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MICHAEL IRWIN, Plaintiff-Appellant
vs.
WAL-MART STORES INC. Defendant-Respondent and SMITHKLINE BIOSCIENCE LABORATORIES LTD., Defendant-Respondent
 
Case:
No. WD 43 707
 
Location:
Court of Appeals of Missouri, Western District
 
Date:
July 9, 1991
 
Attorneys:
Charles L. House (argued) James P. Cannon Kansas City Missouri for appellant[s].
Stanley E. Craven (for Wal-Mart) Patrick C. Cena (for SmithKline) Kansas City Missouri for respondent[s].
 
Court:
Anthony P. Nugent P.J. & Wasserstrom Sr.JJ. Kennedy & Gaitan JJ. All concur.
 
Author:
The Hon. Justice Nugent
 

Plaintiff Michael Irwin appeals from the trial court's entry of summary judgment in favor of defendants Wal-Mart Stores Inc. and SmithKline Bioscience Laboratories Ltd. We affirm the judgment of the trial court.

The plaintiff raises nine points on appeal. We do not address each point individually in part because several points raise issues similar to each other and in part because the plaintiff in violation of Rule 84.04(d) has failed to cite any authority to support his arguments on five points Thummel v. King 570 S.W.2d 679 687 (Mo. 1978) (en banc); Ortmeyer v. Bruemmer 680 S.W.2d 384 396 (Mo.App. 1984) and in one point has not set out what action or ruling of Court he deems erroneous and the extant error. Thummel supra at 685; Ruffino v. Russell 786 S.W.2d 152 153 (Mo.App. 1990). Nevertheless because our courts follow the policy of deciding cases on the merits wherever possible Thummel supra at 690 we address the issues raised by the plaintiff. Those we have narrowed to three: whether Wal-Mart acted negligently in dismissing him; whether SmithKline acted negligently in concluding that his urine sample revealed traces of a controlled substance; and whether either defendant slandered and libeled him in reporting the results of his urinalysis.

In January 1989 plaintiff Irwin a managerial employee of Wal-Mart signed a consent form involving mandatory drug testing. Basically the form stipulated that he consented to taking drug tests; that if a test revealed traces of a controlled substance in his body he would take a thirty-day unpaid leave of absence during which time he would participate in a drug rehabilitation program; and if he did not participate in the program or did participate and failed Wal-Mart could fire him. Shortly thereafter the company instructed him to submit to a urinalysis. He did so at a doctor's office. The urine sample in a sealed container signed by Mr. Irwin went to SmithKline's laboratory which had contracted with Wal-Mart to analyze Wal-Mart employees' urine specimens. SmithKline tested the specimen twice. Both tests revealed traces of cocaine in the urine.

On January 31 Wal-Mart told Mr. Irwin of the result and suspended him for thirty days without pay effective on February 4. In a deposition Mr. Irwin testified that on January 31 he submitted another specimen to the doctor who had taken the first. He further testified that that specimen tested negative for drugs that he offered the test result to Wal-Mart and that Wal-Mart refused to consider that result.

Three weeks into his suspension Wal-Mart told the plaintiff that it would permit him an additional thirty days in which to undergo the drug rehabilitation program. He refused to enter a program and the company fired him. Wal-Mart listed the reason for his termination as his refusal to enter a drug treatment program after testing positive. In his service letter the company in part explained that Mr. Irwin "was placed on a leave of absence without pay when during a routine drug screening results of a urinalysis revealed an unacceptable level of a controlled substance in his system."

The plaintiff filed this action against both defendants and the trial court entered summary judgment. SmithKline proffered the result of Mr. Irwin's urinalysis. The plaintiff submitted neither the result of the second urinalysis nor the deposition of the doctor or laboratory technician who ran the second test.

We review a summary judgment as we would any court-tried or equity proceeding. If we can sustain the judgment under any theory we must do so. McReady v. Southard 671 S.W.2d 385 387 (Mo.App. 1984). If the trial court has reached a correct result for incorrect reasons we still must affirm. Labor Discount Center Inc. v. State Bank & Trust Co. of Wellston 526 S.W.2d 407 429 (Mo.App. 1975). We review the entire record in the light favorable to the party against whom the trial court entered judgment. Fisher v. Scott & Fetzer Co. 664 S.W.2d 662 663 (Mo.App. 1984).

A trial court must exercise great care in utilizing summary judgment. Gal v. Bishop 674 S.W.2d 680 682 (Mo.App. 1984). It may enter summary judgment where the pleadings depositions and admissions on file together with the affidavits if any show that no genuine issue of material fact exits and that the law entitles the moving party to a favorable judgment. Ronollo v. Jacobs 775 S.W.2d 121 125 (Mo. 1989) (en banc); Rule 74.04(c). The motion need not rest upon unassailable proof. Schwartz v. Lawson 797 S.W.2d 828 832 (Mo.App. 1990). To overcome a motion for summary judgment the opposing party may not rest upon mere allegations or denials but must set forth specific facts that demonstrate the existence of an outstanding genuine issue of material fact. St. Charles County v. Dardenne Realty Co. 771 S.W.2d 828 830 (Mo. 1989) (en banc). Facts of such probative value as would control or determine the litigation constitute "material facts." Schneider v. Forsythe Group Inc. 782 S.W.2d 139 142 (Mo.App. 1989). Mere doubt and speculation do not create a genuine issue of material fact. St. Charles County supra. Rather the record must demonstrate a factual question that would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby Inc. 477 U.S. 242 247 106 S.Ct. 2505 91 L.Ed.2d 202 (1986).

Mr. Irwin has adduced nothing that raises a genuine issue of material fact in his allegation that Wal-Mart acted negligently in dismissing him. No jury question exists where the un contradicted record shows that he signed an agreement acknowledging the company's right to dismiss him if he tested positive for drugs and then refused to participate in a drug rehabilitation program and that he indeed tested positive refused the program and the company fired him.

Plaintiff Irwin adduced nothing other than his own doubts and speculation that SmithKline acted negligently in concluding that his specimen indicated cocaine in his system. The company adduced evidence of its testing technique demonstrating credibility and the plaintiff introduced no evidence raising a genuine issue of material fact regarding the validity of that technique.

Finally plaintiff Irwin placed nothing in the record that tended to show that either defendant engaged in libelous or slanderous behavior. Truth serves as a complete defense to an accusation of defamation. Pulliam v. Bond 406 S.W.2d 635 642 (Mo. 1966). SmithKline reported to Wal-Mart only that the plaintiff's urinalysis showed that his system contained cocaine. Wal-Mart in turn reported in his service letter only that his drug test showed an unacceptable level of a controlled substance in his system. Contrary to Mr. Irwin's allegations neither defendant accused him of illegally obtaining a drug or illegally using a drug. They each reported cold facts which coincidentally may have led others to infer illegal drug use. Again plaintiff Irwin raises no genuine issue of material fact necessitating a jury's decision.

The trial court acted properly in entering summary judgment for the defendants because the plaintiff failed to raise a single genuine issue of material fact. Accordingly we affirm the judgment of the trial court.