*2 AHUJA, P.J., Before ALOK THOMAS NEWTON, C.J., H. and HAROLD L. LOWENSTEIN, SR. J. AHUJA, Judge.
ALOK Company Insurance appeals the circuit grant court’s of summary judgment Progressive Casualty Insurance Compa- ny on Arch’s breach of contract claim. We appeal. dismiss the Background Factual Taylor’s Jermaine automobile damaged. Taylor had financed the purchase of through this vehicle Centrix Financial, which a lien Taylor’s held on car.1
Taylor obtained automobile insurance Progressive from that covered only Taylor, but also Centrix as a payee.2 loss accident, Taylor Prior to the failed to make required premium payments, his and Pro- gressive accordingly sought to cancel the Policy. provided that it could be “by
canceled at days least 10 no- tice to the named insured shown in the Declarations at the address shown on this Policy.” “Proof sufficient of notice.” Under Policy, agreed Progressive that it “will the same give advance notice of cancella- to the payee give tion loss as we named insured shown declarations.” financing, policy Progressive 1. At the time County Centrix was was named Mutual apparently doing as the Credit business Union Company. party argues Insurance Neither of Texas. discrepancy that this is relevant to the issues appeal. 2. The record indicates that the insurance company actually which issued the relevant Arch “has no occurred, cuit court concluded accident car After the be- Progressive against” of action payment cause demand made action if refused on had a “cause of Policy. cause under *3 vehicle, insured, can- the Policy had been the lien holder on the its the basis that own “blanket” intent to also had its notice of the provided not celed. Centrix re- Progressive After Arch. in the terms of the with forth insurance cancel as set demand, paid Centrix policy.” fused Centrix’s car. Taylor’s
for its loss follows. appeal This 3, 2008, Arch filed suit December On (as asserting Cen- Progressive, against Analysis had failed Progressive subrogee) that trix’s opening appel- that Arch’s conclude We impending notify timely Centrix present any adequately Brief fails to late Policy, that the cancellation reversal, and that could in force at the time remained accordingly accordingly be dis- appeal should that accident, Progressive and that Taylor’s missed.3 resulting loss. liable for the was therefore filed cross-mo- and I. Progres- summary judgment. tions for Rule 84.04 “Compliance with it had argued that motion sive’s mandatory in or briefing requirements is intent to notice to Centrix appellate courts do der to ensure Policy by mailing notice Cen- cancel the on facts by speculating become advocates 13, 2002. Pro- September or about trix on that have not been arguments and summary motion for supported its gressive Bridges Family v. Am. Mut. Ins. made.” employee of an with an affidavit W.D. Systems Corporation Data Electronic pref it is never this court’s “While (“EDS”), provided ad- a third which reach appeal without erence to dismiss and Progressive, ministrative services merits, enforcing compliance ing the records; con- with business the issuance guards against ... Rule 84.04 demonstrated that these documents tended on issues which precedential decisions a cancellation pres to a full adversarial subject were not days prior ten mailed Centrix SSPS, Inc., Rainey entation.” summary In its cancellation. Policy’s W.D.2008). its own briefing, Arch submitted re- never stating affidavit 84.04(d)(1)requires that each Point Rule Pro- any cancellation notice from ceived “(A) identify trial court Relied On gressive. chal- appellant ruling or action (B) concisely legal rea- state lenges; granted court
