Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable
Robert H. Dierker, Jr.
B. SULLIVAN, P.J.
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
and Procedural Background
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
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.
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.
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.
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.
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.
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.
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