Missouri Court of Appeals Western District
DANIEL STARCHER, ) ) WD85952 consolidated with Appellant, ) WD85953, WD85954, ) WD85955, and WD85956 v. ) ) OPINION FILED: DIVISION OF EMPLOYMENT ) SECURITY, ) July 25, 2023 ) Respondent. ) )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: W. Douglas Thomson, Presiding Judge, Cynthia L. Martin, Judge, and Thomas N. Chapman, Judge
Daniel Starcher appeals decisions of the Labor and Industrial Relations
Commission (“Commission”) affirming the orders of the Appeals Tribunal
dismissing his appeals of overpayment determinations as untimely. Because
Starcher fails to comply with the rules of appellate briefing in any meaningful
manner, this appeal is dismissed. Factual and Procedural Background
The Division of Employment Security (“Division”) determined that Starcher
was overpaid unemployment benefits in 2020 and 2021 and issued five
overpayment determinations. It first found that he was overpaid $5,400 and $1,800
over several weeks from June 27, 2020, through February 20, 2021. The
overpayments were due to unintentional error or omission, specifically because he
was overpaid on weeks that he also received Federal Pandemic Unemployment
Compensation or Lost Wages Assistance benefits. The Division also found that
Starcher was overpaid $4,920 for the weeks of June 27, 2020, through November
14, 2020, $3,198 for weeks of November 21, 2020, through February 13, 2021, and
$246 for the week of February 20, 2021. It determined that the overpayments were
due to unintentional error or omission because he was paid during a period of
disqualification. The Division mailed all five determinations to Starcher on May
18, 2022.
Starcher appealed the determinations on June 23, 2022. On September 7,
2022, the Appeals Tribunal dismissed Starcher’s appeals finding that they were not
filed within the 30-day statutory time limit. On October 4, 2022, Starcher faxed
the Division asking it to reconsider its decision, stating, “I was late sending these
because I had a torn ACL. I was unable to drive or do much of anything. I was
2 only able to make it to the library when I did. I also ha[d] to move June 1st and am
the sole provider for my [f]amily.” On November 29, 2022, the Commission
affirmed the orders of the Appeals Tribunal dismissing Starcher’s appeals because
he did not file them within 30 days of the determinations. It also found that his
allegations, if true, would not support a finding that good cause existed to extend
the time for filing the appeals. These appeals by Starcher followed.
Failure to Comply with Rule 84.04
Rule 84.04 plainly sets out the requirements for the contents of an
appellant’s brief. Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022).
Compliance with Rule 84.04 is mandatory to give notice to the other party of the
precise matters at issue and to ensure that appellate courts do not become
advocates for the appellant by speculating about facts and arguments that have not
been made. Murphy v. Steiner, 658 S.W.3d 588, 591-92 (Mo. App. W.D. 2022).
Pro se appellants such as Starcher are held to the same standards as attorneys
regarding the mandatory appellate briefing rules, and are not granted preferential
treatment regarding compliance with those rules. Thompson v. Special Sch. Dist.
of St. Louis Co., 663 S.W.3d 493, 497-98 (Mo. App. E.D. 2023); Murphy, 658
S.W.3d at 592. “This is not from a lack of sympathy, but rather is necessitated by
the requirement of judicial impartiality, judicial economy, and fairness to all
3 parties.” Thompson, 663 S.W.3d at 498. An appellant’s failure to substantially
comply with Rule 84.04 preserves nothing for review and is grounds for dismissing
an appeal. Ferguson v. Div. of Emp. Sec., 654 S.W.3d 434, 438 (Mo. App. W.D.
2022); Thompson, 663 S.W.3d at 498.
The points relied on and argument sections of an appellant’s brief are
essential to review of a case. Ferguson, 654 S.W.3d at 438. Starcher’s points
relied and arguments are exceedingly deficient. “Central to the formation of a
brief are an appellant’s points relied on.” Lexow, 643 S.W.3d at 505. The function
of a point relied on is to give notice to the opposing party of the precise matters
with which it must contend and to inform the court of the issues presented for
review. Id. “A deficient point relied on requires the respondent and appellate
court to search the remainder of the brief to discern the appellant’s assertion and,
beyond causing a waste of resources, risks the appellant’s argument being
understood or framed in an unintended manner.” Id. A point that does not state
the wherein and why the administrative agency erred does not comply with Rule
84.04(d) and preserves nothing for review. Id.
Rule 84.04(d)(2) requires that each point relied on shall:
(A) [i]dentify the administrative ruling or action the appellant challenges;
4 (B) [s]tate concisely the legal reasons for the appellant’s claim of reversible error; and
(C) [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The rule provides a form to follow to ensure compliance with the rule. Lexow, 643
S.W.3d at 505.
