LOGAN NUMBERS v. 76 MALL INN INC GRAND COUNTRY FUN SPOT LLC (2026)

This appeal involves a claim of disability-based employment discrimination under the Missouri Human Rights Act (“MHRA”). See sections 213.010 et seq., RSMo Cum.Supp. (2017). Logan Numbers (“Appellant”) filed a charge of discrimination with the Missouri Commission on Human Rights (“the Commission”) naming Grand Country Fun Spot, LLC (“GCFS”) and Grand Country, Inc. (“GCI”) as respondents, and the Commission issued Appellant a notice of a right to sue.

Thereafter, Appellant filed the underlying civil suit, naming GCFS the defendant. GCFS answered, denied it was Appellant's employer, and filed a motion for summary judgment alleging that 76 Mall Inn, Inc. (“76 Mall”) was Appellant's employer. Appellant moved to file a first amended petition substituting 76 Mall for GCFS, and the circuit court granted the motion. See Rule 55.33, Missouri Court Rules (2025). Thereafter, GCFS filed a motion for court costs and attorney fees, and 76 Mall filed a motion for summary judgment.

This appeal concerns the two resulting judgments, one of which granted GCFS's motion for court costs and attorney fees (“judgment 1”), and the other of which granted 76 Mall's motion for summary judgment (“judgment 2”). Appellant challenges judgment 1 in his first and second points and challenges judgment 2 in his third, fourth, and fifth points. Finding merit in Appellant's first, third, and fifth points, and finding that the remaining points are thereby rendered moot, we vacate the circuit court's judgments in favor of GCFS and 76 Mall (collectively referred to as “Respondents”), deny GCFS's motion for attorney fees incurred in this appeal, and remand for further proceedings consistent with this opinion.

Judgment 1

General Legal Background and Standard of Review

In Judgment 1, the circuit court awarded GCFS attorney fees under MHRA section 213.111.2, which provides, in pertinent part, that a court “may award court costs and reasonable attorney fees to the prevailing party, other than a state agency or commission or a local commission; except that, a prevailing respondent may be awarded reasonable attorney fees only upon a showing that the case was without foundation.”

We are guided by the principles articulated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), in our review of this award. Willard v. Raga, 290 S.W.3d 768, 771 (Mo.App. 2009); see also Rule 84.13(d), Missouri Court Rules (2025) (governing appellate review of a court tried case). “We will affirm the [circuit] court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Willard, 290 S.W.3d at 771 “[W]here, as here, the inquiry involves the question of the [circuit] court's authority to award attorney[ ] fees, this court need not defer to [the circuit court's] decision.” Id. at 771 n.3. (internal quotation marks omitted).

Factual and Procedural Background

In its answer, GCFS affirmatively alleged it never employed Appellant. Then, in its subsequent motion for summary judgment, GCFS specifically identified 76 Mall, asserting that entity, not GCFS, had employed Appellant. The day after GCFS filed its motion for summary judgment, Appellant filed his motion to substitute 76 Mall for GCFS by way of a first amended petition. GCFS thereafter filed its motion for attorney fees citing section 213.111.2 and pointing to allegations from its answer, statements of material fact from its motion for summary judgment, and exhibits attached thereto as proof Appellant knew or should have known he had been employed by 76 Mall.

Less than thirty days after GCFS filed its motion for summary judgment, the circuit court substituted 76 Mall for GCFS as the defendant in the underlying action. Appellant never filed a response to GCFS's motion for summary judgment, and the circuit court never ruled on it. Appellant did, however, file a response to GCFS's motion for attorney fees, asserting that his action against GCFS “stemmed from the inclusion of the name Grand County on [Appellant]’s application documents and other documents provided to [Appellant] through and during his employment.” Although Appellant incorporated some of these exhibits into his motion, the motion itself was unverified.

Following the summary judgment proceedings thereafter initiated by 76 Mall, the circuit court entered docket entries on the same day, first sustaining 76 Mall's motion for summary judgment and then sustaining GCFS’ motion for attorney fees. The circuit court issued its written judgment 1 on that same day as well, while it issued its judgment 2 nine days later.

