Ellen L. Nicol v. David L. Nicol

491 S.W.3d 266, 2016 Mo. App. LEXIS 270
CourtMissouri Court of Appeals
DecidedMarch 22, 2016
DocketWD78437
StatusPublished
Cited by17 cases

This text of 491 S.W.3d 266 (Ellen L. Nicol v. David L. Nicol) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellen L. Nicol v. David L. Nicol, 491 S.W.3d 266, 2016 Mo. App. LEXIS 270 (Mo. Ct. App. 2016).

Opinion

JAMES EDWARD WELSH, Judge

David Nicol (“Husband”) appeals the circuit court’s judgment in Ellen Nicol’s (“Wife’s”) cause of action for dissolution of the parties’ marriage. Husband raises eight points on appeal. Because of the woeful inadequacies of Husband’s brief, which prevent us from properly assessing his complaints, we dismiss the appeal.

Discussion

Husband appears pro se in this appeal. ‘We hold pro se appellants to the same procedural rules as attorneys, and we do not grant them preferential treatment regarding compliance with those rules.” Kim v. Kim, 431 S.W.3d 524, 525 (Mo.App.2014). “Compliance with Rule 84.04 briefing 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.” Summers v. Mo. Dep’t of Corr., 459 S.W.3d 922, 923 (Mo.App.2015). An appellant’s failure to substantially comply with Rule 84.04 “preserves nothing for our review” and is “grounds for dismissing the appeal.” Id. That is especially true in this case, where “we cannot competently rule on the merits of [Husband’s] argument without first reconstructing the facts ... and then refining and supplementing his points and legal argument.” See Kim, 431 S.W.3d at 525.

On September 18, 2015, this Court issued an Order striking Husband’s initial brief for failing to comply with Rule 84.04’s briefing requirements with the following explanation:

(1) the Statement of Facts lacks specific page references to the legal file or transcript, in violation of Rule 84.04(c); (2) the Points Relied On are not in compliance with the specific requirements of Rule 84.04(d); and (3) the argument does not include a concise statement of the applicable standard of review for each claim of error, in violation of Rule 84.04(e).

Husband thereafter filed an amended brief, but his amended brief still fails to comply with Rule 84.04’s requirements concerning the contents of briefs.

Deñcient Statement of Facts

Rule 84.04(c) requires “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Husband’s initial brief contained thirty pages of facts but lacked page references to the record on appeal, as required by Rule 84.04(c). In his amended brief, Husband includes page references, but he has reduced his statement of facts to two pages. In so doing, Husband has eliminated the vast majority of the very facts that would help us assess his appeal.

“ ‘The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.’” *269 Moreland v. Div. of Emp’t Sec., 273 S.W.3d 39, 41 (Mo.App.2008) (citation omitted). Here, the few “facts” that Husband does include consist of random, disjointed statements with no elaboration connecting them to other facts. 2 As a result, his statement of facts is wholly inadequate and utterly baffling.

In addition, the majority of Husband’s “facts” seem to be aimed primarily at portraying Wife in a negative light. Thus, Husband fails to provide a “fair and concise” statement of the facts necessary to resolve the issues that he purportedly attempts to raise in his appeal. Rule 84.04(c). This failure, in itself, is a sufficient basis to dismiss the appeal. See Kim, 431 S.W.3d at 525.

Deficient Points Relied On

As noted, Husband was informed that his initial points relied on failed to comply with Rule 84.04(d). Rule 84.04(d)(1) requires each-point relied on to: “(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.”

Despite being informed of deficiencies in his initial points relied on, Husband’s “amended” points are virtually idéntical to the original ones, and he added two more points that also fail to comply with Rule 84.04(d). Husband’s “amended” points do not “state concisely the legal reasons for [his] claim of reversible error,” nor do they “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1)(B) and (C). 3

*270 The-purpose of the points relied on is “to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.” Treaster v. Betts , 297 S.W.3d 94, 95 (Mo.App.2009). These points fail to fulfill this purpose. They are so inadequate that we would have to essentially guess what the point is and then sift through the case record trying to find support for the perceived point. See Kim, 431 S.W.3d at 526. “We would, in effect, be assuming the role of appellant’s advocate, which is an inappropriate role for an appellate court.” Id, As this Court has explained:

Compliance with Rule 84.04 briefing 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. Deficient points rélied on force the appellate court to search the argument portion of the brief or 'the record itself to determine and clarify the appellant’s assertions, thereby wasting judicial resources,” and, worse yet, creating the danger that the appellate court will interpret the appellant’s contention differently than the appellant intended or his opponent understood,

Treaster, 297 S.W.3d at 95 (citations omitted).

A point relied on that does not comply with the mandatory requirements of Rule 84.04(d) preserves nothing for our review and is grounds to dismiss. Summers, 459 S.W.3d at 923; Kim, 431 S.W.3d at 526. This is particularly true here, where Husband made no effort to correct the deficient points in his amended brief, even after being put on notice that they were inadequate.

Other Briefing Deficiencies

In striking Husband’s initial brief, this Court noted that he failed to “include a concise statement of the applicable standard of review for each claim of error,” as required by Rule 84.04(e), In his amended brief, Husband simply added either “de novo” or “abuse of discretion” to his points. A brief must contain reference to the “appropriate” standard of review. See Moreland, 273 S.W.3d at 41.

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Bluebook (online)
491 S.W.3d 266, 2016 Mo. App. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellen-l-nicol-v-david-l-nicol-moctapp-2016.