Bonuchi Law

Absent citations to the summary judgment record dooms another appeal in Missouri's Southern District Court of Appeals

The confluence of Rule 84.04 and Rule 74.04 strikes another litigant down in the Southern District in Alvis v. Morris, SD34609 (Mo. Ct. App. S.D. May 30, 2017). This decision comes on the heals of Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc., SD34570 (Mo. App. S.D. May 9, 2017), in which the Court refused to address the merits of a point on appeal because the statement of facts in the appellant's brief did not set out the relevant facts (and the alleged disputed facts) developed in the summary judgment record. In Alvis, the court used that same rationale to dismiss the appeal entirely.

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Alvis's lawsuit alleged that he had suffered serious injuries while logging on behalf of his employer on Morris's property. He asserted two theories of liability against Morris. First, he claimed that Morris was vicariously liability for allowing the employer to engage in inherently dangerous activities. Second, he alleged that Morris was engaged in a joint venture with Alvis’s employer and thus was jointly liable for the injuries Alvis sustained while working.

The trial court granted Morris’s motion for summary judgment, finding as a matter of law that logging was not an inherently dangerous act and that there were no disputed facts that could show that Morris and Alvis's employer were engaged in a joint venture.

In an opinion authored by Judge Burrell, the Court of Appeals dismissed the appeal because the statement of facts section of the appellant's brief failed to site directly to the actual statements of uncontroverted facts and Alvis's responses to them. The opinion explained that Rule 84.04(c) requires that the "statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." In appeals from summary judgment, according to the court, that means the only facts that should appear in the statement of facts are those lifted directly from the statements of uncontroverted facts, and the responses thereto, that had been filed in the summary judgment record under Rule 74.04. Since Alvis's statement lacked these citations, the Court found that to decide the legal questions presented on appeal would require it stepping into the shoes of the appellant, which it is prohibited from doing.

Practice Tip Prudent appellants must take care to include in the statement of facts section of their briefs express renditions of all potentially relevant assertions of uncontroverted fact, the responses to them, and any additional facts and responses asserted in the summary judgment record below. That of course means that litigants must take equal care to follow Rule 74.04 at the summary judgment stage itself to build a record that will allow compliance with Alvis's mandate in any ensuing appellate briefs.