EBY v. BOARD OF CURATORS OF UNIVERSITY OF MISSOURI (2026)

Introduction

Tim Eby appeals the circuit court's judgment granting summary judgment for the Board of Curators of the University of Missouri on his defamation claim. Because Eby failed to demonstrate that the University waived sovereign immunity, the circuit court's judgment is affirmed.

Procedural and Factual Background

St. Louis Public Radio (“KWMU”) is owned and operated by the University. KWMU hired Eby in 2009. He eventually became KWMU's general manager. In September 2020, KWMU removed Eby as general manager after he was accused of racism.

In the wake of his termination, Eby filed a defamation action alleging the University repeated and/or republished defamatory statements. Eby alleged an anonymous group of KWMU's staffers published an article on Medium.com accusing him of upholding “white supremacy at the station by remaining complacent with the status quo.” KWMU published two online articles that quoted and hyperlinked the Medium.com article's accusations. Eby also alleged KWMU falsely reported that he mismanaged KWMU's finances. Finally, Eby alleged that sovereign immunity did not apply to this suit because KWMU performed a propriety function for the University and the University maintained liability insurance. The University filed a motion to dismiss or for summary judgment asserting that Eby's claims were barred by sovereign immunity.

The circuit court acknowledged that sovereign immunity may be waived when a municipality performs a proprietary rather than a governmental function or when a public entity maintains liability insurance without a sovereign immunity exception. The circuit court found the proprietary function exception was not applicable to a state entity. But, the circuit court overruled the summary judgment motion because it found there were questions of material fact regarding the existence and terms of any insurance policies held by the University.

The University filed a second motion for summary judgment in January 2025, asserting the undisputed material facts demonstrated the University did not waive sovereign immunity in any of its insurance policies. Almost two months after responding to the second summary judgment motion, Eby filed a motion for default judgment asserting he was entitled to a default pursuant to Rule 74.05(a) because the University's answer to his original petition was late.

The circuit court issued three separate orders on the same day: (1) an order denying Eby's motion for default and granting the University's request to file its answer out of time; (2) an order and judgment granting the University's second motion for summary judgment; and (3) an order finding Eby's motion to compel discovery and the University's motion for a protective order moot due to its judgment. Eby appeals.

Standard of Review

This Court reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “In reviewing the decision to grant summary judgment, this Court applies the same criteria as the [circuit] court in determining whether summary judgment was proper.” Weeks v. St. Louis Cnty., 696 S.W.3d 333, 338 (Mo. banc 2024) (quoting Sachtleben v. Alliant Nat'l Title Ins. Co., 687 S.W.3d 624, 629 (Mo. banc 2024)). Summary judgment is appropriate when the record demonstrates there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020); Rule 74.04(c)(6). The summary judgment record is viewed “in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record.” Glendale Shooting Club, Inc. v. Landolt, 661 S.W.3d 778, 783 (Mo. banc 2023) (quoting Brockington v. New Horizons Enterprises, LLC, 654 S.W.3d 876, 880 (Mo. banc 2022)).

The University is a State Entity Entitled to Sovereign Immunity

Eby first claims that the circuit court erred by granting summary judgment in the University's favor because the University is not entitled to sovereign immunity for proprietary, as opposed to governmental, functions. Eby states that because the University's actions were proprietary, it was not entitled to sovereign immunity.

“Sovereign immunity is a common law judicial doctrine barring suit against a government or public entity.” Allen v. 32nd Jud. Cir., 638 S.W.3d 880, 886 (Mo. banc 2022). Unless sovereign immunity is waived, abrogated, or consented to, sovereign immunity applies to the state and its entities. Id.; section 537.600.

Eby's assertion that the circuit court must first determine whether the state entity's actions are governmental or proprietary in all cases is incorrect. “The traditional rule ․ permits the application of the governmental-proprietary distinction (and the preclusion of immunity in the latter circumstance) only as to municipalities.” State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 186 (Mo. banc 1985); see also State ex rel. Missouri Dep't of Agric. v. McHenry, 687 S.W.2d 178, 181-82 (Mo. banc 1985) (“The proprietary-governmental dichotomy applies only in the law of municipal corporations, and not to activities of the state”). A municipality has immunity for its governmental functions but not for proprietary functions. Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). “Proprietary functions ‘are those performed by the municipality for profit or for the special benefit of the municipality.’ ” Shade-Schaefer v. City of Eureka, 693 S.W.3d 67, 74 (Mo. App. 2023) (quoting Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. App. 2009)). “Full common law sovereign immunity belongs only to state entities.” Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008).

