Pemiscot Cnty. Port Auth. v. Rail Switching Servs., Inc.

• Decision Date: 09 May 2017
• Docket Number: No. SD 34570,SD 34570
• Parties: PEMISCOT COUNTY PORT AUTHORITY, Respondent, v. RAIL SWITCHING SERVICES, INC., Appellant.
• Court: Missouri Court of Appeals

523 S.W.3d 530

PEMISCOT COUNTY PORT AUTHORITY, Respondent,

v.RAIL SWITCHING SERVICES, INC., Appellant.

No. SD 34570

Missouri Court of Appeals, Southern District, Division Two.

FILED: May 9, 2017

Application for Transfer Denied August 22, 2017

Appellant's attorneys: James R. Jarrow, Caroline M. Tinsley & Suzanne E. Billam

Respondent's attorneys: Ann E. Buckley, Stephen M. Buckley & J. Michael Mowrer

DANIEL E. SCOTT, J.

Pemiscot County Port Authority's executive director negotiated and signed an operating agreement with Appellant ("RSSI") regarding Port Authority's railroad spur. When Port Authority granted track-use rights to a third party, RSSI claimed exclusivity under its agreement. Proceedings for declaratory and other relief between Port Authority and RSSI resulted in summary judgment declaring RSSI's agreement void ab initio for violating RSMo § 432.070's mandate that contracts of a municipal corporation "be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."¹

RSSI appeals, asserting that (1) material factual disputes precluded summary judgment; (2) the trial court misinterpreted and misapplied § 432.070 ; and (3) that statute is unconstitutionally vague. We deny all points and affirm the judgment.

Point I

This point fails procedurally. The error is hardly unique to this otherwise well-lawyered case, but plagues large-record summary judgment appeals seen in this court, even with attorneys of the highest rank involved.

Per Rule 84.04(a) & (c), an appellant's brief must include "a fair and concise statement of the facts relevant to the questions presented for determination " (our emphasis). RSSI's "questions presented for determination" in this point are whether summary judgment was proper given three alleged factual disputes.² So it is evident that we must scrutinize the facts established by Rule 74.04 summary judgment procedure, and equally evident that RSSI's statement of facts should have set forth those facts. Chopin v. AAA, 969 S.W.2d 248, 251 (Mo.App. 1998).

Why? Because "[f]acts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework." Jones v. Union Pac. R.R., 508 S.W.3d 159, 161 (Mo.App. 2016). In turn, appellate courts review summary judgment based on the Rule 74.04(c) record, not the whole trial court record. Id. ; Lackey v. Iberia R–V Sch. Dist., 487 S.W.3d 57, 60 & n.3 (Mo.App. 2016).³

Yet RSSI "sets forth an account of the facts that does not correspond to the factual statements in the consecutively numbered paragraphs [required by Rule 74.04(c) ]." Chopin, 969 S.W.2d at 251. We cannot ascertain from RSSI's statement of facts, as Rule 84.04(c) requires, those Rule 74.04(c)-established facts that are material and "relevant to the questions presented for determination." Id. In other words, RSSI's brief fatally fails to indicate which material facts Port Authority's Rule 74.04 filings established or which such facts, if any, RSSI properly denied. Jimmy Jones Excavation, Inc. v. JDC Structural Concrete, LLC, 404 S.W.3d 922, 924 (Mo.App. 2013).

Why does this matter? Because the right to summary judgment boils down to certain facts, established per Rule 74.04(c), that legally guarantee one party's victory regardless of other facts or factual disputes . See ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp. , 854 S.W.2d 371, 378 (Mo. banc 1993).

A year after ITT, our supreme court implemented Rule 74.04(c)'s now-familiar format of numbered paragraphs and responses "to assist the judge in ruling on summary judgment motions by requiring such motions to conform to a specific form that will reveal the areas of dispute." 16 Missouri Practice, Civil Rules Practice § 74.04:2 (2016 ed.); see also Osage Water Co. v. City of Osage Beach, 58 S.W.3d 35, 44 (Mo.App. 2001) (attributing rule change to supreme court's desire to clearly advise opposing parties and courts of claimed basis for summary judgment).

Although refined by 2003 and 2008 amendments, it remains Rule 74.04(c)'s precept that material facts be asserted, then admitted or denied, via separately-numbered paragraphs "in order to clarify the areas of dispute and eliminate the need for the trial or appellate court to sift through the record to identify factual disputes." Cross, 32 S.W.3d at 636. "For more than 20 years, Rule 74.04 has required these numbered paragraphs and responses for ‘specificity regarding the contentions raised in motions for summary judgment.’ " Lackey, 487 S.W.3d at 61 (quoting Osage Water, 58 S.W.3d at 44 ).⁴

The upshot of all these cases?

