                                         In the
                        Missouri Court of Appeals
                                 Western District
 K.L.S.,                                     )
                                             )
                Appellant,                   )   WD81728
                                             )
 v.                                          )   OPINION FILED:
                                             )   February 19, 2019
 UNION PACIFIC RAILROAD AND                  )
 TIMOTHY ESPY,                               )
                                             )
               Respondents.                  )

             Appeal from the Circuit Court of Jackson County, Missouri
                      The Honorable S. Margene Burnett, Judge

 Before Special Division: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin,
                           Judge and Gary D. Witt, Judge


       K.L.S. appeals from the Jackson County Circuit Court's grant of summary judgment

in favor of Union Pacific Railroad and Timothy Espy (collectively "Union Pacific") on

claims of negligence and negligence per se. K.L.S. argues that the trial court erred in

granting summary judgment in favor of Union Pacific because it was error to rule as a

matter of law that Union Pacific did not have a duty to K.L.S. K.L.S. further argues that

the trial court erred in failing to strike two affidavits submitted by Union Pacific on its
Motion for Summary Judgment because they did not comply with Rule 74.04 as they were

false or misleading. We affirm.

                                   Factual and Procedural History1

        Gary Tauvar ("Tauvar") owns three properties located in close proximity to one

another within Kansas City at the following addresses: 413 N. Park, 410 N. Olive Street,

and 2325 Guinotte Ave. The properties were primarily used for storage of items, much of

which was not located within a building or structure and included several inoperable school

buses. The southern two properties of land consist of 413 N. Park and 410 Olive Street

and adjoin each other. Union Pacific has an easement for its railroad right-of-way running

along the south side of these two properties. There is a public alleyway along the north

side of these two properties, controlled by the City of Kansas City, Missouri ("City"),

which intersects Park Street on the west and Olive Street on the east. The third property,

2325 Guinotte, is located north of the other two properties, separated from them by the

public alleyway. There are no railroad right-of-ways or tracks that run adjacent to the

property located at 2325 Guinotte, nor does that property abut any property owned or

controlled by Union Pacific.

        Tauvar's properties were in violation of certain fencing requirements of Chapter 80

of the City's Code ("Zoning Code") as well as other code violations. The Zoning Code

required that since the property was used for storage, a cyclone-type fence at least eight

feet in height is required to enclose the property to keep it from public access and view. A


        1
          In reviewing the grant of summary judgment we review the record in the light most favorable to the party
against whom judgment is entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d
371, 376 (Mo. banc 1993).

                                                        2
dispute arose between Tauvar and Union Pacific regarding the exact property line between

Union Pacific's easement and Tauvar's two properties abutting the easement. Tauvar

alleged that he had installed fencing to comply with the Zoning Code but Union Pacific

had repeatedly removed portions of the fence in the area that abutted the railroad easement.

       The City notified Tauvar multiple times over many years, starting in 1995, of the

requirement to fence the property because it was being used for the exterior storage of

materials and alleging that he was in violation of the Zoning Code. Tauvar notified the

City of the boundary line dispute between he and Union Pacific and his allegation that

Union Pacific had been removing his fence. K.L.S. was an employee of the City who

worked in the zoning compliance area and was the main person with the City attempting

to obtain compliance for these properties.

       These properties were in a high crime area. In 2009 an inspection found that at least

one homeless person was living in one of the busses stored on the property and a

methamphetamine lab was being operated out of one of the unused buildings on the

property. From 2008 through the incident in 2012 there were continuing correspondence

and conversations between K.L.S. on behalf of the City, Tauvar, and Union Pacific

regarding the zoning violations, the boundary line dispute, and the required fencing of the

properties.

       During e-mail correspondence between Union Pacific and Tauvar regarding the

ongoing property dispute, Tauvar asked Union Pacific to "keep[] an eye out" for an

identified male who used to help Tauvar but had recently been seen by neighbors parking

on the railroad tracks and going into the east side of Tauvar's building. Tauvar believed he

                                             3
was stealing or otherwise committing criminal offenses on the property. The message was

forwarded by Espy, a Union Pacific Police Officer, to others who worked for Union Pacific,

asking if Union Pacific could help Tauvar by increasing patrols near his property.

        K.L.S. had visited Tauvar's property approximately 30 times to check on zoning

compliance. On January 26, 2012, around 11:30 a.m., K.L.S. drove to the area of Tauvar's

properties to photograph zoning violations on the property. K.L.S. parked and exited her

vehicle on Olive Street. K.L.S. was in the public alleyway, preparing to take a photograph,

when she was hit with a blunt object in the back of the head by an unknown assailant and

knocked unconscious. The attacker then proceeded to beat K.L.S., sexually assault her at

knifepoint, and steal items of personal property belonging to her and to the City. K.L.S.

was then again knocked unconscious. She regained consciousness around 1:30 p.m. and

called the police. The assailant was never identified or prosecuted.

        In January 2015, K.L.S. filed suit alleging negligence and negligence per se against

Tauvar2 and negligence and negligence per se against Union Pacific and certain of its

employees and "liability for unlawful acts"3 against Union Pacific.

        Union Pacific filed a Motion for Summary Judgment on March 21, 2017. K.L.S.

filed a Response and Suggestions in Opposition on May 22, 2017. On July 13, 2017, K.L.S

filed a Motion to Strike Defendants Summary Judgment Affidavits, which included

affidavits from Roger Poteet ("Poteet") and Steven Whitaker ("Whitaker"), which were



        2
         The claims against Tauvar were dismissed by K.L.S. below and are not part of this appeal.
        3
         The "unlawful acts" included, stealing of the fence constructed by Tauvar, trespass on the property owned
by Tauvar for the removal or destruction of the fence, and violation of the City Zoning Code by removing the fence
which had been constructed on the property.

                                                        4
among the exhibits submitted in support of Union Pacific's Motion for Summary Judgment.

K.L.S. argued that Poteet's affidavit was untrue, or at best incompetent, because he gave

sworn statements in the affidavit regarding the location of Union Pacific's northern ballast

line between 1992 and 2011, but testified at a later deposition that the location was merely

his assumption and he does not know the dimensions of the right-of-way. K.L.S. argued

that Whitaker's affidavit was false and misleading because in the affidavit Whitaker

testified that his opinion was based upon a Commissioners' Report from a case where land

was condemned for a railroad right-of-way, but testified at a later deposition he actually

relied on a survey conducted by the railroad in 1911 and he could not testify that any land

was actually condemned.

       On July 24, 2017, Union Pacific filed a Suggestion in Opposition to Plaintiffs'

Motion to Strike Summary Judgment Affidavits. In the Suggestions, Union Pacific

withdrew and did not, for purposes of its summary judgment pleadings, "rely on Mr.

Poteet's Affidavit testimony concerning [Union Pacific's] 'Highline', or 'Lowline' railroad

tracks, the ballast under those tracks, those tracks' subgrade and land underneath the ballast

from 1992 when Mr. Poteet entered the [Union Pacific] Claims Department to his

retirement in September 2011." In the Suggestions, Union Pacific also withdrew "any

argument from its summary judgment pleadings or references in Mr. Whitakers' Affidavit

that any land was actually condemned in the action underlying the Commissioners'

Report."

       On August 18, 2017, Union Pacific filed a Motion to Limit the Scope of the Courts

Review of its Two Pending Motions for Summary Judgment. In the Motion, Union Pacific

                                              5
"specifically withdraws from its Response/Reply to Plaintiffs' Additional Statement of

Materials [sic] Facts reliance upon the Affidavit of Roger Poteet or the Affidavit of Steven

Whittaker." On August 21, 2017, K.L.S. filed Motions for Sanctions due to the false or

misleading affidavits by Poteet and Whittaker. On February 2, 2018, a hearing was held

on Union Pacific's Motion for Summary Judgment. On July 6, 2018, the court granted the

motion in favor of Union Pacific and its employees. This timely appeal followed.

                                   Standard of Review

       The trial court makes its decision to grant summary judgment based on the
       pleadings, record submitted, and the law; therefore, this Court need not defer
       to the trial court's determination and reviews the grant of summary judgment
       de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,
       854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision
       to grant summary judgment, this Court applies the same criteria as the trial
       court in determining whether summary judgment was proper. Id. Summary
       judgment is only proper if the moving party establishes that there is no
       genuine issue as to the material facts and that the movant is entitled to
       judgment as a matter of law. Id. The facts contained in affidavits or
       otherwise in support of a party's motion are accepted "as true unless
       contradicted by the non-moving party's response to the summary judgment
       motion." Id. Only genuine disputes as to material facts preclude summary
       judgment. Id. at 378. A material fact in the context of summary judgment is
       one from which the right to judgment flows. Id.