The circuit claim of reversible appellant’s for the sons “Progres- court found that motion. The (C) error; fashion explain Intent to Cancel to mailed Notice of sive case, legal those in the context of the holder, why, lien Un- Taylor’s Credit Jermaine (10) the claim of reversible Texas, days before reasons at least ten ion of Therefore, the cir- error.” cancellation date.” appeals that "all specifically warned original Brief Order opening 3. We note that Arch's subject when there is non- to dismissal are Court's in an October was struck ‘ governing practice Order, compliance with the rules gave to file an which Arch leave Court.” accompanying that in this A letter amended brief. opening Brief asserts two in- merely refers general duty terrelated Points Relied On: to notify any loss payee of the Poli- [1] The trial court erred in granting cy’s cancellation, a duty which does not even appear to be in issue. the Respondent Progressive’s Motion for Summary Judgment because the Tri- perspective, however, From our al improperly applied Court the known significant more defect in Arch’s Brief is stipulated facts of the case to its section, that its Argument which consists ruling, in that the Trial Court refused to of four double-spaced pages addressing consider all known facts and evidence in Points, both fails to acknowledge the evi- *4 in ruling favor of the Respondent’s Mo- dence on which the trial court relied in tion for Summary Judgment. making its adverse ruling. Arch’s Argu-
[2] The Trial Court erred in refusing ment proceeds on the assumption that “while Respondent Progressive was able to grant Appellant Arch’s Motion for provide proof mailing primary Summary Judgment grant- and instead insured, absolutely proof no mailing to ing the Respondent Progressive’s Mo- payee loss has provided ever been by tion for Summary Judgment, resulting Respondent Progressive.” (Emphasis being Plaintiffs case dismissed added.) repeats multiple this claim prejudice, with Respondent because the times in its Argument, short claiming that Progressive, as stated in their own Poli- Progressive “has any attempt Insurance, cy of duty had a clear to notify the co-insured of such cancella- notify the insured as well as the co- tion,” and that is undisputed “[i]t insureds, or payee, any loss cancella- Respondent Progressive only provided no- tion or termination of poli- the insured’s tice of cancellation to the insured Borrow- cy. ..., er and did not provide any notice of A strong argument could be made that any kind of cancellation to the payee loss On, the deficiencies in Arch’s Points Relied added.) (Emphasis Bank.” alone, standing justify dismissal. Neither These assertions are simply not accu- Point On explain[s] Relied or “identifies] stated, rate. As previously the specific legal reasons that did in fact submit an affidavit support- and error,” claim of reversible and therefore ing timely documents to show that they arguably “preservef nothing ap- ] had been to the lien-holder. pellate White, review.” White Arch’s Brief does not even acknowledge 13 (Mo.App. W.D.2009)(citing Progressive’s summary judgment proof, Landwehr, Landwehr v. much less set forth argument that a W.D.2004)). The dispositive genuine despite issue exists issue here is whether Centrix received evidentiary showing (by arguing, for exam- proper notice intent ple, evidence was inade- However, cancel the Policy. neither of quate or insufficient as a matter of or Arch’s Points challenges Relied On that Centrix’s claimed non-receipt of Pro- basis on which the circuit court ruled gressive’s notice created a fact issue even Progressive’s favor on this issue. Point if adequately had proven mail- says virtually One nothing of substance ing). when it argues that the circuit court “im- properly applied” and “refused to consid- Ignoring the evidence on which er” “all known facts and evidence” rul- the trial court relied is not an argument ing favor; in Progressive’s and Point Two that such reliance constituted reversible First, Pro- affidavit on which the EDS explic stated it not be
error.4 “While appear to be suffi- 84.04, gressive relied would require fundamental itly in Rule of can- it is that cient to establish appellate ment for an lienholder, it since states of the ba cellation to the the erroneousness demonstrate in this case was agency or that the lienholder notice a lower court upon which sis ... on or about Rainey, first class mail ruling.” “mailed adverse issued an 13, 2002,” and attached and September chal appellant an at “Unless sup- records which authenticated business on which adverse grounds lenges notice, particular no entitle the assertion that a port he has shown depends, ruling lienholder, was in fact particular relief.” Id5 to this appellate ment to 13 or September on either mailed deficiencies patent Because merely established if that affidavit Even Argument, we Points Relied On practice policy