WILLARD SCHNURBUSCH and CAROL SCHNURBUSCH v. WEST PLAINS REGIONAL ANIMAL SHELTER, Defendant-Respondent ( 2019 )

Missouri Court of Appeals
Southern District
Division One
WILLARD SCHNURBUSCH and )
CAROL SCHNURBUSCH, )
)
Plaintiffs-Appellants, )
)
vs. ) No. SD35385
)
WEST PLAINS REGIONAL ANIMAL ) Filed January 22, 2019
SHELTER, )
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY
Honorable Michael J. Ligons
AFFIRMED
Willard Schnurbusch and Carol Schnurbusch (“the Schnurbusches”) appeal pro se 1 from
the trial court’s summary judgment in favor of West Plains Regional Animal Shelter (“the
Shelter”). They raise eleven points on appeal, which either fail to present a cognizable basis
upon which to reverse the trial court’s judgment or fail to demonstrate reversible error. Because
the trial court’s judgment is presumed correct and the Schnurbusches failed in their burden to
1
This is not the Schnurbusches’ first appeal before this court. As such, they should know already that “[p]ro se
appellants are held to the same standards as are attorneys.” Kieffer v. Gianino, 301 S.W.3d 119, 121 (Mo. App.
2010).
1
demonstrate otherwise, see Ford Motor Credit Co. LLC v. Harris, 386 S.W.3d 864, 866
(Mo.App. 2012), we affirm. 2
Background 3
In 2006, the Schnurbusches and Schnurbusch Land Services, Inc., filed a four-count
petition against the City of West Plains (“the City”) and the Shelter in Case No. 09PU-CV00849.
Count I of the petition alleged that the Shelter was violating the City’s zoning laws, and that the
City was failing to enforce the zoning laws against the Shelter; Count II alleged that the Shelter
was causing a nuisance to the Schnurbusches; Count III requested the court declare the validity
of “amended zoning ordinance No. 4080”; and Count IV alleged that the City failed to enforce
its municipal code and ordinances against the Shelter, and requested punitive damages. Counts II
and IV were dismissed by the trial court. Following trial on Counts I and III, the trial court
entered its judgment in favor of the City and the Shelter on both counts.
The Schnurbusches appealed the trial court’s judgment, and this court affirmed the
judgment by a memorandum decision. See Schnurbusch v. City of West Plains, Missouri,
SD31107 (Mo.App. Jan. 23, 2012) (“Schnurbusch I”).
On January 17, 2012, the Schnurbusches filed a pro se four-count petition against the
Shelter in Case No. 12AL-CC00006. The petition contained similar allegations to those in
Schnurbusch I.
In their responsive pleadings, the Shelter counterclaimed against the Schnurbusches,
accusing them of, inter alia, malicious prosecution for the filing and prosecution of
2
The Shelter filed a motion to dismiss the Schnurbusches’ appeal, citing various Rule 84.04 briefing violations
concerning the Schnurbusches’ points relied on. We generally agree with the Shelter that the Schnurbusches’ points
relied on run afoul of Rule 84.04 in several respects, some of which we address in greater detail, infra. However, to
the extent we possibly can discern the Schnurbusches’ arguments, we will do so ex gratia. The Shelter’s motion to
dismiss is denied. All rule references are to Missouri Court Rules 2018.
3
Portions of the background section of this opinion are adopted from Schnurbusch v. West Plains Reg’l Animal
Shelter, 507 S.W.3d 675 (Mo.App. 2017), without further attribution.
2
Schnurbusch I (Count I) and for the filing and pursuit of the instant action (Count II). The
Shelter also filed a motion to dismiss the Schnurbusches’ petition, arguing that the petition
“fail[ed] to state a claim in that said suit violates the doctrine of res judicata, the rule against
splitting causes of action[,] and collateral estoppel[.]” The trial court granted the motion to
dismiss, and the case then proceeded on the Shelter’s counterclaims. Ultimately, the trial court
granted summary judgment in favor of the Shelter on Counts I and II, assessing damages of
$45,112.50 and $15,268.75, respectively.
The Schnurbusches appealed. In Schnurbusch v. West Plains Reg’l Animal Shelter, 507
S.W.3d 675 (Mo.App. 2017) (“Schnurbusch II”), this court concluded that, because of its
reliance on extrinsic materials, the Shelter’s motion to dismiss should have been converted into a
motion for summary judgment. Because the procedural strictures of Rule 74.04 had not been
followed, we reversed and remanded the trial court’s judgment dismissing the Schnurbusches’
petition. The trial court’s judgment was affirmed in all other respects.
