Marcia Green, Respondent, vs. Mehrdad Fotoohighiam, Appellant.

MARCIA GREEN, ) Opinion issued August 11, 2020 ) Respondent, ) ) v. ) No. SC98262 ) MEHRDAD FOTOOHIGHIAM, ) ) Ap p e lla nt. )

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Robert L. K o ffma n, Special Judge Mehrdad Fotoohighiam appeals the circuit court's entry of partial summar y judgme n t o n the is s ue o f lia b ility in favor of Marcia Green. 1 Because the Rule 74.04(c) paragraphs and responses demonstrated there were no genuine issues of material fact and that Marcia was entitled to judgme nt as a matter of law, the circuit court did not err in entering partial summa r y judgme nt in Marcia's favor. The circuit court's judgment is affirmed. 2

Factual B ackground and Proce dural His tory W hile a s le e p in he r mo b ile ho me, noises from outside Marcia's door woke her. O nce out of bed, Marcia realized her mobile home was on fire. To escape the b la ze, she broke a

1 For ease of reference, the parties used their first names in briefing and in oral argument. This opinion will do the same. No disrespect or familiarity is intended. 2 Mehrdad was represented by different counsel on appeal than during the summary judgment and trial stage.

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wind o w in her bedroom and jumped out head-first to safety. Marcia sustained several injur ies, including lacerations, burns, and respiratory complications attributable to smoke and carbon monoxide inhalation. Additionally, her mobile home and all personal property ins id e were destroyed. Marcia sued Mehrdad, James Hall, David Reed, Electenergy Technologies, Inc., and ETI, L.L.C., 3 a lle g in g Mehrdad and the other defendants conspired 4 to set her mobile home on fire, causing Marcia mental and physical harm as well as property damage. Follow ing discovery, Marcia moved for partial summary judgment against Mehrdad on the issue o f lia b ility. Pursuant to Rule 74.04, Marcia includ ed with her mo tio n a statement of uncontro ve rted ma te ria l facts containing the fo llo w in g a lle ga t io ns: (1) Mehrdad owns a mobile home adjacent to Marcia's lot; (2) Scotty Christopher and Hall performed work on Mehrdad's property; (3) Mehrdad offered Hall and Christopher $500 to set Marcia's mobile home on fire; (4) Mehrdad told a former employee, Louis Spano, that he hired Hall and Reed to set Marcia's mobile home on fire; and (5) Marcia's mobile home was actually burned down, causing her damage. Each of these allegat io n s cited to deposition testimony or an a ffid a v i t supporting it. Ad d itio na l ly, included with the documents supporting the statement of uncontro ve r t e d ma te ria l facts were portions of Mehrdad's deposition testimony that were not cited or otherwise referenced by Marcia. These included the fo llo w in g exchange:

3 Mehrdad is the president of Electenergy and ETI. 4 Marcia's first amended petition alleged the following causes of action: (1) negligence; (2) assault; (3) battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotiona l distress; (6) trespass; (7) malicious trespass; and (8) civil conspiracy.

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Q: Have you ever met James Hall before? A: Yes ....

Q: Have you ever met David Reed? A: No. Q: Have you ever met Scotty C hristophe r? A: Nope. Nevertheless, Mehrdad failed to file a response to Marcia's motion for p a rtia l summa r y judgme nt. The circuit court entered p a rtia l s umma r y jud gme nt a s to lia b ilit y in Marcia's favor. In its order, the circuit court noted Mehrdad's failure to time ly respond resulted in an a d mis s io n to a ll facts set forth in Marcia's statement of uncontroverted facts. The circuit court also relied on the fact that M e hrd a d a s s e rte d his F ifth Ame nd me n t right to re ma in s ile nt wh e n asked certain questions during his deposition; therefore, it assumed any answers that wo uld have been given would have been adverse to Mehrdad. Ultimately, the circuit court held: The evidence presented has not been denied as required under Supreme Court Rule 74.04 (c) (1). The undenied facts are that [Mehrdad] paid others in a conspiracy to burn down the dwelling of [Marcia]. Those co-conspirators did burn that dwelling down causing [Marcia] damage. There is no contravent io n of these ultimate issues. They are found to be true. [Marcia] is therefore entit led to judgme nt as a matter of law.

