State ex rel. Marshall ex rel. Franklin v. Hercey

869 S.W.2d 878, 1994 Mo. App. LEXIS 181, 1994 WL 27148
CourtMissouri Court of Appeals
DecidedFebruary 1, 1994
DocketNo. 18550
StatusPublished
Cited by4 cases

This text of 869 S.W.2d 878 (State ex rel. Marshall ex rel. Franklin v. Hercey) 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
State ex rel. Marshall ex rel. Franklin v. Hercey, 869 S.W.2d 878, 1994 Mo. App. LEXIS 181, 1994 WL 27148 (Mo. Ct. App. 1994).

Opinion

SHRUM, Judge.

Plaintiffs brought this action for a declaration of paternity and other relief. Following a jury verdict in favor of Defendant on the paternity issue, Plaintiffs appeal.

Defendant, in his brief and by separate motion, urges we dismiss the appeal, alleging numerous violations by Plaintiffs of Rule 84.-04. Because all of Plaintiffs’ points relied on violate Rule 84.04(d), we dismiss the appeal.

With one change,1 we reproduce verbatim Plaintiffs’ seven points relied on:

[880]*880I. The trial court erred in refusing to grant petitioners’ motion for a new trial because the verdict was against the greater weight of the credible evidence, which included reliable and probative evidence of paternity by means of human leukocyte antigen (HLA) blood testing.
II. The trial court erred in overruling petitioners’ motion for summary judgment because Missouri Supreme Court Rule 74.04 as well as Missouri case law required the trial court to sustain petitioners’ motion for summary judgment.
III. The trial court erred in admitting evidence of respondent’s financial condition in direct violation of the trial court’s order sustaining petitioners’ motion in limine “B” because it prejudicially affected the jury’s deliberations when the only issue before the jury was paternity.
IV. The trial court erred in admitting evidence of sexual access to petitioner at a time other than the probably [sic] period of conception in that the admission of said evidence was in direct violation of the trial court’s order sustaining petitioners’ motion in limine “D” requiring that evidence of sexual access to petitioner at a time other than the probable period of conception was not to be mentioned in the hearing of the jury by either respondent’s counsel or by any of the witnesses called by respondent and also was in violation of Section 210.-889(2) which prohibits anyone who has not made another possible father known and made him a correspondent subject to blood tests from trying to bring up such a person at the time of trial.
Y. The trial court erred in refusing to grant petitioners’ motion for a new trial because the verdict of the jury herein reflects bias, passion and racial prejudice, in violation of petitioners’ constitutional right to a fair and impartial jury, thereby entitling petitioners to a new trial.
VI. The trial court erred in refusing to grant petitioners’ motion for new trial because respondent’s improper use of the term “reasonable doubt” during closing argument was extremely prejudicial to petitioners, thereby mandating a new trial. VII. The trial court erred in refusing to grant petitioners’ motion for new trial because newly discovered evidence in the form of respondent’s and his wife’s testimony form[s] an additional basis for granting a new trial to petitioners.

Rule 84.04(d), governing an appellant’s points relied on, provides:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder. If more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first. All authorities discussed in the argument shall be cited under the “Points Relied On.” Long lists of citations should not be included.
Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

Compliance with Rule 84.04(d) is discussed at length in numerous Missouri appellate court opinions, including Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978), and Midwest Materials Co. v. Village Development Co., 806 S.W.2d 477, 483 n. 1 (Mo.App.1991). The policy underlying the requirements of Rule 84.04(d) is set out in Thummel, 570 S.W.2d at 686[6—7].

Points relied on that do not meet the requirements of Rule 84.04(d) preserve nothing for review. Thummel, 570 S.W.2d at 684. Moreover, “allegations of error ... not properly briefed shall not be considered in any civil appeal_” Rule 84.13(a).

The three components of a point relied are:

(1) A concise statement of the challenged ruling or action of the trial court. Thummel, 570 S.W.2d at 684r-85[3-4].
(2) Why the action or ruling was erroneous. “This requirement essentially contemplates a statement which ordinarily will [881]*881closely approximate what appellant believes should have been the trial court’s conclusion of law on the point being addressed,” Thummel, 570 S.W.2d at 685, or, more succinctly, “the rule of law ... the court should have applied_” Id. at 686.
(3) The wherein requirement may be satisfied by stating “the testimony or evidence [that] gives rise to the ruling for which appellant contends,” Id. at 685, or “‘the way in which the trial court incorrectly applied [controlling] principles [of law] or misconstrued the facts.’” Estate of Goslee, 807 S.W.2d 552, 556 (Mo.App.1991) (quoting State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 475 (Mo.App.1972)).

As we noted in Midwest Materials, 806 S.W.2d at 483 n. 1, Judge Stone’s article, Effective Appellate Briefs, 15 J.Mo.Bar 80-91 (Feb.1959), is one of the best guides available to writing points relied on. See also Judge Harry L.C. Weier and William A. Fairbank, Why Write a Defective Brief?: Give Your Client a Chance on Appeal, 33 J.Mo.Bar 79-92 (Mar.1977), cited in Thummel, 570 S.W.2d at 685 n. 3.

Referring to Judge Stone’s article, Judge Weier and Mr. Fairbank state:

In terms of a format, Judge Stone probably provides the most complete and flawless method for writing acceptable points relied on. His pattern is as follows: “The trial court erred in [the particular action or ruling of which complaint is made] because [of the specific reason to be stated here] in that [here supplying reasonable detail supporting the specific reason assigned].” This format covers the main requirements of the rule because it ensures that the writer will mention: (1) what the trial court did that is claimed to be error; (2) why it is error; and (3) wherein it is claimed to be error.... [M]ost violations of Rule 84.04(d) could probably be cured if this pattern were followed.

33 J.Mo.Bar at 88-89 (footnote reference to Stone, 15 J.Mo.Bar at 86, omitted).

Our supreme court has endorsed the use of Judge Stone’s formula. In Thummel, the court undertook to write, “in the form required by Rule 84.04, the point that we have assumed (but are by no means certain) appellant was trying to make_” 570 S.W.2d at 685. The point relied on the court formulated followed Judge Stone’s pattern, which the Thummel

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