                             Missouri Court of Appeals
                                        Southern District
                                           Division One


DONNA COWGUR,                                  )
                                               )
               Plaintiff-Appellant,            )
                                               )
vs.                                            ) Case No. SD35962
                                               )
JOEL MURPHY, JESSICA MURPHY,                   ) FILED: November 12, 2019
                                               )
               Defendants-Respondents,         )
                                               )
JEFFERY SPROUS, LISA SPROUS and                )
JOHN DOE REALTY,                               )
                                               )
               Defendants.                     )

               APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

                                  Honorable Michael M. Pritchett

AFFIRMED

       Donna Cowgur (“Plaintiff”) appeals the trial court’s judgment granting summary

judgment in favor of Joel and Jessica Murphy (“Defendants”) on her claim for personal injuries

she sustained as a result of a fall after stepping in a hole in the ground (“the hole”) on property

owned by Defendants and leased to third parties. Determining there is no genuine dispute that

Defendants had no knowledge of existence of the hole, we affirm the trial court’s judgment.




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                              Factual and Procedural Background

       Plaintiff was injured when she stepped into the hole with her right leg on property owned

by Defendants and rented to Jeffery and Lisa Sprous on March 19, 2011. Defendants owned the

property from 2002 until 2012. Defendants had lived on the property from 2002 until sometime

in 2008. The property was rented to Paul Strozyk after Defendants moved out until early 2009.

The property was thereafter rented to Jeffery Sprous and Lisa Sprous on August 1, 2009,

pursuant to a written lease (the “lease”). Mr. and Mrs. Sprous lived on the property until

sometime in 2011 after Plaintiff’s injury.

       Plaintiff filed this action seeking to recover damages for her personal injuries from

Defendants alleging that Defendants were careless and negligent in that they “should have

known that the hole existed on the property that was concealed by grass and Defendants failed to

designate the hole as being a dangerous condition, or to fill the hole so it would no longer exist.”

The Defendants filed a motion for summary judgment asserting that they were entitled to

judgment as a matter of law because “there is no evidence that the [Defendants] knew of the

existence” of the hole. The trial court granted Defendants’ motion for summary judgment and,

accordingly, entered its judgment in their favor and against Plaintiff on her claim. Plaintiff

timely appeals the trial court’s judgment.

        Standard of Review and Legal Principles Applicable to Summary Judgment

       A review of a trial court’s decision granting summary judgment is reviewed de novo.

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

1993). If the movant is entitled to judgment as a matter of law and no genuine issue of material

facts exists, the trial court’s decision will be affirmed. Id. at 377. “A ‘genuine issue’ is a dispute

that is real, not merely argumentative, imaginary or frivolous.” Hargis v. JLB Corp., 357

S.W.3d 574, 577 (Mo. banc 2011) (quoting ITT Commercial Fin., 854 S.W.2d at 382). “The

                                                  2
record is viewed in the light most favorable to the non-moving party, according that party all

reasonable inferences that may be drawn from the record.” Eisenberg v. Redd, 38 S.W.3d 409,

410 (Mo. banc 2001) (citing ITT Commercial Fin., 854 S.W.2d at 376).

           “Facts come into a summary judgment record only per Rule 74.04(c)(1) and (2), that is, in

the form of a pleading containing separately numbered paragraphs and a response addressed to

those numbered paragraphs.” Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 60–61 (Mo.App.

2016) (internal quotation marks omitted). “A trial court grants or denies summary judgment

based on facts established by the summary judgment motion and responses thereto; our review is

confined to the same facts and does not extend to the entire record before the trial court.” Id. at

60.

           On appeal, the criteria for determining if summary judgment was proper is “no different

from those which should be employed by the trial court to determine the propriety of sustaining

the motion initially.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. “As the trial court’s

judgment is founded on the record submitted and the law, an appellate court need not defer to the

trial court’s order granting summary judgment.” Id. Our de novo review, however, does not

grant an appellant license to craft arguments on appeal free from the constraints of Rule 74.04. 1

Great S. Bank v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 836 (Mo.App. 2016).

           None of Plaintiff’s four points on appeal challenge Defendants’ Rule 74.04 prima facie

showing of a right to summary judgment as the summary judgment movant and defending party

on Plaintiff’s claim. See id. at 828-29 (discussing Rule 74.04 requirements for prima facie

showing). Once Defendants made their prima facie showing, the burden shifted to Plaintiff, as

the summary judgment non-movant, to show that one or more of the material facts shown by the



1
    All rule references are to Missouri Court Rules (2019).

                                                              3
Defendants to be above any genuine dispute is, in fact, genuinely disputed. Id. at 829 (citing

ITT Commercial Fin. Corp., 854 S.W.2d at 381).

