Court of Appeals of Missouri, Southern District, Second Division
PATRICK SCHOLES, JEANNE SCHOLES, and THUNDERBIRD THEATRE, INC., Plaintiffs-Appellants,
GREAT SOUTHERN BANK, Defendant-Respondent.
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
Johnson, Special Judge
STEFFEN RAHMEYER, J.
Scholes and Jeanne Scholes (collectively,
"Plaintiffs") filed suit against Great Southern
Bank ("Defendant") for fraudulent misrepresentation
("Count 1") and negligence ("Count 2")
related to Defendant's foreclosure on Plaintiffs'
theatre and care of certain property
upon taking possession. The trial court entered summary
judgment in Defendant's favor as to Count 1 in 2013 and
Count 2 in 2016. Plaintiffs raise two points on appeal: (1)
"[t]he trial court erred in entering partial summary
judgment" in Defendant's favor on Count 1 by not
complying with Rule 74.04(d); and (2) "[t]he trial court
improperly considered exhibits which lacked the proper
foundation to be admitted into evidence and thus erred when
it granted summary judgment" on Count 2. Finding no
merit in either point, we affirm the trial court's
of an entry of summary judgment is de novo."
Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340,
344 (Mo. banc 2015). "We are to interpret Missouri
Supreme Court Rules in the same fashion as statutes, and
statutory interpretation is a question of law, which this
Court reviews de novo." State ex rel. Joyce
v. Mullen, 503 S.W.3d 330, 337 (Mo.App. E.D. 2016).
"In interpreting a rule, this Court is to ascertain the
intent of our Supreme Court, by considering the plain and
ordinary meaning of the words in the rule." Id.
do not claim that a genuine issue as to a material fact
remains or that Defendant is not entitled to judgment as a
matter of law based on the motion and response. See
Rule 74.04(c)(6). As a result, we set forth only those facts
necessary to resolve the narrow issues raised on appeal.
See Rule 84.13(a) ("[A]llegations of error not
briefed . . . shall not be considered in any civil
moved for summary judgment as to Counts 1 and 2 in May 2013.
The motion contained 36 separate paragraphs of uncontroverted
material facts, with each paragraph citing to one or more
exhibits in support. Plaintiffs' response admitted the
factual allegations of each paragraph. The trial court
granted Defendant's motion for summary judgment as to
Count 1, but did not rule on the motion as to Count 2. The
trial court ultimately denied the motion as to Count 2 in
July 2016, but invited additional briefing on the issue.
subsequently filed a "Motion for Reconsideration of
Summary Judgment as to Count ." Plaintiffs responded
with a letter to the trial court stating that "a
response is not required as the Motion was previously
responded to. Plaintiff therefore renews their response to
the Defendant's Motion." The trial court sustained
Defendant's motion for reconsideration, and granted
summary judgment in Defendant's favor on Count 2. This
74.04(d) governs Point 1 and provides:
(d) Case Not Fully Adjudicated on Motion. If on motion under
this Rule 74.04 judgment is not entered upon the whole case
or for all the relief asked and a trial is necessary, the
court by examining the pleadings and the evidence before it,
by interrogating counsel, and by conducting a hearing, if
necessary, shall ascertain, if practicable, what material
facts exist without substantial controversy and what material
facts are actually and in good faith controverted. The court
shall thereupon make an order specifying the facts that
appear without substantial controversy, including the extent
to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the
action as are just. Upon the trial of the action the facts so
specified shall be deemed established, and the trial shall be
argue that when the trial court granted summary judgment as
to Count 1-but had yet to address the motion as to Count
2-Rule 74.04(d) required the trial court to produce a written
order setting forth which facts it believed remained
uncontroverted. As a result of that failure, Plaintiffs argue
they have been denied an opportunity for meaningful review as
to Count 1 because they do not know the specific ...