       A defending party … may establish a right to summary judgment by
       demonstrating: (1) facts negating any one of the elements of the non-
       movant's claim; (2) "that the non-movant, after an adequate period for
       discovery, has not been able and will not be able to produce sufficient
       evidence to allow the trier of fact to find the existence of any one" of the
       elements of the non-movant's claim; or (3) "that there is no genuine dispute
       as to the existence of the facts necessary to support movant's properly
       pleaded affirmative defense." Id. at 381. Each of these three methods
       individually "establishes the right to judgment as a matter of law." Id.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011).



                                             6
                                          Analysis

       K.L.S. raises two points on appeal. In her first point K.L.S. argues that the trial

court erred in granting Union Pacific's motion for summary judgment because it was error

to rule as matter of law that Union Pacific did not owe a duty to K.L.S. K.L.S. contends it

was foreseeable that the conduct of a third person could cause harm to K.L.S., Union

Pacific's conduct increased the risk of injury in the area, K.L.S. was an invitee, and Union

Pacific assumed a duty of care. In her second point on appeal, K.L.S. argues that the trial

court erred in failing to strike the affidavits of Poteet and Whitaker because the affidavits

did not comply with Rule 74.04 since they were false and/or misleading.

                                         Point One

       In Point One, K.L.S. argues that the trial court erred in granting Union Pacific's

motion for summary judgment because it was error to rule as a matter of law that Union

Pacific did not have a duty to K.L.S. K.L.S. first argues that Union Pacific had a duty

under the traditional principles of negligence law because special facts and circumstances

clearly established that it was foreseeable that the conduct of a third person could harm

K.L.S. K.L.S. argues that the high crime rate and the nature of the business made it

foreseeable that a third person could cause K.L.S. harm. K.L.S. further argues that Union

Pacific owed her a duty because it was foreseeable that by removing Tauvar's fence and/or

failing to resolve the property dispute, it would result in someone getting hurt.

       "A petition seeking damages for negligence must allege ultimate facts which, if

proven, show: 1) the existence of a duty on the part of the defendant to protect the plaintiff

from injuries; 2) a breach of that duty; 3) causation; and 4) injury to the plaintiff." Thiele

                                              7
v. Rieter, 838 S.W.2d 441, 442 (Mo. App. E.D. 1992). "The touchstone for the creation of

a duty is foreseeability." Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848

(Mo. banc 2018) (citing L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75

S.W.3d 247, 257 (Mo. banc 2002)). "A duty to protect against the criminal acts of third

parties is generally not recognized because such activities are rarely foreseeable." Id.

       However, the Supreme Court of this state has recognized two exceptions to the

general rule that a business has no duty to protect an individual against the criminal acts of

a third party. These two exceptions referred to as "special facts and circumstances" can

give rise to liability. Id.

       The [rule] underscores two rather different situations in which the duty may
       arise. The first is when the defendant knows, or has reason to know, that
       a third party is harming or is about to harm an entrant. At this point the
       defendant may be able to protect the entrant only by warning him,
       summoning the police, or utilizing already available security measures. The
       second is when the nature of defendant's business or past experience
       provides a basis for the reasonable anticipation on defendant's part that
       the criminal activity of third persons might put entrants at risk. In this
       class of cases the defendant may be liable for failing to adopt security
       measures which might have kept the third person from inflicting harm upon
       the entrant. The distinction between these categories is significant, because
       the duty to foresee a general risk of criminal activity and to take steps to
       safeguard entrants from it may require substantial expenditures on the part
       of the possessor.

Id. at 848-849 (quoting the Law of Premises Liability § 11.03[1], 11-6).

       K.L.S. does not dispute that the first exception is inapplicable to this case. K.L.S.

solely argues that Union Pacific owed her a duty under the second exception. "Under the

second exception, the attacker is unknown but, due to prior attacks on the premises, a duty

arises to protect invitees because subsequent attacks become foreseeable." Thiele, 838


                                              8
S.W.2d at 443. "In other words, with the second exception, the business is tasked with

taking precautionary actions to protect its business invitees against the criminal activities

of unknown third parties." Wieland, 540 S.W.3d at 849 (internal quotations omitted).

However, "[b]oth of these exceptions only relate to attacks on the premises." Thiele, 838

S.W.2d at 443.

