LILIYA TURUBCHUK INDIVIDUALLY AND PERSONAL REPRESENTATIVE OF THE ESTATE OF ALEKSEY TURUBCHUK DECEASED LUDMILA NEMTSOVA AND IRINA TURUBCHUK v. JAMIE BOOCK MATTHEW ROSSITER AND ROSSITER BOOCK LLC (2026)

Introduction

Liliya Turubchuk, individually and personal representative of the Estate of Aleksey Turubchuk, deceased, Ludmila Nemtsova, and Irina Turubchuk (collectively “Plaintiffs”) appeal three circuit court (“trial court”) decisions entered in favor of Jamie Boock, Matthew Rossiter, and Rossiter & Boock, LLC (collectively “Defendants” or “Respondents-Defendants”) on Plaintiffs’ legal malpractice claim.¹ Specifically, Plaintiffs appeal: (1) the grant of Defendants’ motion to strike portions of Plaintiffs’ responses to Defendants’ statement of uncontroverted material facts; (2) the grant of Defendants’ motion for summary judgment; and (3) the denial of Plaintiffs’ motion to stay summary judgment proceedings. We affirm.

Factual and Procedural Background

In August 2005, Plaintiffs were involved in a single-vehicle accident in southern Illinois. Plaintiffs Liliya Turubchuk, Ludmila Nemtsova, and Irina Turubchuk sustained physical and emotional injuries in the accident, and Aleksey Turubchuk sustained fatal injuries. The accident occurred on an interstate that was being repaved by contractors E.T. Simonds Construction Company (individually “Contractor ETS” or “ETS”) and Southern Illinois Asphalt Company, Inc. (individually “Contractor SIAC” or “SIAC”) (collectively “Contractors”). Plaintiffs filed multiple lawsuits after the accident: a 2007 lawsuit against Contractors in federal court in Illinois; a 2012 lawsuit against Contractors in federal court in Illinois; and a 2023 legal malpractice lawsuit against Respondents-Defendants in state court in Missouri that is at issue in this appeal.

The 2007 Lawsuit in Federal Court in Illinois

In March 2007, Plaintiffs filed a complaint against Contractors in federal court in Illinois. Plaintiffs retained attorney Komron Allahyari (“Plaintiffs’ counsel in the 2007 lawsuit” or “Plaintiffs’ counsel”) to represent them. At the time of the accident, Contractors, acting as a joint venture, had an insurance policy issued by Bituminous Insurance Company which had policy limits of $1 million per occurrence (“policy limits of $1 million”). Additionally, at the time of the accident, Contactor SIAC was insured separately from the joint venture by other insurance policies.

Bituminous Insurance Company retained attorney Richard Green to defend Contractors in the 2007 lawsuit, and Green later entered his appearance as defense counsel for both Contractors. Plaintiffs’ counsel in the 2007 lawsuit claimed that when he and Green discussed the lawsuit by telephone on May 14, 2007, Green represented that the only insurance policy that provided Contractors with coverage for the accident was the Bituminous insurance policy issued to Contractors acting as a joint venture which had policy limits of $1 million.

Plaintiffs’ counsel then tendered a settlement demand letter to Contractors on May 14, 2007, seeking to resolve the 2007 lawsuit in exchange for the Bituminous insurance policy limits of $1 million. The next day, Green emailed Plaintiffs’ counsel a disclosure required by Federal Rule of Civil Procedure 26 ² (“Rule 26 disclosure” or “the disclosure”). Green's Rule 26 disclosure provided that Contractors acting as a joint venture were insured by the Bituminous insurance policy which had policy limits of $1 million, and the disclosure attached a copy of the certificate of insurance.

In June 2007, Green sent Plaintiffs’ counsel in the 2007 lawsuit an email confirming Contractors accepted Plaintiffs’ demand to resolve the 2007 lawsuit in exchange for the Bituminous insurance policy limits of $1 million, provided that Plaintiffs released Contractors as a joint venture and Plaintiffs released SIAC and ETS individually. Green's email also stated it was the intent of all the parties for Plaintiffs to release any and all claims they might have had against Contractors and to preclude any future claims by Plaintiffs. In February 2009, Plaintiffs executed a settlement release in the 2007 lawsuit.

