In the Missouri Court of Appeals Western District
IN THE MATTER OF ) THE JAMES A. LONG TRUST ) DATED DECEMBER 13, 2007 ) AS AMENDED. ) ) SHARON LONG, ) SUCCESSOR TRUSTEE, ) ) WD86738 consolidated with WD86759 Respondent, ) ) OPINION FILED: V. ) DECEMBER 17, 2024 ) KEVIN LONG, ET AL., ) ) Appellants. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Mark Styles, Jr., Judge
Before Division One: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Janet Sutton, Judge
Kevin Long, Keagan Long, Logan Long, Tammy Rollins, Kelsey Rollins, and
Klare Rollins (collectively "the Appellants") appeal from the trial court's amended
judgment, which terminated the Appellants' rights as beneficiaries of a trust due to the
Appellants' violation of the trust's no-contest clause. Because material deficiencies in the
Appellants' brief prevent us from conducting meaningful appellate review of the amended
judgment, the Appellants' appeal is dismissed. Factual and Procedural Background
Sharon Long ("Long") and James Long were husband and wife. James Long was
the father of Kevin Long and Tammy Rollins, and the grandfather of Keagan Long,
Logan Long, Kelsey Rollins, and Klare Rollins.1 On December 13, 2007, James Long
established the James A. Long Trust ("Trust") which he later amended twice. He was the
settlor and the trustee of the trust. Following his death on May 29, 2021, Long became
the successor trustee of the Trust. On July 26, 2022, Long, as the successor trustee for,
and a lifetime beneficiary of, the Trust filed a petition for declaratory judgment and for
modification of alternate trustee appointments ("Trustee Petition") in the circuit court of
Jackson County ("trial court").2 The Trustee Petition set forth three counts: (1) a request
for the trial court to declare that Long, acting in her capacity as the acting successor
trustee, has the authority to sell the real property held by the Trust and assess damages
against Kevin Long for interfering with the sale of the real estate; (2) a request for the
trial court to declare the applicability of the amendments to the Trust; and (3) a request
for an order to modify the Trust to appoint a suitable trust company willing to administer
1 The Appellants' brief asserts that Long was James Long's "second wife who did not even attend his own funeral," but fails to provide a citation to the record on appeal where this fact is established. While the record does not indicate whether or not Long is the mother of Kevin Long and Tammy Rollins and, thus, the grandmother of Keagan Long, Logan Long, Kelsey Rollins, and Clare Rollins, the pleadings consistently refer to Kevin Long and Tammy Rollins as the children of James Long but otherwise do not establish Long's status as anything but James Long's wife. 2 Throughout their brief, the Appellants refer to the trial court as the "district court." This is properly referred to as the "circuit court." All statutory references are to RSMo 2016 as supplemented through July 26, 2022, unless otherwise indicated. 2 a small trust to serve as trustee. The Trustee Petition named as defendants each of the
Appellants, whom the Trust named as beneficiaries or contingent beneficiaries of any
assets remaining at the time of Long's death or remarriage.
The Appellants filed an answer and counterpetition ("Counterpetition") on
September 1, 2022. The Counterpetition set forth three claims against Long: (1) remove
Long as the acting successor trustee "on the grounds of committing a serious breach of
trust; persistent failure of the trustee to administer the trust effectively; breach of
fiduciary duty; misappropriation of trust funds; and failure to inform and report"
("Counterpetition Count I"); (2) remove Long as a lifetime beneficiary of the Trust on the
grounds that she violated the Trust's no-contest clause because she filed the Trust Petition
"to obtain an adjudication and contest or otherwise object to the clear terms of the Trust
and the amendments to the Trust regarding the distribution of assets and the appointment
of trustees" ("Counterpetition Count II"); and (3) find that Long, in her role as the acting
successor trustee, breached her fiduciary duty to the Appellants ("Counterpetition Count
III").3
On September 21, 2022, Long filed an answer to the Counterpetition ("Answer to
the Counterpetition"). In addition to denying that the Appellants were entitled to relief
under the three counts set forth in the Counterpetition, the Answer to the Counterpetition
set forth the following affirmative defenses: (1) the Appellants had waived the claims set
3 The Appellants refer to the counts in their Counterpetition as "Counter-Petition I," "Counter-Petition II," and "Counter-Petition III." This phrasing is confusing as it implies that the Appellants filed three separate counterpetitions when, in fact, they only filed a single Counterpetition asserting three counts. 3 forth in the Counterpetition; (2) the Appellants were estopped from raising the claims
asserted in the Counterpetition; (3) none of the Appellants' claims were asserted within
the one-year statute of limitations; and (4) Counterpetition Count II triggers the Trust's
no-contest clause because it seeks to "nullify the provisions of [the Trust] that create a
marital share" to benefit Long during her lifetime.