         It is undisputed by the parties that K.L.S. was not on property owned by Union

Pacific but in a public alleyway when she was attacked. K.L.S. was not even on property

where the ownership was disputed between Union Pacific and Tauvar. K.L.S. was standing

in a public alleyway located on the opposite end of Tauvar's property from where Union

Pacific railroad tracks lay. There was no evidence in the record to establish that Union

Pacific was aware of the significant criminal activity in the area.4 K.L.S. relies on an e-

mail from Tauvar to an employee of Union Pacific regarding a distinct circumstance of a

known person entering Tauvar's property illegally. While K.L.S. alleges that Union Pacific

agreed to provide increased security patrols based on Tauvar's e-mail, a closer reading of

the e-mail exchange only shows that one employee of Union Pacific contacted another

employee of Union Pacific asking if they could assist Tauvar by increasing patrols in the

area. Nothing in the record establishes that Union Pacific committed to actually providing

additional patrols or the nature and extent of any agreement for additional patrols. Even

given the high crime rate in the area, Union Pacific was under no duty to protect persons

who are located in areas distinctly separated from any property Union Pacific owned.


         4
           There was evidence in the record to establish that within a 1 1/2 mile of the location of the attack
significant violent crime had consistently occurred over several years prior to this attack. There was no evidence
that Union Pacific was aware of this criminal activity.

                                                          9
       Under these facts, K.L.S. was not owed a duty by Union Pacific under the second

exception.

       K.L.S. contends that whether or not the attack occurred on Union Pacific's property

is irrelevant citing Fincher v. Murphy, 825 S.W.2d 890 (Mo. App. W.D. 1992). In Fincher,

Fincher was injured when he was attacked by Murphy outside a union hall, following a

contentious union election. Prior to the attack, the union officials were acquainted with

Murphy, "a large and muscular man, standing six feet one inch in height and weighing 242

pounds." Id at 892. The Union knew him as "a person of turbulent disposition who had

been convicted for assault," and who had been involved in prior altercations which ended

in violence. Id. The Union was put on notice of the possibility of violence due to specific

information, including that the election was contentious, Murphy had made an implied

threat of violence against Fincher prior to the election, and a Union agent had heard rumors

that there might be trouble in connection with the election. Id.

       Murphy and others gathered in a crowd on the street outside the election hall while

they awaited the results. Id. The union hall was closed to them while the results were

tabulated. Id. at 893. The union provided no security nor requested law enforcement

assistance. Id. Fincher, who supported Murphy's election opponent, exited the hall and

was attacked by Murphy. Id. Fincher sued Murphy and the Union. Id.

       This Court in Fincher found the Union to be subject to liability because there was a

sufficient connection between the Union's activities and the action which resulted in the

injury to impose a duty to take reasonable steps to protect Fincher for a reasonable period

of time from those on the street adjacent to its union hall. Id. Fincher falls into the "special

                                              10
facts" exception concerning the intentional infliction of injury by a known and identifiable

third party. Id. This case does not fall into that exception as K.L.S.'s attacker was not

known to or identifiable by Union Pacific before or even subsequently to the attack.

Further, unlike in Fincher where there were employees nearby that would be able to

observe the attack and offer assistance, here no Union Pacific employees were present that

could have prevented the attack or intervened on K.L.S.'s behalf.

       K.L.S. further relies on Richardson v. Quicktrip Corp., 81 S.W.3d 54 (Mo. App.

W.D. 2002). In Quicktrip, Richardson was raped by an unknown assailant in the ladies'

restroom of a Quicktrip Convenience Store. Id. at 57. Quicktrip was found liable for

Richardson's injuries because there had been recent criminal activity at and near the store

and the nature of the business made it susceptible to crime. Id. at 65-66. However, this

case is distinct from Richardson in that Richardson was attacked on Quicktrip property,

whereas K.L.S. was attacked in a public alleyway which was not on or even adjacent to

Union Pacific's property. Again, K.L.S. was not attacked on any property owned or

possessed by Union Pacific, but rather she was attacked in a public alleyway located at the

opposite side of Tauvar's property from where Union Pacific's railroad tracks abut.

       K.L.S. next argues that Union Pacific owed her a duty because she was an invitee

when she was attacked and Union Pacific created or increased the risk of injury to K.L.S.

K.L.S. cites to Aziz v. Jack in the Box, Eastern Div., LP, 477 S.W.3d 98 (Mo. App. E.D.