The case proceeded to a jury trial on the issue of damages only. The jury returned a verdict of $250,000 in actual damages and $2,500,000 in punitive damages. After Mehrdad's post-tria l mo tio n s we re overruled, he appealed, p rima r ily arguing the circuit court erred in granting partial summa r y judgme nt re ga rd in g lia b ilit y because Marcia's inclusion of his surplus deposition testimony controverted material facts on which she based her summa r y

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judgme nt motion. The court of appeals disagreed and a ffir me d the circuit court's judgme n t. This Court granted transfer and has jurisdiction. Mo. Const. art. V, § 10. Standard of Review This C ourt outline d the standard of review for summa r y judgment in Goerlitz v . City of Maryv ille: The trial court makes its decisio n to grant summar y judgme nt based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determinat io n and reviews the grant of summar y judgme nt de novo. In review ing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. The facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. O nly genuine disputes as to material facts preclude summary judgment. A materia l fact in the context of summa r y judgme nt is one from which the right to judgme n t flo ws .

. . . .

The record below is reviewed in the light most favorable to the party against who m summa ry judgme nt was entered, and that party is entitled to the bene fit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summar y judgment motion.

333 S.W.3d 450, 452-53 (Mo. banc 2011) (internal quotation marks and citations omitted). "In addition, the non-movant must support denials with specific references to discovery, e xhib its , o r a ffid a vits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4). Facts not properly supported under Rule 74.04(c)(2) or (c)(4) are deemed admitted." Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320 (Mo. banc 2014).

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Analys is Mehrdad argues the circuit court erred in granting Marcia partial summary judgment because portions of his deposition testimony attached to Marcia's statement of uncontrover ted material facts created an issue of material fact that precludes Marcia from receiving partia l summar y judgme nt even though Mehrdad failed to respond to the summar y judgme nt mo t io n let alone cite the circuit court to this testimony in such a response. S umma r y judgme nt practice in M is s o ur i is governed by Rule 74.04 and this Court's d e c is io n in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). As the movant, Marcia "must establis h that there is no genuine dispute as to those materia l facts upon which [she] would have had the burden of persuasion at tria l." ITT, 854 S.W.2d at 381 (internal quotation marks omitted). To accomplish this showing, the movant must attach to the motion for summar y judgment a statement of uncontro ve r t e d ma te ria l facts that "state[s] with particularity in separately numbered paragraphs each materia l 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." Rule 74.04(c)(1). 5 Additio na lly, the movant must attach to the statement of

5 The version of Rule 74.04 in effect at the time of ITT did not require the movant to submit a separate statement of uncontroverted material facts or to attach specific exhibits in support of the summar y judgment motion. Instead, the rule provided: The motion shall state with particularity the grounds therefor and shall be served at least ten days before the time fixed for the hearing. P rior to the day of hearing the adverse party may serve opposing affidavits. The judgment sought shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 74.04(c) (1988). Rule 74.04 was amended in 1994 to require the movant's motion to "state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that

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uncontroverted material facts all discovery, exhibits, or affidavits that support the summa r y judgme nt motion. Id. After the movant makes this submiss io n, the non-movant is required to file a response either admitting or denying the movant's material facts. Specifically, The response shall set forth each statement of fact in its original paragraph number and imme d ia te l y thereunder admit or deny each of movant's factual statements. A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial. Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies. A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph.

