Atkins v. McPhetridge

• Decision Date: 06 December 2006
• Docket Number: No. 27660.,27660.
• Citation: 213 S.W.3d 116
• Parties: David T. ATKINS, Rex Long, Thomas Westphal, Eric Younghans, and Brett Stone, Plaintiffs-Respondents, v. Gerald McPHETRIDGE, Larry Stevens, and William Choate, Defendants-Appellants.
• Court: Missouri Court of Appeals

213 S.W.3d 116

David T. ATKINS, Rex Long, Thomas Westphal, Eric Younghans, and Brett Stone, Plaintiffs-Respondents, v. Gerald McPHETRIDGE, Larry Stevens, and William Choate, Defendants-Appellants.

No. 27660.

Missouri Court of Appeals, Southern District, Division One.

December 6, 2006.

Motion for Rehearing or Transfer to Supreme Court Denied December 28, 2006.

Application for Transfer Denied February 27, 2007.

Donald W. Jones, Austin E. Williamson, Hulston, Jones & Marsh, Springfield, for Appellants.

Scott L. Brown, Blake & Uhlig, P.A., Kansas City, for Respondents.

JOHN E. PARRISH, Judge.

Gerald McPhetridge, Larry Stevens, and William Choate (defendants) appeal a summary judgment for David T. Atkins, Rex Long, Thomas Westphal, Eric Younghans and Brett Stone (plaintiffs). Plaintiffs are executive board members of International Brotherhood of Electrical Workers, Local Union No. 53 (Local 53). Plaintiffs' action sought collection of fines imposed on defendants for working for an employer that had been declared "in difficulty" with the International Brotherhood of Electrical Workers (IBEW). This court affirms in part, reverses in part and remands with directions.

Background

Defendants were members of IBEW. McPhetridge asserts his history with IBEW was:

January 1996 Joined and initiated as member of Local 53

Late 1999 or 2000 Employed by Hartman, Inc.(Hartman)¹

Stevens and Choate claim their histories with IBEW were:

Early 1970s Became members of Local 753 while employed with City Utilities of Springfield, Missouri (City Utilities)

August 1994 Choate became inactive member of Local 753 due to promotion to management position at City Utilities

January 2000-June2001 Stevens was inactive member of Local 753 due to promotion to management position at City Utilities

2001 Stevens and Choate employed by Hartman

June 2001 Stevens reactivated membership in Local 753 after retirement from City Utilities

September 2001 Choate reactivated membership in Local 753

2004 Stevens and Choate resigned from IBEW

Plaintiffs contend that "[b]y virtue of their membership in Local 53 and/or Local 753, and [IBEW], Defendants . . . became subject to the provisions of the International Constitution and/or the By-laws of Local 53." They contend that "[t]he provisions of the International Constitution and/or Local 53 By-laws constitute a contract between the Defendants and Plaintiffs."

Plaintiffs alleged that on or about June 13, 2003, a member of Local 53 filed charges against defendants alleging they had violated the International Constitution by performing electrical work for a contractor not signatory to a collective bargaining agreement with IBEW or its affiliate locals; that defendants' conduct violated Article 25, Section 1, subsection q of the International Constitution. Plaintiffs assert that a hearing was held before a "Trial Board" of Local 53 at which none of defendants appeared; that "[d]efendants, and each of them, were found guilty of all charges alleged against them." A fine in the amount of $5,000 was assessed against each defendant. Plaintiffs sought judgments in the amount of $5,000 against each defendant.

The trial court heard motions for summary judgment filed by plaintiffs and by defendants. It granted plaintiffs' motion and denied defendants' motion. Judgment was entered in favor of plaintiffs against each defendant in the amount of $5,000. Judgment was further entered for plaintiffs on counterclaims brought by defendants. Costs were taxed to defendants.

Defendants' Appeal

Defendants' appellants' brief was "FILED AS IS" by this court. It states three points relied on, none of which are models of compliance with Rule 84.04(d). This deficiency was brought to the attention of defendants' appellate counsel at oral argument, although counsel expressed no concern about the obvious defects.

Rule 84.04 mandates requirements for appellants' briefs.

Rule 84.04(a)(4) requires an appellant's brief to include "points relied on." Rule 84.04(d) prescribes what points relied on shall contain. Rule 84.04(d)(1) explains:

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]."