On remand, both the Shelter and the Schnurbusches moved for summary judgment and
filed statements of uncontroverted material facts. In its memorandum of law in support of its
motion, the Shelter argued that there is no genuine dispute of material fact that the
Schnurbusches’ claims in this case are the same as those in Schnurbusch I and that, as matter of
law, the petition is barred by res judicata. The trial court agreed, granting the Shelter’s motion
for summary judgment, denying the Schnurbusches’ motion for summary judgment, and entering
judgment accordingly. The Schnurbusches timely appeal.
Discussion
Applicable Principles of Review Regarding Rule 84.04 Violations
The Schnurbusches’ points relied on violate Rule 84.04 in multiple respects. We identify
some of the more egregious violations on a point-by-point basis. To avoid any unnecessary
3
repetition, infra, we list at the outset of this discussion some relevant tenets regarding Rule
84.04’s briefing requirements.
As the Eastern District of our court has observed,
Rule 84.04 provides the requirements for appellate briefs . . . .
Compliance with the briefing requirements of Rule 84.04 is mandatory, and a
brief that fails to comply with Rule 84.04 preserves nothing for appellate review.
Compliance with the rule is required in order that the appellant may give notice to
the party opponent of the precise matters which must be contended with and
answered. Compliance is also mandatory so that unnecessary burdens are not
imposed on the appellate court and to ensure that appellate courts do not become
advocates for the appellant by speculating facts and arguments that have not been
made.
Osthus v. Countrylane Woods II Homeowners Ass'n, 389 S.W.3d 712, 714–15 (Mo.App. 2012)
(internal citations and quotation marks omitted). “It is not the function of the appellate court to
serve as advocate for any party to an appeal.” Thummel v. King, 570 S.W.2d 679, 686 (Mo.
banc 1978). “As such, we have no duty to search the transcript or record to discover the facts
which substantiate a point on appeal.” Wilson v. Carnahan, 25 S.W.3d 664, 667 (Mo.App.
2000). “That is the duty of the parties, not the function of an appellate court.” Nell v. Fern–
Thatcher Co., 952 S.W.2d 749, 755 (Mo.App. 1997).
Points One and Two
Both the Schnurbusches’ first and second points challenge the authority of individuals
who acted on behalf of the Shelter during the course of the underlying legal proceedings. In
numerical order, those two points contend as follows:
THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS
REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION IN
CASE NO. 12AL-CC00006 THAT AUTHORIZED GEORGE CHRYSLER
FISHER, JR. TO PRESENT AND/ OR FILE DOCUMENTS AND/ OR
APPEAR AT HEARINGS ON BEHALF OF WEST PLAINS REGIONAL
ANIMAL SHELTER FROM FEBRUARY 23, 2012 TO AUGUST 8, 2017,
BECAUSE WEST PLAINS REGIONAL ANIMAL SHELTER IS A NOT FOR
PROFIT CORPORATION, REQUIRED BY MISSOURI STATUTES 355.116
355.118 355.376 355.431 TO HAVE BYLAWS AND PER THE BYLAWS
4
ESTABLISHED FOR THE ENTITY, NO INDIVUDUAL IS ALLOWED TO
ACT ON BEHALF OF THE ENTITY WITHOUT APPROVAL OF THE
DIRECTORS OF WEST PLAINS REGIONAL ANIMAL SHELTER AND NO
SUCH APPROVAL HAS BEEN PRESENTED DURING THE ENTIRE TIME
OF CASE NO. 12AL - CC00006, FILED ON JANUARY 17, 2012, WAS
BEING PROCESSED, THAT GEORGE CHRYSLER FISHER WAS
OFFICIALLY AUTHORIZED BY DIRECTORS OF WEST PLAINS
REGIONAL ANIMAL SHELTER TO ACT AS REPRESENATIVE OF THE
ENTITY TO MAKE ANY RESPONSIVE PLEADING. THEREFORE
LACKING A PROPERLY SUBMITTED RESPONSIVE PLEADING, THE
TRIAL COURT LACKED PERSONAL JURISDICTION OVER WEST
PLAINS REGIONAL ANIMAL SHELTER TO GRANT ANYTHING, AT ANY
TIME, TO WEST PLAINS REGIONAL ANIMAL SHELTER.
