Lead Opinion
Claimant, Angela Waller, appeals pro se from an order of the Labor and Industrial Relations Commission (Commission) affirming the decision of the Appeals Tribunal of the Division of the Employment Security (Appeals Tribunal) finding claimant disqualified from unemployment benefits. It determined that claimant was terminated for misconduct connected with work within the meaning of section 288.050.2 RSMo (Cum.Supp.2006).
The Commission adopted the decision of the Appeals Tribunal
On appeal from this decision, claimant filed a brief that did not comply with Rule 84. We notified claimant by order that her original brief failed to comply with Rule 84 in at least the following ways:
(1) inadequate jurisdictional statement, 84.04(b);
(2) fails to contain a table of contents, table of cases and table of authorities, 84.04(a);
(3) fails to provide a fair and concise statement of facts, 84.04(c), with citation to specific page references to the record on appeal, 84.04(i);
(4) fails to include points relied on that specifically identify the action of the commission being challenged and the legal reasons for the appellant’s claim of reversible error with citation tо all authorities, not to exceed four, immediately following, 84.04(d)(2) & (5);
(5) fails to contain an argument conforming to the points relied on and fails to contain citations to pertinent legal authority, and no reference to accurate standard of review, 84.04(e);
(6) appendix fails to comply with Rule 84.04(h);
(7) fails to include the certification under Rule 84.06(c);
(8) no certification that disk was scanned and is virus-free, 84.06(g); аnd
(9) fails to provide a certificate of service on the opposing parties, 84.05(a).
We gave claimant an opportunity to file an amended brief that complied with Rule 84. We stated that if claimant failed to do so, “this appeal shall be dismissed.”
We hold pro se appellants to the same standards as attorneys. Smith v. City of St. Louis Civil Service Com’n,216 S.W.3d 698 , 699 (Mo.App.2007); Kramer v. Park-Et Restaurant, Inc.,226 S.W.3d 867 , 869 (Mo.App.2007); McGill v. Boeing Co.,235 S.W.3d 575 , 577 (Mo.App.2007). All appellants must comply with the Supreme Cоurt Rules, including Rule 84.04, which governs the contents of appellate briefs. Smith,216 S.W.3d at 699 . We are mindful of the problems that a pro se litigant faces; however, judicial impartiality, judicial economy, and fairness to all parties necessitate that we do not grant a pro se appellant preferential treatment with regard to complying with the rules of appellate procedure. Kramer,226 S.W.3d at 869: McGill,235 S.W.3d at 577 . A brief that substantially fails to comply with Rule 84.04 is inadequate to invoke the jurisdiction of this court and must be dismissed. Smith,216 S.W.3d at 699 . Rule 84.13(a) provides that allegations of error not properly briefed “shall not be considered in any civil appeal,”
Covington v. Better Business Bureau,
Claimant’s amended brief still violates each of the subsections of Rule 84 set out in our order. First, the jurisdictional statement is still inadequate because it does not identify the provision or provisions of Article V, section 3, of the constitution on which jurisdiction is predicated, in violation of Rule 84.04(b). See McGill v. Boeing Co.,
Next, claimant’s amended brief incorporates the same statement of facts that was contained in her original brief, and she has not provided a fair statement of facts, as required by Rule 84.04(c). “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 Services,
The points relied on do not conform to Rule 84.04(d)(2)(c). The first point consists of a sentence stating that claimant was not informed of the cell phone policy, a sentence stating that “unemployment is dеnied for misconduct,” and a sentence stating that the Commission did not take into consideration the definition of misconduct in section 288.030.1(24) (which defines “referee,” not misconduct). The second point asserts the Commission erred in “not receiving” evidence from employer that claimant was discharged for misconduct. Rule 84.04(d)(2)(c) sets out the specific format for a point relied on when, as here, the appeal is from an administrative decision:
The point shall 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].
This rule provides a “virtual ‘roadmap’ for the preparation of a point relied on in an appellаte brief when the review is of a decision of an administrative agency.” Bowers v. Hiland Dairy Co.,
Moreover, claimant’s first point violates the rule that separate errors should be set out in separate points. See Chipperfield v. Mo. Air Conservation Com’n,
Next, neither of the arguments under the points relied on contains a legal argument addressing issues that this court cаn review in an appeal from a Commission decision. Rather, claimant argues that she was not informed of the policy against using a cell phone while operating a press, but does not provide a legal argument tying this to an error made by the Commission or explaining the basis for any such error. She also arguеs that employer did not supply “proof’ to support employer’s representative’s testimony, but again does not provide a legal argument tying this to an error made by the Commission or explaining the basis for any such error. Further, there are no page references to the legal file or the transcript fоr any factual statement in the argument as required by Rule 84.04(i). In addition, claimant does not provide a Standard of Review for each argument as required by Rule 84.04(c). Rather, she provides a paragraph at the end of her brief that is entitled “Standard of Review,” in which she reiterates her version of the facts and requests rеversal.
