IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT IN THE MATTER OF JANET P. ) MARVIN, ) ) Respondent, ) ) CHARLES BASHAM, ) ) Respondent, ) v. ) WD86118 ) CHRISTINE LOUISE KENSINGER, ) Opinion filed: December 19, 2023 ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY, MISSOURI THE HONORABLE JAMES O. KJAR, JUDGE
Division Two: W. Douglas Thomson, Presiding Judge, Thomas N. Chapman, Judge and Janet Sutton, Judge
Christine Louise Kensinger (“Kensinger”) appeals a judgment entered by the
Probate Division of the Circuit Court of Benton County (“probate court”), in which
Charles Basham (“Basham”) was appointed as guardian of his mother, Janet P.
Marvin (“Marvin”), and as conservator of her estate. Acting pro se, Kensinger
raises eighteen points on appeal, claiming various errors by the probate court
related to the underlying guardianship and conservatorship proceedings as well as the court’s judgment appointing Basham. However, because Kensinger’s brief fails
to substantially comply with the briefing requirements of Rule 84.04, 1 her appeal
is dismissed.
Factual and Procedural History
On December 2, 2022, Basham filed a Petition for Appointment of Guardian
and Conservator concerning his mother, Marvin. At the time of the filing, Marvin
had been living with Basham for a short period of time. The petition alleged
Marvin suffers from dementia, and is therefore “unable to meet [her] essential
daily needs of living and/or manage [her] financial resources without
supervision[,]” making guardianship and conservatorship the least intrusive
means to provide for her care and financial needs. The petition prayed that a
hearing would be held and that Basham be appointed Marvin’s guardian and
conservator if the court found Marvin incapacitated and/or disabled. Filed this
same day was a document signed by Marvin, in which she nominated Basham as
her guardian and conservator.
On January 6, 2023, Norman Scott Pursley (“Pursley”) filed a pro se
interested party emergency petition to intervene and protest Basham’s petition for
appointment of guardian and conservator. Pursley, the alleged significant other of
Marvin, had the same address as Marvin and jointly owned assets and a bank
account with her. Pursley filed his own petition to be named Marvin’s guardian
and/or conservator on February 1, 2023. The probate court denied Pursley’s
1 All rule references are to Missouri Supreme Court Rules (2023).
2 petition to intervene on February 6, 2023. On February 23, 2023, Kensinger filed
her pro se interested party emergency petition to intervene and protest Basham’s
petition for appointment of guardian and conservator. The petition also stated
Kensinger was making her “pro se entry of appearance to protect substantial rights
of [Marvin] and significant other and companion, [Pursley] . . . .”2 Within the same
month, Marvin was placed in a twenty-four-hour health and rehabilitation center
due to increased cognitive and physical decline.
On March 6, 2023, a hearing on Basham’s petition for appointment of
guardian and conservator was held. Basham appeared in person with counsel and
was the sole witness at the hearing. Marvin’s appointed counsel appeared on her
behalf, stating Marvin had waived her right to a jury trial and her right to be
present at the hearing. Kensinger did not appear. The hearing began with the
probate court stating on the record that Kensinger’s motion to intervene had been
denied. This was also reflected in a docket entry made the same day. After hearing
testimony from Basham, the probate court found Marvin to be totally incapacitated
and disabled, and appointed Basham as both guardian and conservator.
This appeal by Kensinger follows.3
2 In her brief, Kensinger describes herself as a volunteer with an organization that
helps referred “senior elderly, veterans, families, and individuals . . . research to find other government community programs and to find licensed professional help as deemed necessary to help clients with their unmet needs and to help them rebuild if desired.” 3 Kensinger filed her notice of appeal three days after the probate court denied her
petition to intervene and entered its judgment, making it premature. However, a premature filing of a notice of appeal “shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal.” Rule 81.05(b); see also Rule 75.01 and § 472.180. We also note that no Respondent’s brief was filed in this case. 3 Rule 84.04 Briefing Deficiencies
Numerous deficiencies in violation of Rule 84.04 are contained within
Kensinger’s brief. As a result, we are unable to reach the merits of this appeal.
Kensinger appeals pro se. “Both attorneys and pro se appellants are held to
the same procedural rules, thus pro se appellants do not receive preferential
treatment regarding compliance with these rules.” In re H.B., 165 S.W.3d 578, 579
(Mo. App. S.D. 2005) (citation omitted).
The importance of adhering to briefing requirements has been explained as
follows:
When [parties] fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role. In addition to being inherently unfair to the other party to the appeal, it is unfair to parties in other cases awaiting disposition because it takes from them appellate time and resources which should be devoted to expeditious resolution of their appeals.
Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022) (quoting Thummel v.
King, 570 S.W.2d 679, 686 (Mo. banc 1978)). Further,
“‘[c]ompliance 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.’” “An appellant’s failure to substantially comply with Rule 84.04 ‘preserves nothing for our review’ and constitutes grounds for dismissal of the appeal.” “This is particularly true where, as here, ‘we cannot competently rule on the merits of [the Appellants’] argument without first reconstructing the facts . . . and then refining and supplementing [their] points and legal argument.’”
4 Sharp v. All-N-One Plumbing, 612 S.W.3d 240, 244 (Mo. App. W.D. 2020) (second
and third alterations in original) (internal citations omitted) (quoting Wallace v.
Frazier, 546 S.W.3d 624, 626 (Mo. App. W.D. 2018)).
“Although this Court prefers to reach the merits of a case, excusing technical
deficiencies in a brief, it will not consider a brief ‘so deficient that it fails to give
notice to this Court and to the other parties as to the issue presented on appeal.’”
Lexow, 643 S.W.3d at 505 (quoting J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo.
banc 1998)). This is because “Rule 84.04 is not merely an exhortation from a
judicial catechism nor is it a suggestion of legal etiquette.” Shockley v. State, 579
S.W.3d 881, 917 n.9 (Mo. banc 2019) (citation omitted). Indeed, as the Missouri
Supreme Court has recently reminded us, “[t]he appellate courts’ continued
reiteration of the importance of the briefing rules without enforcing any
consequence ‘implicitly condones continued violations and undermines the
mandatory nature of the rules.’” State v. Minor, 648 S.W.3d 721, 728-29 (Mo. banc
2022) (quoting Alpert v. State, 543 S.W.3d 589, 601 (Mo. banc 2018) (Fischer, J.,
dissenting)).
We begin by addressing the deficiencies found in Kensinger’s statement of
facts.
A. Statement of Facts
In relevant part, Rule 84.04(c) requires that “[t]he statement of facts shall
be a fair and concise statement of the facts relevant to the questions presented for
determination” and “[a]ll statements of facts shall have specific page references to
5 the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits.”
“‘The primary purpose of the statement of facts is to afford an immediate, accurate,
complete and unbiased understanding of the facts of the case.’” Acton v. Rahn, 611
S.W.3d 897, 901 (Mo. App. W.D. 2020) (quoting Lattimer v. Clark, 412 S.W.3d
420, 422 (Mo. App. W.D. 2013)). “‘Failure to substantially comply with Rule
84.04(c) preserves nothing for review.’” Sharp, 612 S.W.3d at 245 (quoting
Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 217 (Mo. App. S.D. 1999)).
Kensinger’s statement of facts is deficient in that it fails to include the
relevant facts necessary for us to determine her appeal. The merit of Kensinger’s
appeal hinges on her claim that the probate court erred in denying her petition to
intervene. Yet, no facts pertaining to Kensinger’s petition to intervene are included
in the statement of facts aside from minimal calendaring information. This is true
for the statement of facts at large, which consists mainly of the procedural history
of the underlying proceedings with no further details to assist her claims. “Failure
to include ‘the facts upon which an appellant’s claim of error is based fails to
preserve the contention for appellate review.’”4 Estate of Allen, 615 S.W.3d 851,
854 (Mo. App. E.D. 2020) (quoting Kent v. Charlie Chicken, II, Inc., 972 S.W.2d
513, 515 (Mo. App. E.D. 1998)).
Additionally, Kensinger fails to support all of her factual statements with a
citation to the record. In fact, Kensinger twice admits that certain facts have no
4 Adding to this is Kensinger’s inclusion of facts that are not relevant for determining her arguments on appeal, such as Pursley’s procedural actions following the probate court’s judgment. 6 support or basis in the record. This underscores that the requirement to provide
specific page references to the record on appeal “is mandatory and essential for the
effective functioning of appellate courts, which cannot spend time searching the
record to determine if factual assertions stated in the brief are supported by the
record.” Adams v. Div. of Emp. Sec., 459 S.W.3d 918, 920 (Mo. App. W.D. 2015)
(citation omitted). “‘“It is not the function of the appellate court to search the
record to discover the facts that substantiate a point on appeal.”’” Sharp, 612
S.W.3d at 245 (quoting Jimmy Jones Excavation, Inc. v. JDC Structural Concrete,
LLC, 404 S.W.3d 922, 924 (Mo. App. S.D. 2013)). Such a “failure to provide a fair
and concise statement of facts is sufficient basis to dismiss an appeal.” Acton, 611
S.W.3d at 901 (citation omitted).5
B. Points Relied On
The Points Relied On are an integral component of an Appellant’s brief.
“‘The function of [points relied on] [are] 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.’” Minor, 648 S.W.3d at 727 (first alteration in original)
(quoting Lexow, 643 S.W.3d at 505). “A deficient point relied on requires the
respondent and appellate court to search the remainder of the brief to discern the
5 Kensinger also included argumentative statements within the statement of facts.
For example, one statement proceeds, “The statement of fact that if [Marvin] understood her rights under the constitution would [Marvin] have been incapacitated or disabled?” “‘Interspersing argument throughout the statement of facts violates Rule 84.04(c).’” Murphy v. Steiner, 658 S.W.3d 588, 593 (Mo. App. W.D. 2022) (quoting Harris v. Ralls Co., 588 S.W.3d 579, 584 n.1 (Mo. App. E.D. 2019)). 7 appellant’s assertion and, beyond causing a waste of resources, risks the
appellant’s argument being understood or framed in an unintended manner.”
Lexow, 643 S.W.3d at 505 (citation omitted).
Rule 84.04(d)(1) is clear on the requirements for a point relied on in this
case:
(1) Where the appellate court reviews the decision of a trial court, each point 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.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”
Here, Kensinger brings eighteen points on appeal, none of which comply
with the requirements of Rule 84.04(d)(1) nor do they conform to the template
provided therein. By way of example, her Point Relied On for Point I states: “The
[probate] court erred on the March 06, 2023 judgment and order that became
appealable on April 06, 2023 appointing [Basham] Guardian and Conservator was
not in the best interest of his mother [Marvin].” Additionally, every Point Relied
On neglects at least one of Rule 84.04(d)(1)’s requirements, either by failing to
identify the specific probate court ruling or action that is being challenged, state
the legal reason for the claim of reversible error, or explain why such legal reason,
8 in the context of the case, supports the claim. Instead, Kensinger’s points largely
contain her interpretations of abstract statements of law, which do not comply with
Rule 84.04(d).
Accordingly, we are left to speculate what legal reason Kensinger relies upon
in seeking the reversal of the identified probate court actions, and how such legal
reason supports the claim of reversible error. This we cannot do. “It is not proper
for the appellate court to speculate as to the point being raised by the appellant and
the supporting legal justification and circumstances.” Boyd v. Boyd, 134 S.W.3d
820, 823 (Mo. App. W.D. 2004) (citation omitted). “‘It is not the function of the
appellate court to serve as advocate for any party to an appeal.’” In re H.B., 165
S.W.3d at 582 (quoting Shochet v. Allen, 987 S.W.2d 516, 518 (Mo. App. E.D.
1999)). Rather, “‘“[a]n appellate court’s role is to review specifically challenged
trial court rulings, not to sift through the record to detect possibly valid
arguments.”’” Geiler v. Liberty Ins. Corp., 621 S.W.3d 536, 547 (Mo. App. W.D.
2021) (quoting TracFone Wireless, Inc. v. City of Springfield, 557 S.W.3d 439, 445
(Mo. App. S.D. 2018)).
“This narrow role reflects the interwoven policy interests governing appellate review, including the reviewing court's duty not to act as advocate for any party; the efficient use of judicial resources; notice and fairness to the parties; judicial decision-making based on fully-briefed issues; and the law's preference for finality of judgments.”
Id. (quoting TracFone Wireless, Inc., 557 S.W.3d at 445).
Kensinger’s Points Relied On do not state “wherein and why” the probate
court erred, failing to identify what legal reasons she relies upon in seeking reversal
9 of the probate court’s ruling and how those legal reasons support the claim of
reversible error. Such failures are fatal to her points. See Lexow, 643 S.W.3d at
505. “The failure of the appellant to satisfy Rule 84.04(d), with respect to a proper
point relied on, is a sufficient basis for us to dismiss [her] . . . point[s] on appeal.”
Boyd, 134 S.W.3d at 823 (citation omitted).
This Court will frequently exercise its discretion to overlook technical
deficiencies in an appellant’s Points Relied On, where the argument section of the
brief clarifies the appellant’s claim of error. See, e.g., Jacoby v. Hamptons Cmty.
Ass'n, Inc., 602 S.W.3d 869, 872 (Mo. App. E.D. 2020) (despite technical defects
in Point Relied On, “[b]ecause we understand Appellants’ arguments as elaborated
in the argument portions of their brief, we exercise our discretion to proceed in our
review”) (citation omitted); Revis v. Bassman, 604 S.W.3d 644, 651 (Mo. App. E.D.
2020); Librach v. Librach, 575 S.W.3d 300, 308 (Mo. App. E.D. 2019). As
explained below, however, the argument section of Kensinger’s brief does nothing
to clarify the specific probate court actions she challenges, or the legal grounds for
her challenges. Kensinger’s appeal is subject to dismissal as a result of the
insufficient points relied upon.
C. Argument
Kensinger’s arguments do not comply with Rule 84.04(e) because they
consist simply of conclusory statements, lack any preservation of error statement,
and largely fail to include the applicable standard of review and reference relevant
portions of the record on appeal. The argument section of an appellate brief must
10 provide sufficient analytical support for the claim of reversible error. “An
argument must explain why, in the context of the case, the law supports the claim
of reversible error. It should advise the appellate court how principles of law and
the facts of the case interact.” In re Marriage of Fritz, 243 S.W.3d 484, 487 (Mo.
App. E.D. 2007) (citations omitted).
Here, the majority of Kensinger’s arguments cite no Missouri case law or
Missouri statute to support her claims of error. Instead, her arguments consist
simply of conclusory factual statements, which “entirely fail ‘to develop an
argument by demonstrating how the principles of law and the facts of the present
case interact to support [her] assertion that the [probate] court committed
reversible error.’” Murphree v. Lakeshore Ests., LLC, 636 S.W.3d 622, 625 (Mo.
App. E.D. 2021) (quoting Burgan v. Newman, 618 S.W.3d 712, 715 (Mo. App. E.D.
2021)). The arguments that do cite legal authority fare no better. Kensinger simply
states facts or her legal conclusion and then recites the law without explaining how
the two connect or interact. For example, Kensinger’s argument for her eighteenth
point, which claims the probate court erred when it prevented Pursley and
Kensinger from intervening, contains no facts pertaining to Kensinger, and
instead briefly discusses facts concerning Pursley before quoting a statute on
intervention. No analysis, including any connection between the discussed facts
and the quoted statute, follows. This does nothing to “advise the appellate court
how principles of law and the facts of the case interact.” In re Marriage of Fritz,
243 S.W.3d at 487 (citations omitted).
11 We cannot complete Kensinger’s arguments for her. “‘It is not our duty or
responsibility to spend judicial time searching through the argument portions of
briefs in an attempt to interpret the thrust of [Appellants’] contentions.’” Sharp,
612 S.W.3d at 245 (alteration in original) (quoting Carroll, 6 S.W.3d at 218).
Rather, “[t]he Appellants’ argument must tie the legal principles together with the
facts at hand in order to make their argument.” Id. We cannot comb the legal file
for facts to better understand Kensinger’s argument, “nor can we do so and remain
steadfast to our role as the neutral arbiter of the case.” Id. at 245-46.
As such, Kensinger has failed to “satisfy the ‘fundamental requirement of an
appellate argument, which is to demonstrate the erroneousness of the basis upon
which the lower court issued an adverse ruling.[’]” Murphree, 636 S.W.3d at 625
(quoting Burgan, 618 S.W.3d at 715). Her arguments fail to provide appropriate
analytical support for her claims of reversible error, nor do they clarify the grounds
on which she claims reversible error. Stated differently, she has failed to clearly
state “wherein and why” the probate court erred, meaning she has also failed to
present a readily understandable argument sufficient “‘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.’”6 Lexow, 643 S.W.3d at 505 (quoting
Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997)).
