Rolanda Pearson v. Keystone Temporary Assignment Group, Inc. and Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: September 17, 2019
• Docket: ED107637
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

ROLANDA PEARSON ) No. ED107637 ) Appellant, ) ) vs. ) ) KEYSTONE TEMPORARY ) Appeal from the Labor and ASSIGNMENT GROUP, INC., ) Industrial Relations Commission ) and ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondents. ) Filed: September 17, 2019

OPINION

The claimant, Rolanda Pearson, appeals from the decision of the Labor and Industrial

Relations Commission finding her disqualified from receiving unemployment compensation

benefits. Ms. Pearson’s employment with employer Keystone Temporary Assignment Group,

Inc., ended in September of 2018, and she filed for unemployment. The deputy, then the Appeals

Tribunal, and then ultimately the Commission all denied her claim. Adopting the decision of the

Appeals Tribunal as its own, the Commission unanimously determined that Ms. Pearson was

disqualified because she voluntarily quit work without good cause attributable to work or the

employer. Ms. Pearson now appeals to this Court, seeking reversal of the Commission’s decision. Because Ms. Pearson failed to substantially comply with the rules of appellate procedure, we

dismiss the appeal.

Discussion

Ms. Pearson appears on her own behalf, without the assistance of an attorney. She has the

right to do so. Kramer v. Park-Et Restaurant, Inc., 226 S.W.3d 867, 869 (Mo. App. E.D. 2007).

“We cannot and will not penalize [Ms. Pearson] for not utilizing the assistance of an attorney; but

likewise, we cannot and will not lend [her] any assistance in prosecuting her appeal because she is

not represented by counsel.” Bishop v. Metro Restoration Servs., Inc., 209 S.W.3d 43, 45 (Mo.

App. S.D. 2006). “This is not a matter of our personal preference, but rather the demands placed

upon us by our oaths of office, our commitment to uphold the rule of law, and the very nature of

the adversarial process, which requires fair, impartial and disinterested decision makers.” Id. “We

would be true to none of these principles if we applied the law in one manner to litigants

represented by counsel and then in a different manner to litigants that are not represented by

counsel.” Id. Accordingly, pro se appellants such as Ms. Pearson are bound by the same rules as

a party represented by an attorney. Kramer, 226 S.W.3d at 869. They must comply with the

Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate briefs.

Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo. App. E.D. 2005). We do not grant pro

se appellants preferential treatment regarding compliance with those rules. Id. This is not from

lack of sympathy, but rather is necessitated by the requirement of judicial impartiality, judicial

economy, and fairness to all parties. Id.

Rule 84.04 requires an appellant’s brief to have the following: (1) a detailed table of

contents with page references and a table of cases and other authorities; (2) a jurisdictional

statement; (3) a fair and concise statement of the facts; (4) a point relied on that identifies the ruling

2 challenged, sets forth concisely the legal reasons for the claim of error, explains why the reasons

support a finding of error, and is followed by a list of legal authorities upon which the appellant

relies; (5) an argument section that discusses the point relied on and contains, in part, the standard

of review; and (6) a short conclusion. Rule 84.04(a)-(e); Kramer, 226 S.W.3d at 869.

Additionally, all statements of fact and argument must have specific page references to the relevant

portion of the record on appeal. Rules 84.04(c) and (e).

Compliance with the briefing requirements under Rule 84.04 is mandatory. Kramer, 226

S.W.3d at 870. This is to ensure that appellate courts do not become advocates by speculating on

facts and arguments that have not been asserted. Brown v. Ameristar Casino Kansas City, Inc.,

211 S.W.3d 145, 147 (Mo. App. W.D. 2007). Compliance with the rule also provides the appellate

court with a more complete understanding of the relevant issues and allows the opposing party to

develop counter arguments. Lueker v. Missouri W. State Univ., 241 S.W.3d 865, 867 (Mo. App.

W.D. 2008). Perfection is not required, but an appellant must substantially comply with the rules.