The 2012 Lawsuit in Federal Court in Illinois

In 2012, Plaintiffs were represented by new counsel, Jaime Olander. In May, Olander, on Plaintiffs’ behalf, filed a complaint against Contractors in federal court in Illinois alleging, inter alia, claims against Contractor SIAC for intentional misrepresentation, fraudulent concealment, negligent misrepresentation, and constructive fraud.³ These claims against SIAC alleged Green's failure to disclose the existence of SIAC's individual insurance policies caused Plaintiffs to settle the 2007 lawsuit for less than the sum of all of the insurance that was potentially available.

Respondents-Defendants in the instant appeal – Jamie Boock, Matthew Rossiter, and Rossiter & Boock, LLC – subsequently entered their appearance for Plaintiffs in the 2012 lawsuit. In January 2015, Contractor SIAC filed a motion for summary judgment on Plaintiffs’ claims, which was premised in part on SIAC's position it could not be held vicariously liable for Green's alleged intentional failure to disclose the existence of SIAC's individual insurance policies during the 2007 lawsuit because SIAC did not know of Green's alleged fraud and it did not ratify Green's alleged fraud. In February 2017, the Honorable Staci M. Yandle, a federal district judge in Illinois, entered a memorandum and order denying SIAC's motion for summary judgment in the 2012 lawsuit.

The day before trial, Respondents-Defendants recommended Plaintiffs dismiss their claims for intentional misrepresentation, fraudulent concealment, and constructive fraud against Contractor SIAC and proceed only on their negligent misrepresentation claim. Plaintiffs then acted in accordance with Respondents-Defendants’ recommendation.

After a three-day jury trial, Plaintiffs obtained a verdict in their favor in the amount of approximately $8.2 million against SIAC, and a judgment was entered in accordance with the jury's verdict. SIAC appealed, and the 7th Circuit Court of Appeals reversed and remanded the case to the U.S. District Court for the Central District of Illinois for further proceedings. After remand, Respondents-Defendants filed an amended complaint on behalf of Plaintiffs which attempted to revive the intentional misrepresentation and fraudulent concealment claims against SIAC, along with a new claim of fraudulent inducement; however, the amended complaint was later was dismissed with prejudice.

The 2023 Legal Malpractice Lawsuit in Missouri State Court at Issue in This Appeal

In October 2023, Plaintiffs filed an amended petition asserting a claim of legal malpractice against Respondents-Defendants, alleging they were negligent when they dismissed Plaintiffs’ intentional misrepresentation, fraudulent concealment, and constructive fraud claims against SIAC (“Plaintiffs’ underlying fraud claims against SIAC”) in the 2012 lawsuit in federal court in Illinois.

Defendants subsequently filed a motion for summary judgment, a memorandum of law, and statement of uncontroverted material facts, asserting the undisputed facts negate the “but for” causation element of Plaintiffs’ legal malpractice claim because Plaintiffs’ underlying fraud claims against SIAC that were dismissed in the 2012 federal lawsuit were not meritorious as a matter of law. Defendants specifically argue Plaintiffs have not produced and cannot produce evidence of one of the elements of a vicarious liability fraud claim in Illinois – that the principal (Contractor SIAC) directed, controlled, authorized, or ratified the agent's (attorney Green's) alleged fraud.

Subsequently, Plaintiffs filed a motion to stay summary judgment proceedings, which the trial court denied. Plaintiffs then filed: a response to Defendants’ motion for summary judgment; a memorandum of law; responses to Defendants’ statement of uncontroverted material facts; and a statement of additional material facts. Thereafter, Defendants filed a motion to strike portions of Plaintiffs’ responses to Defendants’ statement of uncontroverted material facts and Plaintiffs’ statement of additional material facts, which the trial court granted. After both parties filed additional responses or replies, the trial court granted Defendants’ motion for summary judgment. This appeal followed.⁴

Discussion

Plaintiffs raise three points on appeal arguing the trial court erred in: (1) granting Defendants’ motion to strike portions of Plaintiffs’ responses to Defendants’ statement of uncontroverted material facts; (2) granting Defendants’ motion for summary judgment; and (3) denying Plaintiffs’ motion to stay summary judgment proceedings.