6 We also note that several of Kensinger’s points contain discussion completely
unrelated to the claim in the respective Points Relied On. “[C]laimed errors that are raised only in the argument portion of the brief but not contained in a point relied on are not preserved for our review.” Lamy v. Stahl Specialty Co., 649 S.W.3d 330, 336 (Mo. 12 Kensinger’s arguments contain additional violations of Rule 84.04(e). Rule
84.04(e) provides that “[f]or each claim of error, the argument 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.” While all of
Kensinger’s arguments contain a section entitled “Preservations,” nowhere is there
a statement describing how, or whether, the respective error was preserved for
review. This statement is “essential to this Court’s review of the case.” Murphree,
636 S.W.3d at 625. Instead, Kensinger uses these “Preservations” sections to
reassert the claimed error or begin the argument for that respective point.
Additionally, the majority of Kensinger’s points fail to include a statement
of the applicable standard of review within their respective arguments. “‘The
standard of review is an essential portion of all appellate arguments; it outlines this
court’s role in disposing of the matter before us.’” Marck Indus., Inc. v. Lowe, 587
S.W.3d 737, 745-46 (Mo. App. S.D. 2019) (quoting Waller v. Shippey, 251 S.W.3d
403, 406 (Mo. App. W.D. 2008)). Indeed,
[t]he applicable standard of review is the guidepost principle of law in considering and resolving every point relied on raised in an appeal. An argument . . . untethered to that guidepost is nothing more than a collection of abstract legal conclusions unmoored from any coherent legal basis or theory upon which an appellate court can find reversible error.
Id. at 746.7
App. W.D. 2022) (citing State ex rel. Dalton v. Mo. Comm’n on Hum. Rts., 618 S.W.3d 640, 648 n.10 (Mo. App. W.D. 2020)). 7 Like the “Preservations” sections, Kensinger included “Standard of Review”
portions within her arguments that were mainly used as extensions of her arguments. 13 Finally, Rule 84.04(e) requires that “[a]ll factual assertions in the argument
shall have specific page references to the relevant portion of the record on appeal,
i.e., legal file, transcript, or exhibits.” Kensinger’s arguments not only include facts
with no citation to the record on appeal, they also contain facts that are absent
from the record on appeal. For the same reasoning discussed with the statement
of facts, “[t]his requirement is mandatory and essential for the effective
functioning of appellate courts[.]” Adams, 459 S.W.3d at 920 (citation omitted).
“It is not our duty to supplement the deficient brief with our own research, thus
noncompliance with Rule 84.04(e) justifies dismissal.” Burgan, 618 S.W.3d at 716
(citation omitted).
In sum, any of Kensinger’s briefing errors are sufficient on their own to
support dismissal. Accordingly, we must dismiss.8
8 Even if we consider Kensinger’s appeal ex gratia, her arguments fail. Kensinger’s
only point discussing the denial of her petition to intervene is Point XVIII, which states, “The [probate] court erred when it denied [Pursley] to Intervene and [Kensinger].” However, her argument for Point XVIII only discusses Pursley’s intervention denial, omitting any discussion or analysis concerning any interest she has that should have allowed her to intervene in the underlying proceedings. “If a point relied on is not developed in the argument portion of the brief by showing how the principles of law and facts of the case interact, it is deemed abandoned.” Lamy, 649 S.W.3d at 336 (emphasis added) (citing In re S.H.P., 638 S.W.3d 524, 533 (Mo. App. W.D. 2021)). Having abandoned her claim that the denial of her petition to intervene was error, Kensinger’s status as a non-party to the underlying action remains in place. Consequently, her remaining points on appeal would be denied as moot, because as a non-party to the underlying action, she lacks standing to appeal from the probate court’s judgment. See In re A.A.M. by J.D.S., 522 S.W.3d 351, 359-60 (Mo. App. E.D. 2017). 14 Conclusion
For the foregoing reasons, Kensinger’s appeal is dismissed.
____________________________ W. DOUGLAS THOMSON, JUDGE
All concur.