The next day, September 22, 2022, Long filed a petition against the Appellants
pursuant to section 456.4-4204 seeking a determination of whether Counterpetition Count
II violated the Trust's no-contest clause ("Long's Safe Harbor Petition"). Consistent with
the affirmative defense asserted in her Answer to the Counterpetition, Long's Safe Harbor
Petition asserted that, in seeking to remove Long as the lifetime beneficiary of the Trust,
Counterpetition Count II constituted an attempt to void and nullify the provision of the
Trust that created a "marital trust" for Long's benefit. Long's Safe Harbor Petition asked
the trial court to make an interlocutory determination regarding Counterpetition Count II
before proceeding further.
Over the next eight months, Long and the Appellants engaged in substantial
discovery and motion practice. Relevant to this appeal, Long requested that the trial
court set a hearing on Long's Safe Harbor Petition. On May 3, 2023, the trial court
4 Section 456.4-420 allows a party interested in a trust instrument to seek a determination of whether a particular petition, claim, or motion would trigger application of the trust instrument's no-contest clause without actually triggering the no-contest clause. In other words, the statute creates a so-called "safe harbor" for interested parties to obtain a determination of the applicability of a no-contest clause to a particular claim or cause of action that they wish to bring in court regarding a trust instrument.
4 conducted a case management conference. Following the case management conference,
the trial court entered an order setting a hearing for July 14, 2023, to determine whether
Long's Trustee Petition violates the Trust's no-contest clause as alleged in Appellants'
Counterpetition Count II, and whether Appellants' Counterpetition Count II violates the
Trust's no-contest clause as alleged in Long's affirmative defense and Safe Harbor
Petition.
On July 3, 2023, eleven days before the scheduled hearing, more than ten months
after filing the Counterpetition, and without first seeking leave from the trial court to do
so, the Appellants filed a petition seeking a section 456.4-420 determination whether
Counterpetition Counts I, II, or III violate the Trust's no-contest clause ("Appellants' Safe
Harbor Petition"). Long filed a trial brief on July 13, 2023, and asserted that the
Appellants' Safe Harbor Petition was not timely filed, nor effective as a matter of law to
potentially afford Appellants a safe harbor, because it was filed after the Appellants had
already filed their Counterpetition, and thus after the Appellants had violated the Trust's
no-contest clause.5
During the July 14, 2023 hearing, Long and the Appellants offered argument
regarding: (1) whether Long violated the Trust's no-contest clause when she filed the
Trustee Petition as alleged in Appellants' Counterpetition Count II; and (2) whether
Appellants' Counterpetition Count II violated the Trust's no-contest clause by seeking to
5 Section 456.4-420.2 permits the filing of a petition to determine whether the assertion of a claim for relief by an interested person would trigger application of a no- contest clause, and contemplates that the petition can be filed either as a separate judicial proceeding, or with other claims for relief in a single judicial proceeding. 5 negate Long's marital trust interest as alleged as an affirmative defense in Long's Answer
to the Counterpetition and as alleged in Long's Safe Harbor Petition. At the conclusion
of the hearing, the trial court took the matter under advisement.
