. Jones, 508 S.W.3d at 161. Because the circuit 

court had no obligation to look outside discovery, exhibits, and affidavits referenced in Rule 

74.04(c) paragraphs and responses, it correctly determined the uncontroverted material facts 

established Marcia's right to partial summary judgment on the issue of liability.

Mehrdad's argument that the circuit court and this Court must consider the uncited 

deposition testimony that creates a genuine issue of material fact is based solely on Street v. 

Harris, 505 S.W.3d 414 (Mo. App. 2016). In Street, the plaintiff brought a tort action against 

homeowners after the homeowners' dog jumped on her and knocked her down, causing her to 
9

break her ankle. The homeowners filed a motion for summary judgment and alleged in their 

statement of uncontroverted material facts that "the dog had never run at, charged, knocked 

anyone down, or injured anyone." Id. at 415-16 (alterations omitted). Attached to the motion 

was the plaintiff's deposition that stated one of the homeowners told her the dog had knocked 

someone down on a prior occasion.6 The plaintiff failed to respond and the circuit court 

entered summary judgment in favor of the homeowners. 

The court of appeals in Street reversed the circuit court's entry of summary judgment 

even though it acknowledged the non-movant's failure to respond operates as an admission of 

all movant's properly pleaded facts under Rule 74.04(c)(2). Instead, that court reasoned it 

must look to the uncited deposition testimony because to ignore it "would relieve a movant of 

his or her initial burden to show a right to judgment as a matter of law, and we do not see this 

authorized by the rule or by precedent." Id. at 417 & n.1. Furthermore, that court held the 

plaintiff's failure to respond to the motion for summary judgment was excused because the 

movant must make a prima facie showing of entitlement to summary judgment before the 

non-movant has the obligation to respond. 

A review of other court of appeals cases demonstrates the court of appeals has 

understood and correctly applied the changes to Rule 74.04, leaving Street as the clear outlier. 

For example, in Fidelity Real Estate Co. v. Norman, 586 S.W.3d 873, 876 (Mo. App. 2019), 

a landlord sued two tenants after the tenants breached a residential lease contract. The 

landlord filed a motion for summary judgment against the tenants individually, both of which 

 6 Like here, the relevant portion of the plaintiff's deposition testimony was not cited or otherwise 

referenced by the homeowners. Street, 505 S.W.3d at 418 (Odenwald, J., concurring). 
10

the circuit court sustained. On appeal, the tenants argued, pursuant to Street, that the circuit 

court erred in entering summary judgment because an exhibit attached to the landlord's motion 

for summary judgment contained an inconsistency that created a genuine issue of material 

fact. 

In affirming the circuit court's judgment, the court of appeals recognized Street's 

shortcomings, specifically noting Street's reliance on ITT's interpretation of an outdated 

version of Rule 74.04 was error.7 But more importantly, the Fidelity Real Estate court 

compared previous versions of Rule 74.04 to the current version and reiterated "[u]nder [Rule 

74.04(c)] numbered paragraphs and responses, facts come into a summary judgment record 

one and only one way—as separately numbered paragraphs and responses[.]" Id. at 882

(alterations and internal quotation marks omitted). That court pointed out one of the tenants 

 7 More specifically, the court of appeals found Street flawed in the following ways:

Continued reliance on the language from ITT that suggests a court must pore through 

the entire record to rule on, or review the ruling on, a motion for summary judgment 

ignores the purpose of the post-ITT amendments to Rule 74.04. As such, we believe 

Street was wrongly decided.

....

In addition to the changes in Rule 74.04 since ITT, there are other considerations at 

play that suggest Street's holding is erroneous. To begin, requiring either the trial or 

reviewing court to examine the entire record, rather than just those facts identified in 

the motion and response, could easily place the court in the position of an advocate 

insofar as the court would have to identify not only the material facts but also those 

that are subject to genuine dispute.

....