The Appendix violates Rule 84.04(h) in multiple ways. Most importantly, it does not contain a copy of the Commission’s decision from which the appeal was taken or the text of any statute on which claimant relies, in violation of Rules 84.04(d)(1) and (2). See McGill,
Finally, although the brief contains the wоrds of a Rule 84.06(c) certification, it has a blank space for the number of words in the brief, in violation of Rule 84.06(c). There is no certification that the disk was scanned and is virus free, as is required by Rule 84.06(g); and the Certificate of Service shows service only on the Division and not on employer, in violation of Rules 84.05 and 43.01, which require sеrvice on all parties.
Our conclusion in McGill applies here:
Clearly, Claimant’s amended brief fails to comply with Rule 84.04, preserves nothing for our review, and is inadequate to invoke the jurisdiction of this Court. Gant,153 S.W.3d at 866 ; Davis,93 S.W.3d at 743 . We should not be expected to decide this case on the basis of inadequate briefing or to undertake additional research and scour the rеcord to cure such a deficiency. Davis,93 S.W.3d at 743 , citing Thummel v. King,570 S.W.2d 679 , 686 (Mo. banc 1978). Furthermore, we will not become an advocate for Claimant by speculating about the relevant facts and arguments he failed to make. Kramer,226 S.W.3d at 870 . While perfection is not required, compliance with the briefing requirements pursuant to Rule 84.04 is mandatory. Id. Here, the defiсiencies of Claimant’s amended briefs are so substantial, we could not conduct any meaningful review without taking an inappropriate position of ferreting out and reconstructing the facts of the case, speculating about the possible claims of error, and crafting an argument on Claimant’s behalf. See Id.
Claimant’s amended brief so substantially fails to comply with the briеfing requirements of Rule 84.04 that her appeal is unreviewable. The appeal is dismissed.
Notes
. All further statutory references refer to RSMo (Cum.Supp.2006), unless otherwise indicated.
. Claimant was present and was represented by counsel at the heating before the Appeals Tribunal.
. On appeal from a Commission decision in an unemployment case, we may modify, reverse, remand, or set aside the decision if the Commission acted without or in excess of its powers, the decision was procured by fraud, the decision is not supported by the facts, or the decision is not supported by sufficient competent evidence in the reсord. Ayers v. Sylvia Thompson Residence Center,
Dissenting Opinion
dissents.
I respectfully dissent. I disagree with the majority in its assessment of Waller’s pro se appellant’s brief. The majority correctly notes we hold pro se appellants to the same standards as attorneys and expect such appellants to comply with the briefing requirements set forth in Rule 84.04. However, we are not required to dismiss every technically deficient brief. Instead, the decision of whethеr to dismiss a brief is left to our discretion, Lanham v. Div. of Employment Sec.,
In the present case, rather than hold Waller to the same standard as attorneys filing appellant’s briefs, Waller is held to a higher standard. The technical deficiencies highlighted in the majority opinion, including such mistakes as incorrect page references, omitted page numbers, failure to include certain citations to the record, incorrect citations, and a subjective recitation of the facts, are not uncommon occurrences before this Court. Waller’s amended brief proved a significant improvement from her original filing.
The majority cites McGill v. Boeing Co.,
It is clear from her amended brief that Waller is claiming the Commission erred in finding she was discharged for misconduct because she was not informed of a policy against talking on her cell phone while operating machinery, and she could not violate a policy about which she was unaware. In addition, she claims the Commission’s decision to dеny her unem
With respect to the merits of Waller’s claims of error, generally an employee bears the burden of proving he or she is eligible for unemployment compensation benefits. Duncan v. Accent Mktg., LLC,
Misconduct is defined as “an act of wanton or willful disregard of the employer’s interest; a deliberate violation of the employer’s rules ...” Section 288.030.1(23). The term “misconduct” should not be literally construed to result in an employee’s forfeiture of benefits except in clear circumstances. Tenge,
Here, I do not believe there was competent and substantial evidence in the entire record to support a finding that Waller willfully and deliberately violated Employer’s policy. At most, the record reflects Waller’s decision to answer a call from a repairman on her cell phone while operating machinery was poor judgment. Therefore, I would review Waller’s claims on the merits and reverse the Commission’s decision that Waller was disqualified from receiving benefits because she was discharged for misconduct connected with her work.