Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable Michael M.
W. LYNCH, P.J.
Cowgur ("Plaintiff") appeals the trial court's
judgment granting summary judgment in favor of Joel and
Jessica Murphy ("Defendants") on her claim for
personal injuries she sustained as a result of a fall after
stepping in a hole in the ground ("the hole") on
property owned by Defendants and leased to third parties.
Determining there is no genuine dispute that Defendants had
no knowledge of existence of the hole, we affirm the trial
and Procedural Background
was injured when she stepped into the hole with her right leg
on property owned by Defendants and rented to Jeffery and
Lisa Sprous on March 19, 2011. Defendants owned the property
from 2002 until 2012. Defendants had lived on the property
from 2002 until sometime in 2008. The property was rented to
Paul Strozyk after Defendants moved out until early 2009. The
property was thereafter rented to Jeffery Sprous and Lisa
Sprous on August 1, 2009, pursuant to a written lease (the
"lease"). Mr. and Mrs. Sprous lived on the property
until sometime in 2011 after Plaintiff's injury.
filed this action seeking to recover damages for her personal
injuries from Defendants alleging that Defendants were
careless and negligent in that they "should have known
that the hole existed on the property that was concealed by
grass and Defendants failed to designate the hole as being a
dangerous condition, or to fill the hole so it would no
longer exist." The Defendants filed a motion for summary
judgment asserting that they were entitled to judgment as a
matter of law because "there is no evidence that the
[Defendants] knew of the existence" of the hole. The
trial court granted Defendants' motion for summary
judgment and, accordingly, entered its judgment in their
favor and against Plaintiff on her claim. Plaintiff timely
appeals the trial court's judgment.
of Review and Legal Principles Applicable to Summary
review of a trial court's decision granting summary
judgment is reviewed de novo. ITT Commercial Fin. Corp.
v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993). If the movant is entitled to judgment as a matter
of law and no genuine issue of material facts exists, the
trial court's decision will be affirmed. Id. at
377. "A 'genuine issue' is a dispute that is
real, not merely argumentative, imaginary or frivolous."
Hargis v. JLB Corp., 357 S.W.3d 574, 577 (Mo. banc
2011) (quoting ITT Commercial Fin., 854 S.W.2d at
382). "The record is viewed in the light most favorable
to the non-moving party, according that party all reasonable
inferences that may be drawn from the record."
Eisenberg v. Redd, 38 S.W.3d 409, 410 (Mo. banc
2001) (citing ITT Commercial Fin., 854 S.W.2d at
come into a summary judgment record only per Rule
74.04(c)(1) and (2), that is, in the form of a pleading
containing separately numbered paragraphs and a response
addressed to those numbered paragraphs." Lackey v.
Iberia R-V Sch. Dist., 487 S.W.3d 57, 60-61 (Mo.App.
2016) (internal quotation marks omitted). "A trial court
grants or denies summary judgment based on facts established
by the summary judgment motion and responses thereto; our
review is confined to the same facts and does not extend to
the entire record before the trial court." Id.
appeal, the criteria for determining if summary judgment was
proper is "no different from those which should be
employed by the trial court to determine the propriety of
sustaining the motion initially." ITT Commercial
Fin. Corp., 854 S.W.2d at 376. "As the trial
court's judgment is founded on the record submitted and
the law, an appellate court need not defer to the trial
court's order granting summary judgment."
Id. Our de novo review, however, does not
grant an appellant license to craft arguments on appeal free
from the constraints of Rule 74.04.Great S. Bank v. Blue
Chalk Constr., LLC, 497 S.W.3d 825, 836 (Mo.App. 2016).
Plaintiff's four points on appeal challenge
Defendants' Rule 74.04 prima facie showing of a right to
summary judgment as the summary judgment movant and defending
party on Plaintiff's claim. See id. at 828-29
(discussing Rule 74.04 requirements for prima facie showing).
Once Defendants made their prima facie showing, the burden
shifted to Plaintiff, as the summary judgment non-movant, to
show that one or more of the material facts shown by the
Defendants to be above any genuine dispute is, in fact,
genuinely disputed. Id. at 829 (citing ITT
Commercial Fin. Corp., 854 S.W.2d at 381).
To put a fact in genuine dispute, the non-movant may not rely
on a general denial, but, instead, must support that denial
with specific references to the discovery, exhibits or
affidavits that demonstrate the specific facts showing that
there is a genuine issue for trial. A genuine issue that will
prevent summary judgment exists ...