Cross v. Drury Inns Inc.

• Decision Date: 21 November 2000
• Citation: 32 S.W.3d 632
• Parties: (Mo.App. E.D. 2000) Linda Cross and Joseph Cross, Plaintiffs/Appellants, v. Drury Inns, Inc., Drury Inn Lambert Place, L.P., Drury Development Corp., Druco Inc., Defendants, American Standard, Inc., Defendant/Respondent. ED77554
• Court: Missouri Court of Appeals

32 S.W.3d 632 (Mo.App. E.D. 2000)

Linda Cross and Joseph Cross, Plaintiffs/Appellants, v. Drury Inns, Inc., Drury Inn Lambert Place, L.P., Drury Development Corp., Druco Inc., Defendants, American Standard, Inc., Defendant/Respondent.

ED77554

Missouri Court of Appeals Eastern District

11/21/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin

Counsel for Appellant: Mark T. McCloskey

Counsel for Respondent: Kenneth J. Mallin and Elizabeth C. Carver

Opinion Summary: The trial court granted partial summary judgment on a record containing motion, response, reply, and supplemental opposition, and the attachments thereto. The last two pleadings introduced new issues, were supported by new expert affidavits, and were not in the form required by Rule 74.04(c)(1) and (2). Plaintiffs appeal judgment on Counts III through X.

Division Five holds: 1. Rule 74.04(c) contemplates that motion for summary judgment will be decided on motion and response and does not authorize further pleadings. 2. Rule 74.04(e), which allows affidavits to be supplemented, does not authorize further pleadings on the motion which do not comply with Rule 74.04(c) and which introduce new facts, grounds, or arguments. 3. When a movant needs to expand a summary judgment motion or record after the response has been filed, the movant should file a new or amended motion in the form required by Rule 74.04(c).

Kathianne Knaup Crane, Judge

Plaintiffs, Linda Cross and Joseph Cross, filed an action against the owners and operators of a Drury Inn hotel (hotel) and American Standard, Inc. (American Standard) to recover damages arising out of injuries suffered by Linda Cross when she slipped and fell on water on the bathroom floor of her hotel room. Water had unexpectedly diverted from the tub spout to the showerhead, which was pointed towards the bathroom, and sprayed out onto the floor. The trial court entered summary judgment in favor of American Standard on a record containing American Standard's motion, plaintiffs' response, American Standard's reply, plaintiffs' supplemental opposition, and the attachments to each of these pleadings. On appeal, plaintiffs challenge the entry of summary judgment on the strict liability and negligence counts. We reverse the summary judgment on these counts and remand without prejudice to refile.

PROCEDURAL BACKGROUND

Plaintiffs originally filed this lawsuit in February, 1997, against the hotel. They subsequently filed a Second Amended Petition in twelve counts adding American Standard as a defendant. In counts three through eleven, Linda Cross sought damages against American Standard on the theories of negligence, negligence-failure to warn, strict liability-product defect, strict liability-failure to warn, and breach of warranty. In count twelve Joseph Cross, Linda Cross's former husband, sought damages for loss of consortium against both the hotel owners and operators and American Standard.

The parties conducted discovery and, on December 30, 1999, American Standard filed a motion for summary judgment on counts three through twelve on the grounds that plaintiffs did not and could not produce evidence to support the claim that the diverter valve in the tub spout was defective at the time it was sold. American Standard based its motion on its claim that it was entitled to summary judgment as a matter of law because plaintiffs' only expert, Mark Ezra, testified that the diverter valve was not defectively designed and that his tests could not demonstrate that any hypothetical manufacturing defect would, in fact, cause self-diversion. Plaintiffs filed a response in which they disputed that they would be unable to show a defect. They claimed that the deposition testimony of their expert, Mark Ezra, American Standard's expert, Thomas Hart, and four hotel employees established that the diverter valve malfunctioned and that an inference of a manufacturing defect could be drawn from this evidence. American Standard filed a nine-page reply and attached thereto a 22-paragraph affidavit by its expert, Thomas Hart. The trial court then heard the motion and took it under submission, but gave plaintiffs leave to file a supplemental response. Plaintiffs thereafter filed a four-page supplemental opposition to which they attached forty-two pages of materials, including exerpts from the depositions of five witnesses, correspondence with enclosures from the hotel's lawyers to plaintiffs' lawyers, an affidavit of a hotel employee, a hotel sub-contract, the hotel's answers to interrogatories, and an affidavit by its expert, Mark Ezra.

The trial court subsequently entered an order and partial judgment in which it granted American Standard's motion for summary judgment. The court certified that there was no just reason for delay and ruled that the order granting summary judgment was a final and appealable judgment.

DISCUSSION

In their two points relied on, plaintiffs challenge the entry of summary judgment in favor of American Standard on the strict liability and negligence counts of plaintiffs' petition, counts three through ten. They argue that the summary judgment record contains evidence from which a trier of fact could find that the diverter valve was defective. We do not reach the merits of this appeal because we reverse and remand on procedural grounds.

Rule 74.04(b) allows a defending party to file a motion for summary judgment. Rule 74.04(c)(1) sets out the procedural requirements for that motion and provides in part that such motion "shall state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts." A summary judgment movant who is a "defending party" need not controvert each element of a non-movant's claim to establish a right to summary judgment. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo. banc 1993). Rather, a defending party may establish that right by showing:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. Each of these means establishes a right to summary judgment as a matter of law. Id.

Once the moving party has made this prima facie showing, the burden shifts to the non-movant, who "may not rest upon the mere allegations or denials of his pleading," but whose response, "by affidavits or as otherwise provided in Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial." Id.; Rule 74.04(e). Rule 74.04(c)(2) requires that the response be served within thirty days, and further requires the non-movant to

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 fact appears in the pleadings, discovery or affidavits.

This subsection also allows a continuance for further discovery.

Rule 74.04(c)(3) provides for the trial court to rule after...