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Street v. Harris

Court of Appeals of Missouri, Eastern District, Fourth Division

December 6, 2016


         Appeal from the Circuit Court of Warren County 09BB-CC00135 Honorable Wesley C. Dalton Filed: December 6, 2016

          Gary M. Gaertner, Jr., Judge.


         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.


         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 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. 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)).


         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.

         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. 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.

         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; 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 ...

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