If you ever doubted the seriousness of the separately-numbered-paragraph requirement of Missouri Supreme Court Rule 74.04(c), Lackey v. Morris et al., No. SD33918 (Mo. Ct. App. filed February 16, 2016), puts to rest any doubts. In Lackey, the Missouri Court of Appeals for the Southern District confirmed prior case law that, contrary to common practice among lawyers and judges alike, a trial court’s review of summary judgment must not extend to the entire record before the trial court. Rather, the trial court’s review must be strictly limited to facts established through the movant’s supported statement of uncontroverted facts and the response. The trial court need not and should not wade through the record to determine the existence of a genuine issue of material fact. It is the parties’ obligation, not the trial court’s, to clearly identify the factual issues, and this must be done through the Rule 74.04(c) mechanism of separately-numbered paragraphs supported by specific references to the record. In fact, as Lackey demonstrates, summary judgment granted upon the basis of facts not found in a properly supported statement of uncontroverted material facts or the response will be reversed. 

In Lackey, the respondent learned this lesson the hard way. The trial court had granted summary judgment in favor of a school district and a teacher who were sued for negligence by a student who injured his wrist in gym class. The student appealed. The Court of Appeals affirmed the grant of summary judgment to the school district, agreeing with the trial court that the evidence presented by the student on summary judgment was not enough to establish waiver of sovereign immunity. 

But the outcome was different for the teacher. In support of his summary judgment motion, the teacher submitted a two-page statement of uncontroverted facts pursuant to Rule 74.04(c), but cited facts found outside of that document to establish his immunity defense. The Court of Appeals found that these facts were not part of the summary judgment record, and, therefore refused to consider them. Thus, based on the limited record submitted by the teacher, the Court found inadequate support for the teacher’s immunity defense, and reversed the trial court’s grant of summary judgment. 

The lesson for practitioners is clear: when filing a motion for summary judgment, open the rule book to Rule 74.04(c), and follow it explicitly.