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Stotts v. Progressive Classic Insurance Co.11/4/2003
e have been instances where our appellate courts, without any discussion of the authority for doing so, have ostensibly reviewed the denial of a motion for summary judgment due to the existence of extraordinary circumstances. See, e.g., In re Estate of Corbin, 66 S.W.3d 84, 94 (Mo. App. 2001); Strain-Japan R-16 Sch. Dist. v. Landmark Sys., Inc., 51 S.W.3d 916, 919 (Mo. App. 2001). Such circumstances have been found where in reviewing and reversing the grant of one party's motion on the merits, the appellate court necessarily concludes that on the summary judgment record made, the adverse party's motion should have been sustained. Lopez v. Am. Family Mut. Ins. Co., 96 S.W.3d 891, 892 (Mo. App. 2002). In such cases, to reverse and remand without ordering the trial court to enter summary judgment for the adverse party would seem illogical. Despite the logic of the situation, such a course of action still begs the question as to what authority the appellate court has for reviewing and ruling on the denial of the summary judgment motion in that it is not a final judgment subject to appellate review.
The answer to the question posed would appear to lie in the fact that in the "extraordinary circumstances" cases, it could be argued that the appellate court is not actually reviewing the denial of the motion for summary judgment when it declares that summary judgment should have been entered for a party in reversing the trial court's grant of summary judgment for the other party. The argument would be that, in declaring that summary judgment should have been granted to the party whose motion was denied by the trial court, the appellate court is doing so as part and parcel of its authorized review and ruling on the trial court's grant of summary judgment to the adverse party and in accordance with Rule 84.14, which authorizes the appellate court to declare the judgment that the trial court ought to have given.
As we determined in our resolution of Point II, supra, the trial court erred in granting summary judgment for the respondents on their claim based on a theory of negligent entrustment, the only theory on which coverage could be shown, because they failed to allege undisputed material facts establishing each and every proof element of their claim, specifically that there was uninsured motorist coverage for James' negligent entrustment of his vehicle to Schlosser. Thus, that issue would remain in dispute and would await resolution by the trier of fact, unless the appellant is correct in its assertion that from the summary judgment record before us we can determine that it is undisputed that the respondents could never show one or more of its proof elements of its negligent entrustment theory. Based on the summary judgment record presented, we cannot find that to be true such that we fail to find the necessary extraordinary circumstances warranting our review of a denial of a motion for summary judgment.
Point dismissed.
Conclusion
The judgment of the Circuit Court of Clay County, granting summary judgment to the respondents on their petition for breach of contract and vexatious refusal to pay, is reversed and the case is remanded to the court for further proceedings consistent with this opinion.
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