                      In the Missouri Court of Appeals
                              Eastern District
                                            DIVISION THREE

MARK FLEDDERMANN,                )                           No. ED106905
                                 )
       Plaintiff/Appellant,      )                           Appeal from the Circuit Court
                                 )                           of the City of St. Louis
v.                               )
                                 )
CASINO ONE CORPORATION,          )                           Honorable Robert H. Dierker, Jr.
d/b/a LUMIERE PLACE HOTEL AND    )
CASINO and CAESARS INTERACTIVE )
ENTERTAINMENT, INC., d/b/a WORLD )
SERIES OF POKER,                 )
                                 )
       Defendants/Respondents.   )                           Filed: May 7, 2019

                                                 Introduction

            Mark Fleddermann (Appellant) appeals the trial court’s Order and Partial

Judgment granting summary judgment on Counts III and IV of his amended petition in

favor of Casino One Corporation d/b/a Lumiere Place Hotel and Casino and Caesars

Interactive Entertainment d/b/a World Series of Poker (collectively Respondents) on his

claims under the Missouri Merchandising Practices Act (MMPA). Because Appellant’s

brief is procedurally deficient, we grant Respondents’ motion to strike Appellant’s brief

and dismiss the appeal on the basis of Appellant’s failure to comply with Rule 84.04.1




1
    All Rule references are to Mo. R. Civ. P. 2018 unless otherwise indicated.
                            Factual and Procedural Background

          Appellant participated in a poker tournament at Lumiere Place Hotel and Casino

sponsored by the World Series of Poker. Appellant alleges to have entered a contractual

relationship with another individual prior to the tournament, where that individual was to

ultimately receive 100% of Appellant’s winnings. Appellant placed second in the

tournament, entitling him to approximately $7,000 in winnings. Appellant approached

the counter to collect his winnings and provided the cashier with IRS Form 5754, which

authorizes a casino to allocate the appropriate winnings to multiple individuals listed on

the form. The cashier refused to accept the Form 5754 and did not give Appellant his

winnings. Appellant later demanded payment through counsel and was informed the

tournament conditioned the payout on the nonuse of a Form 5754.

          Appellant filed a breach of contract claim and an MMPA claim against each of

the Respondents alleging violations of the MMPA for conditioning the payout of the

poker tournament on a form contrary to IRS regulations and law.

          Respondents filed motions for summary judgment, attaching both a Statement of

Uncontroverted Facts, consisting of separately numbered paragraphs supported by

references to exhibits for each material fact to which Respondents claimed there was no

genuine issue, and a Memorandum of Law, claiming “the total lack of existence of unfair

practices … renders Plaintiff without the necessary elements to succeed” on his MMPA

claims.

          Appellant filed responses to both Respondents’ motions for summary judgment.

The responses set forth each statement of fact in its original paragraph number and

thereunder attempted to either admit or deny each factual statement. Appellant admitted




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less than half of the asserted material facts. The other responses given by Appellant were

nonresponsive, stating additional facts beyond those in the paragraph and denying facts

not included in the paragraphs. Appellant did not file his own separate Statement of

Uncontroverted Material Facts, but rather included several paragraphs in his

memorandum in support of his motion under a heading labeled “Uncontroverted Facts.”

These facts were not laid out in numbered paragraph form, as required by Rule 74.04.

Appellant makes no mention of unfair practices, or of the MMPA, in his response.

       The trial court entered its Order and Partial Judgment after taking the

Respondents’ motions for summary judgment under advisement. The court granted

summary judgment for Respondents on the MMPA claims because conditioning the

payout on the nonuse of a Form 5754 did not rise to the level of an unfair practice. The

court denied summary judgment on the breach of contract claims.

       A trial was held on the remaining breach of contract claims. The trial court issued

judgment in Appellant’s favor on the breach of contract claims and required Respondents

to issue Appellant’s payout using the Form 5754. This timely appeal followed the entry

of the judgment.

                                      Points Relied On

       In Point I, Appellant claims the trial court erred in granting the motions for

summary judgment on issues which were neither raised nor argued in Respondents’

motions, but rather were raised and addressed sua sponte by the trial court, without

providing Appellant with an opportunity to respond in that Rule 74.04(c) provides the

procedure for the parties to follow and requires the trial court to issue its ruling on such

issues raised by the parties.




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        In Point II, Appellant alleges that even if the trial court were authorized to enter

its summary judgment dismissal on theories not raised in the motions for summary

judgment, the trial court erred in finding that Respondents’ actions do not “rise to the

level of offensive, unethical, oppressive or unscrupulous conduct that constitutes an

unfair practice,” in that such findings are findings of fact more properly reserved for the

jury.

                                         Discussion

        Respondents filed a motion to strike Appellant’s brief for failure to comply with

the requirements of Rule 84.04 and requested the appeal be dismissed. Specifically,

Respondents claim Appellant’s brief fails to comply with Rule 84.04(c). We agree.

        “The statement of facts shall be a fair and concise statement of the facts relevant

to the questions presented for determination without argument.” Rule 84.04(c). “The

primary purpose of the statement of facts is to afford an immediate, accurate, complete

and unbiased understanding of the facts of the case.” In re Marriage of Shumpert, 144

S.W.3d 317, 320 (Mo. App. E.D. 2004).

        The only ruling at issue in this appeal is the trial court’s ruling on Respondents’

motions for summary judgment. When a trial court adjudicates a “case on the basis of

summary judgment, the facts underlying the trial court’s decision were those established

pursuant to Rule 74.04(c)(1) and (2).” Wichita Falls Prod. Credit Ass’n v. Dismang, 78

S.W.3d 812, 815 (Mo. App. S.D. 2002). Therefore, in order for this Court to review

summary judgment, we must scrutinize the facts that were established pursuant to Rule

74.04. Id.




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        “Rule 74.04(b) allows a defending party to file a motion for summary judgment.”

