Bernadette B. Indelicato v. McBride & Son Management Co., LLC, and Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: May 24, 2022
• Docket: ED110121
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR BERNADETTE B. INDELICATO, ) No. ED110121 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission vs. ) ) MCBRIDE & SON MANAGEMENT CO., ) LLC, AND DIVISION OF EMPLOYMENT) SECURITY, ) ) Respondents. ) Filed: May 24, 2022

Bernadette B. Indelicato (Claimant) appeals from the decision of the Labor and Industrial

Relations Commission (Commission) denying her unemployment benefits. We dismiss the

appeal due to Claimant’s noncompliance with briefing requirements.

Claimant filed her brief pro se. The Division of Employment Security (DES) filed a

responsive brief and a Motion to Dismiss for Failure to Comply with Rule 84.04,1 arguing

Claimant’s brief violates Rule 84.04 in multiple respects and does not preserve any error for this

Court to review. Claimant did not respond to the motion. The motion was taken with the case.2

Rule 84.04 sets forth appellate briefing requirements. Hoover v. Hoover, 581 S.W.3d

638, 640 (Mo. App. W.D. 2019). “An appellant’s failure to substantially comply with Rule

84.04 ‘preserves nothing for our review and is grounds for dismissing the appeal.’” Id. (quoting

1 All rule references are to the Missouri Supreme Court Rules (2020). 2 Claimant subsequently filed a reply brief out of time. DES filed an additional motion to dismiss the reply brief, which was also taken with the case. We grant both of DES’ motions to dismiss. Wong v. Wong, 391 S.W.3d 917, 918 (Mo. App. E.D. 2013)). Parties appearing pro se, such as

Claimant here, are “subject to the same procedural rules as parties represented by counsel,

including the rules specifying the required contents of appellate briefs.” Id.

Claimant’s brief does not comply with Rule 84.04 in multiple respects. First, Claimant

violates Rule 84.04(c), which requires that “[a]ll statements of facts shall have specific page

references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits.”

Claimant’s statement of facts does not include specific references to any portion of the record on

appeal. “A violation of Rule 84.04(c), standing alone, constitutes grounds for dismissal of an

appeal.” Washington v. Blackburn, 286 S.W.3d 818, 820 (Mo. App. E.D. 2009).

Second, Claimant violates Rule 84.04(d)(5), which requires that “[i]mmediately

following each ‘Point Relied On,’ the appellant, relator, or petitioner shall include a list of cases,

not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority

upon which that party principally relies.” Claimant failed to include a list of cases upon which

her points rely. “A point relied on that fails to comply with Rule 84.04(d) preserves nothing for

appeal.” Blackburn, 286 S.W.3d at 821.

Third and most importantly, Claimant violates Rule 84.04(e), which requires an appellant

to “explain why, in the context of the case, the law supports the claim of reversible error by

showing how the principles of law and the facts of the case interact.” Burgan v. Newman, 618

S.W.3d 712, 715 (Mo. App. E.D. 2021). Bare conclusions that lack any legal analysis or

supporting rationale preserve nothing for review. Id. Claimant’s first point on appeal asserts the

Commission improperly imposed upon her the burden to show she did not commit misconduct in

connection with her employment. Yet Claimant does not cite to the record where this occurred

or explain how the Commission imposed such a burden.

Claimant’s second point on appeal asserts the Commission’s decision was not based on

competent or substantial evidence in that the employer did not meet its burden to prove it 2 discharged Claimant for misconduct connected to the work or employer. Again, Claimant does

not cite to the record to show what evidence the Commission relied upon in finding the employer

met its burden, much less demonstrate how that evidence was insufficient to support such a

finding.

In her argument on both points, Claimant repeats verbatim the same block quotes and

legal rules, and entirely fails to provide relevant facts or show how the law should be applied to

those facts. Claimant does not even describe the factual situation constituting the misconduct

she challenges and instead relies on conclusory statements that the employer cannot show

misconduct. Such bare conclusions do not satisfy Rule 84.04(e). Burgan, 618 S.W.3d at 715.

We have reviewed noncompliant briefs ex gratia where the appellant’s argument is

readily understandable. Hoover, 581 S.W.3d at 641. However, here we cannot discern

Claimant’s arguments. As a result of the deficiencies discussed above, we could review

Claimant’s points only by combing the record for support for her factual assertions, deciphering

her arguments on appeal, and locating legal authority for those arguments. See id. In doing so,

we would become Claimant’s advocate, which we cannot do. Id.

CONCLUSION

The appeal is dismissed.

_________________________ Lisa P. Page, Judge

Michael E. Gardner, P.J. and James M. Dowd, J., concur.