Rule 74.04(c)(2) (emphasis added).

demonstrate the lack of a genuine issue as to such facts." Rule 74.04(c)(1) (1994). In turn, the non- movant shall serve a response . . . admit[ting] or deny[ing] each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs, shall state the reason for each denial, shall set out each additional material fact that remains in dispute, and shall support each factual statement asserted in the response with specific references to where each such fact appears in the pleadings, discovery or affida vits . Rule 74.04(c)(2) (1994). More importantly, the 1994 amendments made clear that the consequences of failing to timely respond to a motion for summary judgment is that the movant 's statement of uncontroverted material facts is deemed admitted. Id. The rationale behind these amendments to Rule 74.04 was explained by the court of appeals in Osage Water Co. v. City of Osage Beach: The desirabilit y of clearly advising opposing parties and the court of the basis for a motion for summary judgment led our Supreme Court to amend Rule 74.04 in 1994 so as to require particularity in motions for summary judgment with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to the facts upon which it is based. 58 S.W.3d 35, 44 (Mo. App. 2001). The court of appeals expanded on this explanation in Pemiscot County Port Authority v. Rail Switching Services, Inc.:

A year after ITT, our supreme court implemented Rule 74.04(c)'s now-familiar format of numbered paragraphs and responses to assist the judge in ruling on summar y judgment motions by requiring such motions to conform to a specific form that will reveal the areas of dispute. 523 S.W.3d 530, 533 (Mo. App. 2017) (internal quotation marks omitted).

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Marcia filed her motion for partial summar y judgme nt, statement of uncontro ve r t e d material facts, and all supporting do c ume nts in c o mp lia nc e with Rule 74.04(c)(1). Mehrdad did not time ly respond to Marcia's motion. Mehrdad filed a motion for leave to respond out o f time , which the circuit court overruled. This re s ulte d in his a d mis s io n to a ll o f M a rc ia ' s uncontro ve rted material facts. Rule 74.04(c)(2). Nonetheless, Mehrdad argues a genuine issue of material fact exists because his deposition testimony that was attached, but no t c it e d by Marcia, demonstrates he did not know two of his alleged co-conspirators; therefore, Marcia is not entitled to judgme nt as a matter of law. This argume nt is in c o mp a t ib le with R u le 74.04(c)(2). The court of appeals has aptly described the summar y judgme nt p rinc ip le s underly i n g Rule 74.04 a s fo llo w s: [1] Facts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework. [2] Courts determine and review summa r y judgme nt based on that Rule 74.04(c) record, not the who le trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record. [4] [S]ummary judgme nt rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.

Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. 2016) (e mp ha s is in o rigi n a l ) (internal footnotes and quotation marks omitted). Taken together, these summar y judgme n t principles require a court to "determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate [movant's] right to judgment regardless of other facts or factual disputes. " Pemiscot County Port Authority, 523 S.W.3d at 534 (e mp ha s is in o rigin a l).

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These s umma r y jud gme n t p rinc ip le s do not require the circuit court or any appellate court to sift through the entire record to identify disputed issues, which, in turn, would caus e a court to impermiss ib ly act as an advocate for a party. Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 62 (Mo. App. 2016). Moreover, requiring a court to comb through the ent ir e record to determine if any disputed issues of material fact existed would render the 1994 amendments to Rule 74.04 meaningless. See supra n. 5. Applying these princip les to the case at hand, the facts on which the circuit court based its partial summary judgment were deemed admitted by Mehrdad when he failed to respond to the summa r y judgme nt motion in a timely manner. He is not permitted to rely on the uncited portions of his deposition testimony to create a genuine issue of material fact because it was not cited or otherwise referenced in any Rule 74.04(c) paragraph or response. The fact this deposition te s timo n y was part of the entire record at the circuit court is of no consequence because motions for summary judgment are decided only on those facts—along with properly cited pleadings, discovery, exhibits, or affidavits—re fere nced in Rule 74.04(c) paragraphs and responses, not the entire trial court record. Jones, 508 S.W.3d at 161. Because the circuit court had no obligation to look outside discovery, exhibits, and affidavits referenced in Rule 74.04(c) paragraphs and responses, it correctly determined the uncontroverted material facts established Marcia's right to p a rtia l s umma r y judgme nt on the issue of liability. Mehrdad's argume nt that the circuit court and this C ourt must consider the unc it e d d e p o s itio n te s timo n y that creates a genuine issue of material fact is based solely on Street v. Harris, 505 S.W.3d 414 (Mo. App. 2016). In Street, the p la int i ff br ought a tort action aga ins t homeowne rs after the homeowner s' dog jumped on her and knocked her down, causing her to

