Green v. Fotoohighiam

• Decision Date: 11 August 2020
• Docket Number: No. SC 98262,SC 98262
• Citation: 606 S.W.3d 113
• Parties: Marcia GREEN, Respondent, v. Mehrdad FOTOOHIGHIAM, Appellant.
• Court: Missouri Supreme Court

606 S.W.3d 113

Marcia GREEN, Respondent,

v.Mehrdad FOTOOHIGHIAM, Appellant.

No. SC 98262

Supreme Court of Missouri, en banc.

Opinion issued August 11, 2020

Rehearing Denied September 29, 2020

Fotoohighiam was represented by Michael G. Berry and John T. Brooks of Newman, Comley & Ruth in Jefferson City, (573) 634-2266.

Green was represented by Matthew B. Woods and Andrew L. Veatch of Eng & Woods in Columbia, (573) 874-4190.

Zel M. Fischer, Judge

Mehrdad Fotoohighiam appeals the circuit court's entry of partial summary judgment on the issue of liability in favor of Marcia Green.¹ Because the Rule 74.04(c) paragraphs and responses demonstrated there were no genuine issues of material fact and that Marcia was entitled to judgment as a matter of law, the circuit court did not err in entering partial summary judgment in Marcia's favor. The circuit court's judgment is affirmed.²

Factual Background and Procedural History

While asleep in her mobile home, noises from outside Marcia's door woke her. Once out of bed, Marcia realized her mobile home was on fire. To escape the blaze, she broke a window in her bedroom and jumped out head-first to safety. Marcia sustained several injuries, including lacerations, burns, and respiratory complications attributable to smoke and carbon monoxide inhalation. Additionally, her mobile home and all personal property inside were destroyed.

Marcia sued Mehrdad, James Hall, David Reed, Electenergy Technologies, Inc., and ETI, L.L.C.,³ alleging Mehrdad and the other defendants conspired⁴ to set her mobile home on fire, causing Marcia mental and physical harm as well as property damage. Following discovery, Marcia moved for partial summary judgment against Mehrdad on the issue of liability. Pursuant to Rule 74.04, Marcia included with her motion a statement of uncontroverted material facts containing the following allegations: (1) Mehrdad owns a mobile home adjacent to Marcia's lot; (2) Scotty Christopher and Hall performed work on Mehrdad's property; (3) Mehrdad offered Hall and Christopher $500 to set Marcia's mobile home on fire; (4) Mehrdad told a former employee, Louis Spano, that he hired Hall and Reed to set Marcia's mobile home on fire; and (5) Marcia's mobile home was actually burned down, causing her damage. Each of these allegations cited to deposition testimony or an affidavit supporting it.

Additionally, included with the documents supporting the statement of uncontroverted material facts were portions of Mehrdad's deposition testimony that were not cited or otherwise referenced by Marcia. These included the following exchange:

Q: Have you ever met James Hall before?

A: Yes

....

Q: Have you ever met David Reed?

A: No.

Q: Have you ever met Scotty Christopher?

A: Nope.

Nevertheless, Mehrdad failed to file a response to Marcia's motion for partial summary judgment. The circuit court entered partial summary judgment as to liability in Marcia's favor. In its order, the circuit court noted Mehrdad's failure to timely respond resulted in an admission to all facts set forth in Marcia's statement of uncontroverted facts. The circuit court also relied on the fact that Mehrdad asserted his Fifth Amendment right to remain silent when asked certain questions during his deposition; therefore, it assumed any answers that would have been given would have been adverse to Mehrdad. Ultimately, the circuit court held:

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 [Marcia]. Those co-conspirators did burn that dwelling down causing [Marcia] damage. There is no contravention of these ultimate issues. They are found to be true. [Marcia] is therefore entitled to judgment as a matter of law.

The case proceeded to a jury trial on the issue of damages only. The jury returned a verdict of $250,000 in actual damages and $2,500,000 in punitive damages. After Mehrdad's post-trial motions were overruled, he appealed, primarily arguing the circuit court erred in granting partial summary judgment regarding liability because Marcia's inclusion of his surplus deposition testimony controverted material facts on which she based her summary judgment motion. The court of appeals disagreed and affirmed the circuit court's judgment. This Court granted transfer and has jurisdiction. Mo. Const. art. V, § 10.

Standard of Review

This Court outlined the standard of review for summary judgment in Goerlitz v. City of Maryville :

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. The facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Only genuine disputes as to material facts preclude summary judgment. A material fact in the context of summary judgment is one from which the right to judgment flows.

.... The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion.

333 S.W.3d 450, 452-53 (Mo. banc 2011) (internal quotation marks and citations omitted). "In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4). Facts not properly supported under Rule 74.04(c)(2) or (c)(4) are deemed admitted." Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC , 422 S.W.3d 312, 320 (Mo. banc 2014).

Analysis

Mehrdad argues the circuit court erred in granting Marcia partial summary judgment because portions of his deposition testimony attached to Marcia's statement of uncontroverted material facts created an issue of material fact that precludes Marcia from receiving partial summary judgment even though Mehrdad failed to respond to the summary judgment motion let alone cite the circuit court to this testimony in such a response.

Summary judgment practice in Missouri is governed by Rule 74.04 and this Court's decision in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371 (Mo. banc 1993). As the movant, Marcia "must establish that there is no genuine dispute as to those material facts upon which [she] would have had the burden of persuasion at trial." ITT , 854 S.W.2d at 381 (internal quotation marks omitted). To accomplish this showing, the movant must attach to the motion for summary judgment a statement of uncontroverted material facts that "state[s] with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts." Rule 74.04(c)(1).⁵ Additionally, the movant must attach to the statement of uncontroverted material facts all discovery, exhibits, or affidavits that support the summary judgment motion. Id.

After the movant makes this submission, the non-movant is required to file a response either admitting or denying the movant's material facts. Specifically,

The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements. A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial. Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies. A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph .

Rule 74.04(c)(2) (emphasis added).

Marcia filed her motion for partial summary judgment, statement of uncontroverted material facts, and all supporting documents in compliance with Rule 74.04(c)(1). Mehrdad did not timely respond to Marcia's motion. Mehrdad filed a motion for leave to respond out of time, which the circuit court overruled. This resulted in his admission to all of Marcia's uncontroverted material facts. Rule 74.04(c)(2). Nonetheless, Mehrdad argues a genuine issue of material fact exists because his deposition testimony that was attached, but not cited by Marcia, demonstrates he did not know two of his alleged co-conspirators; therefore, Marcia is not entitled to judgment as a matter of law. This argument is incompatible with Rule 74.04(c)(2).

The court of appeals has aptly described the summary judgment principles underlying Rule 74.04 as follows:

[1] Facts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework. [2] Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record. [4]

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