The trial court initially entered a judgment on November 3, 2023, but then filed an
amended judgment on November 6, 2023 ("Amended Judgment"). After examining the
no-contest clause of the Trust and the pleadings filed by Long and the Appellants, the
trial court made the following findings in its Amended Judgment: (1) Long's filing of the
Trustee Petition did not violate the Trust's no-contest clause; (2) the Appellants violated
the Trust's no-contest clause by seeking the immediate removal of Long as the acting
successor trustee in Counterpetition Count I and the immediate removal of Long as a
beneficiary in Counterpetition Count II; and (3) the Appellants' Safe Harbor Petition was
not timely filed because it was filed after the trial court had set the parties' no-contest
clause disputes for hearing without first seeking leave of court. Based on these findings,
the Amended Judgment ordered that that the Appellants' status as beneficiaries be
terminated and that the pleadings of the Appellants be denied or stricken because the
Appellants no longer have standing to challenge the Trustee Petition.
The Appellants appeal.6
6 Section 456.4-420.3 permits an interlocutory appeal from an interlocutory determination of the applicability of a trust's no-contest clause. The Appellants filed a notice of appeal after the trial court entered its initial judgment, and then a second notice of appeal following entry of the Amended Judgment. The appeals have been consolidated. 6 The Appellants' Compliance with Rule 84.04
As an initial matter, Long argues that Appellants' brief substantially fails to meet
the requirements of Rule 84.047 so that the Appellants' brief preserves nothing for
appellate review, requiring dismissal of this appeal.
Rule 84.04 sets forth the requisite contents for all briefs filed in Missouri appellate
courts, and the requirements set forth therein are mandatory. Lexow v. Boeing Co., 643
S.W.3d 501, 505 (Mo. banc 2022). Rule 84.04 requires briefs to include: (1) a table of
contents; (2) a table of authorities; (3) a jurisdictional statement; (4) a statement of facts;
(5) points relied on; (6) argument supporting each of the points relied on; and (7) a
conclusion setting forth the precise relief sought. Rule 84.04(a)-(e). "The failure to
substantially comply with Rule 84.04's requirements preserves nothing for our review
and is grounds for dismissing the appeal." R.M. v. King, 671 S.W.3d 394, 397 (Mo. App.
W.D. 2023). While we prefer to reach the merits of an appeal, we "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)).
When counsel 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, [we are] 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.
7 All Rule references are to Missouri Court Rules, Volume 1 -- State, 2024 unless otherwise noted. 7 Id. (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). A court
inhabiting such a role is unfair to the opposing party because the court begins acting as an
advocate, not a neutral arbiter. Id.
The Appellants' initial brief was struck by this Court on February 21, 2024, for
failure to comply with Rule 84.04 in four significant respects: (1) the statement of facts
failed to include specific page references to the record on appeal as required by Rule
84.04(c); (2) the points relied on were not in compliance with Rule 84.04(d); (3) each
point relied on failed to include a list of authorities on which the Appellants relied as
required by Rule 84.04(d)(5); and (4) the argument failed to include a preservation
statement and page references to the record on appeal, both of which are required by Rule
84.04(e).8
The Appellants filed an amended brief on March 5, 2024. For the reasons
explained below, the amended brief remains materially noncompliant with Rule 84.04.
The briefing deficiencies are not mere technicalities, but substantially impede appellate
review because they deprive this Court and Long of fair notice about the issues presented
for appellate review, and would require this Court to step into the role of advocate by
speculating about the scope and nature of the Appellants' claims. We find the
8 Appellants initial brief was struck for significant briefing deficiencies and violations of Rule 84.04. The Court's staff counsel provided a written notice to Appellants as to the reasons that the brief was struck. Appellants filed an amended brief, but failed to remedy most of the deficiencies and rule violations outlined in the correspondence from our staff counsel. Appellants' amended brief remains in material noncompliance with Rule 84.04. 8 deficiencies associated with the Appellants' statement of facts, points relied on, and the
argument developing each point relied on require dismissal of this appeal.
Deficiencies in Statement of Facts
Rule 84.04(c) requires every appellant's brief to include "a fair and concise
statement of the facts relevant to the questions presented for determination without
argument" along with "specific page references to the relevant portion of the record on
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." In Matter of
Marvin, 682 S.W.3d 788, 795 (Mo. App. W.D. 2023) (quoting Acton v. Rahn, 611
S.W.3d 897, 901 (Mo. App. W.D. 2020)). "Facts that 'are aimed primarily at restating
[appellant's] version of events and arguing, based on [appellant's] version of events, that
the trial court erred' are insufficient" and do not comply with Rule 84.04(c). Pickett v.