In judgment 1, the circuit court stated that, having reviewed GCFS’ motion for attorney fees “and other pertinent filings in this Case,” it concluded:

1. The filing by [Appellant] of his Motion to File First Amended Petition substituting [76 Mall] in place of [GCFS] is an acknowledgement by [Appellant] that [GCFS] was not [Appellant]’s employer, and was not a proper defendant to be named in this Case.

2. [GCFS] is, thus, a “prevailing respondent” under [section] 213.111.2.

3. [Appellant]’s filing of his Original Petition against [GCFS] was “without foundation” under [section] 213.111.2.

4. [GCFS] is entitled to an award of “court costs and reasonable attorney fees” under [section] 213.111.2.

In awarding attorney fees specifically, the circuit court further stated that those fees were awarded to GCFS “jointly against [Appellant] and [Appellant]’s attorneys of record[.]”

Analysis

Appellant challenges judgment 1 in his first and second points. Point 1 narrowly challenges judgment 1 to the extent that it awarded GCFS attorney fees “jointly” against Appellant and his counsel. Point 2 is broader and is dispositive of both points. In point 2, Appellant challenges the circuit court's finding that his MHRA claims against GCFS were “without foundation” under section 213.111.2, contending “that the record reflects at least a submissible dispute regarding employment status, the Court made no well-supported findings that the suit was frivolous, unfounded or vexatious, and Appellant's later substitution of [76 Mall] does not retroactively render the original claims frivolous or without foundation when filed.” We find merit in this contention.

To reiterate the relevant requirements of section 213.111.2: “a prevailing respondent may be awarded reasonable attorney fees only upon a showing that the case was without foundation.” (Emphasis added.) This Court previously addressed what such a showing requires:

As best we can determine, this issue appears not to have been addressed by our state courts; however, we may refer to federal decisions interpreting similar civil rights law. Missouri Comm'n on Human Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161, 168 (Mo.App.1999). In an 8th Circuit Court of Appeals decision, the court stated that “this Circuit has been unwilling to award attorney[ ] fees where the defendant is unable to prove that the plaintiff's case is meritless.” Marquart v. Lodge[,] 837[ ] 26 F.3d 842, 851 (8th Cir.1994)[, abrogated on other grounds by CRST Van Expedited, Inc. v. E.E.OC., 578 U.S. 419 (2016)]. A prevailing defendant must show, at the very least, that a plaintiff's case is frivolous, unreasonable, or groundless. Id. “The imposition of sanctions is a serious matter and should be approached with circumspection.” Bass v. Southwestern Bell Telephone, Inc., 817 F.2d 44, 47 (8th Cir.1987) (quoting O'Connell v. Champion Int'l Corp., 812 F.2d 393, 395 (8th Cir.1987)). In determining whether a plaintiff's claim is without foundation, a trial court must not engage in post hoc reasoning by concluding that plaintiff's action was unreasonable or without foundation because plaintiff did not prevail at trial. Id.

Loethen v. Central Missouri Urology Clinic, Inc., 48 S.W.3d 126, 130-31 (Mo.App. 2001). We note further that the “frivolous, unreasonable, or groundless” standard set out in Loethen was an abridged summary of the source authority's recitation of said standard. In its totality, the standard is that a plaintiff should not be assessed the defendant's attorney fees unless a court “ ‘finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.’ ” Marquart, 26 F.3d at 848 (alternation in original) (emphasis added) (quoting Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978)).

Here, in judgment 1, the circuit court concluded that Appellant's MHRA claims against GCFS were “without foundation” under section 213.111.2. The only support that the circuit court provided for this conclusion was that ” [t]he filing by [Appellant] of his Motion to File First Amended Petition substituting [76 Mall] in place of [GCFS] is an acknowledgement by [Appellant] that [GCFS] was not [Appellant]’s employer, and was not a proper defendant to be named in this Case.” It appears, therefore, that the circuit court focused on Appellant's inability to prevail against GCFS—the kind of post hoc reasoning Loethen cautioned against. See 48 S.W.3d at 130-31. If Appellant made a good faith mistake in misidentifying his employer, then, as Christianburg suggests, he should not be penalized for seeking to correct that mistake upon its discovery by promptly substituting the apparently proper party, 76 Mall. See 434 U.S. at 422.

