DONNA COWGUR v. JOEL MURPHY, JESSICA MURPHY, Defendants-Respondents JEFFERY SPROUS, LISA SPROUS and JOHN DOE REALTY

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
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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).
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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.
***
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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.
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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
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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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