Missouri's New Green Standard or Gray Area? What Facts and Evidence Missouri Courts Must Consider in Summary Judgment Motions: Green v. Fotoohighiam.

AuthorVoss, Clayton A.

    Over the past three decades, it has become routine for Missouri litigators to cite ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. as Missouri's summary judgment standard. (1) It has remained one of the Supreme Court of Missouri's most cited opinions regarding summary judgment despite revisions to Missouri Rule of civil Procedure 74.04(c)(1)-(2) in 1994 - one year after ITT interpreted and applied the previous version of the rule. (2) In August 2020, the Supreme court of Missouri revised ITTs outdated guidance on what constitutes the record upon which trial courts must rely when deciding motions for summary judgment. (3) Green v. Fotoohighiam was the Supreme Court of Missouri's first time clarifying these rules and the first time that the court formally overruled parts of ITT and cases applying it. (4) In doing so, the court indicated that facts come into the summary judgment record only via reference in a Rule 74.04(c) statement of uncontroverted material fact or response thereto. (5)

    Part II of this Note outlines the facts that led to the dispute in Green and the court's holding. Part III examines the development of summary judgment law in Missouri, specifically, Rule 74.04(c) and the amendments that led to its current form. It also discusses certain Missouri cases to highlight the split authority among Missouri courts after the 1994 amendments to Rule 74.04: some courts continued to apply ITT's summary judgment standard, while others adopted the Green framework even before it superseded ITT. Part IV summarizes the Green holding and the court's analysis. Finally, Part V discusses the potential impact of Green on summary judgment practice in Missouri, including a comparison of Missouri's summary judgment practice under Rule 74.04 and Green with summary judgment practice in federal courts under Federal Rule of Civil Procedure 56. It argues that precluding courts from having the option to consider facts beyond only those properly referenced in Rule 74.04(c) paragraphs and responses may result in undesirable outcomes and incentives.


    In Green, Plaintiff Marcia Green ("Plaintiff) brought suit against Defendants Mehrdad Fotoohighiam ("Defendant"), James Hall, David Reed, Electenergy Technologies, Inc., and ETI, LLC for allegedly conspiring to burn down her mobile home while she slept inside. (6) On December 15, 2014, Plaintiff awoke to noises coming from outside her door. (7) Once out of bed, Plaintiff realized her mobile home was on fire. (8) To escape, she broke a window in her bedroom and climbed through it. (9) Plaintiff sustained several injuries, including lacerations, burns, and respiratory complications attributable to smoke and carbon monoxide inhalation. (10) Additionally, her mobile home and all personal property inside it were destroyed. (11)

    Plaintiff sued Defendant, the owner of a mobile home adjacent to Plaintiff's lot, and the other defendants for conspiracy to set her mobile home on fire. (12) According to a witness, Defendant, angry after a "feud" with Plaintiff, offered to pay Hall to set Plaintiff's mobile home on fire. (13) Plaintiff alleged their actions caused her physical and emotional harm and property damage. (14) Specifically, Plaintiff s amended petition included claims for negligent and reckless conduct, assault, battery, intentional and negligent infliction of emotional distress, trespass, and conspiracy. (15)

    At the close of discovery, Plaintiff moved for partial summary judgment on the question of liability, but not damages. (16) Pursuant to Rule 74.04, Plaintiff included with her motion a statement of uncontroverted material facts containing the following allegations in numbered paragraphs: (1) Defendant owns a mobile home adjacent to Plaintiff s lot; (2) Scotty Christopher and James Hall performed work on Defendant's property; (3) Defendant offered Hall and Christopher five hundred dollars to set Plaintiff's mobile home on fire; (4) Defendant told a former employee that he hired Hall and Reed to set Plaintiff's mobile home on fire; and (5) Plaintiff s mobile home was actually burned down, causing her damage. (17) Plaintiff supported each numbered paragraph by reference to deposition testimony or an affidavit. (18)

    Although not cited or referenced by Plaintiff in her summary judgment motion, included in addition to the cited evidence in support of her statement of uncontroverted material facts were portions of Defendant's deposition testimony that contradicted some of Plaintiff s conspiracy allegations. (19) Specifically, Defendant stated that he never met the individuals allegedly involved in the conspiracy to burn down Plaintiff's mobile home:

    Q: Have you ever met James Hall before? A: Yes. Q: Tell me when you first met James Hall? A: I take the 5th. Q: Have you ever met David Reed? A: No. Q: Have you ever met Scotty Christopher? A: Nope. (20) Defendant did not respond to Plaintiff's motion, and the trial court entered partial summary judgment as to liability in Plaintiff s favor. (21) The court noted Defendant's failure to timely respond resulted in an admission to all facts set forth in Plaintiff s statement of uncontroverted facts. (22) The court also relied on the fact that Defendant asserted his Fifth Amendment right to remain silent when asked certain questions during his deposition; therefore, it assumed any answers that Defendant would have given would have been adverse to him. (23) Ultimately, the court held that because Defendant did not deny Plaintiff's evidence presented in the motion for summary judgment as required under Rule 74.04(c)(1), Plaintiff s asserted facts would be taken as true, and Plaintiff was entitled to judgment as a matter of law. (24)

    After a trial on the issue of damages only, the jury returned a verdict of $250,000 in actual damages and $2.5 million in punitive damages. (25) Defendant appealed the trial court's grant of partial summary judgment, arguing that the court must consider Plaintiff s inclusion of Defendant's surplus, uncited deposition testimony. Defendant thus claimed that the contradiction in the Plaintiff' s own filings created a genuine issue of material facts sufficient to defeat her summary judgment motion. (26) The Missouri Court of Appeals for the Western District denied Defendant's appeal and affirmed the trial court's decision. (27) The Supreme Court of Missouri affirmed the circuit court's grant of partial summary judgment on the issue of liability, holding that motions for summary judgment are decided only on the facts - along with properly cited pleadings, discovery, exhibits, or affidavits - referenced in Rule 74.04(c) paragraphs and responses, not the entire trial court record. (28) The Green holding supersedes, or at least clarifies the meaning of, ITT's longstanding rule that a "genuine issue" sufficient to defeat summary judgment exists "where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." (29)


    The amendment of Missouri Rule of Civil Procedure 74.04 in 1994 -one year after the ITT decision - was meant to clarify and limit what constitutes the summary judgment record to make it easier on courts analyzing summary judgment motions. Instead, it created split authority among Missouri courts prior to Green.

    1. The Evolution of Rule 74.04 and the ITT Standard

      Summary judgment in Missouri is governed by Missouri Rule of Civil Procedure 74.04, which contains strict requirements for establishing the uncontroverted material facts that may support summary judgment. (30) In addition to requiring a movant to file a legal memorandum explaining why summary judgment should be granted, Rule 74.04(c) instructs the moving party to "state with particularity in separately numbered paragraphs each material fact 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." (31) If the non-movant wishes to deny one of the movant's facts, then they must support the denial with references to admissible evidence. (32) If a non-movant fails to do so, the facts are deemed admitted as true. (33)

      Missouri courts have had different interpretations of what facts and evidence should be considered in deciding whether there are issues of material fact and a legal right to judgment. (34) The confusion is largely due to the Supreme Court of Missouri's interpretation and application of Rule 74.04 in ITT and its influential role in Missouri summary judgment practice. (35) In ITT, the Supreme Court of Missouri explained the burden Rule 74.04 imposes on a movant for summary judgment. (36) The moving party must first show that there is no genuine dispute over the material facts by "reference to the record when appropriate." (37) This, along with a showing that the movant is "entitled to judgment as a matter of law," establishes the movant's right to summary judgment as required by Rule 74.04(c). (38) Then, the burden shifts to the non-movant to show that there are disputed material facts in the record that make summary judgment improper. (39) The non-movant will only succeed in proving a genuine factual dispute exists if the "record contains materials that evidence two plausible, but contradictory, accounts of the essential facts." (40)

      Inconsistent authority in Missouri summary judgment practice leading up to Green emerged over the issue of when a genuine factual dispute exists. (41) In other words, what constitutes the "record" for the court to consider, and when does the record evidence "plausible, but contradictory, accounts"? (42) According to ITT, courts should view the record "in the light most favorable to the non-movant," which means that "any evidence in the record that presents a genuine dispute as to the material facts defeats the movant's prima facie showing." (43) The ITT...

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