Aziz v. Tsevis

• Decision Date: 18 December 2018
• Docket Number: No. ED 106442,ED 106442
• Citation: 565 S.W.3d 738
• Parties: Mohammad AZIZ, Appellant, v. Larry TSEVIS, and Greg Tsevis, Respondents.
• Court: Missouri Court of Appeals

565 S.W.3d 738

Mohammad AZIZ, Appellant,

v.Larry TSEVIS, and Greg Tsevis, Respondents.

No. ED 106442

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: December 18, 2018

Edgar E. Lim, 7702 Big Bend Blvd, St. Louis, MO 63119, for appellant.

Jeffrey T. Weisman, 904 S. 4^th St., Suite 302, St. Louis, MO 63102, for respondent.

KURT S. ODENWALD, Presiding Judge

Introduction

Mohammad Aziz ("Aziz") appeals from the trial court’s grant of summary judgment in favor of Larry Tsevis ("Tsevis") in connection with a real estate contract (the "Contract") for the sale of property located at 4225 S. Kingshighway ("Property"). Because Aziz’s appellate brief substantially fails to comply with Rule 84.04,¹ we dismiss his appeal. Even if Aziz’s brief complied with the requirements of Rule 84.04, the Statute of Frauds makes the alleged real estate contract unenforceable and renders his arguments meritless.

Factual and Procedural History

Aziz and Tsevis entered into the Contract, whereby Tsevis agreed to sell Property to Aziz for $152,000. Tsevis and Aziz signed the Contract. Aziz put down $1500 earnest money. After signing the Contract, but prior to closing, Aziz discovered that Tsevis was not the owner of Property, but Tsevis’s brother, Greg Tsevis ("Brother") owned Property. The Contract lacked any language stating or otherwise suggesting that Tsevis acted on Brother’s behalf. When Aziz approached Tsevis about this fact, Tsevis orally promised Aziz that Tsevis would acquire authority over Brother’s estate to complete the sale of Property. Tsevis eventually obtained authority over Brother’s estate through the probate court, but Tsevis refused to sell Property to Aziz.

Aziz sued Tsevis and Brother for specific performance under the Contract, claiming breach of contract. In his sole claim for breach of contract, Aziz averred, "Defendant Tsevis should also be estopped from arguing he has no authority to sell said real estate." Tsevis and Brother moved for summary judgment.

Tsevis and Brother submitted a statement of uncontroverted material facts in support of their motion for summary judgment. The statement of uncontroverted facts included the following:

1) The Contract contained no language that Tsevis acted on behalf of Brother.

2) Tsevis did not own Property.

3) Tsevis had no authority, capacity, or standing to sell Property prior to signing the Contract.

4) The probate court granted Tsevis guardianship over Brother, an incapacitated person, only after Tsevis and Aziz signed the Contract.

5) Tsevis, in his fiduciary capacity as Brother’s guardian, has not signed any document granting Aziz the right or option to purchase Property.

In opposing the motion for summary judgment, Aziz accused Tsevis of knowing "when he signed the [Contract] that he himself did not actually own said [P]roperty. He also knew that he did not have the legal authority to sign on behalf of [B]rother, yet he signed said [C]ontract anyways."

The circuit court granted summary judgment in favor of Tsevis and Brother. Specifically, the circuit court found that no valid contract existed to enforce an action for specific performance. Additionally, the circuit court determined that:

A promise to obtain authority to enter into a contract in the future does not change the fact that the original contract, when entered into , was an invalid contract. After [Tsevis] obtained the Letters of Guardianship in November 2015, [Aziz] would be free to enter into a new contract for the sale of [Property]; if [Property] has appreciated between the signing of the original contract and now, that is [Aziz’s] burden.

Aziz now appeals.

Points on Appeal

Aziz raises three points on appeal. Points One and Two contend the circuit court erred in not applying promissory estoppel or equitable estoppel to enforce Tsevis’s promise to sell Property. Point Three argues the circuit court committed plain error when it failed to consider the totality of the circumstances, including Tsevis’s promise to obtain authority to sell Property and the subsequent grant of that authority by the probate court.

Standard of Review

Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will affirm a summary judgment on any basis supported by the record. Poger v. Mo. Dep't of Transp., 501 S.W.3d 37, 42 (Mo. App. E.D. 2016). Additionally, we only review facts present in the record. Rule 74.04; Jones v. Union Pac. R.R, Co., 508 S.W.3d 159, 161 (Mo. App. S.D. 2016). "[S]ummary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone. " Jones, 508 S.W.3d at 161(emphasis in original) (internal quotations omitted). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). We review the record in the light most favorable to the party against whom judgment was entered. Poger, 501 S.W.3d at 41-42.