Eby admitted the University is a state entity, existing pursuant to article IX, section 9(a) and (b) of the Missouri Constitution, and section 172.200. The University is an acknowledged “public entity with the status of a governmental body.” Wille v. Curators of Univ. of Missouri, 627 S.W.3d 56, 62 (Mo. App. 2021) (quoting Langley v. Curators of Missouri, 73 S.W.3d 808, 811 (Mo. App. 2002)). As a result, the circuit court correctly declined to apply the governmental-proprietary analysis to the University.

Because the University is a state entity, it is entitled to sovereign immunity. There is no need to invoke the governmental-proprietary function analysis. The circuit court correctly concluded the University is entitled to sovereign immunity.

Exhibit G-1

Next, Eby claims that the circuit court erred by granting summary judgment because the University relied on a substituted exhibit, Exhibit G-1, that was not part of the record in the University's original motion for summary judgment. Exhibit G-1 was a copy of the University's applicable Data Protection Liability Insurance policy. The University originally filed an incorrect copy of the policy, labeled as Exhibit G, with the second motion for summary judgment. Eby argues that the circuit court was not able to consider Exhibit G-1 because it was not properly part of the summary judgment record. Eby is incorrect.

The University's second motion for summary judgment asserted it should be granted judgment as a matter of law because all of its insurance policies contained non-waiver provisions regarding sovereign immunity. The University's statement of uncontroverted material facts provided that the University specifically requires all insurance purchased for the University to explicitly maintain sovereign immunity. The statement also set forth the specific language from each insurance policy designed to maintain the University's immunity. To support those statements of fact, the University attached an affidavit from its Director of Risk and Insurance Management. The affidavit also set forth the language from each insurance policy and attached copies of the insurance policies. The Data Protection Liability Insurance Policy at issue was Exhibit G.

Eby's response disputed the University's assertion that the Policy retained the University's sovereign immunity because Exhibit G contained two sovereign immunity endorsements, neither of which indicated it was controlling. Eby argued the conflicting endorsements created an ambiguity in the policy.

In response, the University took two actions. First, the University filed a verified motion to substitute Exhibit G with Exhibit G-1. That motion stated that Exhibit G was erroneously included with the original affidavit supporting the motion for summary judgment. It also stated that Exhibit G included a previous, and inapplicable, version of the sovereign immunity endorsement. The motion also stated that Eby was aware of G-1 because it was previously produced in discovery. The Assistant Vice President of Management Services and Director of Risk and Insurance Management for the entire University of Missouri system verified the motion and stated that Exhibit G-1 was a true and correct copy of the policy in effect at the time of Eby's claim.

Second, the University denied Eby's assertion in its reply to Eby's statement of additional material facts. The University's reply explained that the Data Protection Liability Insurance policy attached as Exhibit G was incorrect and that it had provided the updated version of the policy as Exhibit G-1. The University denied Eby's allegations because Exhibit G was not applicable on the relevant dates. The circuit court permitted Eby to file a sur-reply in which he addressed the addition of Exhibit G-1. Eby did not deny or otherwise address the assertion that Exhibit G-1 was the policy in effect at the relevant time. The circuit court then sustained the University's motion to substitute Exhibit G-1 and its motion for summary judgment.

Eby alleges that the circuit court erred in considering Exhibit G-1 as support for the University's statement of facts because it did not properly come into the summary judgment record under Rule 74.04(c). A reviewing court looks only at the Rule 74.04(c) paragraphs and responses “regardless of other facts or factual disputes.” Green, 606 S.W.3d at 118 (quoting Pemiscot Cnty. Port Auth. v. Rail Switching Servs., Inc., 523 S.W.3d 530, 534 (Mo. App. 2017) (emphasis in original)). “Arguments ․ 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.” Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766, 774 (Mo. App. 2024) (quoting Cox v. Callaway Cnty. Sheriff's Dep't, 663 S.W.3d 842, 849 (Mo. App. 2023)). Equally, the “incorporation by reference to a memorandum of law does not satisfy the requirement of a properly drafted response to the motion for summary judgment.” Green, 606 S.W.3d at 121 (quoting Peck v. All. Gen. Ins. Co., 998 S.W.2d 71, 75 (Mo. App. 1999)).

