            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

JOAN JUNGMEYER, GLEN                            )
JUNGMEYER, DENNIS KILLDAY,                      )
LINDA KILLDAY, TIMOTHY KING,                    )
KIM RUIZ-TOMPKINS, ROBERT                       )
DUNSTAN, BILL KOEBEL, and VIRGIL                )
CLARK,                                          )
                                                     WD77922
                                                )
                                  Appellants,   )
                                                     OPINION FILED:
                                                )
                                                     April 21, 2015
v.                                              )
                                                )
                                                )
CITY OF ELDON, MISSOURI,                        )
                                                )
                                Respondent.     )


                 Appeal from the Circuit Court of Miller County, Missouri
                          The Honorable Ralph H. Jaynes, Judge

                  Before Division III: Mark D. Pfeiffer, Presiding Judge, and
                       Gary D. Witt and Anthony Rex Gabbert, Judges

       This is an appeal from a judgment of the Circuit Court of Miller County, Missouri (“trial

court”), granting summary judgment in favor of defendant City of Eldon, Missouri (“City”) and

against plaintiffs Joan and Glen Jungmeyer, Dennis and Linda Killday, Timothy King, Kim

Ruiz-Tompkins, Robert Dunstan, Bill Koebel, and Virgil Clark (“Plaintiffs”). Because the trial

court erroneously based its summary judgment on its mistaken belief that a motion to strike does
not constitute a “response” to a Rule 74.041 motion for summary judgment, we reverse the trial

court’s judgment and remand for further proceedings consistent with our ruling today.

                                       Facts and Procedural History

        Plaintiffs filed a six-count petition against City alleging, inter alia, Hancock Amendment

violations, Due Process Clause violations, and Equal Protection Clause violations, relating to

allegations that City unlawfully charged “higher water and sewer rates than necessary for

improvements to its waterworks and sewer treatment works.” City denied the allegations and

ultimately filed a motion for summary judgment pursuant to Rule 74.04. Alleging that City

failed to comply with the mandatory requirements of Rule 74.04 in its motion for summary

judgment, Plaintiffs objected to City’s motion for summary judgment by filing a motion to strike

the City’s motion. Pending the trial court’s ruling on the motion to strike, Plaintiffs alternatively

moved the trial court for leave to file their substantive response to the merits of City’s motion for

summary judgment in the event the trial court would overrule Plaintiffs’ motion to strike.

        On August 25, 2014, the trial court issued its judgment in which it expressly concluded

that Plaintiffs’ motion to strike did not constitute a “response” as contemplated by Rule 74.04.

Thus, the trial court concluded that: Plaintiffs had not “responded” to the motion for summary

judgment within the time frame required by Rule 74.04; all of the material facts set forth in

City’s motion for summary judgment were deemed true;2 and City’s motion for summary

judgment was granted. Additionally, the trial court’s judgment denied Plaintiffs’ motion to

strike and motion seeking leave of court to file a substantive response to City’s motion for

summary judgment out of time.

        1
           Unless otherwise indicated, all rule references are to MISSOURI COURT RULES Vol. I (2014).
        2
            Presumably, after concluding that Plaintiffs’ “response” did not comply with Rule 74.04, the trial court
relied upon Rule 74.04(c)(2), which states in pertinent part: “A response that does not comply with this
Rule 74.04(c)(2) with respect to any numbered paragraph in movant’s statement [of facts] is an admission of the
truth of that numbered paragraph.”


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       Plaintiffs timely appealed, asserting that the trial court erred in: (1) denying Plaintiffs’

motion to strike; (2) denying Plaintiffs’ motion seeking leave of court to file a substantive

response to City’s motion for summary judgment out of time; and (3) granting City’s motion for

summary judgment.

                                            Analysis

       Because our ruling on Point III dictates the outcome of the remaining points, we analyze

the points out of order:

                                 Point III – Summary Judgment

       This court reviews a grant of summary judgment de novo as a question of law. ITT

Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc

1993). Summary judgment is appropriate when a party establishes “that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Rule 74.04(c)(6) (emphasis added). Summary judgment is “an extreme and drastic remedy and

great care should be exercised in utilizing the procedure” because it “borders on denial of due

process in that it denies the opposing party his day in court.” ITT, 854 S.W.2d at 377 (internal

quotation omitted).