***
THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS
REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION FROM
DIRECTORS DURING CASE NO. 12AL - CC00006 TO AUTHORIZE
DENNIS HAMMEN TO SIGN, OR PREPARE, OR FILE DOCUEMENTS ON
BEHALF OF WEST PLAINS REGIONAL ANIMAL SHELTER FROM
FEBRUARY 24, 2012 TO NOVEMBER 2, 2015. LACKING ANY
DOCUMENTATION THAT DENNIS HAMMEN WAS APPROVED, OR
AUTHORIZED BY OFFICERS AND DIRECTORS OF WEST PLAINS
REGIONAL ANIMAL SHELTER IN ANY METHOD, TO ACT AS
REPRESENATIVE OF THE ENTITY IN ANY DOCUMENT SIGNED BY
DENNIS HAMMEN IN ANY NAMED CAPICITY, IT MUST BE
DETERMINED THAT WEST PLAINS REGIONAL ANIMAL SHELTER
LACKED STANDING TO PRESENT ANY DOCUMENTS IN CASE NO.
12AL - CC00006.
Both of these points fail because they are barred by the law-of-the-case doctrine.
As explained by our supreme court,
The doctrine of law of the case provides that a previous holding in a case
constitutes the law of the case and preludes relitigation of the issue on remand and
subsequent appeal. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000);
Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo. banc 1999). The
doctrine governs successive adjudications involving the same issues and facts.
Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999). Generally, the
decision of a court is the law of the case for all points presented and decided, as
well as for matters that arose prior to the first adjudication and might have been
raised but were not. Graham, 13 S.W.3d at 293; Shahan, 988 S.W.2d at 533.
5
Walton v. City of Berkeley, 223 S.W.3d 126, 128–29 (Mo. banc 2007). 4
Here, points 1 and 2 reference George Chrysler Fisher and Dennis Hammen, respectively,
and challenge their involvement in this case going as far back as the filing of the Shelter’s
pleadings in 2012. The Shelter argues that the law-of-the-case doctrine applies to both of these
claims because they were raised before and ultimately denied by this court in Schnurbusch II.
We need not address, however, whether these claims were raised in Schnurbusch II. Even if we
assume without deciding that these claims were not raised in Schnurbusch II, the complained-of
conduct was occurring before that appeal and, hence, the claims could have been raised in that
appeal. In either event, the law-of-the-case doctrine precludes the Schnurbusches from asserting
these issues in this appeal. See id. For these reasons, the Schnurbusches’ first and second points
are denied. 5
Points Three, Four, Five, Six, and Seven
Standard of Review and Applicable Legal Principles Related to Summary Judgment
Our review of a trial court’s grant of summary judgment is essentially de novo, and we
view the record in the light most favorable to the party against whom judgment was entered.
ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993).
4
In Walton, our supreme court further recognized the following exceptions, none of which are raised by the
Schnurbusches on appeal:
The doctrine of law of the case, however, is not absolute. Rather, the doctrine is a rule of policy
and convenience; a concept that involves discretion. An appellate court has discretion to refuse to
apply the doctrine where the first decision was based on a mistaken fact or resulted in manifest
injustice or where a change in the law intervened between the appeals. Additionally, where the
issues or evidence on remand are substantially different from those vital to the first adjudication
and judgment, the rule may not apply.
223 S.W.3d at130 (internal citations omitted).
5
Moreover, the Schnurbusches have also failed to demonstrate that they raised the above claims before the trial
court and, therefore, have failed to preserve them for appellate review. See section 512.160.1; Rule 84.13.
6
As the defending party to the claims in the Schnurbusches’ petition, summary judgment
is established where the Shelter shows:
(1) facts that negate any one of the claimant's elements facts, (2) that the non-
movant, after an adequate period of discovery, has not been able to produce, and
will not be able to produce, evidence sufficient to allow the trier of fact to find the
existence of any one of the claimant's elements, or (3) that there is no genuine
dispute as to the existence of each of the facts necessary to support the movant's
properly-pleaded affirmative defenses.
Id. at 381.
Once the Shelter has made “a prima facie showing that there are no genuine issues of
material fact and that movant is entitled to judgment as a matter of law,” the burden shifts to the
Schnurbusches, the non-movants, to show that one or more of the material facts shown by the
Shelter not to be in dispute, is actually genuinely disputed. Id. They “may not rest upon the
allegations and denials of the pleadings, but rather must use affidavits, depositions, answers to
interrogatories, or admissions on file to show the existence of a genuine issue for trial.” Crow v.
Crawford & Co., 259 S.W.3d 104, 113 (Mo.App. 2008).