Progressive/EDS’s appeal. dismiss to lienholders mail notices of cancellation notices to simultaneously II. *5 insureds, be suffi- might it nevertheless its that suggests The dissent v. In Mutual Insurance Co. cient. Shelter was insuffi- summary-judgment evidence W.D.1992), Flint, (Mo.App. 524 837 S.W.2d Progressive provid- cient to that establish explained that this Court intent to notice of its ed Centrix with [wjhen of mail is customary volume ex- As we have Taylor’s policy. cancel a proof particu- that direct large, so however, above, Arch failed to plained feasible, is not lar letter was mailed compliance present arguments these us- the settled custom and “evidence of indeed, 84.04; opening Brief its with Rule regular age of the sender in acknowledge the existence of did not even of its business is systematic transaction proof. summary judgment presump- rise to the give sufficient” to free If the resolution of this issue were receipt by the addressee. tion of doubt, that the de- from it is conceivable (citation also, omitted); e.g., Id. at 528 see ignored, could be briefing fects in Arch’s Greenleaf, v. 824 Corp. Reins. long-stated preference Universal consistent with our E.D.1992); 80, (Mo.App. First merits. This S.W.2d resolving appeals for on their case, Independence Bank Mid-Cen- Nat’l is not such a however. of Redevelopment Indeed, any Inc. v. Crestwood Commons reference to the the lack of 573, dispositive does E.D. Corp., evidence the trial court found 584-85 appellant's obligation can- discharge 2003). an to not didly for an inform this Court basis Brief, opening In the of its statement fact ruling. adverse language ”[p]roof quotes policy of Arch argu reply proof some any 5. While Arch's brief makes be sufficient of notice shall inadequacy purported notice," of Pro ment as to the "Respondent Pro- and asserts that of evidence, gressive’s summary-judgment any gressive proof of mail- has not genuine factual issue de the existence of a ing, via a U.S. Postal Service Certificate showing, arguments spite Progressive's these payee.” Mailing, to the loss But reply brief is to be used came too late. “A Argument develop its Arch does not its arguments by respon reply raised to Progressive was re- (apparent) claim that dents, arguments appeal.” new not to raise payee by the loss quired establish notice to Inc., Props., Mountain Kells v. Mo. Mailing,” Certificate of "U.S. Postal Service S.D.2008). 79, n. 7 authority any that would provide or assignment of error review an "[W]e do not argument. such reply time in the brief.” made for the first (Mo.App. adopt apparent approach,8 Texas tury Ins. are appear there also Missouri cases which contrary: to hold despite denial Brief, Reply argues receipt, issue created where the that, law, time under Texas a the first submits proof sender material fact created genuine issue of was may fact mailed.9 The be complicat- issue it a by the affidavit submitted from Cen- policy provision ed stating that nev employee, indicating trix “[pjroof be er notice of cancel received again, sufficient of notice.” Once (Inevitably, attempt this to raise a lation. improperly-preserved argument is not reply triggered brand-new clear sufficiently that we should hazard to Progressive’s motion to strike and/or despite address it the deficiencies in the sur-reply, to file a motion today leave a we way it raised. was moot). As deny explained supra note however, argu Arch cannot raise new Conclusion Reply Brief. Arch’s belated ments procedural Minor deficiencies not should anyway. argument may reversal or prevent dissuade this Court from ad- that, correct under Texas be dressing the merits a issues (one dueling attesting affidavits sought has to raise here. But where a mailing, non-receipt) create a the other completely party has failed raise an concerning fact issue whether a document particularly an issue which is not issue— free from mailed, actually which cannot re should re- generally doubt —we *6 by summary judgment.6 solved But fuse to raise and issue decide that on our no made choice-of-law to have previously own. We warned that application the of Texas either here or deciding prop- issues which have not been below, To and thus waived the issue.7 the erly the likelihood of “increase[s] briefed law applies, extent Missouri the resolution reaching wrong generat- the decision and appears of Arch’s belated claim ing unclear. questionable precedent.” Waller v. 403, there 251 Shippey, (Mo.App. While are cases which could be read S.W.3d 407 Flint, County 6. Sudduth v. v. 837 See Commw. Mut. Ins. 9.Shelter Mut. Ins. Co. S.W.2d Co., 196, (Tex. 1970); 524, W.D.1992) 454 (“The S.W.2d 198 Jones v. (Mo.App. response 528 739, Ray, (Tex.App.