Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Warren County 09BB-CC00135
Honorable Wesley C. Dalton Filed: December 6, 2016
M. Gaertner, Jr., Judge.
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
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 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.
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
review of a trial court's summary judgment is essentially
de novo. ITT Commercial Fin. Com, 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)).
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.
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. S.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.
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; namely, the threshold issue of a
movant's prima facie showing of entitlement to summary
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 ...