MIDWEST CONTRACTING SERVICES LLC ET AL v. ARCH INSURANCE COMPANY ET AL (2026)

Midwest Contracting Services LLC d/b/a R&B Trucking (“R&B Trucking”), TDA Properties, LLC (“TDA Properties”), and Rhonda Shoemaker (“Shoemaker”), individually and derivatively, on behalf of Third Space Property Group, LLC (“Third Space”) (collectively “Plaintiffs”) appeal the judgment of the Circuit Court of Jackson County, Missouri (“the trial court”) granting summary judgment in favor of Arch Insurance Company (“Arch”) in an equitable garnishment and declaratory judgment action. Plaintiffs raise seven points on appeal, each attacking a different basis cited by the trial court supporting its grant of summary judgment. The judgment is affirmed.

Facts

In July 2021, Plaintiffs filed a petition (“the Original Petition”) in the Circuit Court of Jackson County, Missouri in Case Number 2116-CV15934. The Original Petition named Parker Webb (“Webb”) as the sole defendant. The Original Petition brought claims against Webb for breach of fiduciary duties, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, unjust enrichment, fraud, negligent misrepresentation, and tortious interference with a business relationship. The following facts were alleged in the petition:

In 2018, Shoemaker and Webb were the owners of Third Space, with Shoemaker owning 49% and Webb owning 51%. Third Space's business purpose is to act as a service provider with respect to real estate transactions and related matters and to receive fees for such services, including broker, consulting, and agency fees. Webb was the managing member and Shoemaker the only other member of Third Space.

Shoemaker is also the sole member of two other entities, TDA Properties and R&B Trucking. Based on allegedly inaccurate representations by Webb, Shoemaker and TDA Properties invested in an apartment complex on Admiral Drive in Kansas City (“the Apartment Complex”). Based on allegedly inaccurate representations by Webb, TDA Properties also purchased 37 acres of land in Kansas City (“the Land”). TDA desired to sell the Land, listed it for sale, and found a buyer. The buyer was willing to pay $1.96 million for the real estate. Before the transaction was finalized, Webb contacted the buyer without Shoemaker's or TDA Properties’ knowledge. He attempted to negotiate a separate agreement to buy back four acres of the Property for $300,000. Various alleged failures by Webb to communicate certain information to TDA Properties, as well as Webb's attempts to negotiate the separate purchase, caused the underlying real estate transaction to fall through. The potential buyer did not purchase the Land.

The Original Petition alleged that Webb started FTW Investments, LLC (“FTW Investments”), a new real estate business and competing venture, while he was the manager of Third Space. FTW Investments’ first property was the Apartment Complex. FTW Investments now owns more than a dozen multi-family rental locations, has raised more than $15 million from investors, and has completed $75 million in transactions. Webb is the principal and CEO of FTW Investments. Webb did not inform Shoemaker about FTW Investments and did not obtain her advance permission to obtain an interest in FTW Investments.

Plaintiffs filed an amended petition in May 2022 (“the Amended Petition”). The Amended Petition added FTW Investments, FTW Enterprises, LLC (“FTW Enterprises”), and Webb Development, LLC (“Webb Development”) as defendants. The allegations in the Amended Petition were generally the same as in the Original Petition. It also added two new counts against FTW Investments, FTW Enterprises, and Webb Development for tortious interference with a contract (Count IX) and unjust enrichment (Count X).

The amended petition alleged:

Webb created Webb Development in 2019 and is the sole owner and manager. FTW Investments was started in 2020 by Logan Freeman, Cory Tuck, and Webb. FTW Enterprises is an affiliate of FTW Investments, and they work collectively as one entity. Webb Development manages FTW Investments, FTW Enterprises, and the Apartment Complex. Webb did not tell Shoemaker about FTW Investments or FTW Enterprises and did not obtain her advance permission to obtain an interest in them.

Following a mediation, the parties entered into a settlement agreement and contract to consent to judgment but limit recovery to certain insurance assets and other payments. In December 2023, Plaintiffs filed an unopposed motion for entry of judgment. That motion stated that “the parties have agreed to a Contract to Limit Recovery to certain assets of Defendants but permitting Plaintiffs to pursue recovery against Arch and its affiliates because Arch has failed and refused to defend and indemnify Defendants on Plaintiffs’ claims.” It noted that another insurance company had provided a defense to Webb Development and that a declaratory judgment action was pending regarding whether the Plaintiffs’ claims were covered under that insurance policy. The motion further stated that Arch had denied any obligation to defend or indemnify and Webb, FTW Investments, and FTW Enterprises had been forced to pay for their own defense.