2015) and Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623 (Mo. 1958) for support.

       In Aziz v. Jack in the Box, Aziz and his passenger drove into the parking lot of a

restaurant owned by Defendant. Aziz, 477 S.W.3d at 101. Aziz was beaten and kicked in

                                            11
the parking lot by third party assailants. Id. The Eastern District of this Court found that

Defendant owed Aziz a duty of care because Aziz was an invitee of Defendant at the time

of the attack since he was on Defendant's property as a potential customer. Id. at 106. In

Wilkins v. Allied Stores of Missouri, Wilkins slipped and fell on the terrazzo floor of the

entranceway of Defendant's store.      Wilkins, 308 S.W.2d at 624.        The Court found

Defendant's owed Wilkins a duty of care as an invitee because she was a prospective

customer on Defendant's premises. Id. at 628.

       Again, this case is distinguishable from both Aziz and Wilkins as K.L.S. was not on

property owned or possessed by Union Pacific and was not a customer of Union Pacific.

The injured plaintiffs in both Aziz and Wilkins were on property owned by the defendants.

Here, K.L.S. was attacked by an unknown assailant while in a public alleyway which was

not even adjacent to any property owned by Union Pacific. Further, unlike in Aziz and

Wilkins where there were employees of the defendant present who could have intervened,

there were no Union Pacific employees present who could have observed, known about or

intervened in the attack.

       K.L.S. then argues that Union Pacific owed her a duty because they were a possessor

of Tauvar's property since they occupied the disputed portion of the property with the intent

to control it. We need not address whether Union Pacific possessed Tauvar's property

because it is undisputed that K.L.S. was attacked in a public alleyway and not on property

owned by Union Pacific or even on property with disputed ownership between Union

Pacific and Tauvar.



                                             12
       K.L.S. lastly argues that Union Pacific assumed a duty to resolve the property

dispute and provide more security patrols. K.L.S. argues that Union pacific assumed the

duty to resolve the property dispute between it and Tauvar and that by failing to resolve

the dispute K.L.S. was forced to go to that location to take pictures of the zoning violation

when she was attacked. She argues that but for Union Pacific's failure to resolve the

boundary line dispute, Tauvar would have had the property properly fenced and there

would not have been a need to K.L.S. to go to that location to photograph the zoning

violations. K.L.S. further argues that Union Pacific voluntarily undertook a duty to assist

Tauvar in patrolling the property to watch for criminal activity.

       "Missouri courts recognize that a defendant can assume a duty." Bowan ex rel.

Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 457 (Mo. App. E.D. 2004).

"If a defendant assumes a duty, by contract or by conduct, he can be held liable for injuries

caused by the unsafe performance of that assumed duty." Id. "[O]ne who acts voluntarily

or otherwise to perform an act, even when there was no duty to act originally, can be held

liable for the negligent performance of the act." Id. at 458.

       However, while Union Pacific assumed a duty to resolve the property dispute, the

fact that they did not prior to K.L.S.'s attack was not the proximate cause of K.L.S.'s

injuries. K.L.S. had come to observe and document zoning violations on Tauvar's property

on multiple occasions prior to January 26, 2012. At the time of the attack, K.L.S. was not

taking pictures of the lack of fencing that abutted Union Pacific's railroad tracks, which ran

along the southern border of Tauvar's property. When she was attacked K.L.S. was taking

a picture of the holes in the fence at the opposite end of the Tauvar's property where an

                                             13
abandoned school bus was stored. Further, there were zoning violations other than the

alleged removal of the fence on Tauvar's land which would have caused K.L.S. to go to

Tauvar's property irrespective of the boundary line dispute.

       K.L.S. also alleges that Union Pacific assumed a duty to provide security patrols for

this property. In support of this allegation, K.L.S. points to a March 24, 2010 e-mail

between Tauvar and an employee of Union Pacific, where he stated that he hoped Union

Pacific "won't mind keeping an eye out" for a certain known person that had been reported

to have trespassed on the railroad right-of-way to gain access to certain buildings on

