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

Court of Appeals of Missouri, Southern District

May 9, 2017

PEMISCOT COUNTY PORT AUTHORITY, Respondent,
v.
RAIL SWITCHING SERVICES, INC., Appellant.

          APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY Honorable Michael M. Pritchett, Judge

          OPINION AUTHOR

          DANIEL E. SCOTT, J.

         AFFIRMED

         Pemiscot County Port Authority's executive director negotiated and signed an operating agreement with Appellant ("RSSI") regarding Port Authority's railroad spur. When Port Authority granted track-use rights to a third party, RSSI claimed exclusivity under its agreement. Proceedings for declaratory and other relief between Port Authority and RSSI resulted in summary judgment declaring RSSI's agreement void ab initio for violating RSMo § 432.070's mandate that contracts of a municipal corporation "be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."[1]

         RSSI appeals, asserting that (1) material factual disputes precluded summary judgment; (2) the trial court misinterpreted and misapplied § 432.070; and (3) that statute is unconstitutionally vague. We deny all points and affirm the judgment.

         Point I

         This point fails procedurally. The error is hardly unique to this otherwise well-lawyered case, but plagues large-record summary judgment appeals seen in this court, even with attorneys of the highest rank involved.

         Per Rule 84.04(a) & (c), an appellant's brief must include "a fair and concise statement of the facts relevant to the questions presented for determination" (our emphasis). RSSI's "questions presented for determination" in this point are whether summary judgment was proper given three alleged factual disputes.[2] So it is evident that we must scrutinize the facts established by Rule 74.04 summary judgment procedure, and equally evident that RSSI's statement of facts should have set forth those facts. Chopin v. AAA, 969 S.W.2d 248, 251 (Mo.App. 1998).

         Why? Because "[f]acts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework." Jones v. Union Pac. R.R., 508 S.W.3d 159, 161 (Mo.App. 2016). In turn, appellate courts review summary judgment based on the Rule 74.04(c) record, not the whole trial court record. Id.; Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 60 & n.3 (Mo.App. 2016).[3]

         Yet RSSI "sets forth an account of the facts that does not correspond to the factual statements in the consecutively numbered paragraphs [required by Rule 74.04(c)]." Chopin, 969 S.W.2d at 251. We cannot ascertain from RSSI's statement of facts, as Rule 84.04(c) requires, those Rule 74.04(c)-established facts that are material and "relevant to the questions presented for determination." Id. In other words, RSSI's brief fatally fails to indicate which material facts Port Authority's Rule 74.04 filings established or which such facts, if any, RSSI properly denied. Jimmy Jones Excavation, Inc. v. JDC Structural Concrete, LLC, 404 S.W.3d 922, 924 (Mo.App. 2013).

         Why does this matter? Because the right to summary judgment boils down to certain facts, established per Rule 74.04(c), that legally guarantee one party's victory regardless of other facts or factual disputes. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 378 (Mo. banc 1993).

         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." 16 Missouri Practice, Civil Rules Practice

          § 74.04:2 (2016 ed.); see also Osage Water Co. v. City of Osage Beach, 58 S.W.3d 35, 44 (Mo.App. 2001) (attributing rule change to supreme court's desire to clearly advise opposing parties and courts of claimed basis for summary judgment).

         Although refined by 2003 and 2008 amendments, it remains Rule 74.04(c)'s precept that material facts be asserted, then admitted or denied, via separately-numbered paragraphs "in order to clarify the areas of dispute and eliminate the need for the trial or appellate court to sift through the record to identify factual disputes." Cross, 32 S.W.3d at 636. "For more than 20 years, Rule 74.04 has required these numbered paragraphs and responses for 'specificity regarding the contentions ...


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