The court took up the motion in March 2024, and entered judgment (“the Underlying Judgment”) finding the proposed judgment fair and reasonable. The Underlying Judgment awarded $1.1 million plus prejudgment interest at a per annum interest rate of 8.33 percent and post-judgment interest at a per annum interest rate of 10.33 percent to Plaintiffs. The Underlying Judgment also awarded $200,000 plus prejudgment interest at a per annum interest rate of 8.33 percent and post-judgment interest at a per annum interest rate of 10.33 percent to Shoemaker, derivatively on behalf of Third Space. The Underlying Judgment was entered jointly and severally against Webb, FTW Investments, and FTW Enterprises (collectively “the Underlying Defendants”). The Underlying Judgment was subject to the contract to limit recovery between the parties to certain payments as well as to the insurance recovery against Arch, if any recovery was successful.

In August 2024, Plaintiffs filed a petition naming Arch and the Underlying Defendants as defendants. This petition alleged a civil action for equitable garnishment (“the Equitable Garnishment Petition”). The Equitable Garnishment Petition sought declaratory judgment against Arch, the company that insured the Underlying Defendants, that the actions of FTW Investments giving rise to the underlying judgment were covered by the insurance policies of Arch, and that Arch be ordered to apply the insurance proceeds to satisfy the judgment. It was based on the Underlying Judgment and the proceedings that led to the Underlying Judgment (“the Underlying Lawsuit”).

Arch had previously issued two insurance policies to FTW Investments, which are both claims made policies. Policy AAP1000116-00 (“the 2021 Policy”) covered the period of September 2020 through October 2021. Policy AAP1000116-01 (“the 2022 Policy”) covered the period of October 2021 through October 2022. The Equitable Garnishment Petition relied solely on coverage under the 2022 Policy.

In February 2025, Arch filed a motion for summary judgment. It argued that there was no coverage under the 2022 Policy for Plaintiffs’ claims in the Underlying Lawsuit. Arch further stated that notice of the claims was untimely, no wrongful covered act was alleged, the 2022 Policy did not give rise to a duty to defend, and several exclusions applied. After further filings from both parties,¹ the trial court entered summary judgment in favor of Arch in July 2025 (“the July 2025 Judgment”). The trial court determined that the 2022 Policy did not cover the claims in the Underlying Lawsuit for multiple reasons: (1) timely notice of the claims in the Underlying Lawsuit was not provided to Arch under the Interrelated Claims provision; (2) Webb, whose conduct formed the basis for the claims in the Underlying Lawsuit, was not shown to have committed “Wrongful Acts” while acting as an “Insured Person” as those terms are defined in the 2022 Policy; (3) coverage for the claims resulting in the Underlying Judgment is barred by the Contract Exclusion in the 2022 Policy; (4) coverage is barred by the Outside Capacity Exclusion in the 2022 Policy; (5) coverage is barred because the Underlying Judgment found Webb liable for fraud and such fraudulent conduct is imputed to FTW Investments and FTW Enterprises; (6) the 2022 Policy did not give rise to a duty to defend; and (7) the trial court found that Arch did not waive the ability to assert any coverage defense.

This appeal follows.²

Standard of Review

This Court reviews the grant of summary judgment de novo. El-Halawany v. Children's Mercy Hosp., 717 S.W.3d 758, 765 (Mo. App. W.D. 2025). The grant of summary judgment is proper where the moving party establishes that there is no genuine issue as to the material facts and that the moving party is entitled to judgment as a matter of law. Id.

Analysis

In this equitable garnishment action brought directly against an insurance company, Plaintiffs must prove that a judgment was obtained against an insured party for actions occurring during the policy period and that the injury is covered by the insurance policy. Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340, 344 (Mo. banc 2015) (citing section 379.200, RSMo). Plaintiffs raise seven points on appeal. Points I, II, and III pertain to whether Arch was given timely notice. Point IV pertains to the Outside Capacity Exclusion. Point V pertains to the Contract Exclusion. Point VI pertains to the Fraud Exclusion. Point VII pertains to whether the 2022 Policy was a duty to defend policy. Plaintiffs’ points on appeal are focused on Counts IX and X, for claim alleged against FTW Investments and FTW Enterprises. The parties agree that because these claims do not involve personal injury that Section 537.065 is inapplicable to this action.³

Rule 74.04 ⁴ sets forth the process for summary judgment wherein the movant states uncontroverted material facts and the non-movant responds to those facts. “[T]he movant must attach to the motion for summary judgment a statement of uncontroverted material facts that ‘state[s] with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.’ ” Green v. Fotoohighiam, 606 S.W.3d 113, 116 (Mo. banc 2020) (quoting Rule 74.04(c)(1)) (second alteration in original). “Additionally, the movant must attach to the statement of uncontroverted material facts all discovery, exhibits, or affidavits that support the summary judgment motion.” Id. at 117. “After the movant makes this submission, the non-movant is required to file a response either admitting or denying the movant's material facts.” Id.