Point One: The Trial Court Did Not Err in Granting Defendants’ Motion to Strike

In Plaintiffs’ first point on appeal, they argue the trial court erred in granting Defendants’ motion to strike portions of Plaintiffs’ responses to Defendants’ statement of uncontroverted material facts.⁵

Standard of Review and Relevant Law

A party may file a motion to strike to raise defects in another party's summary judgment filing. Shiffman v. Kansas City Royals Baseball Club, LLC, 687 S.W.3d 443, 454 (Mo. App. W.D. 2024) (citing, inter alia, Cross v. Drury Inns, Inc., 32 S.W.3d 632, 636 (Mo. App. E.D. 2000)). An appellate court reviews a trial court's decision ruling on a motion to strike for an abuse of discretion. Shiffman, 687 S.W.3d at 455. Under this standard of review, our Court will reverse the trial court's decision “only when it is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration.” Id. (citation and internal quotation marks omitted). Moreover, we will affirm the trial court's decision on a challenged ruling subject to an abuse-of-discretion standard of review if the decision was correct on any ground supported by the record and the law. Z.R. by and Through T.R. v. Kansas City Pediatrics, LLC, 682 S.W.3d 55, 61, 62 (Mo. App. W.D. 2023); State v. Black, 666 S.W.3d 205, 208 (Mo. App. E.D. 2023).

In a summary judgment proceeding, a non-movant's response to a movant's statement of uncontroverted material facts must comply with Rule 74.04(c)(2)⁶ by either admitting or denying each of the movant's factual statements, with specific references to affidavits, discovery, or exhibits demonstrating specific facts showing there is a genuine issue of material fact for trial. Amoroso v. Truman State University, 683 S.W.3d 298, 303 (Mo. App. W.D. 2024) (citing Bracely-Mosley v. Hunter Engineering Co., 662 S.W.3d 806, 810 (Mo. App. E.D. 2023) (citing Rule 74.04(c)(2))); see also Rule 74.04(c)(2). “Where the response does not admit or deny each factual statement in the motion or contain adequate citations to the record to rebut the factual assertions in the motion, as required by Rule 74.04(c)[(2)], we take the factual assertions contained in the motion as true.” Shiffman, 687 S.W.3d at 461 (quoting Vogler v. Grier Group Management Co., 309 S.W.3d 328, 331 (Mo. App. E.D. 2010)); see also Rule 74.04(c)(2). Moreover, “[a] response that does not comply with Rule 74.04(c)(2) with respect to any numbered paragraph in a statement of facts is an admission of the truth of that numbered paragraph.” Shiffman, 687 S.W.3d at 461 (emphasis, citations, and internal quotation marks omitted); see also Rule 74.04(c)(2).

We hold there are multiple ways a non-movant's response denying a movant's statement of uncontroverted material facts in a summary judgment case does not comply with Rule 74.04(c)(2), including: (1) if the response states additional facts beyond those in the numbered paragraph at issue, see Executive Bd. of Missouri Baptist Convention v. Windermere Baptist Conference Center, Inc., 430 S.W.3d 274, 283 (Mo. App. S.D. 2014), Rule 74.04(c)(2); (2) if the response contains lengthy assertions that do not demonstrate a genuine issue of material fact for trial, see El-Halawany v. Children's Mercy Hospital, 717 S.W.3d 758, 762 (Mo. App W.D. 2025) (as modified July 22, 2025), Rule 74.04(c)(2); and (3) if the response sets forth inadmissible evidence such as conclusory statements, legal conclusions, and irrelevant assertions, see Amoroso, 683 S.W.3d at 303, Jordan v. Peet, 409 S.W.3d 553, 559-61 (Mo. App. W.D. 2013), Rule 74.04(c)(2), see also Strable v. Union Pacific R. Co., 396 S.W.3d 417, 424 (Mo. App. E.D. 2013) (indicating that evidence which is irrelevant is inadmissible for purposes of summary judgment).