       To put a fact in genuine dispute, the non-movant may not rely on a general denial,
       but, instead, must support that denial with specific references to the discovery,
       exhibits or affidavits that demonstrate the specific facts showing that there is a
       genuine issue for trial. A genuine issue that will prevent summary judgment
       exists where the record shows two plausible but contradictory accounts of the
       essential facts.

Id. at 829 (quotation marks and internal citations omitted).

                                             Discussion

       In accordance with the above principles, Plaintiff’s points assert the existence of genuine

disputes as to three of Defendants’ summary judgment material facts that each purport to negate

one of Plaintiff’s elements facts. See id. (quoting ITT Commercial Fin. Corp., 854 S.W.2d at

381) (right to summary judgment is established where defending party shows facts that negate

any one of the claimant’s elements facts). Plaintiff’s failure to show the existence of a genuine

dispute as to any one of the challenged material facts, therefore, is fatal to her claim and

dispositive of this appeal.

       In her first point, Plaintiff claims a genuine issue exists “as to whether or not the

[D]efendants had or should have had knowledge of the hole in the yard[.]” We disagree.

       For each material fact the non-movant claims is genuinely disputed and therefore
       defeats the movant’s prima facie showing of a right to judgment, the non-movant
       must direct the trial court to a particular numbered paragraph in movant’s
       statement of uncontroverted material facts that is denied in the non-movant’s
       response. The trial court then considers the movant’s specific references in that
       numbered paragraph to the pleadings, discovery, exhibits, or affidavits attached to
       the movant’s statement supporting the existence of that material fact, see Rule
       74.04(c)(1); considers the non-movant’s specific references to the discovery,
       exhibits, or affidavits attached to the response supporting the non-movant’s denial
       of that material fact, see Rule 74.04(c)(2); and then compares the two sets of
       specifically referenced evidence to ascertain the existence of a genuine issue as to
       that particular numbered paragraph material fact. Rule 74.04 does not authorize
       the trial court to consider any other evidence as to whether a genuine issue exists
       as to that particular numbered paragraph material fact.

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        Our de novo standard of review means that we look at the summary judgment
        issues presented on appeal as the trial court should have initially under Rule
        74.04, and we give no deference to the trial court’s ruling. ITT Commercial Fin.
        Corp., 854 S.W.2d at 376. Therefore, a relevant, cogent, and logical argument on
        appeal that a genuine issue exists as to a particular material fact must necessarily
        track the Rule 74.04 requirements in the same manner as discussed in the
        preceding paragraph as applicable to the trial court.

Great S. Bank, 497 S.W.3d at 834.

        Numbered-paragraph 8 in Defendants’ statement of uncontroverted material facts asserts

that “[Defendants] did not know of the existence of the hole at any time until well after the

[P]laintiff’s injury. [Affidavits of Joel Murphy and Jessica Murphy.]” Plaintiff’s response to

numbered-paragraph 8, in relevant part, is

        DENIED. The lease gave them the right to do [sic] inspect the premises. ([Lease]
        para. 16). They also testified that they had placed the property for sale in 2008
        and that a for sale sign was placed on the property (Depo. J. Murphy 6-7) which
        could have led to a hole being placed on the property.

        Each of Defendants’ affidavits as cited and relied upon by Defendants in support of this

numbered-paragraph recites that “I did not know of the existence of this hole at any time until

well after [Plaintiff’s] injury.”

        As cited and relied upon by Plaintiff in her denial, paragraph 16 of the lease provides

        16. RIGHT OF INSPECTION.

        Landlord and Landlord’s agents shall have the right at all reasonable times during
        the term of this Lease and any renewal of this Lease to enter the House for the
        purpose of inspecting the premises and/or making any repairs to the premises or
        other item as required under this Lease.

Also, the relevant testimony from pages 6 and 7 of Joel Murphy’s deposition provides

        Q       And prior to renting to the Sprouses, had you had the house listed for sale?

        A       Yeah. We did have it listed for sale. When was that? 2008, I believe.

        ***




                                                 5
        Q       Do you know whether there was ever a for sale sign in that yard prior to
        the accident that we’re talking about here today?

        A        Yeah. There certainly was a for sale sign in the yard at some point.

        Citing to and relying upon Reckert v. Roco Petroleum Corp., 411 S.W.2d 199 (Mo.