       Here, we have no idea whether there is a genuine dispute as to any material facts because

the trial court procedurally determined that Plaintiffs’ motion to strike did not constitute a

“response” required by Rule 74.04 and thus deemed all of City’s factual assertions to be true.

We disagree with the trial court’s Rule 74.04 “response” conclusion.

       In previous interpretation of what “responses” to a Rule 74.04 motion for summary

judgment are permissible by a non-movant, we have said, “the parties may bring defects in the

affidavits [attached to the motion for summary judgment] or other supporting materials to the




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trial court’s attention by motion to strike or objection.” Sloss v. Gerstner, 98 S.W.3d 893, 898

(Mo. App. W.D. 2003) (emphasis added). And in another setting in which one issue in the case

involved affidavits relating to a motion for summary judgment that failed to meet the criteria of

Rule 74.04(e), we noted that “neither party moved to strike or otherwise object to the defective

affidavits.” Bakewell v. Mo. State Emps.’ Retirement Sys., 668 S.W.2d 224, 227 n.3 (Mo. App.

W.D. 1984) (emphasis added). Thus, as we have previously noted, a motion to strike is a

“response” to a motion for summary judgment that is contemplated by Rule 74.04.3

         A movant filing a motion for summary judgment must strictly adhere to the mandatory

requirements of Rule 74.04 in filing its motion and “[t]he parties may not waive noncompliance

with Rule 74.04.” Cross v. Drury Inns, Inc., 32 S.W.3d 632, 637 (Mo. App. E.D. 2000). “This

[summary judgment] procedure is not discretionary; it is mandatory and must be followed.”

Margiotta v. Christian Hosp., 315 S.W.3d 342, 344 (Mo. banc 2010).

         Rule 74.04 provides that a party moving for summary judgment “shall state 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)

(emphasis added). Rule 74.04 specifically requires that any such affidavits “shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated therein.”

Rule 74.04(e).



         3
           Neither the trial court nor City cites to any precedent declaring that a motion to strike cannot qualify as a
“response” contemplated by Rule 74.04. And to the extent that City has alternatively suggested that Plaintiffs
should have simultaneously filed a substantive response to the motion for summary judgment along with their
motion to strike in order to comply with Rule 74.04, we disagree. It would defeat the purpose of a motion to strike
to impose such a requirement where valid objections to the form of a motion for summary judgment may eliminate
the necessity to file any substantive response to a pending motion for summary judgment.


                                                           4
        Here, in response to City’s motion for summary judgment, Plaintiffs brought to the

attention of the trial court City’s noncompliance with the mandatory requirements of Rule 74.04

via Plaintiffs’ motion to strike. In their motion to strike, Plaintiffs identified and objected to

statements of undisputed “factual” paragraphs in City’s motion for summary judgment that they

claimed were “legal conclusions,” not “factual” assertions. Plaintiffs also identified and objected

to “fact” allegations in City’s motion for summary judgment that they claim failed to specifically

reference the record, citing State ex rel. Nixon v. Hughes, 281 S.W.3d 902, 908 (Mo. App. W.D.

2009) (“[A] summary judgment motion that . . . fails to specifically reference the record is

legally defective . . . .). Plaintiffs identified and objected to affidavits that they claimed failed to

comply with Rule 74.04(e), and Plaintiffs identified and objected to City’s failure to make

“specific reference” to documentation supporting City’s “factual” assertion when, instead,

Plaintiffs claim that only general references were made to documents that were sometimes

hundreds of pages in length.

        Frankly, these are appropriate objections to be made to a trial court by way of a motion to

strike in response to a motion for summary judgment. Only after the trial court’s ruling can a

party be expected to respond substantively to whichever paragraphs of alleged “undisputed

material facts” the trial court has determined comply with the mandatory requirements of

Rule 74.04. Accordingly, it was error for the trial court to conclude that Plaintiffs had not

“responded” to City’s motion for summary judgment when Plaintiffs had filed their motion to

strike. It was further error to deem City’s claim of undisputed material facts admitted by

Plaintiffs.




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        Point III is granted, and we remand for further proceedings necessary to properly

ascertain what material facts are not genuinely in dispute before the trial court “shall decide the

motion [for summary judgment].” Rule 74.04(c)(6).