In addition, we hold a non-movant's response denying a numbered paragraph in a movant's statement of uncontroverted material facts generally does not comply with Rule 74.04(c)(2) if the response sets forth deposition testimony as a purported material fact, i.e., “[xxx] testified in her deposition that ․,” instead of supporting material facts with a reference to deposition testimony.⁷ See Custer v. Wal-Mart Stores East I, LP, 492 S.W.3d 212, 214-15 (Mo. App. S.D. 2016);⁸ Rule 74.04(c)(2); see also Hootselle v. Missouri Department of Corrections, 624 S.W.3d 123, 136 (Mo. banc 2021) (“[s]tating deposition testimony as a material fact does not aid a court in identifying material facts or determining the existence of any genuine issue”). In other words, “a denial that myopically focuses only on the precise words used by a witness in his or her deposition[ ] is [generally] not sufficient because it omits any consideration as to whether that testimony supports a reasonable inference as to the existence of the alleged disputed fact.” Custer, 492 S.W.3d at 215, 218 n.5 (citing in part to ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379-81 (Mo. banc 1993) (superseded by Rule 74.04 on other grounds)).

Analysis

In this case, the trial court's decision granted Defendants’ motion to strike Plaintiffs’ responses denying Defendants’ statement of uncontroverted material facts in paragraph numbers 15, 16, 21, 27, 28, 31, 57, 58, 60, 62, 64, 65, 66, 67, 68, 69, 71, and 72 because they violated Rule 74.04(c)(2) for various reasons; accordingly, the court also found the facts in those numbered paragraphs were deemed admitted by Plaintiffs. See Shiffman, 687 S.W.3d at 461; Rule 74.04(c)(2). We hold the trial court's decision does not constitute an abuse of discretion because Plaintiffs’ responses at issue in this point “fall woefully short” of complying with Rule 74.04(c)(2). See Executive Bd. of Missouri Baptist Convention, 430 S.W.3d at 283 (similarly holding with respect to a response to a statement of uncontroverted material facts); see also Shiffman, 687 S.W.3d at 455 (holding our review of a trial court's decision granting a motion to strike is for an abuse of discretion); Rule 74.04(c)(2).

This Court's thorough review of the record reveals that each of Plaintiffs’ responses stricken by the trial court do not comply with Rule 74.04(c) because the responses in whole or in part: (1) state additional facts beyond those in the numbered paragraph at issue; (2) contain lengthy assertions that do not demonstrate a genuine issue of material fact for trial; (3) set forth inadmissible evidence such as conclusory statements, legal conclusions, or irrelevant assertions; or (4) set forth deposition testimony as a purported material fact, i.e., “[xxx] testified in her deposition that ․,” instead of supporting material facts with a reference to deposition testimony.⁹ See El-Halawany, 717 S.W.3d at 762; Amoroso, 683 S.W.3d at 303; Custer, 492 S.W.3d at 214-15; Executive Bd. of Missouri Baptist Convention, 430 S.W.3d at 283; Jordan, 409 S.W.3d at 559-61; Rule 74.04(c)(2); see also Hootselle, 624 S.W.3d at 136; Custer, 492 S.W.3d at 218 n.5; Strable, 396 S.W.3d at 424.

For purposes of judicial economy, we will not discuss each of Plaintiffs’ responses at issue in this point in detail; instead, this Court will set forth two examples of Plaintiffs’ non-compliance with Rule 74.04(c)(2). Plaintiffs’ response denying paragraph number 28 in Defendants’ statement of uncontroverted material facts has 47 assertions spanning approximately seven pages, including 46 sub-parts, which: collectively do not demonstrate a genuine issue of material fact for trial; include 16 assertions containing language identical or similar to “[xxx] testified that ․”; and include multiple irrelevant or conclusory statements which state additional facts beyond those in the numbered paragraph at issue.

Additionally, Plaintiffs’ response denying paragraph number 71 in Defendants’ statement of uncontroverted material facts incorporates Plaintiffs’ responses denying paragraph numbers 15, 28, and 62, and therefore, Plaintiffs’ denial to paragraph 71 has over 80 sub-parts spanning over 8 pages. These sub-parts: collectively do not demonstrate a genuine issue of material fact for trial; include 23 assertions containing language identical or similar to “[xxx] testified that ․”; and include multiple irrelevant or conclusory statements which state additional facts beyond those in the numbered paragraph at issue.

