TRAVIS GIBSON v. CATHERINE RICE, Defendant-Respondent , 571 S.W.3d 232 ( 2019 )

TRAVIS GIBSON, )
)
Plaintiff-Appellant, )
)
v. ) No. SD35815
) Filed: March 29, 2019
CATHERINE RICE, )
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
Honorable Robin E. Fulton, Special Judge
Before Bates, J., Scott, J. and Sheffield, J.
AFFIRMED
PER CURIAM. Travis Gibson (Plaintiff) appeals from a judgment entered in favor
of Catherine Rice (Defendant), who represented Plaintiff in a criminal proceeding arising
from an order of protection. Plaintiff brought a legal malpractice action against Defendant,
which resulted in the entry of a summary judgment in favor of Defendant.
Plaintiff has chosen to represent himself in this appeal, which is his right. He is,
however, required to follow the same rules of procedure as an attorney who represents an
appellant on appeal. Kline v. Casey’s General Stores, Inc., 998 S.W.2d 140, 141 (Mo.
App. 1999). While this Court recognizes the problems faced by self-represented litigants,
we cannot relax our standards for non-lawyers. “It is not for lack of sympathy but rather it
is necessitated by the requirement of judicial impartiality, judicial economy and fairness to
all parties.” Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo. App. 1993); Kline, 998
S.W.2d at 141; see also Carden v. City of Rolla, 290 S.W.3d 728, 729 (Mo. App. 2009).
As our Supreme Court explained in Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978):
Ordinarily, an appellate court sits as a court of review. Its function is not to
hear evidence and, based thereon, to make an original determination.
Instead, it provides an opportunity to examine asserted error in the trial court
which is of such a nature that the complaining party is entitled to a new trial
or outright reversal or some modification of the judgment entered. It is not
the function of the appellate court to serve as advocate for any party to an
appeal. ... When counsel fail in their duty by filing briefs which are not in
conformity with the applicable rules and do not sufficiently advise the court
of the contentions asserted and the merit thereof, the court is left with the
dilemma of deciding that case (and possibly establishing precedent for
future cases) on the basis of inadequate briefing and advocacy or
undertaking additional research and briefing to supply the deficiency.
Courts should not be asked or expected to assume such a role.
Id. at 686; see also Kline, 998 S.W.2d at 141. “An appellate court is not to become an
advocate for a party to an appeal.” In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.
App. 1999). Accordingly, we must hold Plaintiff to the same standards of practice and
procedure on appeal that we would expect of an attorney.
Rule 84.04 lists the requirements which an appellant’s brief must meet. These
requirements are mandatory. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo. App. 2000).1
Plaintiff’s brief is deficient in the following respects.
1. Table of Contents
Rule 84.04(a)(1) requires an appellant’s brief to contain “[a] detailed table of
contents, with page references, and a table of cases (alphabetically arranged), statutes, and
1
All rule references are to Missouri Court Rules (2018).
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other authorities cited, with reference to the pages of the brief where they are cited[.]” Id.
Plaintiff’s brief contains a “Table of Authorities[.]” This table is deficient because the
cases are not arranged alphabetically, and there are no references to the pages of the brief
on which the cases are cited. Additionally, Plaintiff’s list omits many cases that are cited
in his brief. Certain constitutional provisions are listed, again without page references.
Only the references to statutes and rules have the required page references.
2. Jurisdictional Statement
Rule 84.04(a)(2) requires an appellant’s brief to contain “[a] concise statement of
the grounds on which jurisdiction of the review court is invoked[.]” Id. “The jurisdictional
statement shall set forth sufficient factual data to demonstrate the applicability of the
particular provision or provisions of article V, section 3, of the Constitution upon which
jurisdiction is sought to be predicated.” Rule 84.04(b). Plaintiff’s “Jurisdictional
Statement” is deficient because it merely specifies the county and case number of the
underlying proceeding and then presents six paragraphs of argument relating to the merits
of the trial court’s ruling.
3. Statement of Facts
Rule 84.04(a)(3) requires an appellant’s brief to contain “[a] statement of facts[.]”
Id. Insofar as relevant here, “[t]the statement of facts shall be a fair and concise statement
of the facts relevant to the questions presented for determination without argument. All
statements of facts shall have specific page references to the relevant portion of the record
on appeal, i.e., legal file, transcript, or exhibits.” Rule 84.04(c). Plaintiff’s “Statement of
Facts” on pages 5-12 of his brief does not meet any of these requirements.
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As this Court explained in Chopin v. Am. Auto. Ass’n of Missouri, 969 S.W.2d
248 (Mo. App. 1998):
An appellant has the duty to define the scope of the controversy by stating
the relevant facts fairly and concisely. The purpose of the statement of facts
is to afford an immediate, accurate, complete and unbiased understanding
of the facts of the case. A statement of facts containing practically no facts
relating to any issue raised on appeal does not comply with Rule 84.04(c).
Id. at 251 (citations omitted).
Plaintiff’s eight-page Statement of Facts consists of Plaintiff’s summary of what he
perceived to be the relevant events, mostly in the form of his own arguments and
conclusions about what happened. None are supported by specific page references to the
relevant portion of the record on appeal. Moreover, this case was decided by summary
judgment in Defendant’s favor:
Since 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) & (2). … A statement of facts that 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, violates Rule 84.04(c).