Rule 84.04(d)(4) explains, "Abstract 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. Detailed evidentiary facts shall not be included."

Environmental Energy Partners, Inc. v. Siemens Bldg. Technologies, Inc., 178 S.W.3d 691, 713 (Mo.App.2005). "Deficient points relied on do not preserve issues for appellate review." Bolz v. Hatfield, 41 S.W.3d 566, 571 (Mo.App.2001).

Defendants' Point I is a rambling narration that includes three subparagraphs and, with the "list of cases" set out after each subparagraph, covers more than three pages. It does not identify a ruling or action of the trial court that is being challenged as required by Rule 84.04(d)(1)(A). Rather, it tells this court that it "should review de novo and reverse the trial court's erroneous grant of summary judgment . . . and should order defendants' counter motion for summary judgment sustained." The three subparagraphs suggest (A) that "[a] de novo review is the proper standard of review" and identifies claimed failures of plaintiffs' motion for summary judgment for reasons it says are shown in subparts of a subsequent point relied on; (B) that "[t]his court's de novo review should include reviewing the denial of defendants' counter motion for summary judgment" because "Rule 84.14 requires this court to grant the judgment which the trial court should have entered"; and (C) that the trial court erred by "failing to recognize plaintiffs have admitted by default amended counterclaim III" that asserted the fines for which plaintiffs sought judgment were procured by fraud. Subparagraph (C) continues by asserting that "plaintiffs' agent" made various statements, which it attempts to summarize, to each defendant.

In addition to not identifying a ruling or action by the trial court that defendants claim was erroneous, Point I does not concisely state legal reasons for defendants' claim that the trial court committed reversible error as Rule 84.04(d)(1)(A) requires. Its introductory paragraph is not assisted by its subsequent subparagraphs. The subparagraphs include references to another point relied on as "legal reasons" for whatever assertion Point I is intended to make. The subparagraphs in Point I include abstract statements of law, not in a format compatible with Rule 84.04(d)(4), that are contrary to the admonition of Rule 84.04(d)(4). The final subparagraph (which covers more than one page) is multifarious in that it complains of three perceived failings by the trial court with respect to its dismissal of Count III of defendants' counterclaim. Points containing multifarious allegations of error do not comply with Rule 84.04. Martin v. Reed, 147 S.W.3d 860, 863 (Mo.App.2004); Stelts v. Stelts, 126 S.W.3d 499, 504 (Mo. App.2004).

Notwithstanding non-compliance with Rule 84.04, appellate courts may exercise discretion and attempt to resolve issues on their merits unless the defective point impedes disposition of the case on its merits. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo.banc 1997). A brief impedes disposition on the merits if it fails to give notice of the basis for the claimed error. Id.

Point I, together with the eight-page argument directed to it, does not identify clear, concise bases for defendants' claim of error by the trial court. Were this court to seine the record in an attempt to discern perceived errors consistent with the ill-framed Point I, this court would be acting as an advocate for defendants, an inappropriate undertaking for an appellate court. RPCS, Inc. v. Waters, 190 S.W.3d 580, 589 (Mo.App.2006). The defects in Point I impede its disposition on the merits. Point I is dismissed.

Point II, with its eight subparagraphs (two of which have additional subparagraphs) and its "list[s] of cases" that follow those subparagraphs, traverses more than seven pages of defendants' appellants' brief. It identifies the error defendants contend the trial court made in that its initial statement claims "[t]he trial court erred in sustaining plaintiffs' motion for summary judgment and . . . also erred in denying the motion for summary judgment of the defendants."² However, the attempted statements of legal bases for its claims of reversible error are anything but concise. Point II does not comply with the requirement of Rule 84.04(d)(B)(1).

Point II, as this court understands it, attempts to raise issues concerning (1) whether the judgment enforced penalties rather than damages; (2) whether the assessments sought to be collected were supported by sufficient evidence; (3) whether procedural requirements for timely filing charges before the union trial board were met; (4) whether the union's actions were violative of certain of defendants' constitutional rights; (5) whether administrative appeals were required by defendants if they were to challenge the findings of the union trial board; and (6) whether the issues challenged are preempted by federal law. The point is multifarious in that it collapses disparate contentions of error into a single point relied on contrary to Rule 84.04(d). The...