FROM THE CIRCUIT COURT OF PEMISCOT COUNTY Honorable Michael
M. Pritchett, Judge
E. SCOTT, J.
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."
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 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.
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. 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).
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.
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).
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).
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).
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 ...