judgment as a matter of law,” constitutes a prima facie showing of entitlement to summary
judgment. ITT Commercial Fin. Corp., 854 $.W.2d at 380.

Regarding whether a genuine factual dispute exists, trial courts must view the
record “in the light most favorable to the non-movant[, which] means that the movant bears
the burden of establishing a right to judgment as a matter of law on the record as submitted;
any evidence in the record that presents a genuine dispute as to the material facts defeats
the movant’s prima facie showing.” Id. at 382 (internal quotation omitted). Thus, an
inconsistency in the submitted record as to a material fact defeats summary judgment.
Even where a non-movant fails to respond, the motion and supporting evidence must still
on its own establish a right to judgment before the trial court may appropriately enter

summary judgment. Bank of Am., N.A. v. Reynolds, 348 $.W.3d 858, 860 (Mo. App.

W.D. 2011) (citing E.O. Dorsch Elec. Co. v. Plaza Constr. Co., 413 S.W.2d 167, 170 (Mo.

1967)). The ITT court noted that “the phrase ‘all facts that are not contradicted are taken
as true’! means . . . that the movant must establish that the material facts are not in genuine
dispute; materials submitted by the movant that are, themselves, inconsistent on the
material facts defeat the movant’s prima facie showing.” 854 S.W.2d at 382 (emphasis

added).

! We note this statement does not appear in the current version of Rule 74.04; however, the rule contains a
substantially similar statement: “A response that does not comply with this Rule 74.04(c)(2) [requiring
support for denials of statements of fact] with respect to any numbered paragraph in movant’s statement is
an admission of the truth of that numbered paragraph.” Respondents argue this language requires we accept
as true the statement from their motion that the dog had never knocked anyone down, but we find ITT directs
us otherwise. We acknowledge that under Rule 74.04, non-movants may lose the opportunity to show the
existence of a fact dispute if they fail to properly file and support a response to the summary judgment motion.
However, this assumes that the movant’s motion on its own is lacking in disputed facts. We find no authority
for the proposition that we are to accept only the statement of fact in the motion when there is conflicting
evidence attached to the motion showing that such fact is actually disputed. This 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.



For that reason, I concur with the majority opinion to reverse the entry of summary

judgment.

bahIb~_2__|

Kfirt S. Odenwald, Judge



Conclusion
Respondents were unable to meet their burden to establish a prima facie showing
of entitlement to judgment as a matter of law, in that the summary judgment record
contained evidence of a material fact dispute. Thus, summary judgment was inappropriate.

We reverse and remand to the trial court for proceedings consistent with this opinion.

Lftfhael)

Cav/ M. Gaertner, Jr., Judge

James M. Dowd, P. J., concurs.
Kurt 8. Odenwald, J., concurs in separate opinion.



Here, the materials Respondents submitted in support of their motion for summary
judgment are inconsistent, and therefore they could not make a prima facie showing that
they were entitled to summary judgment. Such a showing must be made before a non-
movant is required to respond and show the existence of disputed facts. See id. at 381
(“When, and only when, the movant has made the prima facie showing,” non-movant has
burden to respond”), Accordingly, the movant’s prima facie showing must be made before
anon-movant is at risk of foregoing the opportunity to dispute a fact by failing to respond.
Thus, despite the fact that no response from Appellant was properly part of the summary
judgment record here, the record did not establish the absence of a genuine dispute
regarding material facts, and summary judgment was improper.

Respondents argue in the alternative that this fact was immaterial, because even if
the dog had knocked someone down before, there was no evidence this caused any injury,
and thus there was still no way Respondents could have foreseen that the dog would cause

injury. However, whether facts exist that may in turn give rise to a finding of

foreseeability is a question for the factfinder. E.g., Lopez v. Three Rivers Elec. Co-op.
Inc., 26 S.W.3d 151, 157 n.1 (Mo. banc 2000). Thus, the disputed fact at issue was

material, and summary judgment was inappropriate.

? We note the Missouri Supreme Court specifically discusses an older version of Rule 74.04 in this section
with slightly different wording; however, Missouri courts continue to apply the same burdens regarding
summary judgment. See, e.g., Williams v. Hubbard, 455 S.W.3d 426, 435 (Mo. bane 2015) (“{u}ntil
[movants] meet their burden . , . {non-movant] does not have to show anything”).