Moreover, our Court is unable to determine whether there are possibly isolated phrases or statements within Plaintiffs’ responses at issue in this point that technically comply with Rule 74.04(c)(2) without impermissibly acting as advocates for Plaintiffs and sifting through a voluminous record and subparts of Plaintiffs’ responses, separating facts from conclusions, isolating admissions from disputes, and determining the material from the immaterial. See Great Southern Bank v. Blue Chalk Construction, LLC, 497 S.W.3d 825, 835-36 (Mo. App. S.D. 2016) (similarly holding with respect to whether a grant of summary judgment was proper under Rule 74.04); see also Green v. Fotoohighiam, 606 S.W.3d 113, 118 (Mo. banc 2020) (“summary judgment principles do not require the [trial] court or any appellate court to sift through the entire record to identify disputed issues, which, in turn, would cause a court to impermissibly act as an advocate for a party”).

Based on the foregoing, we cannot find the trial court abused its discretion in granting Defendants’ motion to strike portions of Plaintiffs’ responses to Defendants’ statement of uncontroverted material facts. Plaintiffs’ first point on appeal is denied.

Point Two: The Trial Court Did Not Err in Granting Defendants’ Motion for Summary Judgment

In Plaintiffs’ second point on appeal, they argue the trial court erred in granting Defendants’ motion for summary judgment on Plaintiffs’ legal malpractice claim.

Relevant Background

Plaintiffs’ legal malpractice claim alleges Defendants were negligent when they dismissed Plaintiffs’ underlying fraud claims against SIAC – claims for intentional misrepresentation, fraudulent concealment, and constructive fraud – in the 2012 lawsuit in federal court in Illinois. Plaintiffs’ underlying fraud claims against SIAC alleged attorney Richard Green's failure to disclose the existence of SIAC's individual insurance policies caused Plaintiffs to settle the 2007 lawsuit for less than the sum of all of the insurance that was potentially available.

Defendants’ motion for summary judgment and their accompanying filings allege they are entitled to judgment as a matter of law because the undisputed facts negate the “but for” causation element of Plaintiffs’ legal malpractice claim in that Plaintiffs’ underlying fraud claims against SIAC that were dismissed in the 2012 federal lawsuit were not meritorious as a matter of law. See Juan v. Growe, 547 S.W.3d 585, 591-92 (Mo. App. E.D. 2018) (in a legal malpractice case, proof of causation includes proof of causation in fact, or “but for” causation, i.e., “but for” the attorneys’ alleged negligence, the result would have been different). Defendants, citing to Horwitz v. Holabird & Root, 212 Ill.2d 1 (Ill. 2004), specifically argue they are entitled to judgment as a matter of law because Plaintiffs have not produced and cannot produce evidence of one of the elements of a vicarious liability fraud claim in Illinois – that the principal (Contractor SIAC) directed, controlled, authorized, or ratified the agent's (attorney Green's) alleged fraud. See Moore v. City of O'Fallon, 681 S.W.3d 715, 720 (Mo. App. E.D. 2023) (one way a defendant establishes it is entitled to judgment as a matter of law is by demonstrating that “the plaintiff, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the plaintiff's elements”).

Standard of Review and Relevant Law

An appellate court's review of a trial court's decision granting summary judgment is de novo. Green, 606 S.W.3d at 115.¹⁰ “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.” Id. (citation omitted). An appellate court must view the record in the light most favorable to the non-movant, accepting all reasonable inferences in favor of that party as true. Green, 606 S.W.3d at 116.

We accept facts contained in affidavits or otherwise produced in support of the motion for summary judgment as true unless they are contradicted by the non-movant's response to the motion. Id. “In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits 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.” Id. (citation omitted).

In relevant part, Rule 74.04 requires a trial court to decide a motion for summary judgment as follows:

For each material fact the non-movant claims is genuinely disputed and therefore defeats the movant's prima facie showing of a right to judgment, the non-movant must direct the trial court to a particular numbered paragraph in movant's statement of uncontroverted material facts that is denied in the non-movant's response. The trial court then considers the movant's specific references in that numbered paragraph to the pleadings, discovery, exhibits, or affidavits attached to the movant's statement supporting the existence of that material fact, see Rule 74.04(c)(1); considers the non-movant's specific references to the discovery, exhibits, or affidavits attached to the response supporting the non-movant's denial of that material fact, see Rule 74.04(c)(2); and then compares the two sets of specifically referenced evidence to ascertain the existence of a genuine issue as to that particular numbered paragraph material fact. Rule 74.04 does not authorize the trial court to consider any other evidence as to whether a genuine issue exists as to that particular numbered paragraph material fact.