Point Three
The Schnurbusches’ third point contends:
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES
JUDICATA OR CLAIMS SPLITTING IN THAT DEFENDANT /
RESPONDENT DID NOT PROPERLY PLEAD ANY AFFIRMATIVE
DEFENSE ( S) ( SPECIFICALLY RES JUDICATA OR CLAIMS SPLITTING )
BY NOT ACTUALLY NAMEING SAID AFFIRMATIVE DEFENSES AND
BY NOT STATING FACTS IN SUPPORT TO ALLOW SUCH CLAIMS
STATED IN A MOTION FOR SUMMARY JUDGMENT AND ALSO
DEFENDANT / RESPONDENT DID NOT SHOW THAT THE MOVANTS
HAD A RIGHT TO JUDGMENT AS A MATTER OF LAW SUFFICIENT TO
ALLOW THE COURT TO GRANT THE MOTION IN FAVOR OF THE
MOVANTS[.]
7
This point does not take issue with any material fact raised by the Shelter’s motion for summary
judgment. The crux of the point, rather, is whether, as a matter of law, the Shelter’s pleading
was sufficient to raise, i.e., properly plead, the affirmative defense of res judicata.
“Res judicata is an affirmative defense” Patrick V. Koepke Constr., Inc. v. Woodsage
Constr. Co., 119 S.W.3d 551, 555 (Mo.App. 2003); see also Rule 55.08. It “operates as a bar to
the reassertion of a cause of action that has been previously adjudicated in a proceeding between
the same parties or those in privity with them.” Lauber–Clayton, L.L.C. v. Novus Props. Co.,
407 S.W.3d 612, 618 (Mo.App. 2013).
“In pleading to a preceding pleading, a party shall set forth all applicable affirmative
defenses and avoidances[.]” Rule 55.08. “A pleading that sets forth an affirmative defense or
avoidance shall contain a short and plain statement of the facts showing that the pleader is
entitled to the defense or avoidance.” Id.
Here, as acknowledged and conceded by the Schnurbusches in their argument, the
Shelter’s responsive pleadings included the following language in response to each of the
Schnurbusches’ claims:
By way of further answer, Defendant affirmatively asserts pursuant to
Rule 55.06 that Plaintiffs have failed to state a claim upon which relief may be
granted in that Plaintiffs’ claims either have been or could have been finally
adjudicated in the case styled Schnurbusch, et al. v. City of West Plains and West
Plains Regional Animal Shelter, Case No. 09PU-CV00849 (Pulaski County),
appeal denied by written memorandum in Appeal No. SD31107 with mandate
filed January 20, 2012.
This language, the Schnurbusches assert, violates Rule 55.08 and, therefore, is not a properly
pleaded defense because (1) it does not explicitly refer to the defense of “res judicata” and (2) it
does not include “a short and plain statement of the facts” that support res judicata. Both
arguments are without merit.
8
The Schnurbusches’ first argument fails because they cite us to no legal authority, and we
are aware of none, supporting their assertion that the words “res judicata” must be used in a
pleading in order to properly invoke the claim preclusion defense.
Their second argument fails because it is refuted by the record. As noted above, the
Shelter alleged in response to each particular claim contained in each count of the
Schnurbusches’ petition that the particular claim asserted in that count was or could have been
adjudicated in Schnurbusch I. This is a short and plain allegation of facts that corresponds with
the legal definition of res judicata, in that it alleges that the particular cause of action asserted in
that count had been previously adjudicated in a specifically identified prior proceeding between
the same parties. See Lauber–Clayton, L.L.C., 407 S.W.3d at 618. The Shelter’s responsive
pleading alleged sufficient facts to raise and, therefore, properly plead the affirmative defense of
res judicata. 6 The Schnurbusches’ third point is denied.
Points Four, Five, Six, and Seven
We address the Schnurbusches’ fourth, fifth, sixth, and seventh points together, which, in
numerical order, contend as follows:
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES
JUDICATA OR CLAIMS SPLITTING IN THAT IN THERE WAS NOT ANY
ISSUE INVOLVING WEST PLAINS REGIONAL ANIMAL SHELTER MADE
FINAL OR ADJUDICATED IN CASE 09PU - CV00849 IN THE PULASKI
COUNTY CIRCUIT COURT AND WITHOUT ANY PRIOR ADJUDICATION,
THERE CANNOT BE ANY RES JUDICATA OR CLAIMS SPLITTING
RECORD TO REFER TO IN CASE NO. 12AL - CC00006.
