TODD J. and CAREY M. CROSSLEY, Plaintiffs-Appellants v. KING CONSTRUCTION, INC., et al., Defendants/Third-Party Plaintiffs-Respondents v. MUD BROTHERS STUCCO, INC. A/K/A or D/B/A OZARK CULTURED STONE, LLC, also F/K/A MUD BROTHERS STUCCO, INC., Third-Party Defendant

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TODD J. and CAREY M. CROSSLEY, Plaintiffs-Appellants, v. KING CONSTRUCTION, INC., et al., Defendants/Third-Party Plaintiffs- Respondents,

v. MUD BROTHERS STUCCO, INC. A/K/A or D/B/A OZARK CULTURED STONE, LLC, also F/K/A MUD BROTHERS STUCCO, INC.,

Third-Party Defendant.

No. SD38899

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Aaron G. Koeppen APPEAL DISMISSED In two points relied on, Todd J. Crossley and Carey M. Crossley ("Plaintiffs") appeal the circuit court's judgment in favor of King Construction, Inc. and Kirk King,

In Division

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individually (collectively, "Defendants"). The judgment was entered after the circuit court granted Defendants' Rule 74.04 motion for summary judgment. 1

Background Plaintiffs are the owners of a single-family residence in Camden County. Plaintiffs purchased the residence in 2011 from 1446 La Riva, LLC ("La Riva") approximately two years after Defendants completed construction of the home for La Riva. In 2022, Plaintiffs filed the underlying suit for money damages against the Defendants and La Riva for property damage allegedly caused by construction defects that resulted in water intrusion through the home's windows and stucco-style exterior. 2 The circuit court granted Defendants' motion for summary judgment on the ground that all of Plaintiffs' claims against Defendants were barred by the ten-year statute of repose set forth in section 516.097. 3

Analysis & Decision We are unable to consider the merits of Plaintiffs' error-claims because their brief materially fails to comply with the mandatory rules set forth in rules 84.04(c) and 74.04(c). The most egregious and fatal violation is that Plaintiffs fail to cite to any of the parties' statements of uncontroverted material facts (the "SUMF") and responses thereto

1 Unless otherwise indicated, all rule references are to Missouri Court Rules (2025). 2 Because Plaintiffs have unresolved claims against separate defendant La Riva, the circuit court certified its judgment as final under Rule 74.01(b) on the basis that the judgment disposed of all claims presented by Plaintiffs against King Construction, Inc. and Kirk King, individually. Additionally, no party challenges the circuit court's grant of summary judgment in favor of Mud Brothers Stucco, Inc., a third-party defendant named by Kirk Construction, Inc., based upon theories of indemnity and contribution. 3 Unless otherwise indicated, all statutory citations are to RSMo 2016.

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in their Statement of Facts. The numbered paragraphs of the SUMF and responses thereto are essential to the process of summary judgment. "[A]ny court–whether it be the circuit court addressing summary judgment in the first instance or an appellate court reviewing an entry of summary judgment–need only consult what was properly put before it by way of Rule 74.04(c) paragraphs and responses." Green v. Fotoohighiam, 606 S.W.3d 113, 121 (Mo. banc 2020). In Green, our high court further emphasized that: Facts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework. Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record. 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.

Id. at 117-18 (quoting Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. S.D. 2016)) (internal numbering, footnotes and quotations omitted). "Because the Rule 74.04(c) facts are the only ones 'relevant to the questions presented' on appeal of a summary judgment, those are the facts that Rule 84.04(c) requires the appellant to set forth fairly, concisely and without argument in the statement- of-facts section of a brief to this Court." Hershey v. Curators of Univ. of Mo., 719 S.W.3d 915, 921 (Mo. App. E.D. 2025) (citing Rule 84.04(c)). "Moreover, each factual assertion in the Statement of Facts must contain a specific page citation to the 'relevant portion of the record on appeal.'" Id. (citing Rule 84.04(c)). "The 'relevant portion[s]' of the record in a summary judgment appeal are the documents containing the Rule 74.04(c) numbered paragraphs and responses: namely, the movant's SUMF and the non-movant's

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response, the non-movant's additional SUMF and the movant's reply, and the movant's supplemental SUMF and the non-movant's surreply." Id. (citing Rule 74.04(c)(1)-(5)). Here, Plaintiffs have failed to adhere to that mandatory framework by failing to cite SUMF paragraphs and responses. Instead, Plaintiffs cite deposition transcripts, affidavits, and other exhibits. Those supporting materials play only a "secondary role" in the mandatory Rule 74.04 summary-judgment process. To try to determine which SUMF paragraphs and responses are relevant to Plaintiffs' appeal would require us to "impermissibly 'act as an advocate for a party' by 'sift[ing] through the entire record[.]'" Cox v. Callaway Cnty. Sheriff's Dep't, 663 S.W.3d 842, 850 (Mo. App. W.D. 2023) (quoting Green, 606 S.W.3d at 118). "[A]llowing 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. (quoting Green, 606 S.W.3d at 120). In any civil appeal, when you break it down into its essential components, the appellant must: 1) identify a specific action or ruling by the trial judge that was erroneous (not the judgment itself); 2) present the relevant facts as viewed in the light of the applicable standard of review; 3) identify the specific governing law that applies to that identified action or ruling; 4) explain why the governing law as applied to the relevant facts demonstrates that the challenged action or ruling by the trial judge was erroneous; and 5) the error was so prejudicial that it materially affected the outcome of the case. See Rule 84.04; see also Hacker v. Quinn Concrete Co., 857 S.W.2d 402, 415

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(Mo. App. W.D. 1993) (citing Roque v. Kaw Transp. Co., 697 S.W.2d 254, 257 (Mo. App. W.D. 1985), and section 512.160.2). In short, because Plaintiffs' brief fails to cite any relevant facts – an essential component of a proper appeal – we have nothing to subject to the process of appellate review. Accordingly, we must – and hereby do – dismiss the appeal.

DON E. BURRELL, J. – OPINION AUTHOR BECKY J. WEST, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS