Jesse Bussell b/n/f Mary Bussell and Mary Bussell Individually, Appellants, v. Tri-County Humane Society, Delores Tinsley, Zane and Mary Scott, Kenneth and Delia McGuire, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Jesse Bussell b/n/f Mary Bussell and Mary Bussell Individually, Appellants, v. Tri-County Humane Society, Delores Tinsley, Zane and Mary Scott, Kenneth and Delia McGuire, Respondents. Case Number: ED78090 Handdown Date: 05/22/2001 Appeal From: Circuit Court of Warren County, Hon. Edward D. Hodge Counsel for Appellant: Lee R. Elliott Counsel for Respondent: Brent J. Burtin and Reginald P. Bodeux Opinion Summary: Jesse Bussell sued the former owners of the dog that bit him, a woman he alleged harbored the dog, and the humane society that placed the dog in an adoptive home. The trial court granted summary judgment in favor of the former owners and the woman. Bussell appeals. DISMISSED. Division Three holds: Appellate review of a summary judgment motion is not possible when this Court does not have the documents filed in the trial court in support of and in opposition to the summary judgment. Citation: Opinion Author: George W. Draper III, Judge Opinion Vote: DISMISSED. Gaertner, Sr., P.J., and Crahan, J. concur. Opinion: This appeal arises from a dog attack. Jesse Bussell (hereinafter, "Bussell") brought suit against the former owners of the dog that bit him, a woman he alleged harbored the dog, and the humane society that placed the dog in an adoptive home. The trial court granted summary judgment in favor of the former owners and the woman. Bussell appeals.

Zane and Mary Scott (hereinafter, and collectively, "Scott") acquired two Dalmatian dogs in April 1994. Later that month, the young male Dalmatian (hereinafter, "Samson") bit Scott's neighbor-child. Samson was quarantined. After being released from quarantine, Scott moved Samson to live on a farm with Delores Tinsley (hereinafter, "Tinsley") while trying to find another owner for Samson. Tinsley, upon Scott's request, contacted the Tri-County Humane Society (hereinafter, "Humane Society") regarding its procedures for accepting an animal, and Scott placed an advertisement in a newspaper attempting to give Samson away. Humane Society accepted Samson and placed him with another owner. Subsequently, on May 31, 1994, Samson bit Bussell, the neighbor-child of Samson's new owner. Bussell brought this action against Scott, Tinsley, and Humane Society alleging that as the prior custodians of Samson, each failed to give adequate warning of Samson's history and vicious propensities to the successor owner. Scott and Tinsley filed motions to dismiss for failure to state a claim and supporting exhibits. Pursuant to Rule 55.27(a), their motions were treated as motions for summary judgment. The trial court granted summary judgment in favor of Scott and Tinsley and designated its judgment as final for the purposes of appeal. Bussell appeals. In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Additionally, the non-movant is accorded the benefit of all reasonable inferences from the record. Id. The grant or denial of a summary motion by the trial court is based upon the information contained in the motion for summary judgment and the responses thereto. Rule 74.04(c)(3). Motions for and responses to summary judgment motions shall state materials facts with specificity as to where they appear in pleadings, discovery, or affidavits, in asserting either the existence or non-existence of a genuine issue. Rule 74.04(c)(1-2). Upon the initial determination of the propriety of the motion the trial court is limited in its review, likewise, this Court is "confined to considering the same information that the trial court considered in rendering its decision on the motion for summary judgment." Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo. App. E.D. 1999). Bussell raises two points on appeal, claiming the trial court erred: (1) in granting summary judgment in favor of Scott because Scott owed a duty to the public to protect it from Samson, and there were genuine issues of material fact regarding the transfer of Samson's ownership; and (2) in granting summary judgment in favor of Tinsley because there were genuine issues of material fact regarding whether she acted as an agent of Scott and whether she made misrepresentations of fact as to Samson's nature.(FN1) Bussell, Scott, and Tinsley all presented varied statements of

facts as to the quality of information given with regard to Samson's vicious propensities. Upon review of the record on appeal, Bussell(FN2) failed to include exhibits, depositions, and interrogatories which were cited with specificity in their motions for and in opposition to summary judgment. These documents were in front of the trial court when it made its decision to grant summary judgment in favor of Scott and Tinsley. Accordingly, Bussell was required to place all of these documents into the record on appeal as our review of a grant of summary judgment is de novo and we must consider the same information as the trial court. See Mothershead, supra. As Bussell failed to do so, we are not able to review the summary judgment motions and we dismiss. Footnotes: FN1. When drafting points on appeal, we remind the parties to comply with Rule 84.04(d) and Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Compliance with Rule 84.04 "is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Myrick v. Eastern Broad., Inc., 970 S.W.2d 885, 886 (Mo. App. S.D. 1998). Failure to comply with these requirements can result in dismissal of the appeal. Rule 84.04(d)(1). FN2. It is incumbent upon the appellant to compile and file the record on appeal. Rule 81.12(c). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.