***
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES
6
If these pleaded facts lacked sufficient definiteness or particularity to enable the Schnurbusches to prepare
generally for trial, they could have filed a Rule 55.27(d) motion for a more definite statement. Nothing in the record
on appeal indicates that the Schnurbusches filed such a motion.
9
JUDICATA OR CLAIMS SPLITTING IN THAT THERE WAS NOT ANY
ISSUE INVOLVING WEST PLAINS REGIONAL ANIMAL SHELTER MADE
FINAL OR ADJUDICATED IN CASE 09PU – CV00849 IN THE PULASKI
COUNTY CIRCUIT COURT BECAUSE ALL ISSUES PERTAINING TO
WEST PLAINS REGIONAL ANIMAL SHELTER WERE DISMISSED
WITHOUT PREJUDICE AND THEREFORE NOTHING WAS
ADJUDICATED.
***
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES
JUDICATA OR CLAIMS SPLITTING, IF ANY RELIANCE WAS GIVEN BY
THE TRIAL COURT TO A DOCUMENT TITLED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND JUDGMENT DATED DECEMBER 9, 2010 IN
CASE 09PU - CV00849 IN THE PULASKI COUNTY CIRCUIT COURT,
BECAUSE MANY OF THE FACTS CITED IN A DOCUMENT TITLED
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT DATED
DECEMBER 9, 2010 IN CASE 09PU-CV00849 IN THE PULASKI COUNTY
CIRCUIT COURT ARE NOT SUPPORTED BY VARIOUS RECORDS FROM
CASE O9PU - CV00849 AND INACCURACIES REGARDING ISSUES
PERTAINING TO WEST PLAINS REGIONAL ANIMAL SHELTER CANNOT
SUPPORT ANY CLAIMS OF ANY PRIOR ADJUDICATION BASED ON
THE DECEMBER 9, 2010 DOCUMENT TITLED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND JUDGMENT.
***
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT THAT APPEARS TO BE BASED ON THE THEORY OF RES
JUDICATA OR CLAIMS SPLITTING, BECAUSE THE PETITION IN CASE
NO. 12AL-CC00006 AND FILED ON JANUARY 17, 2012 WAS BASED
ENTIRELY ON TEMPORARY OR ABATABLE CONDITIONS WHICH
CONTINUE ON AN ONGOING BASIS, MEANING THE ACTS, ACTIONS,
OR EVENTS CONTINUE BY THE MINUTE, HOUR, DAILY AND WEEKLY
AS LONG AS THAT SAME ACTIVITY OR EVENT CONTINUES TO
CONSTANTLY OCCUR THEREFORE RES JUDICATA OR CLAIMS
SPLITTING COULD NOT AND CANNOT APPLY TO A TEMPORARY OR
ABATABLE ACT, OR ACTION, OR EVENT. [AB 28, 36-37, 58-59, 64].
These four points fail as they, and their supporting arguments, do not conform to the procedural
requirements of Rule 74.04.
As this court has explained, the procedural requirements of Rule 74.04 involve the
following analytical sequence:
10
• A motion for summary judgment shall include a statement of uncontroverted
material facts, which “‘shall state with particularity in separately numbered
paragraphs each material fact as to which movant claims there is no genuine issue,
with specific references to the pleadings, discovery, exhibits or affidavits that
demonstrate the lack of a genuine issue as to such facts’ and a copy of those
supporting documents shall be attached to the statement.” Great Southern Bank
v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 833 (Mo.App. 2016) (quoting Rule
74.04(c)(1)).
• The non-movant shall serve a response, which “shall set forth each statement of
fact in its original paragraph number and immediately thereunder admit or deny
each of movant's factual statements”; the denials “shall [be supported by] specific
references to the discovery, exhibits or affidavits that demonstrate specific facts
showing that there is a genuine issue for trial”; “[a]ttached to the response shall be
a copy of all discovery, exhibits or affidavits on which the response relies”; and
“may also set forth additional material facts that remain in dispute, which shall be
presented in consecutively numbered paragraphs and supported in the manner
prescribed by Rule 74.04(c)(1).” Id. (quoting Rule 74.04(c)(2)) (internal
quotations marks omitted).