Great Southern Bank, 497 S.W.3d at 834 (emphasis in original).

Moreover, “a relevant, cogent, and logical argument on appeal that a genuine issue exists as to a particular material fact must necessarily track the Rule 74.04 requirements in the same manner as discussed in the preceding paragraph as applicable to the trial court.” Great Southern Bank, 497 S.W.3d at 834. Accordingly, when appellants challenge the grant of summary judgment but only cite primarily or exclusively to affidavits, exhibits, and discovery, addressing appellants’ arguments on appeal would require our Court to become the appellants’ advocate, a role we cannot assume. Id. at 835. This is because: (1) “affidavits, exhibits and discovery [are] material[s] with a critical supporting role in the numbered-paragraphs-and-responses framework”; (2) ”[c]ourts cannot sift through a voluminous record, separating fact from conclusion, admissions from disputes, the material from the immaterial, in an attempt to determine the basis for the motion without impermissibly acting as advocates”; and (3) “Rule 74.04(c) aims at [assisting] trial and appellate courts to expedite the disposition of cases; noncompliance with these requirements is not a matter subject to waiver by a party.” Id. (emphasis in original, citation omitted, and internal bracketed alterations omitted).

Analysis

In this case, the argument section of Plaintiffs’ second point on appeal in Plaintiffs’ initial appellate brief almost exclusively cites to: (1) exhibits filed in support of Defendants’ statement of uncontroverted material facts; and (2) exhibits filed in support of Plaintiffs’ response to Defendants’ statement of uncontroverted material facts. Moreover, there are only two times Plaintiffs’ initial appellate brief cites to responses to numbered paragraphs: on page 46 where Plaintiffs cites to their responses denying Defendants’ statement of uncontroverted material facts in paragraph numbers 27 and 28; however, these two denials were stricken by the trial court, and we affirmed this decision in this Court's discussion of Plaintiffs’ first point on appeal, supra.¹¹

Under these circumstances, addressing Plaintiffs’ arguments on appeal would require our Court to become Plaintiffs’ advocate, a role we cannot assume. See Great Southern Bank, 497 S.W.3d at 835. Moreover, “[Plaintiffs] have not demonstrated a genuine issue as to any particular numbered paragraph material fact in the Rule 74.04(c) summary judgment record, [and] we [therefore] cannot conclude that the trial court erroneously granted summary judgment as contended by [Plaintiffs].” See id. at 826. Plaintiffs’ second point on appeal is denied.

Point Three: The Trial Court Did Not Err in Denying Plaintiffs’ Motion to Stay

In Plaintiffs’ third and final point on appeal, Plaintiffs assert the trial court erred in denying their motion to stay summary judgment proceedings.

Relevant Procedural Posture

On April 25, 2023, Plaintiffs filed their initial petition asserting a legal malpractice claim against Defendants. Plaintiffs did not request any discovery from Defendants until over fourteen months later, on July 15, 2024.

After Plaintiffs’ filed their amended petition, Defendants filed their motion for summary judgment on Plaintiffs’ claim on October 29, 2024. Two days later, Plaintiffs filed their motion to stay, requesting more time to obtain discovery. Importantly, Plaintiffs motion to stay was not supported by an affidavit and did not specifically allege how any additional discovered evidence would demonstrate the existence of any genuine issue of material fact in the case. Instead, Plaintiffs’ motion requested more time for “the following discovery [to] occur”:

[ ] [t]he deposition of ․ [Jaime] Olander;

[ ] [t]he depositions of Dale Elfrink and Rick Newburg, who were superior to Mr. [Gerald] Neels on representation of claims against SIAC and who might have valuable evidence that would bear on the issues of SIAC's knowledge and/or ratification of intentional misrepresentation of insurance coverage;

