1

Missouri Court of Appeals

Southern District

Division One

WILLARD SCHNURBUSCH and )

CAROL SCHNURBUSCH, )

)

Plaintiffs-Appellants, )

)

vs. ) No. SD35385

)

WEST PLAINS REGIONAL ANIMAL ) Filed January 22, 2019

SHELTER, )

)

Defendant-Respondent. )

APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY

Honorable Michael J. Ligons

AFFIRMED

Willard Schnurbusch and Carol Schnurbusch (“the Schnurbusches”) appeal pro se1 from 

the trial court’s summary judgment in favor of West Plains Regional Animal Shelter (“the 

Shelter”). They raise eleven points on appeal, which either fail to present a cognizable basis 

upon which to reverse the trial court’s judgment or fail to demonstrate reversible error. Because 

the trial court’s judgment is presumed correct and the Schnurbusches failed in their burden to 

 1 This is not the Schnurbusches’ first appeal before this court. As such, they should know already that “[p]ro se 

appellants are held to the same standards as are attorneys.” Kieffer v. Gianino, 301 S.W.3d 119, 121 (Mo. App. 

2010).
2

demonstrate otherwise, see Ford Motor Credit Co. LLC v. Harris, 386 S.W.3d 864, 866 

(Mo.App. 2012), we affirm.

2

Background3

In 2006, the Schnurbusches and Schnurbusch Land Services, Inc., filed a four-count 

petition against the City of West Plains (“the City”) and the Shelter in Case No. 09PU-CV00849.

Count I of the petition alleged that the Shelter was violating the City’s zoning laws, and that the 

City was failing to enforce the zoning laws against the Shelter; Count II alleged that the Shelter 

was causing a nuisance to the Schnurbusches; Count III requested the court declare the validity 

of “amended zoning ordinance No. 4080”; and Count IV alleged that the City failed to enforce 

its municipal code and ordinances against the Shelter, and requested punitive damages. Counts II 

and IV were dismissed by the trial court. Following trial on Counts I and III, the trial court 

entered its judgment in favor of the City and the Shelter on both counts.

The Schnurbusches appealed the trial court’s judgment, and this court affirmed the 

judgment by a memorandum decision. See Schnurbusch v. City of West Plains, Missouri, 

SD31107 (Mo.App. Jan. 23, 2012) (“Schnurbusch I”).

On January 17, 2012, the Schnurbusches filed a pro se four-count petition against the 

Shelter in Case No. 12AL-CC00006. The petition contained similar allegations to those in 

Schnurbusch I.

In their responsive pleadings, the Shelter counterclaimed against the Schnurbusches, 

accusing them of, inter alia, malicious prosecution for the filing and prosecution of 

 2 The Shelter filed a motion to dismiss the Schnurbusches’ appeal, citing various Rule 84.04 briefing violations 

concerning the Schnurbusches’ points relied on. We generally agree with the Shelter that the Schnurbusches’ points 

relied on run afoul of Rule 84.04 in several respects, some of which we address in greater detail, infra. However, to 

the extent we possibly can discern the Schnurbusches’ arguments, we will do so ex gratia. The Shelter’s motion to 

dismiss is denied. All rule references are to Missouri Court Rules 2018. 3 Portions of the background section of this opinion are adopted from Schnurbusch v. West Plains Reg’l Animal 

Shelter, 507 S.W.3d 675 (Mo.App. 2017), without further attribution. 
3

Schnurbusch I (Count I) and for the filing and pursuit of the instant action (Count II). The 

Shelter also filed a motion to dismiss the Schnurbusches’ petition, arguing that the petition 

“fail[ed] to state a claim in that said suit violates the doctrine of res judicata, the rule against 

splitting causes of action[,] and collateral estoppel[.]” The trial court granted the motion to 

dismiss, and the case then proceeded on the Shelter’s counterclaims. Ultimately, the trial court

granted summary judgment in favor of the Shelter on Counts I and II, assessing damages of 

$45,112.50 and $15,268.75, respectively.

The Schnurbusches appealed. In Schnurbusch v. West Plains Reg’l Animal Shelter, 507 

S.W.3d 675 (Mo.App. 2017) (“Schnurbusch II”), this court concluded that, because of its 

reliance on extrinsic materials, the Shelter’s motion to dismiss should have been converted into a 

motion for summary judgment. Because the procedural strictures of Rule 74.04 had not been 

followed, we reversed and remanded the trial court’s judgment dismissing the Schnurbusches’ 

petition. The trial court’s judgment was affirmed in all other respects. 

On remand, both the Shelter and the Schnurbusches moved for summary judgment and 

filed statements of uncontroverted material facts. In its memorandum of law in support of its 

motion, the Shelter argued that there is no genuine dispute of material fact that the 

Schnurbusches’ claims in this case are the same as those in Schnurbusch I and that, as matter of 

law, the petition is barred by res judicata. The trial court agreed, granting the Shelter’s motion 

for summary judgment, denying the Schnurbusches’ motion for summary judgment, and entering 

judgment accordingly. The Schnurbusches timely appeal. 

Discussion

Applicable Principles of Review Regarding Rule 84.04 Violations

The Schnurbusches’ points relied on violate Rule 84.04 in multiple respects. We identify 

some of the more egregious violations on a point-by-point basis. To avoid any unnecessary 
4

repetition, infra, we list at the outset of this discussion some relevant tenets regarding Rule 

84.04’s briefing requirements. 

As the Eastern District of our court has observed,

Rule 84.04 provides the requirements for appellate briefs . . . . 

Compliance with the briefing requirements of Rule 84.04 is mandatory, and a 

brief that fails to comply with Rule 84.04 preserves nothing for appellate review. 

Compliance with the rule is required in order that the appellant may give notice to 

the party opponent of the precise matters which must be contended with and 

answered. Compliance is also mandatory so that unnecessary burdens are not 

imposed on the appellate court and to ensure that appellate courts do not become 

advocates for the appellant by speculating facts and arguments that have not been 

made.

Osthus v. Countrylane Woods II Homeowners Ass'n, 389 S.W.3d 712, 714–15 (Mo.App. 2012) 

(internal citations and quotation marks omitted). “It is not the function of the appellate court to 

serve as advocate for any party to an appeal.” Thummel v. King, 570 S.W.2d 679, 686 (Mo. 

banc 1978). “As such, we have no duty to search the transcript or record to discover the facts 

which substantiate a point on appeal.” Wilson v. Carnahan, 25 S.W.3d 664, 667 (Mo.App. 

2000). “That is the duty of the parties, not the function of an appellate court.” Nell v. Fern–

Thatcher Co., 952 S.W.2d 749, 755 (Mo.App. 1997).

Points One and Two

Both the Schnurbusches’ first and second points challenge the authority of individuals

who acted on behalf of the Shelter during the course of the underlying legal proceedings. In 

numerical order, those two points contend as follows:

THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS 

REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION IN 

CASE NO. 12AL-CC00006 THAT AUTHORIZED GEORGE CHRYSLER 

FISHER, JR. TO PRESENT AND/ OR FILE DOCUMENTS AND/ OR 

APPEAR AT HEARINGS ON BEHALF OF WEST PLAINS REGIONAL 

ANIMAL SHELTER FROM FEBRUARY 23, 2012 TO AUGUST 8, 2017, 

BECAUSE WEST PLAINS REGIONAL ANIMAL SHELTER IS A NOT FOR 

PROFIT CORPORATION, REQUIRED BY MISSOURI STATUTES 355.116 

355.118 355.376 355.431 TO HAVE BYLAWS AND PER THE BYLAWS 
5

ESTABLISHED FOR THE ENTITY, NO INDIVUDUAL IS ALLOWED TO 

ACT ON BEHALF OF THE ENTITY WITHOUT APPROVAL OF THE 

DIRECTORS OF WEST PLAINS REGIONAL ANIMAL SHELTER AND NO 

SUCH APPROVAL HAS BEEN PRESENTED DURING THE ENTIRE TIME 

OF CASE NO. 12AL - CC00006, FILED ON JANUARY 17, 2012, WAS 

BEING PROCESSED, THAT GEORGE CHRYSLER FISHER WAS 

OFFICIALLY AUTHORIZED BY DIRECTORS OF WEST PLAINS 

REGIONAL ANIMAL SHELTER TO ACT AS REPRESENATIVE OF THE 

ENTITY TO MAKE ANY RESPONSIVE PLEADING. THEREFORE 

LACKING A PROPERLY SUBMITTED RESPONSIVE PLEADING, THE 

TRIAL COURT LACKED PERSONAL JURISDICTION OVER WEST 

PLAINS REGIONAL ANIMAL SHELTER TO GRANT ANYTHING, AT ANY 

TIME, TO WEST PLAINS REGIONAL ANIMAL SHELTER.

