Columbia Mutual Insurance Co. v. Heriford , 2017 Mo. App. LEXIS 253 ( 2017 )

DANIEL E, SCOTT, J.,

concurring in part and dissenting in part

I cannot join the majority opinion in one respect: I am skeptical that Rule 74.04 and ease law effectively limit SUMFs to perhaps six facts or fewer (e.g., MAI verdict-director elements), and that any larger SUMF likely imperils a summary judgment claim on technical grounds.¹

I agree that these parties over did their SUMFs, which we commonly see in summary judgment appeals, frequently worse than here, and backfiring more often than not. I also agree that bloated SUMFs create undue difficulties for opponents, trial judges,² and appellate courts on review. Thus I credit the majority for again alerting the bar to this problem and trying to work toward a much needed solution.

Yet I cannot find that Rule 74.04 and case law limit SUMFs as severely as the principal opinion indicates at footnote 6 and its accompanying text.³ Our supreme court has considered over 100 summary judgment cases since ITT by my count, but I cannot find any in which our high court has suggested such stringent SUMF restrictions, let alone that Rule 74.04 or developed case law demands such limitations.

In all other respects, I concur in the principal opinion.

1 . As at least suggested by the principal opinion's footnote 6 and accompanying text.

2 . To quote one experienced Missouri trial judge:

Look carefully the next time that you appear before me and announce that you are present to argue your motion for summary judgment: I may be turning white. That is because it is my too frequent experience that when a summary judgment is presented, I am given a massive set of papers setting forth scores of putative facts, myriad references to the record, and case citations galore, but without anywhere a clear statement of the ground or grounds upon which the motion is based. I know that I have a lot of work ahead, and I suspect that you have made my work much more difficult than it needs to be.

Julian Bush, How to Write a Motion for Summary Judgment, 63 J. Mo. Bar 68, 68 (2007).

3 . Or, for that matter, as Judge Bush similarly asserts. See 63 J. Mo. Bar at 69-70.