1966), Plaintiff contends that her asserted evidence supporting her denial of numbered-paragraph

8 creates a genuine issue as to Defendants’ knowledge of the existence of the hole because it

gives rise to “a reasonable inference that [Defendants] knew or at least should have known by

using ordinary care that there was a hole in the yard.” Reckert instructs that

        [t]he general rule is that the landlord is not liable to the tenant or to those on the
        premises under the tenant’s title for injuries caused by a dangerous condition,
        whether natural or artificial, which existed at the time the tenant took possession
        under the lease. This general rule is subject to an exception where at the time the
        lease is executed there is a dangerous condition of the premises involving
        unreasonable risk of physical harm to persons on the premises, which is known to
        the landlord and not known to the tenant and not discoverable by the tenant in the
        exercise of ordinary care. In such case there is a duty on the landlord to disclose
        to the tenant the existence of the dangerous condition and he is liable to the tenant
        or the tenant’s invitees for injuries or death resulting from such condition if the
        landlord fails to disclose them to the tenant or conceals their presence from the
        tenant.

        Actual knowledge on the part of the landlord of the dangerous condition is not
        necessary to make a case under this exception. It is sufficient that the landlord had
        knowledge of facts from which he ought to have known, or will be presumed to
        have known, of the defect, or… that the landlord knows or has reason to know of
        the condition, and realizes or should realize the risk involved, and has reason to
        expect that the lessee will not discover the condition or realize the risk. The rule
        is thus stated… [t]he landlord, as a rule, need not, before leasing the premises,
        look for defects therein. But if he has knowledge of facts that would lead a
        reasonable man to suspect that defects actually exist, he should disclose such facts
        to the prospective tenant. If he fails to do so he will be charged with knowledge
        of what a reasonable inspection would have disclosed. To impose any further
        obligation upon him would render him to a great extent an insurer against
        concealed defects and dangers. On the other hand he cannot… close his eyes to
        facts that would lead reasonable men to act.[ 2] … [I]t is enough that the landlord


2
  The reported opinion has the word “not” immediately following the word “cannot” in this sentence. Considering
the context provided by the immediately preceding sentence and the use of the phrase “On the other hand” to begin
this sentence, it appears that the repeated “not” is extraneous and included in error.

                                                        6
        is informed of facts from which a reasonable man would conclude that there is
        danger.

Id. at 205 (internal citations and quotation marks omitted).

        Contrary to Plaintiff’s unsupported assertion otherwise, neither the right to inspect in the

lease nor the referenced deposition testimony, either individually or considered together, give

rise to any inference, much less a reasonable inference, that Defendants had actual knowledge of

the existence of the hole. Rather, Plaintiff limits her argument under this point to her assertion

that her evidence gives rise to a reasonable inference that Defendants had constructive

knowledge of the existence of the hole, i.e. they should have known of the existence of the hole.

It does not.

        First, the right to inspect in the lease does not impose any obligation upon Defendants to

do so. The mere existence of that right to inspect, therefore, cannot and does not give rise to any

inference that Defendants exercised that right and actually inspected the property at any time

during the lease term before Plaintiff was injured or that, even if so exercised, the Defendants

acquired any information that would lead a reasonable person to suspect the existence of the

hole. Any purported attempt to draw such inferences would not be based upon reason and logic,

but rather, would be based solely upon rank speculation and imagination.

        Second, the deposition testimony relied upon by Plaintiff directly supports that

Defendants listed the property for sale in 2008 and that “at some point” there “was a for sale sign

in the yard.” Perhaps inferences could be drawn from this testimony that such a sign was placed

in the yard in 2008 and that the placement of that sign created some type of hole in the ground

someplace in the yard. Assuming, without deciding, that those inferences are reasonable,

however, they do not give rise to any reasonable inference that any hole made by the placement

of the sign in 2008 was the hole Plaintiff stepped in three years later in 2011. Any purported


                                                  7
attempt to infer a correlation between the location, size, or depth of the two holes would not be

based upon reason and logic, but rather, would be based solely upon rank speculation and

imagination.

        Finally, the right to inspect and the deposition testimony when considered together do not

combine in any manner to create any inferences as to Defendants’ constructive knowledge at any

particular time because each is directed toward different non-overlapping periods. The right to

inspect first came into existence on the effective date of the lease on August 1, 2009. The

deposition testimony, however, related to events occurring, at best, in 2008.

        For the above reasons, Plaintiff has failed to demonstrate how her cited evidence in her

denial of numbered-paragraph 8 gives rise to a reasonable inference, see Eisenberg, 38 S.W.3d

at 410, that Defendants had actual or constructive knowledge of the existence of the hole at any

relevant time. Accordingly, Plaintiff has failed to demonstrate the existence of a genuine issue,

see Hargis v. JLB Corp., 357 S.W.3d at 577, as to Defendants’ lack of such knowledge.

Plaintiff’s first point is denied.

                                              Decision

        Because our denial of Plaintiff’s first point is dispositive of this appeal, as previously

discussed, the trial court’s judgment is affirmed.



GARY W. LYNCH, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – Concurs

WILLIAM W. FRANCIS, JR., J. – Concurs




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