• “Once a trial court determines that the movant's Rule 74.04(c)(1) motion for
summary judgment demonstrates a prima facie showing of movant's right to
judgment,[] the trial court then, and only then, turns to the non-movant's denials in
the non-movant's Rule 74.04(c)(2) response to determine if the non-movant has
demonstrated that ‘one or more of the material facts shown by the movant to be
above any genuine dispute is, in fact, genuinely disputed.’” Id. at 833–34
(quoting ITT Commercial Fin. Corp., 854 S.W.2d at 381). “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.” Id. at 834. Only then
does the trial court turn to the movant’s and non-movant’s specific references to
the attached pleadings, discovery, exhibits or affidavits. Id. (citing Rule
74.04(c)(1)–(2).
When a summary judgment is appealed, “[o]ur 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.” Id. “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[.]” Id. (emphasis added).
11
The Schnurbusches’ fourth, fifth, sixth, and seventh points purport to challenge the
evidentiary support for the Shelter’s stated material facts based upon the Schnurbusches’ denials.
Because that issue does not arise in a Rule 74.04 analysis unless and until the Shelter has made a
prima facie showing of a right to judgment, id. at 833–34, all four of the Schnurbusches’ points
necessarily implicitly presuppose that, based upon the Shelter’s stated material facts, it made a
prima facie showing of a right to summary judgment as a defending party based upon the defense
of res judicata. 7 In other words, the Schnurbusches’ are generally claiming that genuine disputes
exist as to some of those material facts. They fail, however, to demonstrate a genuine dispute of
any particular material fact under the procedural strictures of Rule 74.04, in that their points and
supporting arguments “are totally devoid of any reference to or mention of any particular
numbered paragraph material fact in the summary judgment record that they denied in their
response and that they now claim is genuinely at issue.” Id. at 834. Instead, the Schnurbusches’
citations to the record tend to be to exhibits attached to the Shelter’s statement of uncontroverted
material facts and, on occasions, even completely outside of the summary judgment record to the
legal file from Schnurbusch I.
Moreover, any citations that might be construed as identifying relevant summary
judgment numbered paragraph responses are too broad to facilitate meaningful review. For
example, in the argument section under point six, the Schnurbusches cite to 136 pages of the
legal file that contain, among other materials, all of their responses to the Shelter’s material facts
numbered paragraphs. The Schnurbusches then purport to place upon this court the onus of
seining these pages in the summary judgment record for relevant information, stating that it is
7
Other than in their third point, which we have denied, supra, the Schnurbusches do not further challenge the
Shelter’s prima facie showing of a right to summary judgment. We need not further address this issue, therefore,
because “‘allegations of error not briefed ... shall not be considered in any civil appeal[.]’” Great Southern Bank,
497 S.W.3d at 829 n.2 (quoting Rule 84.13(a)).
12
“available to be reviewed in complete detail and will not be repeated here as the content of [the
summary judgment record] speaks for itself.”
The Schnurbusches’ reliance on material disconnected from specific numbered paragraph
material facts in the summary judgment record render their arguments “analytically useless in an
appellate review that requires this court to properly apply Rule 74.04.” Id. at 835. As explained
in Great Southern Bank,
Our de novo review does not grant Appellants license to craft arguments
on appeal free from the constraints of Rule 74.04. Rather, our de novo decision
on appeal must be in accordance with all the requirements of Rule 74.04 and,
therefore, must be made in the very same manner the trial court should have
applied that rule in the first instance. Comparing the movant's specifically
referenced evidence in a particular numbered paragraph material fact to the
specifically referenced evidence in the non-movant's denial of that particular
material fact for the existence of a genuine issue, as contemplated and required
under Rule 74.04, assures that the appellate court is deciding the same issue as
presented to and decided by the trial court. For an appellate court to do otherwise,
as urged by Appellants here, would decide the appeal on a basis that was not
necessarily presented to or considered and decided by the trial court and would
not be appropriate. See In re Estate of L.G.T., 442 S.W.3d 96, 108
(Mo.App.2014) (an issue which is not presented or expressly decided by a trial
court is not preserved for appellate review).
Id. at 836.
Here, the Schnurbusches have failed to demonstrate a genuine issue as to any particular
numbered paragraph material fact in the Rule 74.04(c) summary judgment record. Accordingly,
they have failed to demonstrate any basis for us to conclude that the trial court erroneously
granted summary judgment. The Schnurbusches’ fourth, fifth, sixth, and seventh points are
denied.
