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Cowgur v. Murphy

Court of Appeals of Missouri, Southern District, First Division

November 12, 2019

DONNA COWGUR, Plaintiff-Appellant,
v.
JOEL MURPHY, JESSICA MURPHY, Defendants-Respondents, JEFFERY SPROUS, LISA SPROUS and JOHN DOE REALTY, Defendants.

          APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable Michael M. Pritchett

          GARY W. LYNCH, P.J.

         AFFIRMED

         Donna 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 court's judgment.

         Factual and Procedural Background

         Plaintiff 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.

         Plaintiff 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.

         Standard of Review and Legal Principles Applicable to Summary Judgment

         A 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 376).

         "Facts 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. at 60.

         On 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.[1]Great S. Bank v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 836 (Mo.App. 2016).

         None of 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 ...

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