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break her ankle. The homeowners filed a motion for summar y judgme nt and alleged in the ir statement of uncontroverted material facts that "the dog had never run at, charged, knocke d anyone down, or injured anyone. " Id. at 415-16 (a lte ra t io ns o mitte d ). Attached to the mo tio n was the p la int if f's deposition that stated one of the homeowners told her the dog had knocked someone down on a prior occasion. 6 The p la int if f failed to respond and the circuit court entered summar y judgme nt in favor of the homeow ners . The court of appeals in Street reversed the circuit court's entry of summar y judgme n t even though it acknowledged the non-mova nt' s failure to respond operates as an admission of a ll mo va nt' s p ro p e rly p le a ded facts under Rule 74.04(c)(2). Instead, that court reasoned it must look to the uncited deposition testimony because to ignore it "would relieve a movant o f his o r he r init ia l b urden to show a right to judgment as a matter of law, and we do not see this authorize d by the rule or by precedent." Id. at 417 & n.1. Furthermo re, that court held the p la int i ff' s failure to respond to the motion for summary judgment was excused because the movant must make a prima facie showing of entitlement to summary judgment before the non-movant has the obligation to respond. A review of other court of appeals cases demonstrates the court of appeals has understood and correctly applied the changes to Rule 74.04, le a vin g Street as the clear outlier. F o r e xa mp le , in Fidelity Real Estate Co. v. Norman, 586 S.W.3d 873, 876 (Mo. App. 2019), a landlord sued two tenants after the tenants breached a residential lease contract. The la ndlord filed a motion for summar y judgme nt against the tenants ind iv id ua l l y, both of which

6 Like here, the relevant portion of the pla intif f's deposition testimony was not cited or otherwise referenced by the homeowners. Street, 505 S.W.3d at 418 (Odenwald, J., concurring).

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the circuit court sustaine d. On appeal, the tenants argued, pursuant to Street, that the circuit court erred in entering summary judgment because an exhibit attached to the landlord's motion for summa r y judgme nt contained an incons is te nc y that created a genuine issue of mate r ia l fact. In affir mi ng the circuit court's judgme nt, the court of appeals recognized Street's shortcomings, specifically noting Street' s re lianc e on ITT's interpreta t io n of an outdat e d version of Rule 74.04 was error. 7 But more importa nt l y, the Fidelity Real Estate cour t compared previous versions of Rule 74.04 to the current version and reiterated "[u]nder [Rule 74.04(c)] numbered paragraphs and responses, facts come into a summary judgment record one and only one way—as separately numbered paragraphs and responses[.]" Id. at 882 (alterations and internal quotation marks omitted). That court pointed out one of the tenants

7 More specifically, the court of appeals found Street flawed in the following ways: Continued reliance on the language from ITT that suggests a court must pore through the entire record to rule on, or review the ruling on, a motion for summary judgme nt ignores the purpose of the post-ITT amendments to Rule 74.04. As such, we believe Street was wrongly decided. .... In addition to the changes in Rule 74.04 since ITT, there are other considerations at play that suggest Street 's holding is erroneous. To begin, requiring either the trial or reviewing court to examine the entire record, rather than just those facts identified in the motion and response, could easily place the court in the position of an advocate insofar as the court would have to identify not only the material facts but also those that are subject to genuine dispute. .... Furthermore, allowing a non-movant to argue for the first time on appeal that the movant failed to make a prima facie case on the basis of disputed material facts that were not identified for the trial court is directly at odds with the rules that parties are bound by the position they took in the trial court and will not be heard on a different theory on appeal, and that we will not convict a trial court of error on an issue that was not put before the trial court to decide. Fidelity Real Estate, 586 S.W.3d at 883 & n.15 (internal alterations and quotation marks omitted).