Eby's argument is at odds with Rule 74.04(c)(5), which states, “No other papers with respect to the motion for summary judgment shall be filed without leave of court.” While technically voiced in the negative, Rule 74.04(c)(5) grants the circuit court discretion to permit parties to file additional papers in support of or opposition to the motion. That discretion should generally be exercised quite narrowly and in line with the Supreme Court's direction that “[f]acts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and responses framework.” Green, 606 S.W.3d at 117.

This case provides an example of an appropriate use of that discretion. After filing its exhibits, the University realized it made a mistake. The mistake was not related to the separately numbered paragraphs that set forth the operative facts, but instead was an erroneously filed exhibit supporting one of the statements of fact. The University sought leave of the circuit court to correct that mistake, and the circuit court obliged. The substitution did not add or modify any fact in the original filing. The circuit court did not err in permitting the University to submit a corrected exhibit.

Eby argues that the substitution was unfair to him because it came only after he filed his response to the University's statement of uncontroverted facts thereby leaving him unable to respond. But Eby was permitted to file a sur-reply to address the issue. Moreover, Eby was able to respond in his initial response because the operative facts never changed, just one exhibit that supported one operative fact regarding policy language. The correct language was quoted verbatim in both the statement of uncontroverted material facts and the Vice President's affidavit supporting the motion for summary judgment. Lastly, Eby received Exhibit G-1 in discovery and should have been aware that the policy initially filed as Exhibit G was erroneous. Rather than recognizing the mistake, Eby argued that a superseded version of an insurance policy should preclude summary judgment because it creates an ambiguity.¹

The circuit court permitted the University to file Exhibit G-1 as a substitute for Exhibit G. Accordingly, Exhibit G-1 is part of the summary judgment record “pursuant to Rule 74.04(c)’s numbered-paragraphs-and-responses framework.” Green, 606 S.W.3d at 117 (quoting Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. 2016)). Because Exhibit G-1 was part of the summary judgment record, the circuit court did not err in considering it.

Exhibit's Authenticity

Eby claims the circuit court erred by granting summary judgment in the University's favor because Exhibit G-1 was unauthenticated and, therefore, inadmissible. Eby argues that Exhibit G-1 was unauthenticated because the affidavit attached to the University's original motion for summary judgment does not reference Exhibit G-1 specifically.

Circuit courts have discretion to determine whether a sufficient foundation was laid to admit evidence. State v. Neither, 721 S.W.3d 563, 566 (Mo. App. 2025). This includes discretion to determine the authenticity of a document. State v. Hamm, 675 S.W.3d 630, 641 (Mo. App. 2023).

As noted, the submission of Exhibit G-1 corrected a mistake in the University's initial summary judgment motion. The motion to substitute Exhibit G-1 included a sworn and notarized verification of the Assistant Vice President of Management Services. The Vice President stated he had personal knowledge of the matters in the motion and was familiar with the insurance policies. He further stated that the incorrect exhibit was inadvertently included in the summary judgment motion, but his prior affidavit quoted Exhibit G-1. Additionally, he verified that Exhibit G-1 contained the correct sovereign immunity endorsement. The circuit court did not abuse its discretion in considering Exhibit G-1.

Ambiguity in Exhibit G

Eby claims the circuit court erred by granting summary judgment in the University's favor because Exhibit G contained two conflicting sovereign-immunity endorsements. Eby argues these two endorsements created an ambiguity and, based on New York law, the ambiguity needed to be construed in his favor.

Eby's claim is premised upon the assumption that the circuit court's grant of summary judgment relied upon the insurance contract in Exhibit G. However, the circuit court sustained the University's motion to substitute Exhibit G with Exhibit G-1. Accordingly, the operative insurance policy is contained in Exhibit G-1. Because Eby's argument only addresses issues with a superseded exhibit, there is nothing for this Court to review.