3 We also note Respondents’ argument that the record fails to show whether Respondent Mary Lou Harris
was referring to an incident that took place before or after Appellant’s injury, However, we must view the
record in the light most favorable to the non-movant and grant the non-movant the benefit of reasonable
inferences from the record. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S,W.2d 371,
382 (Mo. banc 1993).



movant’s summary judgment motion under Rule 74.04(c)(2). See Jordan vy. Peet, 409 S.W.3d
553, 558 (Mo, App. W.D, 2013).
But, as noted in the majority opinion, the party moving for summary judgment has the

threshold burden to demonstrate its entitlement to summary judgment. Bank of Am., N.A. v.

Reynolds, 348 S.W. 3d 858,860 (Mo. App. W.D. 2011). Here, the summary judgment evidence
filed by Respondents included the complete deposition taken of Appellant, Although
Respondents referenced only certain portions of Appellant’s deposition in their statement of
uncontroverted facts, the deposition transcript filed by Respondents as part of the summary
judgment record included Appellant’s testimony controverting Respondents’ own statement of
uncontroverted facts, i.e., deposition testimony relevant to the Respondents’ knowledge of their
dog’s propensity for knocking someone down. Respondents did not cite or otherwise refer to
this portion of the deposition testimony in their statement of uncontroverted facts or other
summary judgment pleadings. Respondents nevertheless controverted their own statement of
uncontroverted facts when they included this deposition testimony in the record, and in doing so,
Respondents failed to establish their right to summary judgment.

Appellant did not bring the deposition testimony at issue on appeal to the attention of the
trial court. Mindful of a trial court’s role in an adversarial proceeding, a trial court is not
required to independently review portions of the deposition not cited or otherwise referenced by
the parties in the summary judgment proceedings. Nor should it. To do so places the trial court
in the role of advocate. However, given our de novo standard of review of summary judgment,
this Court reviewed the deposition testimony cited by Appellant on appeal, and properly

concluded that such testimony precludes the entry of summary judgment.



In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
VICKI LYNN STREET, ) ED104044
)
Appellant, ) Appeal from the Circuit Court
) of Warren County
v. ) 09BB-CC00135
)
EDWARD HARRIS & MARY LOU ) Honorable Wesley C. Dalton
HARRIS, )
)
Appellant. ) Filed: December 6, 2016

Introduction
Vicki Lynn Street (Appellant) appeals the trial court’s summary judgment in favor
of Edward and Mary Lou Harris (Respondents) on Appellant’s suit for premises liability
and negligence stemming from an incident in which Respondents’ dog knocked Appellant
over, causing injuries. Because we find that Respondents’ motion failed to meet
Respondents’ initial burden to show a prima facie right to judgment, we reverse.
Background
Respondents hired Appellant to perform housecleaning services. On March 24,
2008, Appellant came to Respondents’ house to clean while they were away. Appellant
entered the house through the back door, using a key provided by Respondents.

Respondents had left their dog in the backyard. The backyard was fenced in, but the dog



In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
VICKI LYNN STREET, ) ED104044
)
Appellant, ) Appeal from the Circuit Court
) of Warren County
vy. ) 09BB-CC00135
)
EDWARD HARRIS & MARY LOU ) Honorable Wesley C. Dalton
HARRIS, )
)
Respondents, ) FILED: December 6, 2016

Iconcur. The majority opinion correctly applies the law relating to the burden of both
the movant and non-movant on a motion for summary judgment under Rule 74.04. I write
separately to underscore the anomaly of this situation in which the non-movant fails to submit a
timely response to the summary judgment, and therefore presents no evidence by affidavit or
otherwise to establish the existence of any material fact, yet summary judgment fails. Here,
Appellant did not controvert the statement of uncontroverted facts filed by Respondent with their
motion for summary judgment, and yet we reverse the trial court’s entry of summary judgment.'
In situations as this, summary judgment likely would be entered in favor of the movant because

the non-movant’s failure to timely respond results in the admission of the facts set forth in the

1 As the majority opinion notes, the Appellant’s summary judgment pleadings were untimely filed, and are therefore
not part of the summary judgment record.



namely, the threshold issue of a movant’s prima facie showing of entitlement to summary
judgment.