Exec. Bd. of Missouri Baptist Convention v. Windermere Baptist Conference Ctr., Inc.,
430 S.W.3d 274, 284 (Mo. App. 2014). According to the trial court’s judgment, Plaintiff
did not comply with the requirements of Rule 74.04(c)(2), so each numbered paragraph in
Defendant’s statement of undisputed material facts was deemed admitted. In Plaintiff’s
Statement of Facts, there is no reference at all to Defendant’s motion for summary
judgment or the statement of uncontroverted material facts upon which it was based.
Because Plaintiff’s Statement of Facts provides us with no basis to discern what material
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facts were established by the trial court’s ruling, it preserves nothing for appellate review.
Id. at 285-86.
4. Points Relied On
Rule 84.04(a)(4) requires an appellant’s brief to contain “[t]he points relied on[.]”
Rule 84.04(d)(1) specifies the following format for a point relied on:
(1) Where the appellate court reviews the decision of a trial court, each point
shall:
(A) Identify the trial court ruling or action that the appellant
challenges;
(B) State concisely the legal reasons for the appellant’s claim of
reversible error; and
(C) Explain in summary fashion why, in the context of the case, those
legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred
in [identify the challenged ruling or action], because [state the legal reasons
for the claim of reversible error], in that [explain why the legal reasons, in
the context of the case, support the claim of reversible error].”
Id. (italics in original). This required format serves the important purpose of giving the
opposing party notice of the precise matters in contention and informing the court of the
issues presented for review. Kyle Estate v. 21st Mortg. Corp., 515 S.W.3d 248, 253 (Mo.
App. 2017). Plaintiff’s single point relied on states that “[t]he trial court 16SD-CC00090
misapplied ‘official immunity’ to ‘ministerial acts’ as described.” This statement is
followed by two and one-half pages of argument addressing why Plaintiff contends this
legal conclusion is correct. An abstract statement of law is a deficient point relied on,
which preserves nothing for appellate review. See Rule 84.04(d)(4); Prather v. City of
Carl Junction, MO, 345 S.W.3d 261, 265 (Mo. App. 2011). Moreover, Plaintiff’s point is
not immediately followed by “a list of cases, not to exceed four, and the constitutional,
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statutory, and regulatory provisions or other authority upon which that party principally
relies.” Rule 84.04(d)(5).
5. Argument
Rule 84.04(a)(5) requires an appellant’s brief to contain “[a]n argument[.]” Insofar
as relevant here, Rule 84.04(e) contains the following requirements for the argument in an
appellant’s brief:
The argument shall substantially follow the order of “Points Relied On.”
The point relied on shall be restated at the beginning of the section of the
argument discussing that point. The argument shall be limited to those
errors included in the “Points Relied On.” For each claim of error, the
argument shall also include a concise statement describing whether the error
was preserved for appellate review; if so, how it was preserved; and the
applicable standard of review. … All factual assertions in the argument shall
have specific page references to the relevant portion of the record on appeal,
i.e., legal file, transcript, or exhibits.
Id. “An argument should show how the principles of law and the facts of the case interact.”
Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 218 (Mo. App. 1999). Plaintiff’s brief does
not contain an argument section, nor is the point restated as required. There is only a
section called “support” from pages 14-31. There is no description of the applicable
standard of review for an appeal from a summary judgment. There is no discussion of why
the trial court’s judgment was erroneous, based upon the legal principles governing
appellate review of a summary judgment as applied to the material facts established by the
trial court’s ruling. There is not a single page reference to the record on appeal to support
the factual assertions in the “support” section of Plaintiff’s brief. This section also contains
references to matters outside the record on appeal, which is improper. Pattie v. French
Quarter Resorts, 213 S.W.3d 237, 239 (Mo. App. 2007).
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6. Conclusion
Rule 84.04(a)(6) requires an appellant’s brief to contain “[a] short conclusion
stating the precise relief sought.” Id. Plaintiff’s brief contains a “Closing” section, but it
does not state the precise relief he seeks from this Court on appeal. Some of his complaints
in this section are directed at other unspecified summary judgments in federal court, which
are not before this Court. Therefore, his brief does not comply with Rule 84.04(a)(6). See
Moreland v. Div. of Emp’t Sec., 273 S.W.3d 39, 41 (Mo. App. 2008).
A trial court’s judgment is presumed correct, and an appellant bears the burden of
proving his or her claims of error. Ray Klein, Inc. v. Kerr, 272 S.W.3d 896, 898 (Mo.
App. 2008). The numerous and substantial violations of Rule 84.04 in Plaintiff’s brief are
so serious as to impede appellate review. Reliable Roofing, LLC v. Jones, 302 S.W.3d
232, 236 (Mo. App. 2009); see State ex rel. Greene County v. Barnett, 231 S.W.3d 854,
856 (Mo. App. 2007). An allegation of error that is not properly briefed cannot be
considered in a civil appeal. Rule 84.13(a); Martin v. Reed, 147 S.W.3d 860, 864 (Mo.
App. 2004). Because Plaintiff has failed to meet his burden of demonstrating reversible
trial court error, the judgment is affirmed. See Stelling v. SJMGroup, 504 S.W.3d 248,
253 (Mo. App. 2016); In re Marriage of Chorum, 469 S.W.3d 484, 490 (Mo. App. 2015).
All concur.
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