SCOMO: Summary judgment is not “an extreme and drastic remedy”

In 1993, the Supreme Court of Missouri issued ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). At the time, and maybe still today, it was the defining summary judgment case in Missouri. Last I checked, Missouri courts had cited it 2,400 times.

Working from Rule 74.04, ITT built the framework Missouri courts would use to decide summary judgment motions for the next three decades. Missouri adopted Rule 74.04 in 1959, modeled on Federal Rule of Civil Procedure 56. From Rule 74.04’s enactment, ITT observed, summary judgment had been “regarded as ‘an extreme and drastic remedy.’”  Some courts went further, warning that the procedure “borders on denial of due process in that it denies the opposing party his day in court.”  To protect litigants, the original rule required the movant to establish his right to judgment as a matter of law by “unassailable proof.”  That requirement was added “merely to make clear” that summary judgment was not available when a factual issue remained for the court or jury.  That safeguard meant “a summary judgment entered on a properly plead and supported motion does not deny due process.”

In 1988, the Court amended Rule 74.04 and dropped the unassailable proof standard.  The movant still had to establish a legal right to judgment and the absence of any genuine factual dispute supporting that right.

Before ITT, Missouri courts had also developed a separate test for deciding whether genuine issues of fact existed, one not mentioned in Rule 74.04: the “slightest doubt” standard.  Under that test, courts had found a genuine issue of material fact, and denied summary judgment, “whenever there is the ‘slightest doubt’ as to a material fact.”  But courts had misapplied it.  They confused “slightest doubt” with “slightest possibility” and used it to defeat summary judgment “when any doubt exists, no matter how unreasonable.”  The rule, however, tests for genuine issues of material fact, and “‘[g]enuine’ implies that the issue, or dispute, must be a real and substantial one — one consisting not merely of conjecture, theory and possibilities.”  So the Court in ITT abandoned the test to ensure “compliance with the requirements of [Rule 74.04].”

Shortly after handing down ITT, the Court amended Rule 74.04 to add the numbered-paragraphs-and-responses framework we know today.  That amendment, and the cases applying it, set the stage for the Court’s 2020 decision in Green v. Fotoohighiam, 606 S.W.3d 113, 116 n.5 (Mo. banc 2020), which translated Rule 74.04’s requirements into a clean, step-by-step procedure for movants, non-movants, and the courts (circuit and appellate) reviewing their work.

Green is the first source any Missouri lawyer should read before drafting a summary judgment motion, responding to one, or taking an appeal in a case disposed on summary judgment (after Rule 74.04).

That brings us to this year, and the Court’s decision in Wilkinson v. Farmers Holding Companies, 2026 WL 1083020, at *1 (Mo. banc Apr. 21, 2026). Wilkinson sued Farmers, alleging it violated section 290.140 by failing to respond to a service letter request.  Farmers did not file an answer alleging affirmative defenses.  Still, it moved for summary judgment, arguing Wilkinson never sent a service letter request to, or sued, his actual employer.  The circuit court granted the motion.  On appeal, Wilkinson described summary judgment, as many courts had since Rule 74.04’s adoption, as an “extreme and drastic remedy.”

Affirming, the Supreme Court rejected “the proposition summary judgment is an extreme and drastic remedy.”  It cited ITT, including its rejection of the “slightest doubt” test and its acknowledgment that Missouri courts had treated summary judgment as such a remedy.  Recall that while ITT recognized that courts had treated summary judgment as an extreme and drastic remedy, it did not embrace that label. Just the opposite: ITT rejected the suggestion that unwritten tests or standards should apply to summary judgment beyond what Rule 74.04’s text requires.

Now, after Wilkinson, any Missouri opinion holding or suggesting that summary judgment is an extreme or drastic remedy “should no longer be followed.”  Applying Rule 74.04, the Court found that Wilkinson “failed to file a proper response to Farmers’ summary judgment motion” and failed to “establish any genuine issue of material fact remained in dispute.”

Though Wilkinson could be seen as breaking new ground, the Court was simply “repeat[ing] what it established in ITT”: “Rule 74.04 sets out the requirements for summary judgment, and summary judgment is not an extreme or drastic remedy.”

And yes, Wilkinson is significant. But as in ITT, “not because the summary judgment rule has changed,” it “clearly has not.”  Instead, because, like it did in ITT and Green, the Supreme Court in Wilkinson again sends attorneys and courts to the text of Rule 74.04, and to the procedures it requires, the standards it sets, and the protections it affords.

Paul L. Brusati is a partner at Armstrong Teasdale in St. Louis.