Respondents attempt to argue that they made a showing that Appellant knew or had reason to know the identity of his employer. In doing so, Respondents rely, in part, on affirmative averments proffered by GCFS in its answer and on statements of material fact proffered by GCFS in its motion for summary judgment. Aside from the issue that there is no judgment addressing or resolving either of these filings, none of the filings speak to whether Appellant knew or should have known whether 76 Mall was his employer.

The same cannot be said of the summary judgment record giving rise to judgment 2, in favor of 76 Mall, which Respondents also rely on in addressing Appellant's second point relied on. While we will discuss said record in greater detail, infra, we briefly address it here because Respondents (and Appellant) rely on said record to some extent, said record touches on the “without foundation” issue adjudicated in judgment 1, and we cannot say whether the “other pertinent filings in this Case” that the circuit court referenced in judgment 1 did not also include said record.

Turning then to that said record, Respondents rely in large part on paragraph 19 of 76 Mall's statements of material fact. That paragraph states:

19. [Appellant] knew or had reason to know that [Appellant] had been employed only by Defendant [76 Mall], and not [GCFS] or [GCI] at the time he filed his Charge of Discrimination, requested the Commission to issue the Notice of Right to Sue, and filed his Original Petition. Exhibits H, I, J, and K [these exhibits include Missouri and federal W-4 forms, a W-2 wage and tax statement, and pay stub receipts].

In judgment 2, the circuit court determined that paragraph 19 was one of the statements of material fact that “are not controverted, and are true for purposes of [76 Mall]’s Motion for Summary Judgment[.]”

However, Appellant, in the statement of facts section of his brief, correctly notes that he “attempted to controvert” paragraph 19. Appellant further relies on his response to paragraph 19 in his argument in support of his second point relied on. Below, we quote Appellant's response to paragraph 19, wherein he cites some of the same exhibits also attached to his response to GCFS's motion for attorney fees:

RESPONSE: Controverted. See Exhibit[ ] 4, Exhibit 5, Exhibit 9 (using Grand Country, [GCI] as named “employer”) and:

• Employees of 76 Mall, like Plaintiff would wear “Fun Spot” logoed shirts when working (Deposition of Glenn Robinson at 58:5 – 59:17).

• The arcade also maintains signage at the entry stating that those entering the facility are coming into: Grand Country Fun Spot. (Deposition of Glenn Robinson at 17:7 – 18:2.).

The issue of whether the circuit court correctly designated paragraph 19 as “not controverted” is immaterial, however, because, as further observed by Appellant, the circuit court concluded in judgment 2 that paragraph 24—one of the additional statements of material facts Appellant proffered in response to 76 Mall's statement of material facts—“remain controverted.” The significance of paragraph 24 here, quoted in its entirety as follows, is that it is diametrically opposed to 76 Mall's allegation in paragraph 19 that “[Appellant] knew or had reason to know that [Appellant] had been employed only by Defendant [76 Mall], and not [GCFS] or [GCI] at the time he filed his Charge of Discrimination”:

24. The role of [76 Mall] could not through reasonable effort be ascertained at the time of filing of the Charge of Discrimination attached to [76 Mall]’s [statement of material facts] as Exhibit B.

Supporting Evidentiary Facts:

• [GCFS], [GCI] and 76 Mall are all owned and operated by Glenn Robinson or his trust. (Deposition of Glenn Robinson, Exhibit L, at 6:8 – 10:5).

• Robinson is “100% owner” of 76 Mall. (Deposition of Glenn Robinson at 6:12 – 19). He also owns [GCI] and [GCFS]. (Deposition of Glenn Robinson, Exhibit L, at 6:23 – 7:21).

• Robinson controls all these entities on his own and he admitted that all the entities are interrelated and work out of the same address. (Deposition of Glenn Robinson, Exhibit L, at 9:22 – 23; 33:1 – 4; 35:14 – 17).

