McAninch v. Robinson

• Decision Date: 14 April 1997
• Docket Number: No. 21000,21000
• Parties: Nancy Gail McANINCH, individually and as next friend for Kelly Jo Brown McAninch, Amber Taneen McAninch, and William Glenn McAninch, III, Plaintiffs-Appellants, v. B. Glenn ROBINSON, et al., Defendants, and Brent A. Butler, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 452

942 S.W.2d 452

Nancy Gail McANINCH, individually and as next friend for

Kelly Jo Brown McAninch, Amber Taneen McAninch, and William Glenn McAninch, III, Plaintiffs-Appellants, v. B. Glenn ROBINSON, et al., Defendants, and Brent A. Butler, Defendant-Respondent.

No. 21000.

Missouri Court of Appeals,

Southern District,

Division One.

April 14, 1997.

David W. Hall, Jr., Richard L. Rollings, Jr., Bussell, O'Neal & Hall, L.L.P., Springfield, for plaintiffs-appellants.

Gary W. Allman, Cantwell, Allman, Smith & Trokey, L.L.P., Branson, for defendant-respondent.

Before BARNEY, P.J., and PREWITT and GARRISON, JJ.

PER CURIAM.

Plaintiffs filed a wrongful death suit against Defendant Brent A. Butler (Butler) arising from the death of William McAninch II, their husband and father. On this appeal, they challenge a summary judgment entered in Butler's favor. We affirm.

Mr. McAninch's death resulted from the collapse of a trench in which he was working at a construction site in Branson, Missouri. The trench had been dug to accommodate a sewer line connecting the motel being built to the city's sewer system. The motel had been designed by Butler, an architect, pursuant to an agreement with the property owner.

Plaintiffs alleged that Butler prepared the plans and specifications of the motel, and was the architect in charge of: construction of the motel; the manner and methods of the compaction of fill dirt used on the motel property; solving the settling and sinking problems of the motel building; ¹ designing and establishing specifications for the safe and proper methods of trench digging on the project; designing the plumbing systems, including the sewer main; designing the location of the sewer main hookup line where it exited the building, including its depth; notifying and warning Mr. McAninch and others of the danger of working in a trench with sides not "laid back," braced or shored to prevent cave-ins; and requiring the use of safe methods in constructing the trench, including sloping, shoring, and bracing its walls.

Butler was alleged to have been negligent in failing to: require the use of proper fill dirt on the project; require the use of proper compaction techniques for the fill dirt used; select a more practical and safer method for solving the sinking and settling problems of the motel; design the exit of the sewer main line from the building at such a depth that it would not require a trench ten or eleven feet deep in order to hook the sewer to the main line; supervise and inspect the construction project and the installation of the sewer line; discover that the trench was not properly shored, braced or sloped; make the area of the sewer line installation reasonably safe; select a construction site that did not require fill dirt; require the use of competent supervisors and proper safety measures in digging the trench; require the use of a competent contractor knowledgeable in the use of proper safety measures; require proper compaction tests of the fill dirt; and stop the construction after learning of the proper compaction tests on the fill dirt areas.

Butler's motion for summary judgment, which incorporated his affidavit and his contract with the owner, was based on the contention that he had no legal duty to Mr. McAninch. It was sustained following Plaintiffs' response, which consisted of denials, references to deposition testimony and supporting suggestions.

In considering an appeal from the entry of a summary judgment, an appellate court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The review is essentially de novo with the appellate court employing the same tests as should be employed by the trial court in deciding whether to grant the motion. Id. The propriety of a summary judgment is purely an issue of law. Id.

In their first point on appeal, Plaintiffs contend that the trial court erred in entering the summary judgment because the motion was defective by not stating with particularity the grounds upon which it was based, as required by Rule 74.04, ² and further that the trial court entered the summary judgment on a basis which was not alleged in the motion.