The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements. A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial. Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies. A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph.

Id. (quoting Rule 74.04(c)(2)) (emphasis omitted). “If the non-movant files a statement of additional material facts, the process repeats itself, but with the non-movant stating material facts, supported in the same manner, to which the movant must respond.” Bracely-Mosley v. Hunter Eng'g. Co., 662 S.W.3d 806, 810 (Mo. App. E.D. 2023) (citing Rule 74.04(c)(2)-(3)). “Compliance with Rule 74.04 is mandatory.” Switzer Living Tr., U/A Dated February 5, 2019 by and through Switzer v. Lake Lotawana Assn., Inc., 687 S.W.3d 476, 483 (Mo. App. W.D. 2024).

These numbered paragraphs and responses are essential to the summary judgment process.

[1] Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework. [2] Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record. [4] [S]ummary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.

Green, 606 S.W.3d at 117-18 (internal quotation marks omitted) (emphasis in original). “Taken together, these summary judgment principles require a court to determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate [movant's] right to judgment regardless of other facts or factual disputes.” Id. at 118 (internal quotation marks omitted) (emphasis in original). “These summary judgment principles do not require the circuit 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.” Id.

The standard of review for this case is de novo; this Court looks at summary judgment appellate issues without giving deference to the trial court's ruling. Switzer Living Tr., 687 S.W.3d at 483. “This Court's review of summary judgment is limited to the undisputed material facts established in the Rule 74.04(c) process; we do not review the entire trial court record.” Id. We “look exclusively to the step-by-step procedure mandated by Rule 74.04 to determine whether there is a genuine issue of material fact.” Id. (internal quotation marks omitted). “[A]rguments ․ that are completely disconnected from the numbered paragraph material facts in the summary judgment record, as required by Rule 74.04, are analytically useless in an appellate review that requires this court to properly apply Rule 74.04.” Green, 606 S.W.3d at 120 (internal quotation marks omitted).⁵ “[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.

Rule 84.04 sets forth the requirements for appellate briefs. “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). “Considering that the trial court adjudicated this case by summary judgment, the facts on which the trial court based its decision were those established pursuant to Rule 74.04(c)(1) and (2), and, in our review, we must scrutinize those facts.” Switzer Living Tr., 687 S.W.3d at 484 (internal quotation marks omitted). Accordingly, Plaintiffs’ statement of facts in its brief was required to set forth the material facts established by Rule 74.04(c)(1) and (2), with reference to the location in the summary judgment record where those facts were established. Id. A statement of facts violates Rule 84.04(c) if it does not identify: “(1) the material facts established by a party's motion for summary judgment and the party opposing the motion for summary judgment's response, or (2) the material facts, if any, pled in the motion for summary judgment properly denied by the opposing party's response.” Id.

“All factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal.” Rule 84.04(e). “[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.” Switzer Living Tr., 687 S.W.3d at 485 (internal quotation marks omitted). “[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.” Id. (internal quotation marks omitted). Arguments that make conclusory factual statements or refer to exhibits and affidavits attached to summary judgment pleadings without connecting them to uncontroverted facts are “completely disconnected from any particular numbered paragraph in the summary judgment record as required by Rule 74.04” and are “analytically useless to our review.” Id. (internal quotation marks omitted).

The relevant parts of the record in a summary judgment appeal are the documents containing the Rule 74.04(c) numbered paragraphs and responses: (1) the movant's statement of uncontroverted material facts; (2) the non-movant's response to the movant's statement of uncontroverted material facts; (3) the non-movant's additional statement of uncontroverted material facts; and (4) the movant's reply. Hershey v. Curators of Univ. of Mo., 719 S.W.3d 915, 921 (Mo. App. E.D. 2025) (citing Rule 74.04(c)(1)-(5)). “Because summary judgment may be affirmed if sustainable on any basis, to review whether it was error to grant summary judgment requires us to review the material facts, disputed or uncontroverted, established by the process set forth in Rule 74.04.” Fleddermann v. Casino One Corp., 579 S.W.3d 244, 249 (Mo. App. E.D. 2019). The failure of an appellant to present relevant uncontroverted material facts “is fatal to his appeal because we 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.” Id. (internal quotation marks omitted).