Point Eight
The Schnurbusches’ eighth point contends:
THE TRIAL COURT ERRED BY DENYING THE CROSS MOTION
FOR PARTIAL SUMMARY JUDGMENT ON COUNT II, PREPARED AND
FILED ON MARCH 17, 2017 BY THE PLAINTIFFS IN CASE 12AL-
13
CC00006- 01 WILLARD SCHNURBUSCH AND CAROL SCHNURBUSCH,
AS HUSBAND AND WIFE ONLY AND ACTING PRO SE, BECAUSE THE
CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT WAS
SUBMITTED IN TOTAL COMPLIANCE WITH SUPREME COURT RULE
74.04 PROCEDURES AND DID STATE SUFFICIENT UNCONTROVERED
MATERIAL FACTS WHICH WERE NOT PROPERLY RESPONDED TO PER
THE REQUIRED PROCEDURES OF MISSOURI SUPREME COURT RULE
74.04, AND THE CROSS MOTION FOR SUMMARY JUDGMENT SHOWED
THAT THE MOVANTS HAD A RIGHT TO JUDGMENT AS A MATTER OF
LAW SUFFICIENT TO ALLOW THE COURT TO GRANT THE MOTION IN
FAVOR OF THE MOVANTS.
The “[d]enial of a motion for summary judgment is not subject to appellate review, even
when an appeal is taken from a final judgment and not from the denial of a motion for summary
judgment.” State ex. rel. Mo. Div. of Transp. v. Sure–Way Transp., Inc., 884 S.W.2d 349, 351
(Mo.App. 1994). 8 Accordingly, the Schnurbusches’ eighth point is denied.
Point Nine
The Schnurbusches’ ninth point contends:
THE TRIAL COURT ERRED BY NOT GRANTING THE PLAINTIFFS IN
CASE 12AL - CC00006, WILLARD SCHNURBUSCH AND CAROL
SCHNURBUSCH, AS HUSBAND AND WIFE ONLY AND ACTING PRO SE,
THEIR MOTION FOR LEAVE TO AMEND WHICH WAS FILED ON
SEPTEMBER 28, 2015 AND THEIR MOTION FOR LEAVE TO AMEND
WHICH WAS FILED ON FEBRUARY 22, 2017, EACH REQUESTING
LEAVE TO AMEND THEIR JANUARY 17, 2012 PETITION EVEN THOUGH
THERE WAS SUFFICIENT INFORMATION PRESENTED BY WAY OF
EXHIBITS AND SUGGESTIONS ALONG WITH THE MOTION FOR LEAVE
TO AMEND THE PETITION, TO SUPPORT THE CLAIM REGARDING THE
AVAILABILITY OF NEW EVIDENCE OBTAINED AFTER THE JANUARY
17, 2012 PETITION WAS APPARENTLY DISMISSED BY ORDER OF
OCTOBER 26, 2012. AND EVENTUAL Y REVERSED BY ORDER AND
MANDATE OF THE SOUTHERN DISTRICT OF THE MISSOURI COURT OF
APPEALS ON JANAUARY 20, 2017 AND FEBRUARY 7, 2017[.]
8
In rare circumstances, “the denial of a party’s motion for summary judgment can be reviewed when its merits are
completely intertwined with a grant of summary judgment in favor of an opposing party.” Transatlantic Ltd. v.
Salva, 71 S.W.3d 670, 675–76 (Mo.App. 2002). We need not consider this exception, however, because the
Schnurbusches do not address it in any manner in their brief, much less assert its applicability.
14
This point identifies and challenges the trial court’s denial of two separate motions by the
Schnurbusches to amend their pleadings. In any event, the Schnurbusches then fail to explain or
demonstrate why the trial court’s denial of either motion amounted to an abuse of discretion. See
Tisch v. DST Sys., Inc., 368 S.W.3d 245, 257 (Mo.App. 2012) (stating that the decision to
permit the amendment of a petition “is at the discretion of the trial court, and we will not disturb
its decision ‘absent an obvious and palpable abuse of discretion”) (quoting Kenley v. J.E. Jones
Constr. Co., 870 S.W.2d 494, 498 (Mo.App. 1994)). We cannot craft that argument on their
behalf. See Moreland v. Div. of Emp’t Sec., 273 S.W.3d 39, 42 (Mo. App. 2008). Without any
argument purporting to demonstrate how the trial court abused its discretion, the Schnurbusches
cannot succeed on their claim that the denials of their motions to amend were erroneous. Their
ninth point is denied. 9
Points Ten and Eleven
The Schnurbusches’ tenth and eleventh points contend, in numerical order:
THE TRIAL COURT ERRED BY NEVER PROVIDING ANY RESPONSE TO
THE REQUESTS FOR ACTION BY THE TRIAL COURT, PREPARED AND
FILED ON FEBRUARY 17, 2017 AND JUNE 28, 2017 AND AUGUST 1, 2017
BY THE PLAINTIFFS/ APPELLANTS IN CASE 12AL- CC00006 - 01
WILLARD SCHNURBUSCH AND CAROL SCHNURBUSCH, AS HUSBAND
AND WIFE ONLY AND ACTING PRO SE, REGARDING THE EXECUTION
ON CHARGES AND COSTS GRANTED TO THE APPELLANTS IN APPEAL
NO. SD 34345 BY THE MANDATE ISSUED FEBRUARY 7, 2017 BECAUSE
THE PLAINTIFFS/ APPELLANTS HAVE BEEN FINANCIALLY
BURDENED BY BEING DEPRIVED OF THE OPPORTUNITY TO RECOVER
THE CHARGES AND COSTS ALLOWED BY THE MANDATE OF
FEBURARY 7, 2017[.]
