Whalen v. College of the Ozarks, Inc.

851 S.W.2d 682 (1993)

Sally WHALEN and Jerry Haefeker, Plaintiffs-Appellants,
v.
COLLEGE OF THE OZARKS, INC., Defendant-Respondent.

No. 18286.

Missouri Court of Appeals, Southern District, Division Two.

March 16, 1993. Motion for Rehearing and/or Transfer Denied April 7, 1993. Application to Transfer Denied May 25, 1993.

Michael L. Lyons, Souder F. Tate, Branson, for plaintiffs-appellants.

Virginia L. Fry, Rana L. Faaborg, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for defendant-respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 7, 1993.

PER CURIAM.

Plaintiffs appeal from summary judgment in favor of defendant on all counts of plaintiffs' petition. The record on appeal consists of the "legal file" provided for in Rule 81.12(a).

The "statement of facts" in appellants' brief is less than a page and a half in length. A fourth of the statement of facts is a portion irrelevant to the facts, referred to as "the issues on appeal". There are five references to the legal file in the statement of facts. One refers to the "grounds" of plaintiffs' petition. Two references are to an affidavit of a nonparty, Kimberly Kaye Jones, who apparently sought to intervene while the matter was in the trial court. Those references are both to the same page and do not support the facts for which they are cited. The remaining reference is to one page of an affidavit of defendant's president, filed by defendant in the trial court, which, including exhibits, is 49 pages in length. The facts stated for that citation are only partially supported by the page reference.

Appellants' brief contains three "points relied on". Four references are made to the legal file in the "argument" portion of appellants' brief. Rule 84.04 provides in part:

* * * * * *

(c) Statement of Facts. The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a resume of the testimony of each witness relevant to the points presented.

* * * * * *

(h) Page References in Briefs. All statements of fact and argument shall have specific page references to the legal file or the transcript.

The statement of facts in appellants' brief did not sufficiently comply with Rule 84.04(c). As an apparent result of the deficient statement of facts in appellants' brief, respondent's statement of facts exceeded three pages in length.

Failing to substantially comply with Rule 84.04(c) preserves nothing for appellate review. Wehmeyer v. Bassett Realty, Inc., 840 S.W.2d 290, 291 (Mo.App.1992); Simpson v. Galena R-2 School Dist., 809 S.W.2d 457, 458 (Mo.App.1991); Federbush v. Federbush, 667 S.W.2d 457, 458 (Mo. App.1984); Pillow v. Sayad, 655 S.W.2d 816 (Mo.App.1983).

A gratuitous examination of the record reveals no reversible error, plain, Rule 84.-13(c), or otherwise.

The judgment is affirmed. All concur.