                                          Point I – Motion to Strike

        Our ruling on Point III that the trial court erroneously concluded that Plaintiffs’ motion to

strike was not a “response” to City’s motion for summary judgment also impacts the motion to

strike itself. For, it is evident from the trial court’s judgment that the trial court did not consider

the substantive merit of Plaintiffs’ motion to strike; instead, the trial court summarily denied

Plaintiffs’ motion to strike upon its mistaken belief that the motion to strike was not a motion

subject to substantive review due to procedural infirmity. Therefore, in the first instance, the

trial court will be required to address the merits of the motion to strike on remand. It follows that

it would be premature for this Court to comment on the merits of Plaintiffs’ motion to strike,

particularly given the discretion accorded trial courts in ruling thereon. See Lero v. State Farm

Fire & Cas. Co., 359 S.W.3d 74, 79 (Mo. App. W.D. 2011) (“We review the circuit court’s

ruling on a motion to strike for abuse of discretion.”). Instead, in response to Point I of

Plaintiffs’ appeal, we remand the review of the substantive merit of Plaintiffs’ motion to strike to

the trial court for its ruling thereon.

             Point II – Motion Seeking Leave of Court to File Substantive Response to
                               City’s Motion for Summary Judgment

        A trial court’s ruling denying leave to file a response to a motion for summary judgment

out of time is reviewed for abuse of discretion. Inman v. St. Paul Fire & Marine Ins. Co., 347

S.W.3d 569, 575 (Mo. App. S.D. 2011) (citing Manor Square, Inc. v. Heartthrob of Kansas City,

Inc., 854 S.W.2d 38, 42 (Mo. App. W.D. 1993)). However, even under circumstances where a

motion seeking leave of court to file a response to a motion for summary judgment is filed after



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the response deadline imposed by Rule 74.04, the rules contemplate that a trial court may

exercise discretion to expand the time for filing a summary judgment response where “excusable

neglect” is demonstrated. Id. at 576; Rule 44.01(b).

       Here, Plaintiffs timely filed a motion to strike in response to City’s motion for summary

judgment. But when it became clear that the trial court’s ruling on the motion to strike would

not occur until after the thirty-day deadline prescribed for “responses” in Rule 74.04, Plaintiffs

alternatively filed their motion seeking leave to file a substantive response to City’s summary

judgment motion in the event their motion to strike was denied.

       Plaintiffs’ actions were reasonable, timely, and not the product of neglect, excusable or

otherwise. The trial court erred in concluding that Plaintiffs’ motion to strike did not constitute a

“response” as contemplated by Rule 74.04 and compounded that error by refusing to permit the

Plaintiffs alternatively to file their substantive response to City’s motion for summary judgment

in the event their motion to strike was denied.

       The trial court abused its discretion in denying Plaintiffs’ motion seeking leave to file

their substantive response to City’s motion for summary judgment.

       Point II is granted. Upon remand, the trial court shall first rule upon the substantive merit

of Plaintiffs’ motion to strike. Depending upon its ruling on the motion to strike, to the extent

that a substantive response to City’s motion for summary judgment shall become necessary, the

trial court shall grant Plaintiffs a reasonable time upon which to file such substantive response.

                                            Conclusion

       The trial court erred in deeming City’s statement of material and undisputed facts as

being admitted due to its mistaken conclusion that Plaintiffs’ motion to strike did not constitute a

“response” as contemplated by Rule 74.04; thus, the trial court erred in concluding that no




                                                  7
material facts were in dispute and in entering judgment in favor of City as a matter of law.

Likewise, the trial court failed to rule upon the substantive merits of Plaintiffs’ motion to strike

and must do so upon remand, and the trial court abused its discretion in refusing to grant leave to

Plaintiffs to file their substantive response to City’s motion for summary judgment, to the extent

that such a substantive response is necessary after the trial court’s ruling upon the merits of

Plaintiffs’ motion to strike. Accordingly, the trial court’s judgment in favor of City is reversed,

and the case is remanded for further proceedings consistent with our ruling today.



                                              Mark D. Pfeiffer, Presiding Judge

Gary D. Witt and Anthony Rex Gabbert, Judges, concur.




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