The point shall be in substantially the following form: “The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].”
Rule 84.04(d)(2).
Rule 84.04(e) governs the argument section of the brief. It requires the
argument to substantially follow the order of the points relied on. Rule 84.04(e).
“The argument should develop the claim of error by showing the interaction
between the relevant principles of law and the facts of the particular case.”
Murphy, 658 S.W.3d at 592 (internal quotes and citation omitted). An appellant
must cite appropriate available precedent or, if no authority is available, explain
the reasons for the absence of citations if he expects to prevail. Thompson, 663
S.W.3d at 500. “Mere conclusions and the failure to develop an argument with
support from legal authority preserve nothing for review.” Murphy, 658 S.W.3d at
592 (internal quotes and citation omitted). “For each claim of error, the argument
5 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.” Rule 84.04(e).
Starcher presents two points relied on. The points and entirety of his
argument under each point are as follows:
The DES erred that my application for waiver of recovery of over payments should be denied because they say I provided inaccurate details, in that none of the details I provided were inaccurate.
The DES did not preserve this error for my review. I was not provided a copy of the legal file I had to get the legal file from the Missouri Court of Appeals.
The DES came to this conclusion based on incorrect detail. I did not provide inaccurate information.
The LIRC erred that my reasoning for turning in my appeal is not well enough to get relief because I turned my appeal in late. In that I was unable to do anything such as get stamps or go to the library to send a fax.
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Missouri Court of Appeals Western District
DANIEL STARCHER, ) ) WD85952 consolidated with Appellant, ) WD85953, WD85954, ) WD85955, and WD85956 v. ) ) OPINION FILED: DIVISION OF EMPLOYMENT ) SECURITY, ) July 25, 2023 ) Respondent. ) )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: W. Douglas Thomson, Presiding Judge, Cynthia L. Martin, Judge, and Thomas N. Chapman, Judge
Daniel Starcher appeals decisions of the Labor and Industrial Relations
Commission (“Commission”) affirming the orders of the Appeals Tribunal
dismissing his appeals of overpayment determinations as untimely. Because
Starcher fails to comply with the rules of appellate briefing in any meaningful
manner, this appeal is dismissed. Factual and Procedural Background
The Division of Employment Security (“Division”) determined that Starcher
was overpaid unemployment benefits in 2020 and 2021 and issued five
overpayment determinations. It first found that he was overpaid $5,400 and $1,800
over several weeks from June 27, 2020, through February 20, 2021. The
overpayments were due to unintentional error or omission, specifically because he
was overpaid on weeks that he also received Federal Pandemic Unemployment
Compensation or Lost Wages Assistance benefits. The Division also found that
Starcher was overpaid $4,920 for the weeks of June 27, 2020, through November
14, 2020, $3,198 for weeks of November 21, 2020, through February 13, 2021, and
$246 for the week of February 20, 2021. It determined that the overpayments were
due to unintentional error or omission because he was paid during a period of
disqualification. The Division mailed all five determinations to Starcher on May
18, 2022.
Starcher appealed the determinations on June 23, 2022. On September 7,
2022, the Appeals Tribunal dismissed Starcher’s appeals finding that they were not
filed within the 30-day statutory time limit. On October 4, 2022, Starcher faxed
the Division asking it to reconsider its decision, stating, “I was late sending these
because I had a torn ACL. I was unable to drive or do much of anything. I was
2 only able to make it to the library when I did. I also ha[d] to move June 1st and am
the sole provider for my [f]amily.” On November 29, 2022, the Commission
affirmed the orders of the Appeals Tribunal dismissing Starcher’s appeals because
he did not file them within 30 days of the determinations. It also found that his
allegations, if true, would not support a finding that good cause existed to extend
the time for filing the appeals. These appeals by Starcher followed.
Failure to Comply with Rule 84.04
Rule 84.04 plainly sets out the requirements for the contents of an
appellant’s brief. Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022).
Compliance with Rule 84.04 is mandatory to give notice to the other party of the
precise matters at issue and to ensure that appellate courts do not become
advocates for the appellant by speculating about facts and arguments that have not
been made. Murphy v. Steiner, 658 S.W.3d 588, 591-92 (Mo. App. W.D. 2022).
Pro se appellants such as Starcher are held to the same standards as attorneys
regarding the mandatory appellate briefing rules, and are not granted preferential
treatment regarding compliance with those rules. Thompson v. Special Sch. Dist.
of St. Louis Co., 663 S.W.3d 493, 497-98 (Mo. App. E.D. 2023); Murphy, 658
S.W.3d at 592. “This is not from a lack of sympathy, but rather is necessitated by
the requirement of judicial impartiality, judicial economy, and fairness to all
3 parties.” Thompson, 663 S.W.3d at 498. An appellant’s failure to substantially
comply with Rule 84.04 preserves nothing for review and is grounds for dismissing
an appeal. Ferguson v. Div. of Emp. Sec., 654 S.W.3d 434, 438 (Mo. App. W.D.
