Wilson v. Carnahan

Aug 29, 2000

WD 58190

Versions:

EDWIN H. SMITH, Presiding Judge.

Eriс Wilson appeals from the circuit court’s order dismissing, for failure to state a cause of action, his “Petition fоr Declaratory Judgment[,] Mandamus or In-junctive Relief and/or Habeas Corpus and/or Appropriate Relief,” whеrein he named as defendants the Honorable Mel Carnahan, the Governor of the State of Missouri; the Missouri Department of Corrections (the DOC); Dora Schriro, the Director of the DOC; George Lombardi, the Director of the Division of Adult Institutions (the DAI); Steven Long, the Assistant Director of the DAI; Mike Kemna, the Superintendent of the Crossroads Correctional Cеnter; and Michael Bowersox, the Superintendent of the Potosí Correctional Center.

In his sole point on appeal, the appellant claims that “[t]he Circuit Court of Cole County abused its discretion and was clearly erroneous by sustaining the motion to dismiss because the grounds liberally read individually and/or collectively stated claims upon which relief could have and should have been granted.”

We dismiss the appeal for failure to comply with Rule 84.04(d). 1

Facts

On August 17, 1999, the appellant filed his petition in the Circuit Court of Cole County. On November 4, 1999, the respondents filed a motion to dismiss, pursuant to § 506.375, 2 and Missouri Rule of Civil Procedure 55.27(a)(6) (1999), alleging that it failed to state a cause of action. A hearing was held on the respondents’ motion on December 27, 1999, after which the trial court dismissed the appellant’s petition, pursuant to § 506.375.

This appeal follows.

Appellant’s Point Relied On

Before addressing the merits of the appellant’s claim, we address the respondents’ contention that the appellant’s point relied on fails to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍comply with Rule 84.04(d), which sets forth the requirements for valid points relied on. Thе current version of Rule 84.04(d) provides:

(d) Points Relied On.

(1) Where the appellate court reviews the decision of a trial cоurt, each point shall:

(A) identify the trial court ruling or action that the appellant challenges;

(B) state conсisely the legal reasons for the appellant’s claim of reversible error; and

(C) explain in summary fashion why, in the context of the ease, 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 ac tion], because [state the legal reasons for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍claim of reversible error], in that [еxplain why the legal reasons, in the context of the case, support the claim of reversible error ].”

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(4) Abstraсt statements of law, standing alone, do not comply with this rule. Any reference to the record shall be limited to the ultimate facts necessary to inform the appellate court and the other parties of the issues. Detailеd evidentiary facts shall not be included.

Thus, the rule requires that each point relied on: (1) identify the trial court’s ruling or aсtion that the appellant is challenging on appeal; (2) state the legal reasons for the appellant’s claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reаsons support the claim of reversible error.

Hall v. Missouri Bd. of Probation and Parole, 10 S.W.3d 540, 543 (Mo.App.1999) (citing Ford v. Ford, 990 S.W.2d 698, 702 (Mo.App.1999)). “ ‘The function of this rule 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 presented for review.’ ” Id. (quoting Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997) (citing Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978))). Rule 84.04(d) “sets forth a form for a point relied on that satisfies the [rule’s] requirements.” In re Marriage of Wright, 990 S.W.2d 703, 708 (Mo.App.1999).

While the appellant’s pоint identifies the trial court’s ruling that he challenges on appeal, the court’s dismissal of his petition, and states the legal reasons for his claim of reversible error, that his petition stated a cause ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of action, it fails to explain, in summary fashion, why, in the context of the case, the legal reason alleged supports his claim that the court erred in dismissing his petition, as required by the rule. Rule 84.04(d). Fur thermore, the point is not substantially in the form set out in the rule for a proрer point relied on. Id.

“ ‘Insufficient points relied on preserve nothing for this court to review,’ ” Hall, 10 S.W.3d at 544 (quoting Green v. Douglas, 977 S.W.2d 32, 33 (Mo.App.1998)), and, as such, “ ‘[viоlations of Rule 84.04 are grounds for a court to dismiss an appeal.’ ” Id. {quoting Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App.1999)). A pro se appellant, such as the appellаnt in this case, “ ‘[is] held to the same procedural rules as attorneys and do[es] not receive preferentiаl treatment regarding compliance with rules of procedure such as Rule 84.04.’ ” Id. (quoting Shochet, 987 S.W.2d at 518). “While this court recognizes the prоblems faced by pro se litigants, we cannot relax our standards for non lawyers.” Murphy v. Shur, 6 S.W.3d 207, 208 (Mo.App.1999) (citations omitted).

Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Deficient points relied on force the appellate court to search the argument portion of the brief ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or the record itself to determine and clarify the appellant’s assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant’s contention differently than the appellant intendеd or his opponent understood.

Hall, 10 S.W.3d, at 544-545 (quoting Myrick v. Eastern Broad., Inc., 970 S.W.2d 885, 886 (Mo.App.1998) (citations omitted)). “ ‘It is not the function of the appellate cоurt to serve as advocate for any party to an appeal.’ ” Shochet, 987 S.W.2d at 518 {quoting Thummel, 570 S.W.2d at 686). As such, we have no duty to search the trаnscript or record to discover the facts which substantiate a point on appeal. “ ‘That is the duty of the рarties, not the function of an appellate court.’ ” Nell v. Fern-Thatcher Co., 952 S.W.2d 749, 755 (Mo.App.1997) (quoting Arenson v. Arenson, 787 S.W.2d 845, 846 (Mo.App.1990)).

Because the appellant’s point relied оn preserves nothing for appellate review, we decline to address it. Hall, 10 S.W.3d at 545 (citing Saidawi v. Giovanni’s Little Place, Inc., 987 S.W.2d 501, 504 (Mo.App.1999); Myrick, 970 S.W.2d at 886).

Conclusion

For the reasons stated, we dismiss this appeal for failure to comply with Rule 84.04(d).

ULRICH and ELLIS, JJ., concur.

Notes

. All rule references are to the Missouri Rules of Civil Procedure (2000), unless otherwise indicated.

. All statutory references are to RSMo ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Supp. 1999, unless otherwise indicated.