***

THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS 

REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION FROM

DIRECTORS DURING CASE NO. 12AL - CC00006 TO AUTHORIZE 

DENNIS HAMMEN TO SIGN, OR PREPARE, OR FILE DOCUEMENTS ON 

BEHALF OF WEST PLAINS REGIONAL ANIMAL SHELTER FROM 

FEBRUARY 24, 2012 TO NOVEMBER 2, 2015. LACKING ANY 

DOCUMENTATION THAT DENNIS HAMMEN WAS APPROVED, OR 

AUTHORIZED BY OFFICERS AND DIRECTORS OF WEST PLAINS 

REGIONAL ANIMAL SHELTER IN ANY METHOD, TO ACT AS 

REPRESENATIVE OF THE ENTITY IN ANY DOCUMENT SIGNED BY 

DENNIS HAMMEN IN ANY NAMED CAPICITY, IT MUST BE 

DETERMINED THAT WEST PLAINS REGIONAL ANIMAL SHELTER

LACKED STANDING TO PRESENT ANY DOCUMENTS IN CASE NO. 

12AL - CC00006. 

Both of these points fail because they are barred by the law-of-the-case doctrine. 

As explained by our supreme court,

The doctrine of law of the case provides that a previous holding in a case 

constitutes the law of the case and preludes relitigation of the issue on remand and 

subsequent appeal. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000); 

Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo. banc 1999). The 

doctrine governs successive adjudications involving the same issues and facts. 

Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999). Generally, the 

decision of a court is the law of the case for all points presented and decided, as 

well as for matters that arose prior to the first adjudication and might have been 

raised but were not. Graham, 13 S.W.3d at 293; Shahan, 988 S.W.2d at 533.
6

Walton v. City of Berkeley, 223 S.W.3d 126, 128–29 (Mo. banc 2007).4

 

Here, points 1 and 2 reference George Chrysler Fisher and Dennis Hammen, respectively,

and challenge their involvement in this case going as far back as the filing of the Shelter’s

pleadings in 2012. The Shelter argues that the law-of-the-case doctrine applies to both of these 

claims because they were raised before and ultimately denied by this court in Schnurbusch II.

We need not address, however, whether these claims were raised in Schnurbusch II. Even if we 

assume without deciding that these claims were not raised in Schnurbusch II, the complained-of 

conduct was occurring before that appeal and, hence, the claims could have been raised in that 

appeal. In either event, the law-of-the-case doctrine precludes the Schnurbusches from asserting

these issues in this appeal. See id. For these reasons, the Schnurbusches’ first and second points 

are denied.5

Points Three, Four, Five, Six, and Seven

Standard of Review and Applicable Legal Principles Related to Summary Judgment

Our review of a trial court’s grant of summary judgment is essentially de novo, and we 

view the record in the light most favorable to the party against whom judgment was entered. 

ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 

banc 1993).

 4 In Walton, our supreme court further recognized the following exceptions, none of which are raised by the 

Schnurbusches on appeal: 

The doctrine of law of the case, however, is not absolute. Rather, the doctrine is a rule of policy 

and convenience; a concept that involves discretion. An appellate court has discretion to refuse to 

apply the doctrine where the first decision was based on a mistaken fact or resulted in manifest 

injustice or where a change in the law intervened between the appeals. Additionally, where the 

issues or evidence on remand are substantially different from those vital to the first adjudication 

and judgment, the rule may not apply. 

223 S.W.3d at130 (internal citations omitted). 

5 Moreover, the Schnurbusches have also failed to demonstrate that they raised the above claims before the trial 

court and, therefore, have failed to preserve them for appellate review. See section 512.160.1; Rule 84.13.
7

As the defending party to the claims in the Schnurbusches’ petition, summary judgment 

is established where the Shelter shows:

(1) facts that negate any one of the claimant's elements facts, (2) that the nonmovant, after an adequate period of discovery, has not been able to produce, and 

will not be able to produce, evidence sufficient to allow the trier of fact to find 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 the movant's 

properly-pleaded affirmative defenses.

Id. at 381.

Once the Shelter has made “a prima facie showing that there are no genuine issues of 

material fact and that movant is entitled to judgment as a matter of law,” the burden shifts to the 

Schnurbusches, the non-movants, to show that one or more of the material facts shown by the 

Shelter not to be in dispute, is actually genuinely disputed. Id. They “may not rest upon the 

allegations and denials of the pleadings, but rather must use affidavits, depositions, answers to 

interrogatories, or admissions on file to show the existence of a genuine issue for trial.” Crow v. 

Crawford & Co., 259 S.W.3d 104, 113 (Mo.App. 2008). 