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replied to the landlord's motion for summary judgment but failed to support her denials with specific references to discovery, exhibits, or affidavits as required by Rule 74.04(c)(2). Because the tenants failed to properly respond, the Fidelity Real Estate court could not look to the allegedly contradictory exhibit to determine if a genuine issue of material fact existed; therefore, that court affirmed. A s imila r result was reached in Great Southern Bank v. Blue Chalk Construction, LLC, 497 S.W.3d 825 (Mo. App. 2016). In Blue Chalk, Great Southern Bank ("GSB") filed suit against Blue Chalk, alleging it failed to pay the balance on various promissory notes and guarant ie s tied to loans. After Blue Chalk answered the petitio n with a general denial and 15 a ffir ma t i ve d e fe ns e s , it a ls o file d c o unte rc la ims mirro r in g GS B' s o rigina l c la ims . GSB moved for summa r y judgme nt on all of its origina l claims and a ll o f Blue Chalk's counterclaims. The circuit court entered summary judgment in GSB's favor on all claims. On appeal, Blue Chalk argued the circuit court erred in entering summary judgment because genuine issues of material fact existed in its counterclaims and in its affirmat i ve defenses. The Blue Chalk court affirmed the circuit court's entry of summary judgme nt, firs t reiterating how the record considered at the summary judgment phase is made through Rule 74.04(c) paragraphs and responses and then characterizing Blue C halk's argume nt s as wholly deficient under Rule 74.04. Specifica lly, that court noted: O ur review of [Blue C halk's] points and the argume nt sections o f the ir b rie f fo r those points reveals that they are totally devoid of any reference to or mentio n of any particular numbered paragraph material fact in the summary judgment record that they denied in their response and that they now claim is genui ne l y at issue. Rather, completely untethered from any particular numbered paragraph material fact in the summary judgment record or any specific reference in any such numbered paragraph as an exhibit, [Blue C halk] gener a l l y cite[s] 96 times directly to exhibits attached to Great Southern's statement o f

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uncontroverted material facts or [its ] response to that statement and five time s to Great Southern's response to [Blue Chalk's] mo tio n fo r p a rtia l summa r y judgme nt.

Id. at 834.

The Blue Chalk court noted "[a]rguments . . . that are completely disconnected from the numbered paragraph material facts in the summary judgment record, as required by Rule 74.04, are analytically useless in an appellate review that requires this court to properly apply Rule 74.04" and that a llo wing courts to look outside the Rule 74.04(c) paragraphs and responses to find issues of material fact would exceed the limits of de novo review. Id. at 835. Ultima te ly, that court held Blue Chalk failed to demonstrate a genuine issue as to any materia l fact and affirmed the circuit court. Moreover, the eastern district 8 of our court of appeals understood and correctly applied Rule 74.04 in Peck v. Alliance General Ins. Co., 998 S.W.2d 71 (Mo. App. 1999). In Peck, Peck was injured after being removed from a sports bar by the bar's security officer. Aft e r obtaining a $400,000 consent judgment pursuant to a settlement agreement against the security officer, 9 Peck filed a petitio n fo r e q uita b le ga rnis h me nt a ga ins t Allia n c e Ge ne r a l Insurance C ompany ("Allia nce ") . Allia nc e moved for summar y judgme nt , arguing the relevant insurance policy contained an assault and battery exclusion that excluded coverage for the incident. Peck responded to Alliance's motion and filed his own motion for summar y judgme nt, arguing the insurance policy obligated Alliance to pay damages for bodily injur y

8 Keeping in mind that Missouri has a unified court of appeals, Mo. Const. art. V, § 1, the eastern district court of appeals' own decisions before and after Street suggest that case is a n outlie r . See p. 12-1 4 infra; see also Fleddermann v. Casino One Corp., 579 S.W.3d 244 (Mo. App. 2019) (applying the summary judgment principles set forth in Jones, Pemiscot County Port Authority, and Lackey). 9 P eck also obtained a $400,000 default judgment against the bar.

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and that the assault and battery exclusion did not apply because his underlying lawsuit was p re mised on a theory of neglige nce. Peck's motion for summar y judgme nt set forth all facts surround ing his injur ies sustained on the night of the incide nt. Specifically, Peck asserted he was injured as a result of falling outside the bar after he was released by the security person. Peck did not allege his injur ie s resulted from being pushed, thrown, or shoved by the securit y person. All o f P e c k ' s allegations were supported by his affidavit, the security person's deposition testimony, and one other bar employee's deposition testimony. In its response, Alliance denied Peck's injuries were "personal injury" as defined by the policy and averred that Peck's injuries were excluded from coverage by the assault and battery exclusion. However, Alliance neither expla in e d its d e nia ls , s e t fo rth a ny ma te ria l fa c t in dispute, nor made any reference to pleadings, discovery, or affidavits. Instead, Allia nce challenged Peck's affidavit and asserted that the deposition testimony Peck relied on was incomplete. The circuit court entered summar y judgme nt in Peck's favor and overr ule d Allia n c e ' s mo tio n. On appeal, the court of appeals a ffir me d , init ia ll y no tin g Allia nc e fa ile d to file a response in compliance with Rule 74.04(c) because Alliance failed to explain the reason for its denials and failed to make references to the record that showed the existence of a genuine issue of material fact. Therefore, all of Peck's factual assertions were taken as true. Furthermore, that court rejected Alliance's argument that summar y judgme nt was inappropriate because uncited portions of Peck's deposition, as well as uncited portions of Peck's petition in a separate lawsuit against the security officer, signaled Peck had actually

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been assaulted or battered. The Peck court reasoned Allia n c e' s fa ilu re to refer to Peck's deposition or petition in its response to Peck's mo tio n fo r s umma r y jud gme n t precluded both documents from being part of the record relevant at the summary judgment phase which, in turn, prevented that court from considering them on appeal. Nevertheless, Alliance referenced Peck's deposition in its legal memorandum filed with its response to Peck's summa r y judgme nt motion. The Peck court determined these references, standing alone, did not allow it to consider Peck's deposition when reviewing the entry of summary judgment, holding: [W]e cannot consider these references [to Peck's deposition] because Rule 74.04(c) is clear that references to the record must appear in the response. The incorporation by reference to a memorandum of law does not satisfy the requirement of a properly drafted response to the motion for summar y judgment. A court may properly refuse to consider documents filed in opposition to a motion for summary judgment which have not been identi f i e d in a response which complies with Rule 74.04(c)(2), but are described only in a memorandum filed in opposition to the motion.

Id. at 75-76 (inte r na l c ita tio n s o mitte d ). Fidelity Real Estate, Blue Chalk, and Peck demonstrate the improprietie s in Street and in Mehrdad's position before this Court. These cases and others make clear any court— whether it be the circuit court addressing summar y judgme nt in the first instance or an appellate court reviewing an entry of summar y judgme nt—need only consult what was properly put before it by way of Rule 74.04(c) paragraphs and responses. For the foregoing reasons, Street is overruled to the extent it is inconsistent with this opinion and Rule 74.04. Ad d itio na l ly, Mehrdad argues the circuit court erred in overruli ng his motion for ne w tria l because there was conflicting evidence as to liability; therefore, a new trial should be granted to alleviate any possible prejudice. Because this argument is based on the circuit

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court's alleged error in entering partial summary judgment in Marcia's favor, it is denied given this Court's holding that the circuit court did not so err. Conclus ion The circuit court did not err in entering summa r y judgme nt on the issue of lia b il it y in Marcia's fa vo r. The circuit court's judgme nt is affirmed.

___________________________ Zel M. Fischer, Judge

All c o nc ur.