Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Boone County, Missouri The
Honorable Robert L. Koffman, Judge
Karen King Mitchell, Chief Judge, and Victor C. Howard and
Anthony Rex Gabbert, Judges
King Mitchell, Chief Judge
Fotoohighiam appeals from the judgment of the Circuit
Court of Boone County granting partial summary judgment to
Marcia Green on her claim of conspiracy to set fire to her
mobile home. On appeal, Mehrdad raises two points. First, he
argues that the motion court erred in granting summary
judgment because (1) deposition testimony Marcia filed with
her motion controverted material facts on which summary
judgment was based and (2) testimony about two conflicting
conspiracy theories negated both theories. Second, Mehrdad
claims that the motion court erred in denying his motion for
new trial for the same reasons. Because there is no genuine
issue of material fact and Marcia is entitled to judgment as
a matter of law, we affirm.
6, 2015, Marcia sued Mehrdad and several alleged
co-conspirators, claiming that Mehrdad had conspired to set
her mobile home on fire, causing Marcia serious bodily and
emotional injury and property damage. On August 18, 2017,
following discovery, Marcia moved for partial summary
judgment against Mehrdad. In support of her motion, Marcia filed
a statement of uncontroverted material facts, wherein she
stated that (1) Mehrdad owns a mobile home on a lot
immediately adjacent to Marcia's lot; (2) James Hall and
Scotty Christopher performed work on Mehrdad's property
in the fall of 2014; (3) Mehrdad offered Hall and Christopher
$500 to set fire to Marcia's mobile home; (4) Mehrdad
told Louis Spano that Mehrdad hired Hall and David Reed to
burn down Marcia's mobile home; and (5) Mehrdad paid Hall
$500 to set fire to Marcia's mobile home. For each of
these statements, Marcia cited to deposition testimony that
she filed with her motion. Exhibit C to Marcia's motion
contained portions of Mehrdad's deposition wherein he
Q. Have you ever met James Hall before?
Q. Tell me when you first met James Hall?
A. I take the 5th.
Q. Have you ever met David Reed?
Q. Have you ever met Scotty Christopher?
did not cite to the quoted portion of Mehrdad's testimony
or otherwise reference his denials regarding Reed and
Christopher in support of her motion.
failed to file a timely response to Marcia's motion, but
he later filed a motion for leave to file a response out of
time, which was denied. The motion court sustained Marcia's
motion, granting her partial summary judgment with respect to
liability. In its partial summary judgment, the court recited
the following based on Marcia's statement of
uncontroverted material facts: "[Mehrdad] admitted to a
Mr. Louis Spano that [Mehrdad] paid a Mr. Reed and defendant
Hall to burn [Marcia's] trailer. Mr. Scotty Christopher
stated that [Mehrdad] offered defendant Hall and himself $500
to set [Marcia's] mobile home on fire. [Mehrdad] actually
paid Mr. Christopher $500 to set [Marcia's] mobile home
on fire." The court then stated:
[Mehrdad] does not deny any of these facts; he merely claims
that deposition testimony cannot be used to support them. The
Court determines that deposition testimony may be used in
support of facts alleged sufficient to allow for summary
The Court also considers the failure to answer deposition
questions by [Mehrdad] on the grounds that to do so would
violate his right to remain silent under the 5th Amendment to
the United States Constitution and assumes that the answers
are adverse to him.
The evidence presented has not been denied as required under
Supreme Court Rule 74.04(c)(1). The undenied facts are that
[Mehrdad] paid others in a conspiracy to burn down the
dwelling of the plaintiff. Those co-conspirators did burn
that dwelling down causing [Marcia] damage. There is no
contravention of these ultimate issues. They are ...