David Duvall v. James Ray Maxey

• Court: Missouri Court of Appeals
• Decided: July 11, 2023
• Docket: ED111144
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

DAVID DUVALL, ) No. ED111144 ) Appellant, ) Appeal from the Circuit Court ) of Monroe County v. ) Cause No. 18MN-CV00243 ) JAMES RAY MAXEY, et al., ) Honorable Kimberly Jane Shaw ) Respondents. ) Filed: July 11, 2023

Introduction

Appellant David Duvall, acting pro se, appeals the circuit court’s judgment granting

Respondents’ motions to dismiss Appellants’ Third Amended Petition. Respondents moved this

Court to dismiss the appeal for failure to compile the entire record on appeal, among other reasons.

We took the motions with the case, and we dismiss the appeal.

Factual Background

On June 9, 2020, the circuit held a hearing on Respondents’ motions to dismiss Appellant’s

Third Amended Petition. One week later, on June 16, 2020, the circuit court granted the motions

and dismissed the Third Amended Petition “[a]fter due consideration of the arguments presented

to the Court during the hearing in this matter.” The circuit court entered its order of dismissal with

prejudice on July 6, 2022. Discussion

Respondents point out, and Appellant concedes, that Appellant did not file a transcript of

the hearing on defendants’ motions to dismiss as a part of the record on appeal.

“Within the time prescribed by Rule 81.19, the appellant shall cause the record on appeal

to be prepared in accordance with the provisions of this Rule 81 and to be filed with the clerk of

the proper appellate court.” Rule 81.12(d). 1 “The record on appeal shall contain all of the record,

proceedings and evidence necessary to the determination of all questions to be presented, by

either appellant or respondent, to the appellate court for decision. It is divided into two

components: the legal file and the transcript.” Rule 81.12(a) (emphasis added). “Within ten days

after the notice of appeal is filed, appellant shall order the transcript, in writing, from the reporter

or from the clerk of the trial court if the proceedings were recorded by means of an electronic

sound recording.” Rule 81.12(c)(1). 2 “The transcript shall contain the portions of the proceedings

and evidence not previously reduced to written form and necessary to determination of the issues

on appeal.” Rule 81.12(c)(2).

As a court of review, we may affirm, reverse, or modify the judgment entered by the

circuit court only after reviewing the record on appeal. E.Y. v. C.T., 644 S.W.3d 325, 327 (Mo.

App. E.D. 2022). Pursuant to Rule 81.12, the appellant has the duty to order the transcript and

compile the record on appeal for the reviewing court to determine the questions presented. Id.

Without the required documents, this Court has nothing to review. Id. Although we are mindful

of the difficulties that a party appearing pro se encounters in complying with the rules of

1 All rule references are to the Missouri Supreme Court Rules (2022) unless otherwise indicated. 2 Appellant filed his notice of appeal on November 10, 2022, but he did not submit a records request for the record on appeal until December 2, 2022.

2 procedure, a pro se appellant, like any other party, must comply with the rules. Id. Failure to

comply with Rule 81.12 is grounds for dismissal of the appeal. Id.

Respondents’ motions to dismiss the appeal are granted. 3

Conclusion

The appeal is dismissed.

Cristian M. Stevens, J.

Gary M. Gaertner, Jr., P.J., and John P. Torbitzky, J., concur.

3 Appellant moved to strike portions of Respondents’ brief. We took the motion with the case, and we deny the motion.