Discussion

I. Aziz’s Brief is Insufficient under Rule 84.04.

Before we address the merits of Aziz’s appeal, we must address the substantial deficiencies of his brief. Rule 84.04 sets forth mandatory requirements for appellate briefs. King v. King, 548 S.W.3d 440, 442 (Mo. App. E.D. 2018). An appellate brief must contain:

1) a detailed table of contents and an alphabetically-arranged table of cases and other authorities cited, all with corresponding page references, 2) a concise statement of the jurisdictional grounds, 3) a statement of facts, 4) a "Point Relied On" for each issue on appeal, 5) an argument that substantially follows the corresponding "Point Relied On," and 6) a statement of the precise relief sought.

Porter v. Div. of Emp't Sec., 310 S.W.3d 295, 296 (Mo. App. E.D. 2010) ; Rule 84.04(a). Rule 84.04(d)(1) requires each point relied on to "identify the trial court ruling or action that the appellant challenges; [s]tate concisely the legal reasons for the appellant’s claim of reversible error; and [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error."

We, as an appellate court, should not speculate as to the parameters of the appellant’s argument because doing so would cast the court in the role of the appellant’s advocate. Porter, 310 S.W.3d at 296.

Where ... the briefing deficiencies are so substantial that the appellate court, in order to conduct any review, would be forced to speculate not only as to the claims being raised, but as to the facts and arguments being relied on in support of the same, we have no choice but to decline review.

Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo. App. W.D. 2003). "While we prefer to dispose of a case on the merits whenever possible, if the deficiencies in the brief are such that no claims are preserved for appellate review, then we must dismiss the appeal." Scott v. Potter Elec. Signal Co., 310 S.W.3d 311, 312 (Mo. App. E.D. 2010) ; see also Carden v. Mo. Intergovernmental Risk Mgmt. Ass'n, 258 S.W.3d 547, 557 (Mo. App. S.D. 2008) ("This [C]ourt is under no obligation to review briefs which do not conform to the rules of procedure."). "Deficient points relied on do not preserve issues for appellate review." Bolz v. Hatfield, 41 S.W.3d 566, 571 (Mo. App. S.D. 2001) (citing Murphy v. Aetna Cas. & Sur. Co., 955 S.W.2d 949, 951 (Mo. App. S.D. 1997) ).

Aziz states the following for his Points on Appeal:

1. The trial court erred in not considering promissory estoppel against Defendants as all of the elements exist in the set of facts herein.

2. The trial court erred in not considering equitable estoppel against Defendants as all of the elements exist in the set of facts herein,

3. The trial court committed plain error when it failed to consider the totality of the circumstances herein especially the fact that Defendant promised to get authority to sell the property in question and did in fact do so.

Aziz’s Points on Appeal are deficient in various respects. Points One and Two, arguably, complain that the circuit court erred in not, sua sponte, considering claims of promissory estoppel or equitable estoppel when the circuit court granted summary judgment in favor of Tsevis and Brother. A proper Point Relied On that complies with Rule 84.04(d) should be in the following form: "[t]he 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)(1), While we may exercise some discretion in reviewing a party’s compliance with Rule 84.04, the deficiencies in Aziz’s brief preclude us from doing so. Importantly, Points One and Two contain neither the "because [state the legal reasons for the claim of reversible error]" requirement, nor the "in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]" requirement. Instead, Aziz merely asserts as his basis for appeal that, "all of the elements exist in the set of facts herein." Points One and Two fail to provide us with any insight into the specific facts of this case that support Aziz’s claim of error, and do not meet the minimum requirements of Rule 84.04. See id.; Bolz, 41 S.W.3d at 571.

Point Three does not identify a legal reason to support Aziz’s allegation of reversible error. Rule 84.04(d)(1)(B). Point Three simply contends that the circuit court plainly erred in failing to consider all the facts of the case. Notably, Aziz does not explain how the circuit court’s consideration of the totality of the circumstances would have altered the circuit court’s judgment. Aziz also fails to identify what court ruling or rulings are challenged by Point Three. Additionally, Aziz fails to state any recognizable cause of action that would afford him relief from the...