Id. Failure to substantially comply with Rule 84.04 preserves nothing for review and is a proper

ground for dismissing an appeal. Brown, 211 S.W.3d at 147–48; Rule 84.13 (mandating that

allegations of error not properly briefed shall not be considered in any civil appeal). Ms. Pearson

failed to comply with Rule 84.04 in almost every respect. Most critically, her fact statement, point

relied on, and argument are all deficient.

Statement of Facts

Rule 84.04(c) requires a fair and concise statement of facts “relevant to the question

presented for determination without argument.” “The primary purpose of the statement of facts is

to set forth an immediate, accurate, complete and unbiased understanding of the facts of the case.”

Rice v. State, Dept. of Social Servs., 971 S.W.2d 840, 842 (Mo. App. E.D. 1998). Ms. Pearson’s

3 fact statement fails this essential purpose. Ms. Pearson’s recitation of the facts consists of eight

numbered paragraphs that are mostly procedural-related. The numbered paragraphs presume an

understanding of the background and context of the case and of the parties. Standing alone they

do not provide an immediate, accurate, or complete understanding of the facts of the case. Ms.

Pearson fails to provide even a basic understanding of the case. An appellant must include facts

relevant to the issues to be determined by this Court. Kent v. Charlie Chicken, II, Inc., 972 S.W.2d

513, 515 (Mo. App. E.D. 1998). Ms. Pearson omitted many, if not all of the relevant facts needed

for review of this case. Most notably, Ms. Pearson did not inform us of the most basic of facts -

the Commission’s ruling that she had voluntarily quit without good cause. “Failure to include, in

the statement of facts, the facts upon which an appellant’s claim of error is based fails to preserve

the contention for appellate review.” Id. Ms. Pearson’s failure to comply with Rule 84.04(c) is a

sufficient basis to dismiss this appeal. Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo. App.

S.D. 1990).

Point Relied On

Ms. Pearson also failed to comply with Rule 84.04(d), which sets out the requirements for

an appellant’s points relied on. Her point is deficient in form and in substance.1 A point must be

in substantially the following form:

“The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].”

Rule 84.04(d)(2)(c). Ms. Pearson did not conform to this “virtual roadmap” in drafting her point,

which states:

1 We presume Ms. Pearson’s point is that set out in table of contents, and repeated as first paragraph in argument section. The “Points Relied On” section of her brief contains only a listing of three statutes.

4 The Labor and Industrial Relations Commission (LIRC) erroneously affirmed The Appeals Tribunal’s decision for disqualification of claimant for waiting week credit and unemployment benefits until the claimant has earned wages for insured work equal to ten time the claimant’s WBA for a total of $3,200.00 in wages after 09/07/2018. The LIRC’s decision was contrary to law and the facts found by the LIRC do not support the award because there was no sufficient competent evidence in the record to warrant the making of the award.

Ms. Pearson provides the challenged ruling and generally provides legal reasons – contrary to law

and insufficient evidence – for her claim of error, but she does not tell us why, in the context of

this case, those legal reasons support her claim of reversible error. A point relied on should provide

insight into the facts of the case and the legal reasons why the Commission erred. Waller v. A.C.

Cleaners Mgmt., Inc., 371 S.W.3d 6, 10-11 (Mo. App. E.D. 2012). “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 before it.” Jones v. Buck, 400 S.W.3d 911, 915 (Mo.

App. S.D. 2013)(internal quotation omitted). Ms. Pearson’s purported point fails this essential

purpose. She merely concludes that the Commission’s decision was “contrary to law and the

facts,” and that “there was no sufficient competent evidence in the record to warrant the making

of the decision.” “Merely stating what errors are, without also stating why they are errors, neither

complies with the rule nor preserves anything for review.” Jones, 400 S.W.3d at 915. Failure to

comply with Rule 84.04(d) is grounds for dismissal. Mace v. Daye, 17 S.W.3d 154, 156 (Mo.

App. W.D. 2000).