Bostwick, 667 S.W.3d 653, 659 (Mo. App. W.D. 2023) (quoting Wallace v. Frazier, 546
S.W.3d 624, 626-27 (Mo. App. W.D. 2018)). “Citations for each factual statement are
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.” Republic Fin., LLC v. Ray, ED 112283, 2024 WL 4271288
(Mo. App. E.D. Sept. 24, 2024)(internal quotation marks omitted). The failure to provide
a fair and concise statement of facts with references to the record on appeal preserves
nothing for review and is a sufficient basis to dismiss an appeal. In Matter of Marvin,
682 S.W.3d at 795-96.
9 The Amended Judgment determined the applicability of the Trust's no-contest
clause to Long's Trustee Petition and to the Appellants' Counterpetition. The Appellants'
Amended Brief asserts eight points on appeal, each purporting to address the trial court's
no-contest clause determinations on either procedural or substantive grounds. The
Appellants' statement of facts is not confined, however, to facts relevant to the questions
presented for determination. Instead, the Appellants devote a considerable portion of the
statement of facts addressing Long's alleged misconduct as the Trust's acting successor
trustee, facts that are both argumentative and irrelevant to the disposition of their appeal.
Moreover, most of the statements of fact do not include citation to the relevant portion of
the record on appeal including as an example, an unsubstantiated and irrelevant statement
regarding the "Zillow" estimate of the value of the real estate. The Appellants' violations
of Rule 84.04(c) are material.
Deficiencies in Points on Appeal and Argument
Rule 84.04(d) requires an appellant's brief to include points relied on. Rule
84.04(d)(1) sets forth the requisite contents of a point relied on in an appeal from a trial
court decision:
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.
10 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]."
Immediately following the point relied on, the party must "include a list of cases, not to
exceed four, and the constitutional, statutory, and regulatory provisions or other authority
upon which [the point relied on] principally relies." Rule 84.04(d)(5).
The requirements of Rule 84.04(d) are "not simply a judicial word game or a
matter of hypertechnicality on the part of appellate courts," and are instead "rooted in
sound policy." Thummel, 570 S.W.2d at 686. The requirements set forth for points relied
on in Rule 84.04(d) are designed "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." Lexow, 643 S.W.3d at 505 (quoting Wilkerson v. Prelutsky, 943 S.W.2d 643,
647 (Mo. banc 1997)). The requirements of Rule 84.04(d) are intended to relieve the
Court and the opposing party from being required "to search the argument portion of the
brief (or even worse, to search the record on appeal) to determine and clarify the nature
of the contentions asserted," which constitutes a waste of judicial resources and risks
"that the court may interpret the thrust of the contention differently than does the
opponent or differently than was intended by the party asserting the contention."
Thummel, 570 S.W.2d at 686. As such, "[a] point relied on written contrary to the
mandatory requirements of Rule 84.04(d), which cannot be comprehended without
resorting to other portions of the brief, preserves nothing for appellate review." Storey v.
11 State, 175 S.W.3d 116, 126 (Mo. banc 2005) (quoting State v. Dodd, 10 S.W.3d 546, 556
(Mo. App. W.D. 1999)).
Following each point relied on, an appellant is required by Rule 84.04(e) to
include an argument developing the point on appeal. Without "develop[ment of] an
argument by demonstrating how the principles of law and the facts of the present case
interact to support [their] assertion that the [trial] court committed reversible error," an
appellant will have failed to satisfy the fundamental purpose of an appellate brief: to
supply and explain the legal basis supporting the claim of trial court error that
necessitates reversal. In Matter of Marvin, 682 S.W.3d at 798 (quoting Murphree v.
Lakeshore Ests., LLC, 636 S.W.3d 622, 625 (Mo. App. E.D. 2021)). Rule 84.04(e)
requires the argument portion of a brief to be limited to those errors included in the points
relied on.