***
9
We note that this point also could be denied because it is multifarious and, therefore, preserves nothing for
appellate review. See Spence v. BNSF Ry. Co., 547 S.W.3d 769, 780 n.15 (Mo. banc 2018) (point relied on
claiming the trial court erred at multiple separate times and in multiple separate ways is multifarious and preserves
nothing for review). Moreover, at least one of the point’s challenges—that regarding the September 28, 2015
motion—is barred by the law-of-the-case doctrine for the reasons discussed under points 1 and 2, supra.
15
THE TRIAL COURT ERRED BY NEVER PROVIDING ANY RESPONSE ( S )
TO THE TWO AFTER TRIAL MOTIONS MADE TO THE TRIAL COURT ON
NOVEMBER 20, 2015 AND NOVEMBER 13, 2017 BECAUSE SUCH
ACTION ( S ) BY THE TRIAL COURT DEPRIVES A LITIGANT OF AN
OPPORTUNITY TO BE HEARD AND PASSES ON THE DUTY TO
ADDRESS THE QUESTIONS OF ACCURACY AND CORRECTNESS OF
DOCUMENTS, SUCH AS THE TWO JUDGMENTS FILED ON NOVEMBER
3, 2015 AND OCTOBER 17, 2017, TO A HIGHER COURT, AND PLACES
THE BURDEN OF EFFORT AND EXPENSE INVOLVED IN PURSUING
THE QUESTIONS ON THE PARTY WHO IS APPEALING THE DECISIONS
OF THE CERTAIN COURT INVOLVED.
Both points relied on fail to conform to the mandates of Rule 84.04(d) and therefore preserve
nothing for appellate review.
A point relied on shall “(A) identify the trial court ruling or action that the appellant
challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the
claim of reversible error.” Rule 84.04(d)(1).
In each of these points, the Schnurbusches fail to sufficiently identify a trial court ruling
or action that serves as the basis for each challenge, fail to state the legal reasons for their claim
of reversible error, and give absolutely no explanation as to why, in the context of this case, any
legal reason or reasons support their claim of reversible error. The argument sections in support
of these points, likewise, are totally devoid of any supporting legal authority from which we
could attempt to deduce the legal bases underlying the Schnurbusches’ points. “A point relied on
that fails to comply with Rule 84.04(d) preserves nothing for appeal.” Washington v.
Blackburn, 286 S.W.3d 818, 821 (Mo.App. 2009).
Moreover, even assuming, without deciding, that a trial court’s “never providing any
response” identifies “a trial court ruling or action” as required by Rule 84.04(d)(1)(A), each
point, nevertheless, challenges multiple claims of error, i.e., multiple alleged failures to respond
to multiple separate “requests for action” (point ten) and multiple alleged failures to respond to
16
multiple “after trial motions” (point eleven). As such, both points are multifarious. A
multifarious point also does not comply with Rule 84.04(d) and fails to preserve anything for
review. Spence, 547 S.W.3d at 780 n.15; Matter of Wilma G. James Trust, 487 S.W.3d 37, 52
(Mo.App. 2016).
Accordingly, points ten and eleven are denied. 10
Decision
The trial court’s judgment is affirmed.
GARY W. LYNCH, J. – OPINION AUTHOR
DON E. BURRELL, JR., P.J. – concurs
NANCY STEFFEN RAHMEYER, J. – concurs
10
The law-of-the-case doctrine also bars some or all of the issues raised in point 11 for the reasons discussed under
points 1, 2, and 9, supra.
17