The circumstance here is unusual, in that two of the exhibits attached to
Respondents’ motion for summary judgment offer differing accounts regarding whether
the dog had ever knocked anyone down. In support of the statement that the dog had not
done so before this incident, Respondents attached their affidavit to that effect. However,
as support for other facts in their motion, Respondents included portions of a deposition of
Appellant. In this deposition, Appellant testified that Respondent Mary Lou Harris came
to see Appellant after her injury and told her that the dog had knocked someone down
before. This presents the question whether, by having both exhibits attached with contrary
statements regarding this fact, Respondents established that they were entitled to judgment
as a matter of law. Put another way, does the failure of Appellant to respond, constituting
an admission of Respondents’ statement of uncontroverted facts, require us to overlook the
inconsistency in the exhibits attached to Respondents’ motion? We conclude the answer
is no, because Respondents bear the initial burden of establishing a right to judgment as a
matter of law based on the record before the court.

The Missouri Supreme Court, in ITT Commercial Finance Corporation v. Mid-

America Marine Supply Corporation, explained the burden a movant for summary

judgment bears under Rule 74.04. 854 S.W,2d at 382. The movant must show first that
there is no genuine dispute about the material facts, and the movant must support this

showing “with specific references to the pleadings, discovery, exhibits or affidavits[.]”

Rule 74.04(c)(1); see also ITT Commercial Fin. Corp., 854 S.W.2d at 380 (citing prior

version of Rule 74.04). This, along with the second showing, “the undisputed right to



As a threshold matter, we must determine the scope of the summary judgment
record for review. Appellant here failed to timely respond to Respondents’ summary
judgment motion. Appellant’s response was due on November 28, 2014. On December 2,
2014, Appellant filed a request for additional time to file the response and then filed her
response on January 12, 2015. The trial court did not rule on Appellant’s request.
According to Rule 44.01(b), when a party requests an extension after the expiration of a
filing period, a trial court may grant it “where the failure to act was the result of excusable
neglect.” Appellant failed to offer any such showing, and the court made no such finding.

See Inman v. St. Paul Fire & Marine Ins. Co., 347 S.W.3d 569, 576 (Mo. App. 8.D. 2011)

(citing Allison v. Tyson, 123 S.W.3d 196, 204-05 (Mo. App. W.D. 2003)); see_also
Williams v. Bruce, 475 S.W.2d 625, 627-28 (Mo. App. 1971) (dismissing appeal due to
appellant’s failure to file transcript within time limit where motion for extension filed after
expiration of time but no reason for tardiness given and no finding of excusable neglect
made). Thus, Appellant’s response, whether or not considered by the trial court, is not
properly part of the summary judgment record.

Respondents argue this requires us to affirm the trial court’s summary judgment
because Appellant’s failure to properly respond resulted in admission of the facts set forth
in Respondents’ motion, under Rule 74.04(c)(2). See Jordan v. Peet, 409 S.W.3d 553, 558
(Mo. App. W.D. 2013). Respondent argues this includes the following fact: “Prior to
March 24, 2008, [the dog] had never run at, charged, knocked anyone down, or injured
anyone.” Thus, Respondents argue, Appellant has failed to preserve any dispute regarding
this fact. See Butler v. Tippee Canoe Club, 943 S.W.2d 323, 325 (Mo. App. E.D. 1997).

While we acknowledge the foregoing authority, we find this case presents a different issue;



was not restrained within the backyard and could access the back door and the deck outside
the back door, as well as a patio just outside the lower level of the house, which was located
at the bottom of the stairs from the deck. After going inside, at some point Appellant came
out onto the patio. The dog, who was on the deck, ran down the stairs onto the patio, and
ran into or jumped onto Appellant. Appellant fell, twisting and breaking her ankle, and
sustaining other injuries.

Appellant filed a petition against Respondents containing claims of premises
liability and negligence for failing to restrain their dog or to warn Appellant of the danger
presented by the dog. Respondents filed a motion for summary judgment, which the trial
court granted, concluding that there was no evidence that this injury was foreseeable. This
appeal follows.

Standard of Review
Our review of a trial court’s summary judgment is essentially de novo. ITT

Commercial Fin. Corp. v. Mid-Am, Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc

1993). Summary judgment is appropriate “where the moving party has demonstrated, on
the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of
law.” Id. (citing Mo. R. Civ. P. 74.04 (1990)).
Discussion

Appellant raises four points on appeal, but one argument is dispositive, so we limit
our discussion to that issue, Appellant argues that the trial court erred in granting summary
judgment in favor of Respondents due to the existence of a material fact dispute; namely,
whether the dog had knocked someone over prior to Appellant’s injury, thus providing

evidence of foreseeability. We agree.