Failure to Follow Appellate Briefing Rules Can Lead to Draconian Consequences
Appellate litigants should carefully – very carefully – consult their appellate court’s rules on briefing, before sitting down to write, and especially before filing. The Missouri appellate courts have recently reminded practitioners that a failure to observe the briefing rules can be fatal to a client’s substantive rights.
Missouri Supreme Court Rule 84.04 starts with some basic requirements, that an appellate brief contain tables of contents, cases, statutes, and other authorities; a jurisdictional statement; a fair and concise, non-argumentative statement of facts; “points relied on”; an argument that substantially follows the order of those points; and a short conclusion stating the precise relief sought. Fair enough.
But from there, Rule gets more persnickety, setting forth in section (d) a variety of specific requirements about the precise form the argument must take, and the required content of each point argued, i.e.:
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 ]."
Within each Point, appellant must begin by providing a list of up to four cases or authorities supporting that Point.
In a pair of cases decided the same day, the Missouri Court of Appeals dismissed appeals for failure to comply with Rule 84.04. In Superior Bank v. Sadowsky, - S.W.3d - , 2012 WL 3292448 (Mo.App.E.D. Aug. 14, 2012), appellants, claiming there were disputed issues of material fact, sought to overturn summary judgment granted against them and in favor of plaintiff bank, in a contract action involving a foreclosure. One of appellants’ claims was that the Bank had improperly inflated property appraisal values. The Court of Appeals dismissed the appeal for failure to comply with Rule 84.04(d)(1)(B-C), citing appellants’ failure to explain why the accuracy of a property’s appraisal value was a “material” fact, or the nexus between the appraisals and the foreclosure proceeding. Appellant was also taken to task for failing to provide a list of cases or authorities within their “Point”; failing to describe the elements of Plaintiff’s prima facie case; and failing to state the proper standard of review. The second Point, concerning appellants’ claim that an alleged error in the deed of trust precluded a grant of summary judgment, was dismissed for similar reasons. In this case, the Court referred to deficiencies in appellants’ “amended brief”, so it appears that the Court of Appeals’ clerk’s office may already have given appellants one chance to correct perceived deficiencies in the brief, and that the “warning” may not have been taken to heart.
In City of Perryville v. Brewer, - S.W.3d - , 2012 WL 3292446 (Mo.App. E.D., Aug. 14, 2012), appellant had been convicted of failure to abate a nuisance (his stripped down, inoperable 65-foot mobile home) in violation of a city ordinance. Appellant argued on appeal that: the ordinance failed to provide adequate notice to defendant, and did not relate to the City’s other public nuisance ordinances; the ordinance was overly broad; the City failed to produce evidence that defendant’s mobile home affected members of the public; and the mobile home was actually a hay trailer that was exempt from classification as a public nuisance. The Court dismissed the appeal for failure to comply with Rule 84.04, citing appellant’s failure to provide case authority for his arguments, state the standard of review, list cases in support of each Point argued, and assert that his constitutional claim of deficient notice was raised at the trial court.
Although courts sometimes seem to bend over backwards to allow pro se litigants their day-in-court, the Missouri appellate courts have shown little patience with pro se appellants whose briefs do not comply with Rule 84.04. Holding that “[t]his court holds pro se appellants to the same standards as attorneys”, the Court of Appeals recently dismissed all six points of a pro se appellant’s appeal of a judgment for damages, for failure to comply with the rule. The Advisory Group USA, LC v. Miner, 365 S.W.3d 615, 616 (Mo.App.E.D. 2012), citing Duncan-Anderson v. Duncan, 321 S.W.3d 498, 499 (Mo.App.E.D. 2010). (In Miner, the court had stricken appellant’s original brief, and given appellant the opportunity to refile it. 365 S.W.3d at 616 n.2.)
Advocates who fail to carefully follow the dictates of Missouri Supreme Court Rule 84.04 do so at their peril.And if the appellate court clerk’s office returns a brief for revision or correction, it is incumbent upon the filer to “get it right” upon resubmission.