Cross v. Drury Inns, Inc., 32 S.W.3d 632, 635 (Mo. App. E.D. 2000). A defendant, as the

movant, can establish a prima facie case for summary judgment by showing facts that

negate any element of a claimant’s cause of action. Chochorowski v. Home Depot

U.S.A., 404 S.W.3d 220, 225 (Mo. banc 2013).

       “Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-

paragraphs-and-responses framework.” Jones v. Union Pac. R.R. Co., 508 S.W.3d 159,

161 (Mo. App. S.D. 2016). The defendant/movant “shall state with particularity in

separately numbered paragraphs each material fact as to which the movant claims there is

no genuine issue, with specific references to the pleadings, discovery or affidavits that

demonstrate the lack of a genuine issue as to such facts.” Rule 74.04(c)(1). “Once the

moving party has made this prima facie showing, the burden shifts to the non-movant,

who ‘may not rest upon the mere allegations or denials of his pleading,’ but whose

response, ‘by affidavits or as otherwise provided in Rule 74.04, shall set forth specific

facts showing that there is a genuine issue for trial.’” Cross, 32 S.W.3d at 635, quoting

ITT Comm. Fin. Corp. v. Mid-America Marine Supply, Inc., 854 S.W.2d 371, 381 (Mo.

banc 1993) (emphasis in original).

       “Thus, when reviewing a summary judgment, we may only review the undisputed

material facts established by the process set forth in Rule 74.04(c); we do not review the

entire trial court record.” Alvis v. Morris, 520 S.W.3d 509, 512 (Mo. App. S.D. 2017)

(emphasis in original). “A statement of facts that does not identify: (1) the material facts

established by a party’s motion for summary judgment and the party opposing the motion

for summary judgment’s response, or (2) the material facts, if any, pled in the motion for




                                             5
summary judgment properly denied by the opposing party’s response, violates Rule

84.04(c).” Exec. Bd. Of Mo. Baptist Conv. v. Windermere Baptist Conf. Ctr., Inc., 430

S.W.3d 274, 284 (Mo. App. S.D. 2014).

       Appellant’s brief fails to set forth the material facts established by Rule

74.04(c)(1) and (2). Appellant’s statement of facts does not identify (1) the material facts

established by Respondents’ motions for summary judgment and Appellant’s responses

to the motions for summary judgment, or (2) the material facts pleaded in Respondents’

motions for summary judgment denied by Appellant’s responses.

       “Instead of setting forth an account of the facts that correspond to the factual

statements in the consecutively numbered paragraphs of Respondent’s [] motion for

summary judgment, the statement of facts in Appellants’ brief is simply a recitation of

the procedural history, which has been found insufficient for purposes of appellate

review.” Wichita Falls, 78 S.W.3d at 815–16; see also Washington v. Blackburn, 286

S.W.3d 818, 820 (Mo. App. E.D. 2009) (“Failure to include, in the statement of facts, the

facts upon which an appellant’s claim of error is based fails to preserve the contention for

appellate review … [and] constitutes grounds for dismissal of an appeal.”).

       As a result, we cannot determine from Appellant’s statement of facts what

material facts established by Rule 74.04(c) are in dispute and therefore against summary

judgment. Respondents address this in their brief and in a motion to dismiss Appellant’s

appeal. Appellant’s reply states because this case involves the issue of whether the court

can sua sponte raise facts outside of the summary judgment pleadings, he does not need

to present the relevant uncontroverted facts.




                                                6
       However, appellate review of the grant of summary judgment is de novo. ITT

Comm. Fin., 854W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment

is purely an issue of law. Ashford Condo., Inc. v. Horner & Shifrin, Inc., 328 S.W.3d

714, 717 (Mo. App. E.D. 2010). We will affirm the trial court’s judgment if it is

sustainable on any theory. Citibrook II, L.L.C. v. Morgan’s Foods of Missouri, Inc., 239

S.W.3d 631, 634 (Mo. App. E.D. 2007).

       Because summary judgment may be affirmed if sustainable on any basis, to

review whether it was error to grant summary judgment requires us to review the material

facts, disputed or uncontroverted, established by the process set forth in Rule 74.04. See

Pemiscot County Port Auth. v. Rail Switching Services, Inc., 523 S.W.3d 530, 534 (Mo.

App. S.D. 2017) (“To focus only on disputed facts presents an incomplete picture. We

must determine whether uncontroverted facts established via Rule 74.04(c) paragraphs

and responses demonstrate Port Authority's right to judgment regardless of other facts or

factual disputes.” (emphasis in original)).

       Appellant’s failure to properly present the relevant uncontroverted material facts

in his statement of facts “is fatal to his appeal because we ‘cannot sift through a

voluminous record, separating fact from conclusion, admissions from disputes, the

material from the immaterial, in an attempt to determine the basis for the motion without

impermissibly acting as advocates.’” Alvis, 520 S.W.3d at 512, quoting Lackey v. Iberia

R-V Sch. Dist., 487 S.W.3d 57, 62 (Mo. App. S.D. 2016).




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                                             Conclusion

        The appeal is dismissed.2


                                                             _


                                                    SHERRI B. SULLIVAN, P.J.

Kurt S. Odenwald, J., and
James M. Dowd, J., concur.




2
Appellant’s Motion for Attorney’s Fees on Appeal is denied; Appellant’s Motion for Sanctions is denied;
Respondent’s Motion for Attorney’s Fees is denied.


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