In its Respondent's brief, Arch argues Plaintiffs’ appellants’ brief sets forth a deficient account of the facts that does not correspond to material facts admitted or denied in the summary judgment pleadings and argues that Plaintiffs’ argument in their points on appeal does not cite the material facts admitted or denied in the summary judgment pleadings. During oral argument, both parties stated that the matter was presented to the trial court on stipulated facts. They agreed that no material facts were in dispute in this case, and the issue before the court was one of contract interpretation. Upon further questioning, the parties acknowledged that a formal stipulation of facts was not submitted to the trial court.

As part of its motion for summary judgment filings, Arch asserted 16 total statements of fact. In their response, Plaintiffs “controverted” the following statements of fact asserted by Arch: Statement of Fact 4, Statement of Fact 9, Statement of Fact 10, Statement of Fact 11, and Statement of Fact 14. In its response, Plaintiffs asserted 35 additional statements of material fact. Of those, Arch objected to 33 of the statements of fact. In discussing those objections, Arch admitted in part some statements and denied in part others. Arch admitted two of the statements of fact but stated they were immaterial.

The parties made arguments in support of their motions for summary judgment to the trial court. The transcript indicates that Arch argued to the trial court that Plaintiffs’ statements of fact were not supported by admissible evidence. Arch also argued that “plaintiffs’ efforts to controvert ․ defendant's statement of facts ․ did not do anything to controvert them” and that “plaintiffs’ facts should be disregarded because they're not material.” The parties later discussed whether a sum of money had been paid, and Plaintiffs’ attorney stated, “If that remains an issue as to facts, that can be easily resolved as a fact question.”

While the parties at oral argument asserted that they agreed on the material facts, this assertion is not supported by the record. It is clear that the parties disagreed about what facts were material and whether the facts were properly asserted and/or properly controverted. As discussed, supra, this Court's standard of review is de novo and limited to the undisputed material facts established in the Rule 74.04 process. Switzer Living Tr., 687 S.W.3d at 483. An appellate argument that is disconnected from the numbered paragraph material facts in the summary judgment record is “analytically useless” to this Court. Green, 606 S.W.3d at 120 (internal quotation marks omitted).

The trial court granted Arch's motion for summary judgment; that is what is being appealed. Plaintiffs’ almost 50 page brief cites Arch's statement of material facts four times in total. It is cited three times in the statement of facts and once in the argument under Point V. Plaintiffs’ response to Arch's statement of material facts and Plaintiffs’ assertion of additional material facts, made in one document, is cited eleven times in Plaintiffs’ brief. It is cited nine times in the statement of facts and twice in the argument under Point V. Of those eleven citations, six are to Plaintiffs’ response to Arch's statement of material facts and five are to Plaintiffs’ statement of additional material facts. Arch's response to Plaintiffs’ statement of additional material facts is not cited a single time in Plaintiffs’ brief. Points I, II, III, IV, VI, and VII do not contain a single citation to the statements of material facts or responses thereto.

In their reply brief, Plaintiffs acknowledge these deficiencies. They argue that the Respondents cured any deficiency within their brief, that the issue is one of insurance policy interpretation and “[t]he policy says what it says,” and that this Court should have a strong preference to resolve matters on the merits. Irrespective of what the policy says, how the provisions of the policy are triggered by the facts of the case is a necessary part of the legal analysis. Plaintiffs state that “[t]he parties agreed below that the material facts are uncontroverted” but our review of the record shows that Plaintiffs and Arch each asserted material facts and that each party controverted, or at least attempted to controvert, multiple of the opposing party's asserted facts. We note that the summary judgment record filed before the trial court contains almost 700 pages, including the exhibits that are attached to each party's filings. Further, while the insurance policy is in the summary judgment record, how the facts give rise to coverage under the policy is the relevant inquiry.

Plaintiffs’ briefing with this Court is completely disconnected from the summary judgment statements of material fact. Plaintiffs’ briefing does not identify, in any way whatsoever, which facts it believes were material, which facts were admitted, and which facts were properly controverted. This Court is unable to determine, based on the briefing and the limited citations to the almost 700-page record below, what material facts were established or which material facts were properly disputed in the summary judgment proceedings.