Consideration

Eby claims the circuit court erred by granting summary judgment in the University's favor because the University failed to demonstrate that Exhibit G-1's endorsement was supported by consideration. Eby argues that because the University failed to prove there was consideration to support the Exhibit G-1's endorsement, it should be disregarded.

Eby raised this issue in his summary judgment sur-reply. Eby's argument that the University failed to prove there was consideration for the Exhibit G-1 endorsement was in a narrative form rather than Rule 74.04(c)’s required numbered-paragraphs-and-responses framework. A party asserting there is a failure of consideration “has the burden to show the absence of consideration; it is not sufficient merely to plead the lack of consideration.” Harris v. A.G. Edwards & Sons, Inc., 273 S.W.3d 540, 544 (Mo. App. 2008). Eby pleaded lack of consideration, but offered no evidence supporting this assertion.

Eby's narrative argument is “completely disconnected from the numbered paragraph material facts in the summary judgment record” mandated by Rule 74.04(c) and, therefore, is “analytically useless in an appellate review that requires this [C]ourt to properly apply Rule 74.04.” Great S. Bank v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 835 (Mo. App. 2016). Neither this Court nor the circuit court may “look outside the Rule 74.04(c) paragraphs and responses to find issues of material fact [because it] would exceed the limits of de novo review.” Green, 606 S.W.3d at 120. Accordingly, Eby fails to demonstrate the circuit court erred.

Denial of Default

Eby claims the circuit court abused its discretion by denying his motion for default because the University did not file their answer timely. Eby argues the University failed to present evidence establishing excusable neglect and a meritorious defense. Eby asserts that due to this failure, the judgment should be reversed and an interlocutory default judgment should be entered.

Eby asserts that a default judgment must be entered when there is a Rule 74.05(a) violation. This is incorrect. Rule 74.05(a) states, “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party.” (Emphasis added). Rule 74.05(a) gives the circuit court discretion to act; there is no mandate that it must act. There is “a strong preference for deciding cases on the merits” because default judgments are disfavored. Brungard v. Risky's Inc., 240 S.W.3d 685, 688 (Mo. banc 2007).

While the University admitted its inadvertent failure to file its answer within 30 days after the circuit court denied the first motion for summary judgment, the University was not complacent with defending its position. “In order to ‘otherwise defend,’ the defendant must take ‘some affirmative action ․ which would operate as a bar to the satisfaction of the moving party's claim.’ ” Heineck v. Katz, 509 S.W.3d 116, 120 (Mo. App. 2016) (quoting O'Neill v. O'Neill, 460 S.W.3d 51, 57 (Mo. App. 2015)). During the time period Eby claims the University was in default, the parties were engaged in discovery and the University filed its second motion for summary judgment. There is no indication the University's failure to file its answer was designed to impede the judicial process. Further, Eby fails to present any argument he was prejudiced by the lack of an answer when he was otherwise engaged in litigation with the University. Because the University was “otherwise defending” its position, the circuit court did not abuse its discretion by denying Eby's default motion.

Motion to Compel

Eby claims the circuit court erred by denying his motion to compel as moot. Eby asserts that if summary judgment is reversed, the circuit court's discovery order should be vacated and remanded.

Because the circuit court's summary judgment finding the University has sovereign immunity is affirmed, remanding this case for additional discovery would have no practical effect on the litigation. See Humane Soc'y of United States v. State, 405 S.W.3d 532, 535 (Mo. banc 2013) (defining a moot cause of action). This claim is dismissed as moot.

Conclusion

The judgment is affirmed.

FOOTNOTES

1.   It has not escaped this Court's notice that Eby filed a similar motion to substitute in response to the University's first motion for summary judgment. Eby erroneously filed an unsigned copy of an affidavit with his original response to the motion. Realizing the error, Eby filed a motion to substitute the affidavit with a fully executed copy. That motion was unopposed. Had the circuit court treated Eby's motion to substitute as Eby asks this Court to treat the University's the circuit court likely could have deemed the facts admitted and entered judgment against Eby.

John P. Torbitzky, Chief Judge

Angela Turner Quigless, Judge and Thomas C. Clark II, Judge concur.