The argument portion of an appellant's brief must set forth the applicable standard
of review. Rule 84.04(e). Rule 84.04(e) "anticipates and requires reliance upon the
applicable standard of review in its application" so that "the construction of an appellant's
brief in compliance with Rule 84.04 is necessarily dependent upon and interwoven with
that standard of review." In Interest of R.R.S., 573 S.W.3d 717, 731 (Mo. App. S.D.
2019). Finally, all factual assertions in the argument portion of an appellant's brief "shall
have specific page references to the relevant portion of the record on appeal." Rule
84.04(e).
The Appellants' points relied on and the argument following each point are in
material noncompliance with the aforesaid requirements, preserving nothing for our
12 review. For ease of analysis we address certain of the Appellants' points on appeal
collectively, and out of order.
Points One, Two, and Three
The Appellants' first three points on appeal each purport to challenge the trial
court's conclusion that the Appellants' Safe Harbor Petition was not timely filed. The
Appellants' first point relied on states:
The [trial] court erred in its Amended Judgment ruling the [Appellants' Safe Harbor Petition] was untimely. The [trial] court erred because the [Appellant's Safe Harbor Petition] was filed prior to the hearing of oral arguments on the issues and the [trial] court arbitrarily impose[d] a "leave of court" requirement on [the] Appellants that was not imposed on [Long] when she filed [Long's Safe Harbor Petition].
While the point relied on identifies the trial court's ruling or action that the Appellants
challenge, it fails to state the legal reasons why the action constitutes reversible error and
fails to explain why, in the context of this particular case, those legal reasons support the
Appellants' claim of reversible error. In other words, the first point relied on fails to
illuminate the "wherein and why" of trial court error, as required by Rule 84.04(d). See
Storey, 175 S.W.3d at 126.
The deficiencies in the point would require us to improvidently resort to the
argument to determine and clarify the nature of the contentions asserted. Here, even that
step would do little to permit comprehension of Appellants' claim of error. The two-page
argument meant to develop point one on appeal is a rambling indictment of the trial
court's determination that the Appellants' Safe Harbor Petition was untimely filed, filled
with conclusory statements without any citation to legal authority, or any explanation of
13 the absence of such authority. The "[f]ailure to cite relevant authority supporting the
point or to explain the failure to do so preserves nothing for review." Kelly v. Fitzpatrick,
677 S.W.3d 622, 634 (Mo. App. W.D. 2023) (quoting E.K.H.-G. v. R.C., 613 S.W.3d
449, 453 (Mo. App. E.D. 2020)).
In addition, in the summary listing of their points relied on, the Appellants cite
Rule 2-2.2(B) as the only supporting authority for their first point on appeal. Rule 2-
2.2(B) is a provision of the Code of Judicial Conduct that allows a judge to "make
reasonable efforts, consistent with the law and court rules, to facilitate all litigants,
including self-represented litigants, being fairly heard." It is unclear how this provision
of the Code of Judicial Conduct has any legal bearing on Appellants' first point on
appeal, particularly as neither the Rule nor its relevance is developed in any way in the
argument.
The standard of review under this point simply states that it is for abuse of
discretion, without citation to any authority or any attempt to explain why that is the
appropriate standard of review for this point relied on. In its limited attempt to explain
how this point was preserved for appeal, there is a blanket citation to the Respondent's
petition and a citation to the transcript of the hearing without any attempt to explain how
this preserved the issue for our review.
The Appellants' second point relied on and the argument that purports to develop
the point are collectively one-half page in length. The point on appeal states:
The [trial] court's failure to rule on [the Appellants' Safe Harbor Petition] was prejudicial to [the] Appellants because the court did not rule on the petition until the Amended Judgment was rendered on November 6, 2023.
14 The point fails to identify any trial court error, and merely complains about the effect of
purported trial court error. The argument portion of the brief following this point is
equally deficient. The Appellants argue in the entirety:
The Appellants were prejudiced by the [trial] [c]ourt's failure to rule on the Appellants' [Safe Harbor Petition] made eleven days prior to the hearing date. In fact, the [trial] [c]ourt did not rule on [the Appellants' Safe Harbor Petition] until November 3, 2023, four months after the Appellants' [Safe Harbor Petition] was filed on July 3, 2023. The failure of the [trial] [c]ourt to rule on [the Appellants' Safe Harbor Petition] either prior to or at the time of the hearing created a prejudicial lack of clarity and confusion over the potential consequences of the hearing to the detriment of the Appellants.