Plaintiffs argue generally that the trial court erred in granting summary judgment. In their conclusion, they ask this Court to direct the trial court to enter summary judgment in favor of Plaintiffs. It is unclear if they are arguing that there are material facts in dispute that preclude the grant of summary judgment in favor of Arch but not in favor of Plaintiffs or whether they are arguing that summary judgment in favor of Arch was improper as a matter of law. Hershey, 719 S.W.3d at 921 (“[T]he argument ․ must be connected to the Rule 74.04(c) facts ․ [regardless of] whether the appellant's argument for reversal is based on the assertion that a genuine issue of material fact exists or the contention that the undisputed facts do not support judgment as a matter of law.” (internal citation omitted)). To exercise our de novo review, this Court would have to go through the entire record in an attempt to identify the properly admitted facts and disputed issues. If we did so, we would impermissibly become an advocate for Plaintiffs.

Plaintiffs have not demonstrated that genuine issues of material fact remain in dispute or that the uncontroverted facts prevent the entry of summary judgment as a matter of law so as to preclude summary judgment in favor of Arch. Plaintiffs have provided no legal basis for this Court to conclude that the trial court improperly granted summary judgment in favor of Arch on the claims raised in Plaintiffs’ petition. See, e.g., Switzer Living Tr., 687 S.W.3d at 483-86; Hershey, 719 S.W.3d at 921-22; Crossley v. King Constr., Inc., 731 S.W.3d 497, 499 (Mo. App. S.D. 2025) (“To try to determine which [statement of uncontroverted material facts] 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[.]” (internal quotation marks omitted)); Martin Leigh, PC v. Williamson, 699 S.W.3d 538, 542 (Mo. App. S.D. 2024) (“LoanCare relies solely on accompanying exhibits and does not at any point refer us to Respondents’ responses to LoanCare's Statement of Uncontroverted Material Facts. For that reason, we have no indication whether LoanCare's asserted facts are truly uncontroverted and material.”); J.D. by and through Storment v. Sanders, 688 S.W.3d 828, 833–34 (Mo. App. S.D. 2024) (“Because J.D.’s brief does not identify the uncontroverted material facts as established by Defendants’ motion for summary judgment and her responses thereto, J.D.’s brief effectively contains no facts.”).

In short, despite both parties arguing that the facts of this case are undisputed, there is nothing in this record which sets forth what facts the parties have agreed to or how those facts implicate the legal issues raised before this Court on appeal.

Plaintiffs’ seven points on appeal are denied.

Conclusion

The judgment of the trial court granting summary judgment in favor of Arch is affirmed.

FOOTNOTES

1.   The record indicates Plaintiffs filed a cross-motion for summary judgment after Arch filed its summary judgment motion. However, none of those documents, including Plaintiffs’ motion, Plaintiffs’ suggestion in support, Plaintiffs’ statement of uncontroverted material facts, or Arch's response thereto, are included in the legal file with this Court. The denial of Plaintiff's cross-motion for summary judgment has not been challenged in this appeal.

2.   In October 2025, this Court sent a letter to all parties stating that the July 2025 judgment may not be final for purposes of appeal because it only addressed Arch and did not address the other defendants (the Underlying Defendants). This Court requested that the appellant file suggestions as to why the appeal should not be dismissed. The Underlying Defendants subsequently stipulated, and the trial court found in a November 2025 Order, that Plaintiffs stood in the shoes of the Underlying Defendants for purposes of the equitable garnishment action against Arch and that the July 2025 Judgment is binding upon the Underlying Defendants and finally decides all claims regarding coverage. Arch filed a response with this Court stating it had no opposition to the appeal proceeding. Thus, all parties and all claims were disposed of, and the July 2025 Judgment was designated a final judgment for purposes of appeal.

3.   All statutory citations are to RSMo 2016 as updated through the most recent cumulative supplement, unless otherwise indicated.

4.   All citations to Rules are to the Missouri Supreme Court Rules (2026) unless otherwise stated.

5.   In Green, the appellant argued the trial court erred in granting summary judgment because deposition testimony attached to the statement of uncontroverted material facts created an issue of material fact precluding summary judgment. 606 S.W.3d at 116. The current case differs in that Plaintiffs do not identify an issue of material fact they claim is uncontroverted which prevents entry of summary judgment. Plaintiffs argue that “[t]he [insurance] policy says what it says,” and erroneously argue that “[t]he parties agreed below that the material facts are uncontroverted.” With the exception of a single sentence in Point I stating the standard of review, Plaintiffs’ brief does not use the word “material” at all. Plaintiffs’ points relied on only use the word “facts” in Point VII where they state that “sufficient facts” existed to demonstrate trial court error. However, both Green and the current case involve an appellant's failure to cite and rely on the statements of material facts as asserted and responded to in the Rule 74.04 process.

Gary D. Witt, Presiding Judge

All concur