-Corpus Flints, 745-46 they simply, of the did not receive Christi policy, mailing by the to this evidence of judgment summary dispel Shelter did not See, Specialists, e.g., Inc. v. Premium Fin. presumption receipt the of that attends that Hullin, 110, (Mo.App. 90 S.W.3d 113 n. 2 Quanta Invs., proof.”); Spe- M.L.P. L.L.C. v. W.D.2002)(citing rel. v. State ex Nixon Am. Co., 4:07CV1458-DJS, cialty Ins. No. Lines 122, (Mo. Tobacco 2000)). 34 S.W.3d banc 17, 4940999, (E.D.Mo. 2008 WL at *9 Nov. ability meaningfully analyze Our to 2008) (question of of insurance can- law further this choice of issue would be notice; "Although plaintiffs cellation assert complicated because Arch chose to include notice, they a the never received such relevant portions applicable Policy the of inquiry mailing, not focuses on the the re- appeal, record on and we therefore could not Quanta ceipt, of the notice. Because has sub- whether the contained choice know a 29, April mitted sufficient evidence of the provision, much effect of law less assess the of 2005, mailing, provision. genuine is of there no issue 10, 2005, May concerning material fact the Coordinating Higher Clear v. Mo. See Bd. for omitted)). (footnote cancellation date.” Educ., 23 S.W.3d E.D. 2000); Soc'y, Gambill v. Cedar Fork Mut. Aid S.D.1998). 312-13 obligation of the W.D.2008). relieved case well illustrates This prove mailing. show of dangers. these was left unresolved. The The is dismissed. appeal summary judgment improper of was grant brief, or in reply motion to strike to demonstrate that as failed sur-reply leave to a for file alternative genuine no of fact existed. issue brief, moot. as is denied Arch, imperfectly, however raised C.J., NEWTON, concurs. as grant summary judgment error sufficient, on, evidently, relied points LOWENSTEIN, J., in SR. dissents the nature of majority to determine separate opinion. claim each issue within and then refute LOWENSTEIN, L. Senior HAROLD of summary This court’s review the claim. Dissenting. Judge, the movant judgment two-fold: must is breach of contract deals suit for This he entitled establish that is grant with the genuine matter and that no a of law issue defendant, Progressive. This of the favor Cridlebaugh, fact exists. of material light the record a most court reviews genuine “A S.W.3d at 543. issue exists party against judg- whom favorable plausible, two is evidence of where there accord- ment entered and contradictory, but accounts essential inferences be ed all reasonable Here, a issue genuine facts.” Id. of mate- Cridlebaugh record. drawn from the rial fact because still exists contends Milan, 192 County State Bank Putnam received and Progres- (Mo.App.2006). This that the evidence was suffi- sive contends grant summary judg- court reviews notice. cient establish dismissing appeal, ment this de novo. material fact is Simply put, dispute. a ignores in favor majority standard Summary judgment should have been compliance Rule 84.04. technical granted. The suit should remanded *7 satisfy enough If facts here are a trial on the merits. then judgment, there will be no litigate any in the future such
need whether an
dispute as to affected will All that required
had notice. prevail is an affidavit defendant Progressive, as COMPANY, ARCH INSURANCE eliminating the decision as to thereby Appellant, notice of a event whether or not material received. was sent and/or CASUALTY PROGRESSIVE Progressive, partial motion for COMPANY, INSURANCE argued that summary judgment, Respondent. only refers phrase “same advance notice” No. WD 69806. to the notice and not substance provisions that apply Appeals, Court Missouri The trial court policyholder. agreed District. Western and found that the interpretation Cen- 22, 2009. Sept. trix received the same substantial notice The trial inter- policyholder. court’s provision only pretation of the contract