The argument, as with the point relied on, identifies no trial court error, and instead
complains only of the alleged prejudice of the trial court's ruling, and even then, in
summary fashion without any citation to legal authority, or any explanation of the
absence of such authority, preserving nothing for our review. Kelly, 677 S.W.3d at 634.
In addition, in the summary listing of their points relied on, the Appellants cite
Rule 2-2.2(B) and Rule 55.26(a) and as the only supporting authority for their second
point on appeal. Neither authority is even mentioned in the argument portion of the brief,
let alone developed in the argument, rendering purported reliance on the authorities
meaningless.
The Appellants' third point relied on states in its entirety: "The [trial] court erred in
denying protection under [section] 456.4-420 because [Long's Petition for Safe Harbor]
included [the] Appellants' Counterpetition [Count] II." The point relied on is confusing,
and fails to set forth "wherein and why" the trial court erred, preserving nothing for
appellate review. See Storey, 175 S.W.3d at 126.
15 The argument following the Appellants' third point relied on clarifies that the
Appellants believe they were not required to file their own Safe Harbor Petition because
Long's Safe Harbor Petition sought a determination about whether Counterpetition Count
II violated the no-contest clause, rendering Appellants' Safe Harbor Petition superfluous.
Clarification of a point relied on in the argument following the point is not sufficient to
preserve an issue for appeal. See Thummel, 570 S.W.2d at 686 (recognizing that, if a
point relied on is defective in that it fails to set forth the "wherein and why" of trial court
error, the point remains defective even if the argument portion of the brief determines and
clarifies the nature of the argument on appeal). Even crediting the argument portion of
the brief, Appellants' third point on appeal remains fatally flawed, as it fails to identify
trial court error, and instead seeks to diminish the legal effect of the trial court's
determination that the Appellants' Safe Harbor Petition was untimely filed.
The Appellants' argument is also deficient as it claims the standard of review for
the third point on appeal is de novo because statutory interpretation is a legal question,
but never explains or develops why statutory interpretation is central or even relevant to
determining whether Appellants needed to file their own Safe Harbor Petition to secure
the benefit of the safe harbor contemplated by section 456.4-420.1. This same
observation establishes the deficiency of the Appellants' identification of section 456.4-
420.1 as the sole and only authority in support of their third point on appeal, other than a
citation to a case (Knopik v. Shelby Investments, LLC, 597 S.W.3d 189, 193 (Mo. banc
2020)) for the limited proposition that a beneficiary of a trust can proceed under the safe
16 harbor statute. A proposition that has never been in dispute between the parties in this
matter.
Woefully absent from the Appellants' argument is the identification of any
authority supporting the proposition that a person who asserts a claim in violation of a
no-contest clause is nonetheless protected by the safe harbor described in section 456.4-
420.1 merely because a different person has already asked the trial court to determine that
the asserted claim violates the no-contest clause. See Kelly, 677 S.W.3d at 634.
Points One, Two, and Three preserve nothing for our review.
Point Six
The Appellants' sixth point on appeal is the only point on appeal that purports to
challenge the trial court's conclusion that the Appellants' Counterpetition Count II
violated the Trust's no-contest clause. The Appellants' sixth point relied on provides:
"The [trial] court erred in its Amended Judgment stating [the] Appellants' Counterpetition
[Count] II violated the 'no-contest' clause because removal of a beneficiary for violating
the 'no-contest' clause was the specific remedy authorized under Article Two(E) of the
Trust." As with the Appellants' other points relied on, the sixth point relied on fails to
follow the format mandated by Rule 84.04(d)(1). The sixth point relied on identifies the
challenged trial court ruling and explains why the Appellants believe the ruling is
erroneous. But, noticeably absent is any reference to the legal reasons supporting the
Appellants' claim of reversible error. See Storey, 175 S.W.3d at 126.