• Robinson, an employee of [GCI], has the ability to change policies applicable to employees of 76 Mall as the policies denote the employer as “Grand Country.” (Deposition of Glenn Robinson, Exhibit L, at 51:13 – 54:5).

• The employee safety rules applicable to [Appellant] were signed by Robinson on behalf of [GCI] (Deposition of Glenn Robinson, Exhibit L, at 55:25 – 58:7).

• All three entities share the same corporate office and have common management – like Debra Johnston – who makes some personnel decisions. (Deposition of Glenn Robinson, Exhibit L, at 32:10 – 33:19).

• Johnston is considered the “general manager” of the Fun Spot where [Appellant] worked. (Deposition of Glenn Robinson, Exhibit L, at 38:25 – 39:10).

• Despite making employment decisions related to 76 Mall, Johnston is and was employed by [GCI] yet she managed employees of 76 Mall who work at the Fun Spot. (Deposition of Glenn Robinson, Exhibit L, at 32:2 – 32:25; 33:7 – 18).

• Human resources decisions are also made by Travis Howard – who answers to Johnston – but is employed by 76 Mall. (Deposition of Glenn Robinson, Exhibit L, 33:24 – 34:14).

• Ultimately, the president, Robinson, has authority over all entities – including the hiring and firing of employees. (Deposition of Glenn Robinson 33:24 – 34:14).

• Howard, Johnston, and Robinson all work out of the same corporate office. (Deposition of Glenn Robinson at 36:15 – 24).

• Employees of 76 Mall, like [Appellant], wear “Fun Spot” logoed shirts when working. (Deposition of Glenn Robinson at 58:5 – 59:17).

• The arcade also maintains signage at the entry stating that those entering the facility are coming into: Grand Country Fun Spot. (Deposition of Glenn Robinson at 17: 7 – 18:2).

• [Appellant]’s employment documents also repeatedly indicate that [Appellant] was employed by “Grand Country” or “Fun Spot[.”] For example, the employee manual was entitled the “Fun Spot Employee Manual.” (Exhibit 3).

• The applicable employee return to work policy lists the employer as “Grand Country[.”] (Exhibit 4).

• The employment application also listed the employer as “Grand Country[.”] (Exhibit 5).

• The “Drug-Free Workplace Policy” also indicates that [Appellant] was employed by “Grand Country.” (Exhibit 9).

• The employment form packet indicates that [Appellant] was part of the “Grand Country team” and would be working in the “Department” titled “Fun Zone/Arcade.” (Exhibit 9).

• The safety rules also specify that the[y] apply to “Grand Country” and talk about “employees.” Exhibit 9.

• The safety rules are signed by [Appellant] and Glen Robinson (as president/owner of [GCI]). (Exhibit 9).

• The applicable “Transitional Duty Policy” (also applicable to [Appellant]) references employees and indicates the employer is “[GCI]” (Exhibit 9).

• An employee of [GCI], Cathy Maggard, also administers employee benefits plans for employees of 76 Mall. (Deposition of Glenn Robinson, Exhibit L, at 61:21 – 62:8).

We need not further belabor the point. Suffice it to say that the underlying record demonstrates that Appellant's initial MHRA case against GCFS, on the issue of whether GCFS was Appellant's employer, “was not totally devoid of any foundation, nor was it frivolously filed.” Loethen, 48 S.W.3d at 131. Accordingly, point 2 is granted. Because our disposition of Appellant's second point requires vacating judgment 1, Appellant's challenge in his first point to the circuit court's award of attorney fees “jointly” against Appellant and his counsel is moot and need not be addressed.

Judgment 2

General Legal Background and Standard of Review

Nine days after issuing judgment 1, the circuit court issued judgment 2, which granted 76 Mall summary judgment. 76 Mall argued that it was entitled to summary judgment because Appellant did not exhaust his administrative remedies against 76 Mall under section 213.075.1. In order to bring a civil action under the MHRA, complainant must file a charge of discrimination with the Commission, “which shall state the name and address of the employer,” which, under section 213.111.1, can give rise to a notice of a right to sue “against the respondent named in the complaint.” 76 Mall further argued that Appellant did not file his civil suit against 76 Mall within the time limits of section 213.111.1, which, upon the Commission issuing a notice of a right to sue, requires the suit to be filed “within ninety days” against the respondent.