Point Three

The Schnurbusches’ third point contends:

THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES 

JUDICATA OR CLAIMS SPLITTING IN THAT DEFENDANT / 

RESPONDENT DID NOT PROPERLY PLEAD ANY AFFIRMATIVE 

DEFENSE ( S) ( SPECIFICALLY RES JUDICATA OR CLAIMS SPLITTING ) 

BY NOT ACTUALLY NAMEING SAID AFFIRMATIVE DEFENSES AND 

BY NOT STATING FACTS IN SUPPORT TO ALLOW SUCH CLAIMS 

STATED IN A MOTION FOR SUMMARY JUDGMENT AND ALSO 

DEFENDANT / RESPONDENT DID NOT SHOW THAT THE MOVANTS 

HAD A RIGHT TO JUDGMENT AS A MATTER OF LAW SUFFICIENT TO 

ALLOW THE COURT TO GRANT THE MOTION IN FAVOR OF THE 

MOVANTS[.] 
8

This point does not take issue with any material fact raised by the Shelter’s motion for summary 

judgment. The crux of the point, rather, is whether, as a matter of law, the Shelter’s pleading 

was sufficient to raise, i.e., properly plead, the affirmative defense of res judicata. 

“Res judicata is an affirmative defense” Patrick V. Koepke Constr., Inc. v. Woodsage 

Constr. Co., 119 S.W.3d 551, 555 (Mo.App. 2003); see also Rule 55.08. It “operates as a bar to 

the reassertion of a cause of action that has been previously adjudicated in a proceeding between 

the same parties or those in privity with them.” Lauber–Clayton, L.L.C. v. Novus Props. Co., 

407 S.W.3d 612, 618 (Mo.App. 2013). 

“In pleading to a preceding pleading, a party shall set forth all applicable affirmative 

defenses and avoidances[.]” Rule 55.08. “A pleading that sets forth an affirmative defense or 

avoidance shall contain a short and plain statement of the facts showing that the pleader is 

entitled to the defense or avoidance.” Id. 

Here, as acknowledged and conceded by the Schnurbusches in their argument, the 

Shelter’s responsive pleadings included the following language in response to each of the 

Schnurbusches’ claims: 

By way of further answer, Defendant affirmatively asserts pursuant to 

Rule 55.06 that Plaintiffs have failed to state a claim upon which relief may be 

granted in that Plaintiffs’ claims either have been or could have been finally 

adjudicated in the case styled Schnurbusch, et al. v. City of West Plains and West 

Plains Regional Animal Shelter, Case No. 09PU-CV00849 (Pulaski County), 

appeal denied by written memorandum in Appeal No. SD31107 with mandate 

filed January 20, 2012. 

This language, the Schnurbusches assert, violates Rule 55.08 and, therefore, is not a properly 

pleaded defense because (1) it does not explicitly refer to the defense of “res judicata” and (2) it 

does not include “a short and plain statement of the facts” that support res judicata. Both 

arguments are without merit. 
9

The Schnurbusches’ first argument fails because they cite us to no legal authority, and we 

are aware of none, supporting their assertion that the words “res judicata” must be used in a 

pleading in order to properly invoke the claim preclusion defense.

Their second argument fails because it is refuted by the record. As noted above, the 

Shelter alleged in response to each particular claim contained in each count of the 

Schnurbusches’ petition that the particular claim asserted in that count was or could have been 

adjudicated in Schnurbusch I. This is a short and plain allegation of facts that corresponds with 

the legal definition of res judicata, in that it alleges that the particular cause of action asserted in 

that count had been previously adjudicated in a specifically identified prior proceeding between 

the same parties. See Lauber–Clayton, L.L.C., 407 S.W.3d at 618. The Shelter’s responsive 

pleading alleged sufficient facts to raise and, therefore, properly plead the affirmative defense of 

res judicata.6

 The Schnurbusches’ third point is denied. 

Points Four, Five, Six, and Seven

We address the Schnurbusches’ fourth, fifth, sixth, and seventh points together, which, in

numerical order, contend as follows:

THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES 

JUDICATA OR CLAIMS SPLITTING IN THAT IN THERE WAS NOT ANY 

ISSUE INVOLVING WEST PLAINS REGIONAL ANIMAL SHELTER MADE 

FINAL OR ADJUDICATED IN CASE 09PU - CV00849 IN THE PULASKI 

COUNTY CIRCUIT COURT AND WITHOUT ANY PRIOR ADJUDICATION, 

THERE CANNOT BE ANY RES JUDICATA OR CLAIMS SPLITTING 

RECORD TO REFER TO IN CASE NO. 12AL - CC00006.

