Chopin v. American Auto. Ass'n of Missouri, 21640
| Decision Date | 11 May 1998 |
| Docket Number | No. 21640,21640 |
| Citation | 969 S.W.2d 248 |
| Parties | Alton F. CHOPIN, III, Appellant, v. AMERICAN AUTOMOBILE ASSOCIATION OF MISSOURI; James Martindale; Martindale Chevrolet, Inc., a Missouri corporation; and Lucy Lee Hospital, Inc., a Missouri corporation, Respondents. |
| Court | Missouri Court of Appeals |
Terry M. McVey, Crow, Reynolds, Preyer, Shetley & McVey, LLP, Kennett, for Appellant.
Tracey Oakes O'Brien, Goffstein, Raskas, Pomerantz, Kraus, Sherman, Ruthmeyer & Susman, LLC, St. Louis, for Respondent's James Martindale and Martindale Chevrolet, Inc.
Alton F. Chopin, III ("Chopin") sued four defendants: American Automobile Association of Missouri ("AAA"); James Martindale; Martindale Chevrolet, Inc., a Missouri corporation; and Lucy Lee Hospital, Inc., a Missouri corporation ("Hospital").
Chopin subsequently dismissed the suit as to Hospital.
The three remaining defendants filed motions for summary judgment. The trial court granted the motions.
Chopin appeals. 1 The two points relied on in his brief aver the trial court "erred in sustaining Martindale's motion for summary judgment."
As demonstrated in the first sentence of this opinion, there were two defendants bearing the name "Martindale." One was an individual, James Martindale; the other was a corporation, Martindale Chevrolet, Inc.
Inasmuch as both of Chopin's points relied on use the singular possessive "Martindale's" instead of the plural possessive "Martindales'," we deduce Chopin is assigning error as to the award of summary judgment in favor of only one of those defendants. Endeavoring to identify which, we note the statement of facts in Chopin's brief refers to certain oral statements allegedly made by "Defendant Martindale" and refers to that party as "he." Accordingly, we conclude the issues on appeal are between only Chopin and James Martindale. 2 For convenience, and consistent with Chopin's points relied on, we henceforth refer to James Martindale as "Martindale."
Martindale's motion for summary judgment, 3 in scrupulous compliance with Rule 74.04(c)(1), 4 stated with particularity in separately numbered paragraphs each material fact as to which Martindale claimed there was no genuine issue, with specific references to the pleadings, depositions, answers to interrogatories and exhibits that allegedly demonstrated the lack of a genuine issue as to such fact.
Rule 74.04(c)(2) sets forth the requirements for a response to a motion for summary judgment. The rule provides, in pertinent part:
"The response shall admit or deny each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs, shall state the reason for each denial, shall set out each additional material fact that remains in dispute, and shall support each factual statement asserted in the response with specific references to where each such fact appears in the pleadings, discovery or affidavits."
Chopin's response to Martindale's motion for summary judgment did not comply with the above rule in that Chopin's response did not admit or deny each of Martindale's factual statements in numbered paragraphs corresponding to Martindale's numbered paragraphs. Consequently, were we to undertake to ascertain which factual statements in Martindale's motion were admitted by Chopin and which factual statements in Martindale's motion were denied by Chopin, we would have to separately compare each averment (and the supporting sources) in Martindale's motion to each averment (and the supporting sources) in Chopin's response. 5 That is a task we are not required to perform.
The requirements of Rule 74.04(c)(2) are mandatory. Butler v. Tippee Canoe Club, 943 S.W.2d 323, 325 (Mo.App. E.D.1997). Where a motion for summary judgment meets the requirements of Rule 74.04(c)(1), an inadequate response fails to preserve any dispute of a material fact. Id. at . Consequently, we could treat each statement of a material fact in Martindale's motion as true. Cf. Scott v. Flynn, 946 S.W.2d 248, 250 (Mo.App. E.D.1997).
Were Chopin's defective response to Martindale's motion the only procedural flaw, we might be inclined to ignore the violation and trudge onward, attempting to figure out (1) which facts--if any--essential to judgment in favor of Martindale are genuinely disputed by Chopin, and (2) which facts--if any--that might defeat Martindale's motion for summary judgment are asserted by Chopin and admitted, or not denied, by Martindale.
However, there is an even steeper procedural hurdle.
Rule 84.04(a) requires an appellant's brief to contain, inter alia, a statement of facts. Rule 84.04(c) requires the statement of facts to be "a fair and concise statement of the facts relevant to the questions presented for determination."
The question presented for determination by Chopin's first point is whether Martindale had a duty "to protect [Chopin] from injury." 6 Chopin asserts a person must act with ordinary care and "not take actions which result in injury to others where injuries are foreseeable." Obviously, determining whether Martindale owed a duty to Chopin and, if so, what such duty was, hinges on the facts of the incident on which Chopin bases this suit.
Inasmuch as the trial court adjudicated this case by summary judgment, the facts on which the trial court based its decision were those established pursuant to Rule 74.04(c)(1) and (2). It is thus evident that in order to review the judgment, we must scrutinize those facts. Consequently, the statement of facts in Chopin's brief should have set forth the material facts established by Rule 74.04(c)(1) and (2), together with the pages in the legal file where such facts are established. 7
Instead, the statement of facts in Chopin's brief sets forth an account of the facts that does not correspond to the factual statements in the consecutively numbered paragraphs of Martindale's motion. Therefore, we cannot determine from the statement of facts in Chopin's brief which material facts were established by Martindale's motion, nor can we determine which material facts, if any, pled by...
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