Tauvar's property. Tauvar provided a vague description of the person and the vehicle that

person was alleged to be driving. There is nothing in the record to support an inference

that the person described in the e-mail was the person who assaulted K.L.S. Following

receipt of this e-mail, the Union Pacific employee sent an e-mail to the Union Pacific police

department asking "can we help him with some patrols near his property???" Based solely

on these two e-mails, K.L.S. argues that Union Pacific undertook a duty to provide security

patrols near Tauvar's property. Union Pacific, neither internally nor to Tauvar, agreed to

actually provide extra security patrols. No evidence was provided that the K.L.S. was made

aware of these emails or relied on them in anyway. Union Pacific never assumed a duty to

provide extra security patrols. See Hudson v. Riverport Performance Arts Centre, 37

S.W.3d 261, 266-67 (Mo. App. E.D. 2000) ("To establish a business assumed a duty to

protect their invitees against actions of third parties, there must be a showing that there was

an express assurance of safety to the invitee and the invitee relied on those assurances.");

Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 922 (Mo. App. W.D. 2004) (held that by only

                                              14
requesting a traffic impact study Hy-Vee did not assume a duty to implement the findings

of the study).

       Under these facts we find no duty owed by Union Pacific to K.L.S. to prevent her

from being criminally attacked by an unknown third party in a public alleyway, which was

not on or adjacent to any property owned by Union Pacific. Point One is affirmed.

                                          Point Two

       In her second point on appeal, K.L.S. argued that the trial court erred in failing to

strike the affidavits of Poteet and Whitaker or even rule on her motion to strike the

affidavits or motion for sanctions prior to ruling on the motion for summary judgment

because the affidavits did not comply with Rule 74.04. K.L.S. argues that the affidavits of

Poteet and Whitaker were false and/or misleading.

       After K.L.S. filed Plaintiffs' Motion to Strike Summary Judgment Affidavits, Union

Pacific filed a Suggestion in Opposition to her motion to strike. In the Suggestions, Union

Pacific withdrew and affirmatively stated that it did not, for purposes of its summary

judgment pleadings, "rely on Mr. Poteet's Affidavit testimony concerning [Union Pacific's]

'Highline', or 'Lowline' railroad tracks, the ballast under those tracks, those tracks' subgrade

and land underneath the ballast from 1992 when Mr. Poteet entered the [Union Pacific]

Claims Department to his retirement in September 2011." In the Suggestions, Union

Pacific also withdrew "any argument from its summary judgment pleadings or references

in Mr. Whitakers' Affidavit that any land was actually condemned in the action underlying

the Commissioners' Report." Union Pacific even filed a Motion to Limit the Scope of

Courts Review of its Two Pending Motions for Summary Judgment. In the Motion, Union

                                              15
Pacific "specifically withdraws from its Response/Reply to Plaintiffs' Additional Statement

of Materials [sic] Facts reliance upon the Affidavit of Roger Poteet or the Affidavit of

Steven Whittaker."

       As both Poteet and Whittaker's affidavits were withdrawn, there was nothing left

for the trial court to strike. The relief sought by K.L.S. was to have the affidavits stricken

and removed from the court's consideration in ruling on summary judgment. As a result

of Union Pacific withdrawing the affidavits and any argument relating to the affidavits,

K.L.S. received the relief she was seeking. K.L.S.'s motion to strike the affidavits became

moot when Union Pacific withdrew the affidavits and arguments relating to the affidavits

because a request is moot when the question presented for decision seeks a ruling upon an

issue which, if judgment were rendered, it would have no practical effect upon any existing

controversy. Kracman v. Ozark Elec. Co-Op., Inc., 816 S.W.2d 688, 690 (Mo. App. S.D.

1992). The trial court did not err in failing to rule on K.L.S.'s motion to strike as it was

moot. Further, the facts contained in the affidavits in question were unnecessary in the

court's ruling on the motion for summary judgment. Point Two is denied.

       We finally note that Union Pacific claims that this a frivolous appeal and sanctions

should be awarded. Rule 84.19 provides that "[i]f an appellate court shall determine that

an appeal is frivolous it may award damages to the respondent as the court shall deem just

and proper." "A frivolous appeal is one that presents no justiciable question and is so

readily recognizable as devoid of merit that there is little prospect that it can ever succeed."

Prenger v. Baumhoer, 939 S.W.2d 23, 28 (Mo. App. W.D. 1997). K.L.S.'s appeal was

compelling and supported by authority. Union Pacific's request for sanctions is denied.

                                              16
                                      Conclusion

      The trial courts judgment is affirmed.



                                         __________________________________
                                         Gary D. Witt, Judge

All concur




                                           17