Furthermore, allowing a non-movant to argue for the first time on appeal that the 

movant failed to make a prima facie case on the basis of disputed material facts that 

were not identified for the trial court is directly at odds with the rules that parties are 

bound by the position they took in the trial court and will not be heard on a different 

theory on appeal, and that we will not convict a trial court of error on an issue that was 

not put before the trial court to decide.

Fidelity Real Estate, 586 S.W.3d at 883 & n.15 (internal alterations and quotation marks 

omitted).
11

replied to the landlord's motion for summary judgment but failed to support her denials with 

specific references to discovery, exhibits, or affidavits as required by Rule 74.04(c)(2). 

Because the tenants failed to properly respond, the Fidelity Real Estate court could not look 

to the allegedly contradictory exhibit to determine if a genuine issue of material fact existed;

therefore, that court affirmed. 

A similar result was reached in Great Southern Bank v. Blue Chalk Construction, LLC, 

497 S.W.3d 825 (Mo. App. 2016). In Blue Chalk, Great Southern Bank ("GSB") filed suit 

against Blue Chalk, alleging it failed to pay the balance on various promissory notes and 

guaranties tied to loans. After Blue Chalk answered the petition with a general denial and 15

affirmative defenses, it also filed counterclaims mirroring GSB's original claims. GSB moved 

for summary judgment on all of its original claims and all of Blue Chalk's counterclaims. The 

circuit court entered summary judgment in GSB's favor on all claims. 

On appeal, Blue Chalk argued the circuit court erred in entering summary judgment 

because genuine issues of material fact existed in its counterclaims and in its affirmative 

defenses. The Blue Chalk court affirmed the circuit court's entry of summary judgment, first 

reiterating how the record considered at the summary judgment phase is made through Rule 

74.04(c) paragraphs and responses and then characterizing Blue Chalk's arguments as wholly 

deficient under Rule 74.04. Specifically, that court noted:

Our review of [Blue Chalk's] points and the argument sections of their brief for 

those points reveals that they are totally devoid of any reference to or mentio n 

of any particular numbered paragraph material fact in the summary judgment 

record that they denied in their response and that they now claim is genuinely 

at issue. Rather, completely untethered from any particular numbered 

paragraph material fact in the summary judgment record or any specific 

reference in any such numbered paragraph as an exhibit, [Blue Chalk] generally 

cite[s] 96 times directly to exhibits attached to Great Southern's statement of 
12

uncontroverted material facts or [its] response to that statement and five times 

to Great Southern's response to [Blue Chalk's] motion for partial summary 

judgment.

Id. at 834.

The Blue Chalk court noted "[a]rguments . . . that are completely disconnected from 

the numbered paragraph material facts in the summary judgment record, as required by Rule 

74.04, are analytically useless in an appellate review that requires this court to properly apply 

Rule 74.04" and that allowing courts to look outside the Rule 74.04(c) paragraphs and 

responses to find issues of material fact would exceed the limits of de novo review. Id. at 835. 

Ultimately, that court held Blue Chalk failed to demonstrate a genuine issue as to any material 

fact and affirmed the circuit court. 

Moreover, the eastern district8 of our court of appeals understood and correctly applied 

Rule 74.04 in Peck v. Alliance General Ins. Co., 998 S.W.2d 71 (Mo. App. 1999). In Peck, 

Peck was injured after being removed from a sports bar by the bar's security officer. After 

obtaining a $400,000 consent judgment pursuant to a settlement agreement against the 

security officer,9 Peck filed a petition for equitable garnishment against Alliance General 

Insurance Company ("Alliance"). Alliance moved for summary judgment, arguing the 

relevant insurance policy contained an assault and battery exclusion that excluded coverage 

for the incident. Peck responded to Alliance's motion and filed his own motion for summary 

judgment, arguing the insurance policy obligated Alliance to pay damages for bodily injury 

 8 Keeping in mind that Missouri has a unified court of appeals, Mo. Const. art. V, § 1, the eastern 

district court of appeals' own decisions before and after Street suggest that case is an outlier. See p. 