***

THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES 

 6 If these pleaded facts lacked sufficient definiteness or particularity to enable the Schnurbusches to prepare 

generally for trial, they could have filed a Rule 55.27(d) motion for a more definite statement. Nothing in the record 

on appeal indicates that the Schnurbusches filed such a motion.
10

JUDICATA OR CLAIMS SPLITTING IN THAT THERE WAS NOT ANY 

ISSUE INVOLVING WEST PLAINS REGIONAL ANIMAL SHELTER MADE 

FINAL OR ADJUDICATED IN CASE 09PU – CV00849 IN THE PULASKI 

COUNTY CIRCUIT COURT BECAUSE ALL ISSUES PERTAINING TO 

WEST PLAINS REGIONAL ANIMAL SHELTER WERE DISMISSED 

WITHOUT PREJUDICE AND THEREFORE NOTHING WAS 

ADJUDICATED.

***

THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES 

JUDICATA OR CLAIMS SPLITTING, IF ANY RELIANCE WAS GIVEN BY 

THE TRIAL COURT TO A DOCUMENT TITLED FINDINGS OF FACT, 

CONCLUSIONS OF LAW AND JUDGMENT DATED DECEMBER 9, 2010 IN 

CASE 09PU - CV00849 IN THE PULASKI COUNTY CIRCUIT COURT, 

BECAUSE MANY OF THE FACTS CITED IN A DOCUMENT TITLED 

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT DATED 

DECEMBER 9, 2010 IN CASE 09PU-CV00849 IN THE PULASKI COUNTY 

CIRCUIT COURT ARE NOT SUPPORTED BY VARIOUS RECORDS FROM 

CASE O9PU - CV00849 AND INACCURACIES REGARDING ISSUES 

PERTAINING TO WEST PLAINS REGIONAL ANIMAL SHELTER CANNOT 

SUPPORT ANY CLAIMS OF ANY PRIOR ADJUDICATION BASED ON 

THE DECEMBER 9, 2010 DOCUMENT TITLED FINDINGS OF FACT, 

CONCLUSIONS OF LAW AND JUDGMENT.

***

THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES 

JUDICATA OR CLAIMS SPLITTING, BECAUSE THE PETITION IN CASE 

NO. 12AL-CC00006 AND FILED ON JANUARY 17, 2012 WAS BASED 

ENTIRELY ON TEMPORARY OR ABATABLE CONDITIONS WHICH 

CONTINUE ON AN ONGOING BASIS, MEANING THE ACTS, ACTIONS, 

OR EVENTS CONTINUE BY THE MINUTE, HOUR, DAILY AND WEEKLY 

AS LONG AS THAT SAME ACTIVITY OR EVENT CONTINUES TO 

CONSTANTLY OCCUR THEREFORE RES JUDICATA OR CLAIMS 

SPLITTING COULD NOT AND CANNOT APPLY TO A TEMPORARY OR 

ABATABLE ACT, OR ACTION, OR EVENT. [AB 28, 36-37, 58-59, 64].

These four points fail as they, and their supporting arguments, do not conform to the procedural 

requirements of Rule 74.04. 

As this court has explained, the procedural requirements of Rule 74.04 involve the 

following analytical sequence: 
11

• A motion for summary judgment shall include a statement of uncontroverted 

material facts, which “‘shall state 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’ and a copy of those 

supporting documents shall be attached to the statement.” Great Southern Bank 

v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 833 (Mo.App. 2016) (quoting Rule 

74.04(c)(1)).

• The non-movant shall serve a response, which “shall set forth each statement of 

fact in its original paragraph number and immediately thereunder admit or deny 

each of movant's factual statements”; the denials “shall [be supported by] specific 

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

showing that there is a genuine issue for trial”; “[a]ttached to the response shall be 

a copy of all discovery, exhibits or affidavits on which the response relies”; and 

“may also set forth additional material facts that remain in dispute, which shall be 

presented in consecutively numbered paragraphs and supported in the manner 

prescribed by Rule 74.04(c)(1).” Id. (quoting Rule 74.04(c)(2)) (internal 

quotations marks omitted). 

• “Once a trial court determines that the movant's Rule 74.04(c)(1) motion for 

summary judgment demonstrates a prima facie showing of movant's right to 

judgment,[] the trial court then, and only then, turns to the non-movant's denials in 

the non-movant's Rule 74.04(c)(2) response to determine if the non-movant has

demonstrated that ‘one or more of the material facts shown by the movant to be 

above any genuine dispute is, in fact, genuinely disputed.’” Id. at 833–34 

(quoting ITT Commercial Fin. Corp., 854 S.W.2d at 381). “For each material fact 

the non-movant claims is genuinely disputed and therefore defeats the movant's 

prima facie showing of a right to judgment, the non-movant must direct the trial 

court to a particular numbered paragraph in movant's statement of uncontroverted 

material facts that is denied in the non-movant's response.” Id. at 834. Only then

does the trial court turn to the movant’s and non-movant’s specific references to 

the attached pleadings, discovery, exhibits or affidavits. Id. (citing Rule 

74.04(c)(1)–(2). 

