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Green v. Fotoohighiam

Court of Appeals of Missouri, Western District, Special Division

October 29, 2019

MARCIA GREEN, Respondent,
v.
MEHRDAD FOTOOHIGHIAM, Appellant.

          Appeal from the Circuit Court of Boone County, Missouri The Honorable Robert L. Koffman, Judge

          Before Karen King Mitchell, Chief Judge, and Victor C. Howard and Anthony Rex Gabbert, Judges

          Karen King Mitchell, Chief Judge

         Mehrdad Fotoohighiam[1] 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.

         Background[2]

         On July 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.[3] On August 18, 2017, following discovery, Marcia moved for partial summary judgment against Mehrdad.[4] 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 testified:

Q. Have you ever met James Hall before?
A. Yes.
Q. Tell me when you first met James Hall?
A. I take the 5th.
Q. Have you ever met David Reed?
A. No.
Q. Have you ever met Scotty Christopher?
A. Nope.

         Marcia 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.

         Mehrdad 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.[5] 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."[6] 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 judgment.
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.[7]
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 ...

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