[ ] [t]he deposition of Mark Evers, Safety Manager for ETS[,] who was at a meeting in which attorney [Richard] Green informed SIAC and ETS that the original case was to settle for the [o]ne [m]illion dollar limits available through the joint venture limits of its insurance policy before the settlement;

[ ] [t]he deposition of Bill Simonds who was also at that meeting;

[ ] [t]he deposition of Richard Green to discuss reasons for settling a claim before any discovery was done;

[ ] [t]he deposition of Roger Tedrick, ETS's insurance broker[,] who notified ETS's umbrella coverage insurance company, Zurich, of Plaintiffs’ claims before settlement;

[ ] [d]iscovery of [Gerald] Neels’ and Liberty Mutual's physical and electronic files;

[ ] [d]epositions of Defendants [Jamie] Boock and [Matthew] Rossiter; and

[ ] [p]ossibly the deposition of Catherine Kazzczynski, who was a claim representative for Liberty Mutual which insured SIAC and who was informed of the Plaintiffs’ claims before the original case was settled.

In November 2024, the trial court held a hearing on Plaintiffs’ motion to stay. At the hearing, Plaintiffs orally requested an additional thirty days to file a response to Defendants’ motion for summary judgment. The trial court subsequently entered an order denying Plaintiffs’ motion to stay but granting their request for additional time to file a response.

Standard of Review, Relevant Law, and Analysis

A trial court's decision whether to grant or deny a party's motion requesting additional time for discovery before ruling on a pending summary judgment motion is reviewed for an abuse of discretion. Matysyuk v. Pantyukhin, 595 S.W.3d 543, 547 (Mo. App. W.D. 2020); see also White v. City of Ladue, 422 S.W.3d 439, 448 (Mo. App. E.D. 2013). “A trial court abuses its discretion only when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Matysyuk, 595 S.W.3d at 547 (quoting Holm v. Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596 (Mo. banc 2017)).

A party's motion requesting additional time for discovery before a ruling on a pending summary judgment motion must be accompanied by an affidavit. Duncan v. Dempsey, 547 S.W.3d 815, 821-22 (Mo. App. E.D. 2018); see also Rule 74.04(f). In addition, the affidavit accompanying the motion must both: “(1) set out the evidence that the sought-after discovery would adduce; and (2) show that evidence would create a genuine issue of material fact.” Duncan, 547 S.W.3d at 822 (citation omitted). “It is insufficient to merely allege further discovery might provide the necessary evidence; rather, the affidavit must describe the evidence.” Duncan, 547 S.W.3d at 822 (bracketed alterations, emphasis, citation, and internal quotation marks omitted). Finally, absent a showing that additional discovery would demonstrate the existence of any genuine issue of material fact, a trial court does not abuse its discretion in denying a motion requesting more time for discovery before ruling on a summary judgment motion. White, 422 S.W.3d at 448.

In this case, Plaintiffs’ motion to stay requesting more time to obtain discovery is unaccompanied by an affidavit. In addition, Plaintiffs’ motion fails to specifically allege how any additional discovered evidence would demonstrate the existence of any genuine issue of material fact in the case. Instead, Plaintiffs’ motion to stay merely alleges Plaintiffs wanted to depose several witnesses and obtain documentary evidence without specifically describing the particular testimony or facts that would be adduced therefrom and without showing how any of the sought-after evidence would create a genuine issue of material of fact. Under these circumstances, the trial court did not abuse its discretion in denying Plaintiffs’ motion to stay. See id.; Duncan, 547 S.W.3d at 821-22; see also Rule 74.04(f); Matysyuk, 595 S.W.3d at 547 (citing Holm, 514 S.W.3d at 596). Plaintiffs’ third point on appeal is denied.

Conclusion

Based on the foregoing, the trial court's decisions granting Defendants’ motion to strike, granting Defendants’ motion for summary judgment, and denying Plaintiffs’ motion to stay are affirmed.

FOOTNOTES

1.   In the underlying action, Defendants filed third-party claims against Jaime Olander but these claims were dismissed without prejudice prior to this appeal.

2.   All references to Federal Rule of Civil Procedure 26 are to the version of the Rule effective from December 1, 2006, to November 30, 2007. Federal Rule of Civil Procedure 26(a)(1)(D) provides in relevant part that “a party must ․ provide to other parties ․ for inspection and copying ․ any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Fed. R. Civ. P. 26(a)(1)(D).

