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Scholes v. Great Southern Bank

Court of Appeals of Missouri, Southern District, Second Division

May 26, 2017

PATRICK SCHOLES, JEANNE SCHOLES, and THUNDERBIRD THEATRE, INC., Plaintiffs-Appellants,
v.
GREAT SOUTHERN BANK, Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson, Special Judge

          OPINION

          NANCY STEFFEN RAHMEYER, J.

         Patrick 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[1] 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 judgment.[2]

         Standard of Review

         "Review 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.

         Procedural Background

         Plaintiffs 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 appeal[.]").

         Defendant 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.

         Defendant subsequently filed a "Motion for Reconsideration of Summary Judgment as to Count [2]." 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 appeal follows.[3]

         Discussion and Decision

         Point 1

         Rule 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 conducted accordingly.

         Plaintiffs 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 ...


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