Plaintiffs cite Finley v. St. John's Mercy Med. Ctr., 903 S.W.2d 670, 672 (Mo.App. E.D.1995), and Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App. E.D.1995), for the proposition that the purpose of the requirement of specificity contained in Rule 74.04(c) is to apprise the opposing party, the trial court and the appellate court of the specific basis on which the moving party claims entitlement to a summary judgment. Plaintiffs do not demonstrate how they contend that Butler's motion was procedurally defective under Rule 74.04(c), other than the general statement that the motion "did not state with particularity the grounds on which he claimed entitlement to Summary Judgment and did not even specifically incorporate any suggestions of law in support of the motion."

Our review of the motion indicates that it alleged the extent of Butler's obligations under his agreement with the owner; that his duties under the agreement did not include those which Plaintiffs alleged that he performed negligently; and that consequently he had no duty to Mr. McAninch. The motion also incorporated documents such as Butler's affidavit and his agreement with the owner. While Butler's motion did not mention supporting suggestions, he filed suggestions in support and served them on opposing counsel.

We also note that Plaintiffs did not object to the motion for summary judgment because of the lack of specificity. Instead, Plaintiffs filed a response in which they admitted or denied each of the separately numbered paragraphs in the motion and argued that Butler did, in fact, have a duty to the decedent.

The requirements of Rule 74.04(c) are not subject to waiver by a party. Miller v. Ernst & Young, 892 S.W.2d at 389. Where, however, a responding party sufficiently understands the issues to make a specific response, and the issues presented are clear to the trial and appellate courts, the particular requirements of Rule 74.04(c) may be considered as having been met. AgriBank FCB v. Cross Timbers Ranch, 919 S.W.2d 263, 267-68 (Mo.App. S.D.1996). We believe that principle applies here where, in addition to responding to the motion without objection, Plaintiffs do not state how they contend that the motion was defective procedurally.

Plaintiffs also argue in their first point that the trial court decided the motion on a basis other than that on which Butler sought relief. They point to the fact that the motion for summary judgment was not based on the exclusiveness of a remedy under workers' compensation, yet the order granting the summary judgment contained the following:

The Court finds and concludes because of the exclusivity of the Worker's [sic] Compensation Remedy under Chapter 287 V.A.M.S. this Court has no subject matter jurisdiction as to the claim asserted by Plaintiffs against Defendant Brent Butler in Count IV of the Petition.

Butler's motion was based on the nonexistence of a genuine issue of material fact concerning his lack of a duty as a matter of law. The court's order granting the summary judgment also contained the following:

The Court finds that there is no genuine issue as to any material fact that establishes or relates to Defendant Brent Butler's status, duty owed to William Glen McAninch II, or to this Court's jurisdiction.

Although the trial court's order referred to the exclusive nature of a workers' compensation remedy, it is also clear that it held that summary judgment was appropriate for the reasons expressed in Butler's motion. The first point is denied.

In their second point, Plaintiffs contend that the summary judgment was error because evidence existed which created genuine issues of material fact. This contention refers to Plaintiffs' allegation that Butler was negligent in designing the building so that the exit of the sewer line was at such a depth as to require the digging of a trench ten or eleven feet deep in order to hook onto the city's sewer main. In addition, they contend that certain evidence demonstrates that Butler participated in determining the cause and developing corrective measures to deal with fill dirt in the area of the accident which was unstable or had settled.

When the moving party is "a defending party" who does not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a right to summary judgment. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d at 381. Rather, a "defending party" may establish a right to judgment by showing, among other things, that there is no genuine issue concerning any one of the necessary elements of the claimant's case. Id.

One of the elements a claimant must establish in a negligence case is a legal duty by the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. Hoover's Dairy, Inc. v. Mid-Am. Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985). The existence of a duty is a matter of law to be determined by the court. Burns v. Black & Veatch Architects, Inc., 854 S.W.2d 450, 453 (Mo.App. W.D.1993). In the instant case, Butler's motion was directed to his lack of a duty, as a matter of law, with reference to Mr. McAninch and the trench in question.

Butler's motion, supported by his agreement...