Argument

Ms. Pearson also failed to comply with Rule 84.04(e), which governs the argument section

of an appellant’s brief. The argument section should contain, among other things, a statement of

the applicable standard of review. Rule 84.04(e). Ms. Pearson provided none. Further, “[a]n

argument must explain why, in the context of the case, the law supports the claim of reversible

5 error.” Rule 84.04(e); Washington v. Zin, 286 S.W.3d 828, 831 (Mo. App. E.D. 2009). The

argument should develop the claim of error by showing how the relevant principles of law and the

facts of the case interact. Hamilton v. Archer, 545 S.W.3d 377, 380 (Mo. App. E.D. 2018); Brown,

211 S.W.3d at 147-48. Additionally, an appellant is obligated to cite appropriate and available

precedent if he expects to prevail, and, if no authority is available to cite, he should explain the

reason for the absence of citations. Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978).

Ms. Pearson provided no relevant citations to legal authority, and presented no legal

argument. Ms. Pearson’s argument consists of six numbered paragraphs. One is a restatement of

her purported point relied on. In two of the paragraphs, Ms. Pearson complains about certain

paperwork and the employer’s attendance policy, but does not explain why these are relevant, or

mandate reversal. In the remaining three paragraphs, Ms. Pearson restates conclusions reached by

the Commission, and then again simply states, in conclusory fashion, that the Commission was

wrong. She cites no legal authority, and provides no argument explaining for us why the

Commission erred. She simply asserts that it did. She does not link the facts of her case to relevant

law, and she does not explain why the law supports her contention that the Commission committed

reversible error. We further note that due to the lack of argument and the imprecise nature of Ms.

Pearson’s claim, the Division in responding was left in the difficult position of answering any and

all possible scenarios that it could conjure up. Because Ms. Pearson failed to cite relevant law and

explain how it applies to the facts of her case, we are justified in considering her point abandoned

and dismissing the appeal. Brown, 211 S.W.3d at 148.

Page References

6 Lastly, Ms. Pearson failed to comply with Rules 84.04(c) and (e), which require that all

statements of facts as well as any factual assertions in the argument “have specific page references

to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits.” Compliance

with this requirement is mandatory and essential for the effective functioning of the appellate

courts. Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo. App. W.D. 2003). Providing these

references allows this Court to verify the evidence upon which a party relies in support of their

argument. Id. Ms. Pearson, however, provided no page references, either in her statement of facts

or in her argument. We would have to comb through the record to determine whether the facts

Ms. Pearson asserts throughout her brief are supported by the record. This would effectively

require us to act as an advocate for Ms. Pearson, which we can not do. See, e.g., Lombardo, 120

S.W.3d at 247(declining review where party provided no page references to the legal file or

transcript).

Conclusion

“The function of the appellate court is to examine asserted error, not to serve as an advocate

for any party on appeal.” Kramer, 226 S.W.3d at 870 (internal quotation omitted). When an

appellant, such as Ms. Pearson, files a brief that is not “in conformity with the applicable rules and

does not sufficiently advise the court of the contentions asserted and the merit thereof, this Court

is left with the dilemma of deciding the 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.” Thummel, 570 S.W.2d at 686. “Courts should not be asked or expected

to assume such a role.” Id. We cannot become advocates for an appellant by speculating about

facts and arguments that have not been made. Kramer, 226 S.W.3d at 870. It is not the function

of an appellate court to search the record to identify possible errors and research any issues so

7 revealed. Id. “If the appellate court must search the argument portion of the brief or the record on

appeal to determine or clarify the nature of the asserted claims, the court may interpret the claims

differently than the opponent or differently than was intended by the party asserting the claim.”

Mace, 17 S.W.3d at 156.

An appellate court prefers to dispose of a case on the merits rather than to dismiss an appeal

for deficiencies in the brief. Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302,

308 (Mo. App. W.D. 2004). However, in some cases, a brief may be so deficient that it precludes

appellate review. Id. And such is the case here. To conduct any meaningful review, this Court

would be forced to shoulder the inappropriate burden of not only ferreting out and reconstructing

the facts of the case, but also crafting Ms. Pearson’s argument on appeal. In short, we are not able

to conduct a review of this case without becoming Ms. Pearson’s advocate. Consequently, because

Ms. Pearson failed to substantially comply with Rule 84.04, we dismiss this appeal.

_______________________________ Angela T. Quigless, J.

Mary K. Hoff, P.J., and Sherri B. Sullivan, J., concur.