In his suggestions in opposition to 76 Mall's motion for summary judgment, Appellant argued that neither of these statutes barred his civil suit. Appellant's arguments relied in large part on cases applying the “Substantial Identity of Interest” test, see Hill v. Ford Motor Co., 277 S.W.3d 659, 669-70 (Mo. banc 2009), superseded by statute on other grounds as stated in Matthews v. Harley-Davidson, 685 S.W.3d 360, 367 n.6 (Mo. banc 2024), and the “Relation Back of Amendments” rule of civil procedure, see Rule 55.33(c).

Our review of the circuit court's resulting summary judgment in favor of 76 Mall is governed by Rule 74.04, Missouri Court Rules (2025). As the summary judgment movant, 76 Mall bore “the initial burden of setting out the uncontroverted material facts and demonstrating that judgment as a matter of law flows from those material facts.” Loerch v. City of Union Missouri, 643 S.W.3d 597, 601 (Mo.App. 2022). If that initial burden was met, the opposing party—in this case, Appellant—could “overcome summary judgment by demonstrating either that there is a genuine dispute over the material facts or that the undisputed facts do not establish the right to judgment as a matter of law.” Id.

“We review the grant of summary judgment de novo.” Show-Me Inst. v. Off. Of Admin., 645 S.W.3d 602, 607 (Mo.App. 2022). In so doing, “we review the summary judgment record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all reasonable inferences.” Perea v. Progressive Northwestern Insurance Co., 678 S.W.3d 167, 172 (Mo.App. 2023).

Factual and Procedural Background

In judgment 2, the circuit court determined that all the statements of material fact accompanying 76 Mall's motion (paragraphs 1 through 19), and a few additional statements of material fact proffered by Appellant (paragraphs 20, 21, and 23), “are not controverted, and are true for purposes of [76 Mall]’s Motion for Summary Judgment.” The circuit court further determined that the remaining additional statements of material fact proffered by Appellant (paragraphs 22 and 24 through 27) “remain controverted.”

We have already quoted paragraphs 19, supra. Of the paragraphs that remain, which the circuit court determined “are not controverted,” their relevance is limited to establishing the following: Appellant filed a charge of discrimination with the Commission on November 23, 2023, listing GCFS and GCI, but not listing 76 Mall; 76 Mall was aware of Appellant's charge of discrimination and participated in the administrative processing of the charge; the Commission issued a notice of right to sue to Appellant on June 8, 2024, indicating Appellant's right to sue, within ninety days, the respondents listed in his charge of discrimination; Appellant filed his original petition on August 22, 2024, fewer than ninety days later, naming GCFS; and the circuit court thereafter granted Appellant's motion to file his first amended petition, substituting 76 Mall for GCFS on December 5, 2024.

We have also already quoted paragraph 24, supra. Paragraphs 25, 26, and 27 that “remain controverted” are noteworthy and we quote them as follows (excluding the descriptions of and citations to depositions and exhibits): “[t]he interests of [GCI] and [GCFS] are so similar as to 76 Mall that for the purposes of obtaining voluntary conciliation and compliance it was unnecessary to include 76 Mall in the administrative proceeding”; “76 Mall was not prejudiced by not being named as an employer in the Charge of Discrimination filed by [Appellant] as against [GCFS] and [GCI]”; and “76 Mall, as [Appellant]’s employer, made representations to [Appellant] concerning his relationship with [GCI] and/or [GCFS].”

The circuit court concluded that 76 Mall demonstrated its right to summary judgment based upon the legal theories in its motion and the uncontroverted material facts. The circuit court further concludes that the material facts that “remain controverted” do not preclude summary judgment in 76 Mall's favor. Following summary judgment, 76 Mall filed a motion for attorney fees under section 213.111.2, which the circuit court denied. 76 Mall appealed this denial in SD39290.

Analysis

We turn to Appellant's remaining points 3, 4, and 5, all of which challenge judgment 2. For ease of analysis, we address these points out of order.