When a summary judgment is appealed, “[o]ur de novo standard of review means that we 

look at the summary judgment issues presented on appeal as the trial court should have initially 

under Rule 74.04, and we give no deference to the trial court’s ruling.” Id. “Therefore, a 

relevant, cogent, and logical argument on appeal that a genuine issue exists as to a particular 

material fact must necessarily track the Rule 74.04 requirements[.]” Id. (emphasis added). 
12

The Schnurbusches’ fourth, fifth, sixth, and seventh points purport to challenge the 

evidentiary support for the Shelter’s stated material facts based upon the Schnurbusches’ denials. 

Because that issue does not arise in a Rule 74.04 analysis unless and until the Shelter has made a 

prima facie showing of a right to judgment, id. at 833–34, all four of the Schnurbusches’ points 

necessarily implicitly presuppose that, based upon the Shelter’s stated material facts, it made a

prima facie showing of a right to summary judgment as a defending party based upon the defense 

of res judicata.

7

 In other words, the Schnurbusches’ are generally claiming that genuine disputes 

exist as to some of those material facts. They fail, however, to demonstrate a genuine dispute of 

any particular material fact under the procedural strictures of Rule 74.04, in that their points and 

supporting arguments “are totally devoid of any reference to or mention 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.” Id. at 834. Instead, the Schnurbusches’

citations to the record tend to be to exhibits attached to the Shelter’s statement of uncontroverted 

material facts and, on occasions, even completely outside of the summary judgment record to the 

legal file from Schnurbusch I. 

Moreover, any citations that might be construed as identifying relevant summary 

judgment numbered paragraph responses are too broad to facilitate meaningful review. For 

example, in the argument section under point six, the Schnurbusches cite to 136 pages of the 

legal file that contain, among other materials, all of their responses to the Shelter’s material facts 

numbered paragraphs. The Schnurbusches then purport to place upon this court the onus of 

seining these pages in the summary judgment record for relevant information, stating that it is 

 7 Other than in their third point, which we have denied, supra, the Schnurbusches do not further challenge the 

Shelter’s prima facie showing of a right to summary judgment. We need not further address this issue, therefore, 

because “‘allegations of error not briefed ... shall not be considered in any civil appeal[.]’” Great Southern Bank, 

497 S.W.3d at 829 n.2 (quoting Rule 84.13(a)).
13

“available to be reviewed in complete detail and will not be repeated here as the content of [the 

summary judgment record] speaks for itself.” 

The Schnurbusches’ reliance on material disconnected from specific numbered paragraph 

material facts in the summary judgment record render their arguments “analytically useless in an 

appellate review that requires this court to properly apply Rule 74.04.” Id. at 835. As explained 

in Great Southern Bank,

Our de novo review does not grant Appellants license to craft arguments 

on appeal free from the constraints of Rule 74.04. Rather, our de novo decision 

on appeal must be in accordance with all the requirements of Rule 74.04 and, 

therefore, must be made in the very same manner the trial court should have 

applied that rule in the first instance. Comparing the movant's specifically 

referenced evidence in a particular numbered paragraph material fact to the 

specifically referenced evidence in the non-movant's denial of that particular 

material fact for the existence of a genuine issue, as contemplated and required 

under Rule 74.04, assures that the appellate court is deciding the same issue as 

presented to and decided by the trial court. For an appellate court to do otherwise, 

as urged by Appellants here, would decide the appeal on a basis that was not 

necessarily presented to or considered and decided by the trial court and would 

not be appropriate. See In re Estate of L.G.T., 442 S.W.3d 96, 108 

(Mo.App.2014) (an issue which is not presented or expressly decided by a trial 

court is not preserved for appellate review).

Id. at 836.

Here, the Schnurbusches have failed to demonstrate a genuine issue as to any particular 

numbered paragraph material fact in the Rule 74.04(c) summary judgment record. Accordingly, 

they have failed to demonstrate any basis for us to conclude that the trial court erroneously

granted summary judgment. The Schnurbusches’ fourth, fifth, sixth, and seventh points are 

denied.