12-14 infra; see also Fleddermann v. Casino One Corp., 579 S.W.3d 244 (Mo. App. 2019) (applying

the summary judgment principles set forth in Jones, Pemiscot County Port Authority, and Lackey). 

9 Peck also obtained a $400,000 default judgment against the bar. 
13

and that the assault and battery exclusion did not apply because his underlying lawsuit was 

premised on a theory of negligence. 

Peck's motion for summary judgment set forth all facts surrounding his injuries

sustained on the night of the incident. Specifically, Peck asserted he was injured as a result 

of falling outside the bar after he was released by the security person. Peck did not allege his 

injuries resulted from being pushed, thrown, or shoved by the security person. All of Peck's 

allegations were supported by his affidavit, the security person's deposition testimony, and 

one other bar employee's deposition testimony. 

In its response, Alliance denied Peck's injuries were "personal injury" as defined by 

the policy and averred that Peck's injuries were excluded from coverage by the assault and 

battery exclusion. However, Alliance neither explained its denials, set forth any material fact

in dispute, nor made any reference to pleadings, discovery, or affidavits. Instead, Alliance 

challenged Peck's affidavit and asserted that the deposition testimony Peck relied on was 

incomplete. The circuit court entered summary judgment in Peck's favor and overruled 

Alliance's motion. 

On appeal, the court of appeals affirmed, initially noting Alliance failed to file a 

response in compliance with Rule 74.04(c) because Alliance failed to explain the reason for 

its denials and failed to make references to the record that showed the existence of a genuine 

issue of material fact. Therefore, all of Peck's factual assertions were taken as true. 

Furthermore, that court rejected Alliance's argument that summary judgment was 

inappropriate because uncited portions of Peck's deposition, as well as uncited portions of 

Peck's petition in a separate lawsuit against the security officer, signaled Peck had actually 
14

been assaulted or battered. The Peck court reasoned Alliance's failure to refer to Peck's 

deposition or petition in its response to Peck's motion for summary judgment precluded both 

documents from being part of the record relevant at the summary judgment phase which, in 

turn, prevented that court from considering them on appeal. 

Nevertheless, Alliance referenced Peck's deposition in its legal memorandum filed 

with its response to Peck's summary judgment motion. The Peck court determined these 

references, standing alone, did not allow it to consider Peck's deposition when reviewing the 

entry of summary judgment, holding: 

[W]e cannot consider these references [to Peck's deposition] because Rule 

74.04(c) is clear that references to the record must appear in the response. The 

incorporation by reference to a memorandum of law does not satisfy the 

requirement of a properly drafted response to the motion for summary 

judgment. A court may properly refuse to consider documents filed in 

opposition to a motion for summary judgment which have not been identified 

in a response which complies with Rule 74.04(c)(2), but are described only in a 

memorandum filed in opposition to the motion. 

Id. at 75-76 (internal citations omitted). 

Fidelity Real Estate, Blue Chalk, and Peck demonstrate the improprieties in Street and 

in Mehrdad's position before this Court. These cases and others make clear any court—

whether it be the circuit court addressing summary judgment in the first instance or an 

appellate court reviewing an entry of summary judgment—need only consult what was 

properly put before it by way of Rule 74.04(c) paragraphs and responses. For the foregoing 

reasons, Street is overruled to the extent it is inconsistent with this opinion and Rule 74.04.

Additionally, Mehrdad argues the circuit court erred in overruling his motion for new 

trial because there was conflicting evidence as to liability; therefore, a new trial should be 

granted to alleviate any possible prejudice. Because this argument is based on the circuit 
15

court's alleged error in entering partial summary judgment in Marcia's favor, it is denied given 

this Court's holding that the circuit court did not so err. 

Conclusion

The circuit court did not err in entering summary judgment on the issue of liability in

Marcia's favor. The circuit court's judgment is affirmed. 

___________________________ 

Zel M. Fischer, Judge

All concur.