The argument following the point relied on is also deficient. The Appellants
identify the standard of review as de novo because that is the standard applicable to
17 "purely legal question[s]." But the Appellants fail to explain how the sixth point relied
on presents a purely legal question. Moreover, the argument section is comprised
entirely of conclusory statements without any citation to legal authority or an explanation
for the absence of such legal authority. Symptomatic of this deficiency, in the
summarization of their points relied on, the Appellants identify the Trust itself as the
"legal authority" supporting their sixth point relied on, although Rule 84.04(d)(5) requires
an appellant to identify "a list of cases . . . and the constitutional, statutory, and regulatory
provisions or other authority upon which that party principally relies."
Point Six preserves nothing for our review.
Points Four, Five, and Seven
The Appellants' fourth, fifth, and seventh points relied on purport to challenge the
trial court's conclusion that Counterpetition Count I violates the Trust's no-contest clause.
The Appellants' fourth point relied on states: "The [trial] court erred in its Amended
Judgment using the Counterpetition [Count] I as a reason for [the] Appellants having
violated the 'no-contest' clause because the scope of the [trial] court's order setting
hearing via videoconference was limited to [the] Appellants' Counterpetition [Count] II."
While this point relied on identifies the challenged trial court ruling and why the
Appellants believe the ruling was erroneous, the Appellants have not identified the legal
reasons supporting their claim of error (the "wherein and why"), as required by Rule
84.04(d)(1)(B), preserving nothing for appellate review. See Storey, 175 S.W.3d at 126.
The argument following the fourth point relied on is similarly deficient. It
recounts the procedural buildup to the July 14, 2023 hearing, and it complains that Long
18 was permitted to argue about Counterpetition Count I during the hearing, but it never
develops or explains why it was an abuse of discretion for the trial court to permit Long's
argument, or to rely on same to conclude that Counterpetition Count I violated the no-
contest clause. The argument portion of the brief cites to no legal authority and offers no
explanation for the failure to do so. See Kelly, 677 S.W.3d at 634. And, although in the
summary listing of their points relied on, the Appellants cite Rule 2-2.2(B) as the
authority supporting their fourth point on appeal, they never refer to the Rule in the
argument portion of their brief, and never explain or develop how the Rule supports their
claim of reversible error.
The Appellants' fifth point relied on states: "The [trial] court erred in its Amended
Judgment using Counterpetition [Count] I as a reason for [the] Appellants having violated
the 'no-contest' clause because [Long] waived the right to contest Counterpetition [Count]
I." The fifth point relied on makes no effort to identify the legal basis supporting the
assertion that Long waived her the right to challenge Counterpetition Count I as required
by Rule 84.04(d)(1)(B) and preserves nothing for appellate review. See Storey, 175
S.W.3d at 126.
The argument supporting the Appellant's fifth point relied on embellishes the point
relied on by explaining that by failing to argue that Counterpetition Count I violated the
Trust's no-contest clause as an affirmative defense in Long's Answer to the
Counterpetition, and by failing to address Counterpetition Count I in Long's Safe Harbor
Petition, Long waived the right to argue about Counterpetition Count I during the July 14,
19 2023 hearing. Clarification in the argument portion of a brief is insufficient to preserve
an issue for appeal. Thummel, 570 S.W.2d at 686.
Even if we were to overlook the deficiencies in the Appellants' fifth point relied
on, and ignore the argument's effort to clarify the deficient point on appeal, we would be
struck by the argument's failure to support the claim of trial court error by any authority.
Though the Appellants cite to Rule 55.27(a) and Rule 55.09, which respectively provide
that every affirmative defense must be asserted in a responsive pleading and that any
averment that is not denied in a responsive pleading is deemed admitted, they never
develop an argument at all, let alone by citation to relevant authorities, to explain how the
trial court committed error. The failure to explain how the facts of this case and the
referenced legal authorities interact to demonstrate trial error requiring reversal preserves
nothing for appellate review. In Matter of Marvin, 682 S.W.3d at 798.
The deficiency of the argument portion of the brief is further demonstrated by the
Appellants' contention that the relevant standard of review is de novo because the issue
presented by the fifth point on appeal is one of statutory interpretation. The argument
never explains this assertion and fails to intertwine the claim of error with the standard of
review, as contemplated by Rule 84.04(e). See In Interest of R.R.S., 573 S.W.3d at 731.
The Appellants' seventh point on appeal states: "The [trial] court erred in its
Amended Judgment stating [that the] Appellants' Counterpetition [Count] I violated the
'no-contest clause' because Counterpetition [Count] I is not considered a violation of a
'no-contest clause' under Missouri law." This point on appeal is so facially deficient as to
require no explanation. Claiming a trial court's ruling is error based solely on a summary
20 assertion that the ruling is wrong does not provide this Court or Long with any notice
whatsoever about the nature of the alleged error, as no "wherein and why" is included in
the point relied on. See Storey, 175 S.W.3d at 126. Point seven on appeal preserves
nothing for our review. See id.
The briefing deficiencies continue in the argument supporting the seventh point
relied on. As with many of the other points previously discussed, the Appellants
summarily allege that the applicable standard of review is de novo without any
explanation as to why the seventh point on appeal concerns a purely legal question.
Moreover, though the argument developing point seven on appeal represents the only
time in their brief that the Appellants engage in some measure of potentially applicable
legal argument, as previously explained, the argument is not permitted to cure a facially
deficient point relied on. See Thummel, 570 S.W.2d at 686
Finally, the Appellants' fourth, fifth, and seventh points on appeal are insufficient
to preserve an issue for appellate review because they ignore the Appellants' burden to
demonstrate both legal error and prejudice resulting from that legal error. TracFone
Wireless, Inc. v. City of Springfield, 557 S.W.3d 439, 444 (Mo. App. S.D. 2018). In a
bench-tried case, such as this one, "prejudice will not be found . . . unless an appellant
shows that there was no authorized route by which the trial court could have arrived at its
result. If an outcome-sustaining route is left unchallenged or undefeated, the judgment
must be affirmed." Id.
As discussed supra, the Amended Judgment found that the Appellants violated the
Trust's no-contest clause by the assertion of Counterpetition Count I and Count II. As a
21 result, the trial court concluded that the Appellants' status as beneficiaries of the Trust be
terminated and that their pleadings should be stricken as they no longer had any standing
to challenge the Trustee's Petition. The Appellants attempted to challenge the trial court's
conclusion that the Counterpetition Count II violated the Trust's no-contest clause in
point relied on six, but did so deficiently, preserving nothing for appellate review. It is
therefore irrelevant whether points four, five, or seven preserved issues for appellate
review relative to Counterpetition Count I. The absence of a preserved challenged to the
determination that Counterpetition Count II violated the Trust's no-contest clause is fatal
to the Appellants' appeal. STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. W.D.
2012) (holding that an appellant's failure to challenge a finding or ruling that would
independently support the conclusion reached by the trial court is fatal to the appeal).
Points Four, Five, and Seven preserve nothing for our review.
Point Eight
In the Appellants' eighth point on appeal, the Appellants purport to challenge the
trial court's conclusion that Long's Trust Petition did not violate the Trust's no-contest
clause. Appellants' eighth point provides: "The [trial] court erred in its Amended
Judgment by not finding [Long] in violation of the 'no-contest clause' because [Long]
contested Article One(G) of the Trust in [Long's] pleadings and in the hearing." The
eighth point relied on fails to state the legal reasons for the Appellants' claim of reversible
error and fails to explain why those legal reasons support their claim of reversible error.
In doing so, the eighth point relied on fails to state "wherein and why" the trial court
erred, preserving nothing for appellate review. See Storey, 175 S.W.3d at 126.
22 The briefing errors continue in the argument supporting the eighth point relied on.
The Appellants once again identify the standard of review as de novo for purely legal
questions without developing or explaining how the eighth point on appeal implicates a
purely legal question. And, the argument is comprised entirely of conclusory factual
statements, with limited citations to the record and without any citation to legal authority,
or an explanation for the absence of such citations to authority, thereby preserving
nothing for appellate review. See Kelly, 677 S.W.3d at 634.
Point Eight preserves nothing for our review.
Conclusion
The Appellants' appeal is dismissed due to substantial and material Rule 84.04
briefing deficiencies.
__________________________________ Gary D. Witt, Judge
All concur