Appellant challenges the circuit court's summary judgment on the issue of exhaustion of administrative remedies in his fourth and fifth points. In his fourth point, Appellant contends that the circuit court misapplied section 213.075 “in that Appellant's claims were administratively exhausted as to [76 Mall] as it had participated in the administrative process as a ‘Respondent’ in response to the Charge and Appellant had received a right-to-sue letter.” In his fifth point, Appellant contends that the circuit court misapplied section 213.075 “in that there were disputed facts regarding the application of the substantial identity of interest test which would excuse the absence of [76 Mall] from administrative processing.” We find merit in Appellant's fifth point.

The Hill case, relied on by Appellant and cited supra, involved a situation where a plaintiff “failed to name [a defendant] in her [Equal Employment Opportunity Commission (“EEOC”)] or MHRA charge of discrimination, as she should have done under section 213.075.1.” 277 S.W.3d at 669. Our high court looked to federal caselaw for guidance, stating:

Federal cases construing a similar federal requirement have held that requiring an individual to be named in the charge in order to be included in the later civil suit serves two purposes: to give notice to the charged party and to provide an avenue for voluntary compliance without resort to litigation, such as through the EEOC's conciliation process. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir.1977); Bowe v. Colgate–Palmolive Co., 416 F.2d 711, 719 (7th Cir.1969). If allowing suit would not be inconsistent with these purposes, then some federal cases have forgiven a failure to join the individual in the initial charge. Id.

Hill, 277 S.W.3d at 669 (bold added). Our high court then relied on Glus for its holding that a plaintiff may bring a civil action against a party not named in a complaint before the Commission where there is a “substantial identity of interest” between the unnamed party and the any party named in the charge. Id. Such a nexus involves the consideration of numerous factors, including the following, quoted by our high court from applicable caselaw:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 669-70 (quoting Glus, 562 F.2d at 888).

Respondents present two arguments in response to Hill. In their first argument, Respondents contend that the substantial-identity-of-interest test has been abrogated. Respondents do not point to any authority explicitly supporting this contention, and this Court is not aware of any such authority. Respondents nevertheless rely on the 2017 amendments to the MHRA. Specifically, Respondents primarily rely on the changes to section 213.075.1, which they argue abrogated Hill by implication. That statute, as it currently reads following these amendments, with changes underlined, states as follows:

As a jurisdictional condition precedent to filing a civil action under this chapter, any person claiming to be aggrieved by an unlawful discriminatory practice shall make, sign and file with the commission a verified complaint in writing, within one hundred eighty days of the alleged act of discrimination, which shall state the name and address of the employer, employment agency, labor organization, or place of public accommodation alleged to have committed the unlawful discriminatory practice and which shall set forth the particulars thereof and such other information as may be required by the commission. The complainant's agent, attorney or the attorney general may, in like manner, make, sign and file such complaint. The failure to timely file a complaint with the commission shall deprive the commission of jurisdiction to investigate the complaint. The commission shall make a determination as to its jurisdiction with respect to all complaints. Notwithstanding any other provision of this chapter to the contrary, if a complaint is not filed with the commission within one hundred eighty days of the alleged act of discrimination, the commission shall lack jurisdiction to take any action on such a complaint other than to dismiss the complaint for lack of jurisdiction. The failure to timely file a complaint with the commission may be raised as a complete defense by a respondent or defendant at any time, either during the administrative proceedings before the commission, or in subsequent litigation, regardless of whether the commission has issued the person claiming to be aggrieved a letter indicating his or her right to bring a civil action and regardless of whether the employer asserted the defense before the commission.

Section 213.075.1 (underline added).

All the underlined portions of section 213.075.1, supra, indicate changes to the prior version of the statute. See S.B. 43, 99th Gen. Assembly, 1st Sess. (2017). The “jurisdictional condition precedent” language in the first sentence is a 2017 addition, as is all the remaining jurisdiction language concerning the failure to file a timely complaint. See section 213.075.1, RSMo (2016). Additionally, the underlined “shall” read “may” and “employer, employment agency, labor organization, or place of public accommodation” read “person” prior to the 2017 version. Id.; see also section 213.010.15 (defining the word “person” exactly as it was defined prior to the 2017 amendments as “includes one or more individuals, corporations, partnerships associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons”).