1. Facts come into a summary judgment record one and only one way —as separately-numbered paragraphs and responses per Rule 74.04(c).⁵

2. So "to review the judgment, we must scrutinize those facts " because they are "the facts relevant to the questions presented for determination" by RSSI's challenge to the factual propriety of summary judgment. Chopin, 969 S.W.2d at 251 (our emphasis).

3. RSSI's failure to properly present those facts dooms this point as we "cannot sift through a voluminous record, separating fact from conclusion, admissions from disputes, the material from the immaterial, in an attempt to determine the basis for the motion without impermissibly acting as advocates." Lackey, 487 S.W.3d at 62 (internal quotation omitted); see alsoJimmy Jones Excavation, 404 S.W.3d at 924.

We cannot overcome this failing even if we consider RSSI's (1) general complaints of "numerous disputed material facts," of factual disputes "too numerous and burdensome to detail fully," and that summary judgment was improper "[g]iven the number of disputed material facts and the admissions to other material facts"; or (2) cites to Rule 74.04(c) paragraphs and responses that purportedly show more than 100 facts disputed in whole or part. To focus only on disputed facts presents an incomplete picture. We must determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate Port Authority's right to judgment regardless of other facts or factual disputes . See ITT , 854 S.W.2d at 378.⁶

For a time, we ourselves tried to glean enough from the 1,300–page appellate record to salvage this point. Predictable difficulties and, eventually, neutrality considerations led us to abandon that effort. At any rate, appellate courts have no duty to search the record for facts that might substantiate a point on appeal. Jimmy Jones Excavation, 404 S.W.3d at 924. "That is the duty of the parties, not the function of an appellate court ... [which] cannot spend time searching the record to determine if factual assertions in the brief are supported by the record." Id. (citations and internal quotation marks omitted).

To recap, RSSI had "the duty to define the scope of the controversy by stating the relevant facts fairly and concisely." Chopin, 969 S.W.2d at 251. Its failure to identify the relevant facts established per Rule 74.04(c) violates Rule 84.04(c) and justifies dismissal or denial of this point. Id. ; see also Executive Bd. of Missouri Baptist Convention v. Windermere Baptist Conf. Ctr., 430 S.W.3d 274, 284–86 (Mo.App. 2014) ; Wichita Falls Prod. Credit Ass'n v. Dismang, 78 S.W.3d 812, 815–16 (Mo.App. 2002). Point I fails.

Point II

RSSI argues that § 432.070 does not apply to Port Authority and its contracts, and even if it does, that the trial court erred in finding RSSI's contract void for noncompliance.

Section 432.070, which protects government entities within its ambit, also constrains their freedom to enter into contracts. See City of Kansas City v. Southwest Tracor Inc. , 71 S.W.3d 211, 215 (Mo.App. 2002). The statute's provisions are not merely directory, but mandatory; contracts made in violation thereof are not merely voidable, but void. Id. at 215–16.

"The statute recognizes that municipal corporations represent the public and should be protected from the unauthorized actions of their agents." Id. at 215. Our supreme court elaborated in Donovan v. Kansas City :

Missouri public policy considers the rights of the public paramount to the rights of the individual; that is, it is better to adopt, by legislation, a rule under which individuals may suffer occasionally than to permit a rule subjecting the public to injury through the possibility of carelessness or corruptness of public officials. Individual cases may present apparent hardships but it is our duty to be guided by the law the same as it was plaintiff's decedent's duty to be so guided in the first instance.

352 Mo. 430, 175 S.W.2d 874, 885 (Mo. 1943), modified in other respects , 352 Mo. 430, 179 S.W.2d 108 (Mo. banc. 1944).

Those contracting with entities subject to § 432.070 are charged with knowing the statutory requirements (see Southwest Tracor , 71 S.W.3d at 215–16 ), which courts should not hesitate to enforce even if it yields a harsh result. Ballman v. O'Fallon Fire Protection Dist., 459 S.W.3d 465, 468 (Mo.App. 2015).

We reject RSSI's lengthy argument that Port Authority, formed by Pemiscot County under RSMo chapter 68, is not a "municipal corporation" for purposes of § 432.070.

Missouri cases long have distinguished "municipal corporation," as technically defined, from the "larger and ordinarily accepted sense" of that term applicable to any public local corporation exercising some function of government or performing some essential public service. See, e.g ., Laret Inv. Co. v. Dickman n, 345 Mo. 449, 134 S.W.2d 65, 68 (Mo. banc. 1939). Our supreme court "has adopted the broader definition" in cases considering various public entities and several constitutional and statutory provisions. Id. (citing cases back to 1912). Bodies determined to be "municipal corporations" in such cases have included fire protection districts, special road districts, sewer and drainage districts, housing authorities, and county health departments. Id. ; see also State ex rel. Lebanon Sch. Dist. R–III v. Winfrey , 183 S.W.3d...