2022); Thompson, 663 S.W.3d at 498.
The points relied on and argument sections of an appellant’s brief are
essential to review of a case. Ferguson, 654 S.W.3d at 438. Starcher’s points
relied and arguments are exceedingly deficient. “Central to the formation of a
brief are an appellant’s points relied on.” Lexow, 643 S.W.3d at 505. The function
of a point relied on is to give notice to the opposing party of the precise matters
with which it must contend and to inform the court of the issues presented for
review. Id. “A deficient point relied on requires the respondent and appellate
court to search the remainder of the brief to discern the appellant’s assertion and,
beyond causing a waste of resources, risks the appellant’s argument being
understood or framed in an unintended manner.” Id. A point that does not state
the wherein and why the administrative agency erred does not comply with Rule
84.04(d) and preserves nothing for review. Id.
Rule 84.04(d)(2) requires that each point relied on shall:
(A) [i]dentify the administrative ruling or action the appellant challenges;
4 (B) [s]tate concisely the legal reasons for the appellant’s claim of reversible error; and
(C) [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The rule provides a form to follow to ensure compliance with the rule. Lexow, 643
S.W.3d at 505.
The point shall be in substantially the following form: “The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].”
Rule 84.04(d)(2).
Rule 84.04(e) governs the argument section of the brief. It requires the
argument to substantially follow the order of the points relied on. Rule 84.04(e).
“The argument should develop the claim of error by showing the interaction
between the relevant principles of law and the facts of the particular case.”
Murphy, 658 S.W.3d at 592 (internal quotes and citation omitted). An appellant
must cite appropriate available precedent or, if no authority is available, explain
the reasons for the absence of citations if he expects to prevail. Thompson, 663
S.W.3d at 500. “Mere conclusions and the failure to develop an argument with
support from legal authority preserve nothing for review.” Murphy, 658 S.W.3d at
592 (internal quotes and citation omitted). “For each claim of error, the argument
5 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.” Rule 84.04(e).
Starcher presents two points relied on. The points and entirety of his
argument under each point are as follows:
The DES erred that my application for waiver of recovery of over payments should be denied because they say I provided inaccurate details, in that none of the details I provided were inaccurate.
The DES did not preserve this error for my review. I was not provided a copy of the legal file I had to get the legal file from the Missouri Court of Appeals.
The DES came to this conclusion based on incorrect detail. I did not provide inaccurate information.
The LIRC erred that my reasoning for turning in my appeal is not well enough to get relief because I turned my appeal in late. In that I was unable to do anything such as get stamps or go to the library to send a fax.
My reason for not having my appeal turned in on time is strong enough to allow me to get the relief I’m entitled to.
Starcher’s points relied on and arguments do not comply with Rule 84.04. His
points fail to follow the template in Rule 84.04(d)(2). While they identify the
challenged actions, they do not state the legal reasons for the claims of reversible
error or explain why those legal reasons support the claims of reversible error.
6 Additionally, Starcher fails to include a standard of review and fails to cite any
legal authority in his arguments. He does not develop his claims of error by
showing an interaction between relevant principles of law and the facts of the case.
Murphy, 658 S.W.3d at 592. “When an appellant fails to cite relevant law and
explain how it applies to the applicable facts, we deem the point abandoned.” Id.
at 593 (internal quotes and citation omitted).
Appellate courts have discretion to review noncompliant briefs gratuitously,
overlooking technical deficiencies, when the deficiencies do not impede review on
the merits. Lexow, 643 S.W.3d at 508. Where a brief, as here, is so defective as to
require this court to speculate about the appellant’s argument and precedential
support for it, we cannot reach the merits without becoming the appellant’s
advocate. Ferguson, 654 S.W.3d at 438. We emphasize that this court struck
Starcher’s original appellant’s brief for noncompliance with Rule 84.04, specified
reasons for the strike, and allowed him to file an amended brief. Starcher,
however, failed to adequately rectify the shortcomings identified, and we cannot
act as an advocate for him to overcome these problems. Lexow, 643 S.W.3d at
509; Murphy, 658 S.W.3d at 594.
7 Conclusion
Starcher’s brief so substantially fails to comply with the requirements of
Rule 84.04 that it preserves nothing for review. Lexow, 643 S.W.3d at 509-10;
Murphy, 658 S.W.3d at 594. The appeal is dismissed.
Thomas N. Chapman, Judge
All concur.