We fail to see how any of these changes to section 213.075.1 serve to abrogate the substantial-identity-of-interest test. The western district of this Court observed that the obvious purpose of the 2017 amendments is to ensure that the Commission determines the timeliness of complaints prior to taking any other action. Najib v. Missouri Commission on Human Rights, 645 S.W.3d 528, 543 (Mo.App. 2022). Here, the timeliness of Appellant's complaint is not at issue. The western district further observed that the amendments “do not categorize any other issue as affecting the Commission's jurisdiction.” Id. The substantial-identity-of-interest test, which is concerned with the identity of an employer, not whether a complaint was timely filed, is, therefore, unaffected by the jurisdictional language added to section 213.075.1. Although not a jurisdictional requirement, a complaint must nevertheless name the party alleged to have committed discrimination under the current iteration of section 213.075.1. This requirement, however, also existed when our high court decided Hill. See 277 S.W.3d at 669. Yet, our high court held that this requirement may be satisfied when a party not named in a complaint may be sued in the case of a substantial identity of interest with a named party. Id. at 669-70. For the foregoing reasons, we reject Respondents’ contention that the 2017 amendments to section 213.075.1 abrogate this holding.

We turn, therefore, to Respondents’ second and final argument addressing Hill. In that argument, Respondents again rely on paragraph 19 and again assert that it is uncontroverted that Appellant knew or had reason to know that he had been employed by 76 Mall. This argument, again, is unavailing for the reasons already stated, supra. The substantial-identity-of-interest factors, in the words of the circuit court, “remain controverted” in the form of paragraph 24 through 27 of Appellant's additional statements of material fact, all of which are quoted, supra, and all of which follow the language of those factors nearly verbatim.

The circuit court's summary judgment in favor of 76 Mall on the basis that Appellant failed to exhaust his administrative remedies was erroneous. Appellant's point 5 is granted. Point 4, which also challenged the circuit court's summary judgment on this basis, is moot and need not be addressed.

We turn to Appellant's third and final point, which challenges the circuit court's summary judgment on the issue of whether he timely filed his civil action against 76 Mall. There is no dispute that Appellant's original petition against GCFS was timely. The only dispute is whether Appellant's amended petition, substituting 76 Mall for GCFS, was timely. Appellant contends that the circuit court misapplied section 213.111 “in that Appellant's claims were timely by operation of the relation back doctrine set forth in Rule 55.33(c).” Again, we agree.

“Rule 55.33(c) is to be liberally applied, and is based on the concept of whether a defendant has been given notice sufficient to defend against claims relating to a particular transaction or occurrence.” Overlap, Inc., v. A.G. Edwards & Sons, Inc., 318 S.W.3d 219, 229 (Mo.App. 2010) (internal quotation marks omitted). The western district of this court has previously held that it was proper to substitute one party for another under Rule 55.33(c) in an MHRA civil suit. See Wiedner v. Ferrellgas, Inc., 607 S.W.3d 231, 241-43 (Mo.App. 2020). The requirements of Rule 55.33(c) are as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Rule 55.33(c).

Here, none of the uncontroverted statements of material fact serve to negate any one of Rule 55.33(c)’s requirements. Respondents, again, only rely on paragraph 19 for the proposition that Appellant “knew or had reason to know” that 76 Mall was the proper party. An additional reason this argument fails is that, “[t]he relation-back inquiry is not affected by the plaintiff's knowledge of the correct defendant's identity before originally filing suit, or the plaintiff's level of diligence in attempting to avoid, discover, or correct the error in its original pleading.” Kingsley v. McDonald, 432 S.W.3d 266, 274 (Mo.App. 2014). For the foregoing reasons, Appellant's third point is granted.

Decision

We vacate judgment 1 and judgment 2 and remand the cause to the circuit court for further proceedings consistent with this opinion. GCFS’ motion for attorney fees incurred in this appeal is denied.

BECKY J. WEST, C.J. – OPINION AUTHOR

MATTHEW P. HAMNER, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS