Michael Bosma v. Siliga Systems, Inc.

• Court: Missouri Court of Appeals
• Decided: August 27, 2024
• Docket: ED112224
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

MICHAEL BOSMA, ) No. ED112224 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County vs. ) 17SL-CC02340 ) SILIGA SYSTEMS, INC., ) Honorable John N. Borbonus ) Respondent. ) Filed: August 27, 2024

Before Lisa P. Page, P.J., Kurt S. Odenwald, and Rebeca Navarro-McKelvey, J.

Michael Bosma (Appellant) appeals from the judgment of the St. Louis County Circuit

Court which granted a motion to dismiss filed by Siliga Systems, Inc. f/k/a Agilis Systems, Inc.,

Naeem Bari, Christopher Becker, David Griege, John True, and Gregory Winter (collectively,

Respondents) in a derivative action that originated with a lawsuit filed by Lads Network

Systems, Inc. (Lads) against Siliga Systems, Inc. (Siliga). We dismiss the appeal.

Background

We are able to discern a brief summary of this protracted litigation that commenced in

June 2017 from the record on appeal and not – as we should – from a properly drafted statement

of facts as required by Rule 84.04(c). 1 This case originated as a declaratory judgment action

after Lads made a call for Siliga to issue certain stock warrants, which was denied. Counsel for

1 All rule references are to the Missouri Supreme Court Rules (2023) unless otherwise indicated. Lads, who is now Appellant’s counsel, filed a motion to intervene on behalf of Appellant and

certain Siliga shareholders, which the court granted. Subsequently, a derivative action was filed

by Lads and Appellant, on behalf of Siliga, against Siliga and its board members. The derivative

action was amended several times to include allegations of breach of fiduciary duty, abuse of

control, constructive trust, gross mismanagement, corporate waste, unjust enrichment,

accounting, and judicial reformation of the by-laws. Extensive discovery was conducted

throughout the litigation. In October 2020, Lads dismissed its claims against all defendants.

In December 2022, Respondents filed a motion to dismiss Appellant’s remaining cause of

action. They also filed a memorandum of law with exhibits to demonstrate Appellant did not

meet the standard mandating that a derivative action may only be maintained if the plaintiff

fairly and adequately represents the interests of the shareholders or members who are similarly

situated in enforcing the right of the corporation or association. After a hearing, the court

entered its judgment dismissing all of Appellant’s claims. This appeal follows.

Discussion

As a threshold matter, we address Respondents’ contention that Appellant's brief so

substantially fails to comply with Rule 84 that this matter must be dismissed. Supreme Court

Rule 84.04 plainly sets forth the requirements for briefs in appellate courts. Waller v. A.C.

Cleaners Mgmt., Inc., 371 S.W.3d 6, 9 (Mo. App. E.D. 2012). This rule is not a mere suggestion

and all appellants must comply with it because our Supreme Court has made it clear that “Rule

84.04’s requirements are mandatory.” Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc

2022) (quoting Fowler v. Mo. Sheriffs’ Ret. Sys., 623 S.W.3d 578, 583 (Mo. banc 2021)).

Our courts prefer to reach the merits of a case and may excuse “technical deficiencies” in

a brief; however, we may not consider a brief so deficient that it fails to advise the court and

2 opposing counsel of the merits of the appeal. See Thummel v. King, 570 S.W.2d 679, 686 (Mo.

banc 1978). This scenario presents us with the dilemma of deciding the case (and possibly

establishing precedent for future cases) on the basis of inadequate briefing or worse, becoming

Appellant’s advocate in our endeavor to comprehend the points on appeal by searching for facts

in the record to remedy the deficiency. This we will not do because “[c]ourts should not be

asked or expected to assume such a role,” which is inherently unfair to the other party to the

appeal, in addition to the parties in other cases awaiting disposition because it requires appellate

time and resources which should be devoted to expeditious resolution of their appeals. Lexow,

643 S.W.3d 505 (citing Thummel, 570 S.W.2d at 686).

We agree there are numerous briefing deficiencies. However, the one most fatal to

Appellant is Rule 84.04(c), which requires a “fair and concise statement of the facts relevant to

the questions presented for determination without argument.” The rule further provides, “All

statements of facts shall have specific page references to the relevant portion of the record on

appeal, i.e., legal file, transcript, or exhibits.” (emphasis added). Lexow, 643 S.W.3d at 508. The

purpose of this is to allow an “immediate, accurate, complete and unbiased understanding of the

facts of the case.” Hoock v. SLB Acquisition, LLC, 620 S.W.3d 292, 303 (Mo. App. 2021)

(quoting Nichols v. Div. of Emp’t Sec., 399 S.W.3d 901, 903 (Mo. App. 2013)). Highlighting

facts favorable to the appellant and omitting others essential to the respondent does not

substantially comply with Rule 84.04. Id. (internal citation omitted). Failing to “properly

present facts on appeal preserves nothing for [] review” and is therefore grounds for dismissal.

Williams v. Williams, 669 S.W.3d 708, 716 (Mo. App. E.D. 2023) (citing Hoock, 620 S.W.3d at

303).

3 Here, Appellant provides only a vague procedural history, without identifying either the

facts favorable to his argument or essential to Respondent that led the court to its conclusion and

judgment dismissing the action. Appellant’s statement of facts contains only four citations –

without specific page references – to a total of three documents in the legal file, one of which is

the plaintiff’s twice-cited fourth amended petition. It is Appellant’s burden to file a record and

brief that contains everything necessary for the resolution of the questions presented. Here,

Respondents actually submitted what Appellant should have with a well drafted explanation of

the facts necessary to understand the case and a supplemental legal file. Rule 81.12(a). Thus,

this court is left with only Respondents’ additional statement of facts and to scour the record to

discern the facts necessary to support Appellant’s points on appeal. In failing to follow the

mandatory briefing Rule 84.04(c) with even a minimal statement of facts, the appeal must be

dismissed based on Appellant’s violations of Rule 84.04(c) alone.

Conclusion

This court has discretion to review noncompliant briefs gratuitously when the

deficiencies do not impede review on the merits, see Lollar v. Lollar, 609 S.W.3d 41, 45 n.4

(Mo. banc 2020); however, we are compelled to decline such review here because the dearth of

facts to support the points on appeal is an impediment that precludes our ability to review the

merits in this matter. The appeal is dismissed.

____________________________________ Lisa P. Page, Presiding Judge Kurt S. Odenwald, J., and Rebeca Navarro-McKelvey, J., concur.