3.   Olander also filed claims, on behalf of Plaintiffs, against Contractor ETS, but they were settled prior to trial. Additionally, ETS was dismissed as a defendant in the 2012 lawsuit pursuant to the parties’ settlement agreement.

4.   To avoid unnecessary repetition, additional facts and procedural posture relevant to this appeal will be set forth below in the Discussion section of this opinion.

5.   Plaintiffs also assert in the argument portion of their brief that the trial court erred in granting Defendants’ motion to strike portions of Plaintiffs’ statement of additional material facts. We do not review this alleged error because it is not set forth in Plaintiffs’ first point relied. See Unlimited Equipment Lines, Inc. v. Graphic Arts Centre, Inc., 889 S.W.2d 926, 932 n.1 (Mo. App. E.D. 1994) (similarly holding).

6.   All references to Rule 74.04 are to the version of Missouri Supreme Court Rule 74.04 effective from July 1, 2008, to the present.

7.   There is an exception to this general rule: certain deposition testimony cited in a non-movant's response denying a numbered paragraph in a movant's statement of uncontroverted material facts complies with Rule 74.04(c)(2) when the factual existence of such deposition testimony is, in and of itself, a fact establishing or negating a necessary element of a claim or affirmative defense. See Custer v. Wal-Mart Stores East I, LP, 492 S.W.3d 212, 215 (Mo. App. S.D. 2016) (citing in part to ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379-81 (Mo. banc 1993) (superseded by Rule 74.04 on other grounds)); Rule 74.04(c)(2).

8.   We note Plaintiffs argue the holdings in Custer discussed in this portion of our opinion only apply to a movant's statement of uncontroverted material facts or a movant's response to a non-movant's statement of additional material facts, and they do not apply to a non-movant's response denying a movant's statement of uncontroverted material facts. We disagree. Custer holds in relevant part that the mere existence of deposition testimony generally cannot be a material fact “because it neither constitutes nor negates an element of a claim or affirmative defense.” 492 S.W.3d at 215. We find this reasoning applies equally to a movant and non-movant in summary judgment proceedings. See Great Southern Bank v. Blue Chalk Construction, LLC, 497 S.W.3d 825, 835-36 (Mo. App. S.D. 2016) (similarly finding with respect to the reasoning of a holding in the summary judgment context).

9.   Additionally, Plaintiffs have not developed any argument on appeal demonstrating the factual existence of any deposition testimony set forth as a purported material fact in their responses is, in and of itself, a fact establishing a necessary element of their legal malpractice claim against Defendants. See Custer, 492 S.W.3d at 215; Rule 74.04(c)(2). Accordingly, Plaintiffs have not met their burden of demonstrating reversible error on the basis that this exception applies in this case. See Custer, 492 S.W.3d at 215; Rule 74.04(c)(2); footnote 7 of this opinion; see also City of De Soto v. Parson, 625 S.W.3d 412, 416 n.3 (Mo. banc 2021) (appellants always bear the burden of demonstrating reversible error by the trial court, regardless of the standard of review).

10.   For purposes of our discussion of our standard of review, we note that Green often cites to Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-43 (Mo. banc 2011), which has been abrogated on other grounds, and Goerlitz cites to ITT Commercial Finance Corp., 854 S.W.2d at 376, 378, which has been superseded by Rule 74.04 on other grounds. See Green, 606 S.W.3d at 115-16; Goerlitz, 333 S.W.3d at 452-53.

11.   We note that in Plaintiffs’ reply brief, they argue for the first time on appeal that the trial court erred in granting summary judgment based on responses to numbered paragraphs other than those raised in the argument section of Plaintiffs’ second point on appeal in Plaintiffs’ initial appellate brief. Our Court will not review an allegation of error made for the first time in the reply brief because “a reply brief is to be used only to reply to arguments raised by respondents, not to raise new arguments on appeal.” See State v. Ingram, 662 S.W.3d 212, 220 n.10 (Mo. App. E.D. 2023) (citation omitted).

Robert M. Clayton III, Presiding Judge

Michael E. Gardner, Judge and William L. Syler, Special Judge, concur.