Point Eight

The Schnurbusches’ eighth point contends:

THE TRIAL COURT ERRED BY DENYING THE CROSS MOTION 

FOR PARTIAL SUMMARY JUDGMENT ON COUNT II, PREPARED AND 

FILED ON MARCH 17, 2017 BY THE PLAINTIFFS IN CASE 12AL-
14

CC00006- 01 WILLARD SCHNURBUSCH AND CAROL SCHNURBUSCH, 

AS HUSBAND AND WIFE ONLY AND ACTING PRO SE, BECAUSE THE 

CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT WAS 

SUBMITTED IN TOTAL COMPLIANCE WITH SUPREME COURT RULE 

74.04 PROCEDURES AND DID STATE SUFFICIENT UNCONTROVERED 

MATERIAL FACTS WHICH WERE NOT PROPERLY RESPONDED TO PER 

THE REQUIRED PROCEDURES OF MISSOURI SUPREME COURT RULE 

74.04, AND THE CROSS MOTION FOR SUMMARY JUDGMENT SHOWED 

THAT THE MOVANTS HAD A RIGHT TO JUDGMENT AS A MATTER OF 

LAW SUFFICIENT TO ALLOW THE COURT TO GRANT THE MOTION IN 

FAVOR OF THE MOVANTS. 

The “[d]enial of a motion for summary judgment is not subject to appellate review, even 

when an appeal is taken from a final judgment and not from the denial of a motion for summary 

judgment.” State ex. rel. Mo. Div. of Transp. v. Sure–Way Transp., Inc., 884 S.W.2d 349, 351 

(Mo.App. 1994).8

 Accordingly, the Schnurbusches’ eighth point is denied. 

Point Nine

The Schnurbusches’ ninth point contends:

THE TRIAL COURT ERRED BY NOT GRANTING THE PLAINTIFFS IN 

CASE 12AL - CC00006, WILLARD SCHNURBUSCH AND CAROL 

SCHNURBUSCH, AS HUSBAND AND WIFE ONLY AND ACTING PRO SE, 

THEIR MOTION FOR LEAVE TO AMEND WHICH WAS FILED ON 

SEPTEMBER 28, 2015 AND THEIR MOTION FOR LEAVE TO AMEND 

WHICH WAS FILED ON FEBRUARY 22, 2017, EACH REQUESTING 

LEAVE TO AMEND THEIR JANUARY 17, 2012 PETITION EVEN THOUGH 

THERE WAS SUFFICIENT INFORMATION PRESENTED BY WAY OF 

EXHIBITS AND SUGGESTIONS ALONG WITH THE MOTION FOR LEAVE 

TO AMEND THE PETITION, TO SUPPORT THE CLAIM REGARDING THE 

AVAILABILITY OF NEW EVIDENCE OBTAINED AFTER THE JANUARY 

17, 2012 PETITION WAS APPARENTLY DISMISSED BY ORDER OF 

OCTOBER 26, 2012. AND EVENTUAL Y REVERSED BY ORDER AND 

MANDATE OF THE SOUTHERN DISTRICT OF THE MISSOURI COURT OF 

APPEALS ON JANAUARY 20, 2017 AND FEBRUARY 7, 2017[.] 

 8 In rare circumstances, “the denial of a party’s motion for summary judgment can be reviewed when its merits are 

completely intertwined with a grant of summary judgment in favor of an opposing party.” Transatlantic Ltd. v. 

Salva, 71 S.W.3d 670, 675–76 (Mo.App. 2002). We need not consider this exception, however, because the 

Schnurbusches do not address it in any manner in their brief, much less assert its applicability. 
15

This point identifies and challenges the trial court’s denial of two separate motions by the 

Schnurbusches to amend their pleadings. In any event, the Schnurbusches then fail to explain or 

demonstrate why the trial court’s denial of either motion amounted to an abuse of discretion. See 

Tisch v. DST Sys., Inc., 368 S.W.3d 245, 257 (Mo.App. 2012) (stating that the decision to 

permit the amendment of a petition “is at the discretion of the trial court, and we will not disturb 

its decision ‘absent an obvious and palpable abuse of discretion”) (quoting Kenley v. J.E. Jones 

Constr. Co., 870 S.W.2d 494, 498 (Mo.App. 1994)). We cannot craft that argument on their 

behalf. See Moreland v. Div. of Emp’t Sec., 273 S.W.3d 39, 42 (Mo. App. 2008). Without any

argument purporting to demonstrate how the trial court abused its discretion, the Schnurbusches 

cannot succeed on their claim that the denials of their motions to amend were erroneous. Their

ninth point is denied.9

Points Ten and Eleven

The Schnurbusches’ tenth and eleventh points contend, in numerical order:

THE TRIAL COURT ERRED BY NEVER PROVIDING ANY RESPONSE TO 

THE REQUESTS FOR ACTION BY THE TRIAL COURT, PREPARED AND 

FILED ON FEBRUARY 17, 2017 AND JUNE 28, 2017 AND AUGUST 1, 2017 

BY THE PLAINTIFFS/ APPELLANTS IN CASE 12AL- CC00006 - 01 

WILLARD SCHNURBUSCH AND CAROL SCHNURBUSCH, AS HUSBAND 

AND WIFE ONLY AND ACTING PRO SE, REGARDING THE EXECUTION 

ON CHARGES AND COSTS GRANTED TO THE APPELLANTS IN APPEAL 

NO. SD 34345 BY THE MANDATE ISSUED FEBRUARY 7, 2017 BECAUSE 

THE PLAINTIFFS/ APPELLANTS HAVE BEEN FINANCIALLY 

BURDENED BY BEING DEPRIVED OF THE OPPORTUNITY TO RECOVER

THE CHARGES AND COSTS ALLOWED BY THE MANDATE OF 

FEBURARY 7, 2017[.]

***

 9 We note that this point also could be denied because it is multifarious and, therefore, preserves nothing for 

appellate review. See Spence v. BNSF Ry. Co., 547 S.W.3d 769, 780 n.15 (Mo. banc 2018) (point relied on 

claiming the trial court erred at multiple separate times and in multiple separate ways is multifarious and preserves 

nothing for review). Moreover, at least one of the point’s challenges—that regarding the September 28, 2015 

motion—is barred by the law-of-the-case doctrine for the reasons discussed under points 1 and 2, supra. 
16

THE TRIAL COURT ERRED BY NEVER PROVIDING ANY RESPONSE ( S ) 

TO THE TWO AFTER TRIAL MOTIONS MADE TO THE TRIAL COURT ON 

NOVEMBER 20, 2015 AND NOVEMBER 13, 2017 BECAUSE SUCH 

ACTION ( S ) BY THE TRIAL COURT DEPRIVES A LITIGANT OF AN 

OPPORTUNITY TO BE HEARD AND PASSES ON THE DUTY TO 

ADDRESS THE QUESTIONS OF ACCURACY AND CORRECTNESS OF 

DOCUMENTS, SUCH AS THE TWO JUDGMENTS FILED ON NOVEMBER 

3, 2015 AND OCTOBER 17, 2017, TO A HIGHER COURT, AND PLACES 

THE BURDEN OF EFFORT AND EXPENSE INVOLVED IN PURSUING 

THE QUESTIONS ON THE PARTY WHO IS APPEALING THE DECISIONS 

OF THE CERTAIN COURT INVOLVED. 

Both points relied on fail to conform to the mandates of Rule 84.04(d) and therefore preserve 

nothing for appellate review. 

A point relied on shall “(A) identify the trial court ruling or action that the appellant 

challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and 

(C) explain in summary fashion why, in the context of the case, those legal reasons support the 

claim of reversible error.” Rule 84.04(d)(1).

In each of these points, the Schnurbusches fail to sufficiently identify a trial court ruling 

or action that serves as the basis for each challenge, fail to state the legal reasons for their claim 

of reversible error, and give absolutely no explanation as to why, in the context of this case, any 

legal reason or reasons support their claim of reversible error. The argument sections in support 

of these points, likewise, are totally devoid of any supporting legal authority from which we 

could attempt to deduce the legal bases underlying the Schnurbusches’ points. “A point relied on 

that fails to comply with Rule 84.04(d) preserves nothing for appeal.” Washington v. 

Blackburn, 286 S.W.3d 818, 821 (Mo.App. 2009). 

Moreover, even assuming, without deciding, that a trial court’s “never providing any 

response” identifies “a trial court ruling or action” as required by Rule 84.04(d)(1)(A), each 

point, nevertheless, challenges multiple claims of error, i.e., multiple alleged failures to respond 

to multiple separate “requests for action” (point ten) and multiple alleged failures to respond to 
17

multiple “after trial motions” (point eleven). As such, both points are multifarious. A 

multifarious point also does not comply with Rule 84.04(d) and fails to preserve anything for 

review. Spence, 547 S.W.3d at 780 n.15; Matter of Wilma G. James Trust, 487 S.W.3d 37, 52 

(Mo.App. 2016). 

Accordingly, points ten and eleven are denied.10 

Decision

The trial court’s judgment is affirmed.

GARY W. LYNCH, J. – OPINION AUTHOR

DON E. BURRELL, JR., P.J. – concurs

NANCY STEFFEN RAHMEYER, J. – concurs

 10 The law-of-the-case doctrine also bars some or all of the issues raised in point 11 for the reasons discussed under 

points 1, 2, and 9, supra.