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Fleddermann v. Casino One Corp.

Court of Appeals of Missouri, Eastern District, Third Division

May 7, 2019

MARK FLEDDERMANN, Plaintiff/Appellant,

          Appeal from the Circuit Court of the City of St. Louis Honorable Robert H. Dierker, Jr.

          SHERRI B. SULLIVAN, P.J.


         Mark Fleddermann (Appellant) appeals the trial court's Order and Partial Judgment granting summary judgment on Counts III and IV of his amended petition in favor of Casino One Corporation d/b/a Lumiere Place Hotel and Casino and Caesars Interactive Entertainment d/b/a World Series of Poker (collectively Respondents) on his claims under the Missouri Merchandising Practices Act (MMPA). Because Appellant's brief is procedurally deficient, we grant Respondents' motion to strike Appellant's brief and dismiss the appeal on the basis of Appellant's failure to comply with Rule 84.04.[1]

         Factual and Procedural Background

         Appellant participated in a poker tournament at Lumiere Place Hotel and Casino sponsored by the World Series of Poker. Appellant alleges to have entered a contractual relationship with another individual prior to the tournament, where that individual was to ultimately receive 100% of Appellant's winnings. Appellant placed second in the tournament, entitling him to approximately $7, 000 in winnings. Appellant approached the counter to collect his winnings and provided the cashier with IRS Form 5754, which authorizes a casino to allocate the appropriate winnings to multiple individuals listed on the form. The cashier refused to accept the Form 5754 and did not give Appellant his winnings. Appellant later demanded payment through counsel and was informed the tournament conditioned the payout on the nonuse of a Form 5754.

         Appellant filed a breach of contract claim and an MMPA claim against each of the Respondents alleging violations of the MMPA for conditioning the payout of the poker tournament on a form contrary to IRS regulations and law.

         Respondents filed motions for summary judgment, attaching both a Statement of Uncontroverted Facts, consisting of separately numbered paragraphs supported by references to exhibits for each material fact to which Respondents claimed there was no genuine issue, and a Memorandum of Law, claiming "the total lack of existence of unfair practices … renders Plaintiff without the necessary elements to succeed" on his MMPA claims.

         Appellant filed responses to both Respondents' motions for summary judgment. The responses set forth each statement of fact in its original paragraph number and thereunder attempted to either admit or deny each factual statement. Appellant admitted less than half of the asserted material facts. The other responses given by Appellant were nonresponsive, stating additional facts beyond those in the paragraph and denying facts not included in the paragraphs. Appellant did not file his own separate Statement of Uncontroverted Material Facts, but rather included several paragraphs in his memorandum in support of his motion under a heading labeled "Uncontroverted Facts." These facts were not laid out in numbered paragraph form, as required by Rule 74.04. Appellant makes no mention of unfair practices, or of the MMPA, in his response.

         The trial court entered its Order and Partial Judgment after taking the Respondents' motions for summary judgment under advisement. The court granted summary judgment for Respondents on the MMPA claims because conditioning the payout on the nonuse of a Form 5754 did not rise to the level of an unfair practice. The court denied summary judgment on the breach of contract claims.

         A trial was held on the remaining breach of contract claims. The trial court issued judgment in Appellant's favor on the breach of contract claims and required Respondents to issue Appellant's payout using the Form 5754. This timely appeal followed the entry of the judgment.

         Points Relied On

         In Point I, Appellant claims the trial court erred in granting the motions for summary judgment on issues which were neither raised nor argued in Respondents' motions, but rather were raised and addressed sua sponte by the trial court, without providing Appellant with an opportunity to respond in that Rule 74.04(c) provides the procedure for the parties to follow and requires the trial court to issue its ruling on such issues raised by the parties.

         In Point II, Appellant alleges that even if the trial court were authorized to enter its summary judgment dismissal on theories not raised in the motions for summary judgment, the trial court erred in finding that Respondents' actions do not "rise to the level of offensive, unethical, oppressive or unscrupulous conduct that constitutes an unfair ...

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