Kwang H. Kim v. Won Il Kim

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
KWANG H. KIM, )
)
Respondent, )
) WD77047
v. )
) OPINION FILED:
) September 23, 2014
WON IL KIM, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Kevin D. Harrell, Judge
Before Division One: Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick and Karen King Mitchell, Judges
Won Il Kim (Mr. Kim), who appears pro se, appeals from: (1) the circuit court‟s
judgment ordering him to pay Kwang H. Kim‟s (Ms. Kim) attorney‟s fees and sanctioning
Mr. Kim for filing numerous frivolous pleadings; (2) the circuit court‟s judgment denying
Ms. Kim‟s motion to modify a decree for dissolution of marriage entered on August 26, 1991;
and (3) the circuit court‟s order disposing of numerous motions filed by Mr. and Ms. Kim.
Mr. Kim raises thirteen points on appeal. Ms. Kim has filed a motion to strike the legal file and
Mr. Kim‟s brief, a motion for sanctions, and a motion to dismiss Mr. Kim‟s appeal. Because of
significant deficiencies in Mr. Kim‟s appellate brief, which prevent us from conducting
meaningful review, we dismiss Mr. Kim‟s appeal. We deny Ms. Kim‟s motions to strike the
legal file and Mr. Kim‟s brief and Ms. Kim‟s motion for sanctions.
“Rule 84.04[1] sets forth various requirements for appellate briefs[,] and compliance with
these requirements is „mandatory in order to ensure that appellate courts do not become
advocates by speculating on facts and on arguments that have not been made.‟” Leonard v.
Frisbie, 310 S.W.3d 704, 706 (Mo. App. W.D. 2010) (quoting Brown v. Ameristar Casino
Kansas City, Inc., 211 S.W.3d 145, 147 (Mo. App. W.D. 2007)). “„Violations of Rule 84.04 are
grounds for a court to dismiss an appeal.‟” Id. (quoting Shochet v. Allen, 987 S.W.2d 516, 518
(Mo. App. E.D. 1999)). An appellant proceeding pro se “is subject to the same procedural rules
as parties represented by counsel, including the rules specifying the required contents of
appellate briefs.” Rainey v. SSPS, Inc., 259 S.W.3d 603, 604 (Mo. App. W.D. 2008). Mr. Kim‟s
brief fails to comply with Rule 84.04 in many respects, rendering his claims almost entirely
incomprehensible.
First, Mr. Kim‟s jurisdictional statement is deficient. Rule 84.04(b) provides, in relevant
part, that “[t]he 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
whereon jurisdiction is sought to be predicated.” To the extent we can understand Mr. Kim‟s
jurisdictional statement, he merely recites some of his allegations against Ms. Kim and her
attorney and then cites section 477.070,2 which provides that “[t]he jurisdiction of the western
district of the court of appeals shall be coextensive with all the counties in the state except those
embraced in the jurisdiction of the eastern and the southern districts of the court of appeals.”
Mr. Kim‟s statement does not set forth sufficient facts to demonstrate the applicability of a
1
All rule references are to the Missouri Court Rules (2013), unless otherwise noted.
2
All statutory references are to the Missouri Revised Statutes (2000), as updated, unless otherwise noted.
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particular provision of Article V, section 3, whereon the jurisdiction of this court is predicated.
Thus, it does not fulfill the requirements of Rule 84.04(b).
Second, Mr. Kim‟s statement of facts fails to comply with Rule 84.04(c). Rule 84.04(c)
provides, in relevant part, that “[t]he statement of facts shall be a fair and concise statement of
the facts relevant to the questions presented for determination without argument.” “The primary
purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased
understanding of the facts of the case.” Lattimer v. Clark, 412 S.W.3d 420, 422 (Mo. App. W.D.
2013) (quoting Tavacoli v. Div. of Emp’t Sec., 261 S.W.3d 708, 710 (Mo. App. W.D. 2008)).
Most of Mr. Kim‟s statement of facts is incomprehensible. To the extent we can discern his
recitations, they are argumentative and do not provide this court with a complete and unbiased
understanding of the facts. Therefore, Mr. Kim‟s statement of facts does not comply with the
requirements of Rule 84.04(c).
Third, Mr. Kim‟s points relied on do not comply with Rule 84.04(d), which mandates that
each point relied on 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.” Mr. Kim‟s points on appeal are variously vague and incoherent;
particularly, they fail to state in an understandable way either the legal reasons for his claims of
error or how those legal reasons support his claims.
Last, Mr. Kim‟s argument contains many deficiencies. Rule 84.04(e) requires that the
argument “substantially follow the order of [the] „Points Relied On‟”; “[t]he point relied on shall
be restated at the beginning of the section of the argument discussing that point”; “[t]he
argument shall be limited to those errors included in the „Points Relied On‟”; and “[t]he
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argument shall . . . include a concise statement of the applicable standard of review for each
claim of error.” “The „argument should demonstrate how principles of law and the facts of the
case interact.‟” Lattimer, 412 S.W.3d at 423 (quoting Scott v. Potter Elec. Signal Co., 310
S.W.3d 311, 312 (Mo. App. E.D. 2010)). “„A contention that is not supported with argument
beyond conclusions is considered abandoned.‟” Id. (quoting State v. Bell, 266 S.W.3d 287, 290
(Mo. App. E.D. 2008)).
Again, to the extent we can decipher Mr. Kim‟s argument, it contains mostly
argumentative allegations and conclusory statements. Mr. Kim cites no case law in support of
any part of his argument, and many of his points relied on contain no citations to authority at all.
“„It is an appellant‟s obligation to cite appropriate and available precedent if [the appellant]
expects to prevail.‟” Rademan v. Al Scheppers Motor Co., 423 S.W.3d 834, 837 (Mo. App.
W.D. 2014) (quoting In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo. App. S.D. 1999)).
“Where „the appellant neither cites relevant authority nor explains why such authority is not
available, the appellate court is justified in considering the points abandoned and dismiss[ing] the
appeal.‟” City of Plattsburg v. Davison, 176 S.W.3d 164, 168 (Mo. App. W.D. 2005) (quoting
Spears, 995 S.W.2d at 503).
Occasionally, where an appellant‟s argument is readily understandable, non-compliant
briefs are reviewed ex gratia. Lattimer, 412 S.W.3d at 423. We decline to conduct such review
here, as Mr. Kim‟s claims are not readily understandable. “While the preference is to decide an
appeal on the merits, where[, as here,] a brief is so defective as to require the appellate court and
opposing counsel to hypothesize about the appellant‟s argument and precedential support for it,
the merits cannot be reached.” Id. “To address the merits of this appeal, this court would have
to become an advocate for [Mr. Kim] by searching the record for the relevant facts of the case,
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speculating about the possible claims of error, and crafting a legal argument on [his] behalf.” Id.
“This we cannot do.” Id.
Because Mr. Kim‟s brief fails to substantially comply with Rule 84.04 to the extent that
we are unable to review his claims, we dismiss his appeal. We deny Ms. Kim‟s motions to strike
the legal file and Mr. Kim‟s brief, and her motion for sanctions.
Karen King Mitchell, Judge
Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick, Judge, concur.
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