Bank v. the Annie–joyce Group Llc

• Decision Date: 25 January 2011
• Docket Number: No. ED 95034.,ED 95034.
• Citation: 334 S.W.3d 589
• Parties: FIRST BANK, Plaintiff/Respondent,v.THE ANNIE–JOYCE GROUP, LLC, and Byron R. Hayes, Defendants/Appellants.
• Court: Missouri Court of Appeals

334 S.W.3d 589

FIRST BANK, Plaintiff/Respondent,

v.THE ANNIE–JOYCE GROUP, LLC, and Byron R. Hayes, Defendants/Appellants.

No. ED 95034.

Missouri Court of Appeals, Eastern District, Division Five.

Jan. 25, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 10, 2011.

Application for Transfer Denied

April 26, 2011.

Byron R. Hayes, St. Louis, MO, pro se.Patrick Joseph Boyle, St. Louis, MO, for Respondent.

OPINION

MARY K. HOFF, Judge.

The Annie–Joyce Group, LLC (Annie–Joyce), and Byron R. Hayes (Hayes) ¹(collectively Defendants) appeal from the judgment denying their motion to set aside a default judgment. We dismiss for failure to comply with Rule 84.04.

Factual and Procedural Background

On April 18, 2006, Annie–Joyce executed an application for a Business Preferred Credit Agreement. The terms of the contract provided that Annie–Joyce would be the borrower and Hayes would be the guarantor of any amounts owing pursuant to the contract. The contract provided that First Bank would make certain advances to Annie–Joyce and that Annie–Joyce would, in turn, pay those amounts back to First Bank in monthly installments. On October 22, 2008, Defendants defaulted on the loan. Subsequently, First Bank filed a Petition for Breach of Contract against Defendants. Defendants were served with a copy of First Bank's Petition on September 23, 2009. On October 8, 2009, Annie–Joyce and/or Hayes filed a copy of an Alias Summons and First Bank's Petition with the words “Conditionally Accepted” written on each page. Hayes appeared in Court on his own behalf on November 24, 2009, January 5, 2010 and February 2, 2010. An attorney did not, at any time, enter an appearance on behalf of Annie–Joyce. The case was originally set for trial on January 5, 2010. On January 5, 2010, Hayes appeared on his own behalf, and without counsel for Annie–Joyce, and requested a continuance. At that time, the case was re-set for trial on February 2, 2010. On February 2, 2010, Hayes again appeared in Court on his own behalf, and again without counsel for Annie–Joyce, and requested a continuance of that trial date. The case was re-set for trial for a third time on March 16, 2010. Hayes signed the memo setting the case for trial on March 16, 2010.

Neither Hayes nor counsel for Annie–Joyce appeared for trial on March 16, 2010. First Bank presented exhibits to the trial court in support of a Motion for Default Judgment. After considering the pleadings and exhibits, the trial court entered a Judgment in Default on March 16, 2010 in the amount of $8,214.40 against Annie–Joyce and Hayes, jointly and severally.

On March 17, 2010, Hayes filed a Motion to Set Aside the Default Judgment referring to himself as “Agent for the ANNIE JOYCE GROUP LLC.” ² On May 3, 2010, Hayes, again identifying himself as “agent for the ANNIE JOYCE GROUP LLC, Respondent/unrepresented party,” filed a request to file an Amended Motion to Set Aside the Default Judgment. The memorandum of May 3, 2010 states that, “The subject motion filed March 17, 2010 is missing information that materially relate [sic] to the good cause and meritorious defense(s) of Respondent.” The Motion for Default Judgment was heard by the trial court on May 11, 2010. At the hearing on the Motion, First Bank appeared by counsel, Annie–Joyce was not represented by counsel and Hayes appeared on his own behalf. After hearing oral argument, the trial court took the Motion to Set Aside Default Judgment under submission and soon after entered a Judgment and Order denying the motion and stating, among other things, that, “The Judgment entered on March 16, 2010 to remain in full force and effect.” This appeal follows.

Discussion

At the outset, we note Defendants have failed to comply with Rule 84.04 and that it is nearly impossible to review Defendants' case on appeal. Pro se appellants are bound by the same rules of procedure as those admitted to practice law and are entitled to no indulgence they would not have received if represented by counsel. Thompson v. Flagstar Bank, FSB, 299 S.W.3d 311, 313 (Mo.App. S.D.2009). An appellant is required to substantially comply with the mandatory briefing requirements of Rule 84.04 as well as the other Missouri Rules of Court. Id. Failure to comply with the rules constitutes grounds for dismissal. First State Bank of St. Charles v. Am. Family Mut. Ins. Co., 277 S.W.3d 749, 751–52 (Mo.App. E.D.2008). Failure to comply with Rule 84.04 impedes our ability to reach a disposition on the merits to such an extent that we could not conduct a meaningful review without improperly advocating for the appellant. Id. at 752.

First, we note Defendants' statement of facts violates Rule 84.04(c), which requires an appellant's brief to contain “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Dressel v. Dressel, 214 S.W.3d 341, 342 (Mo.App. E.D.2007). From Defendants' recitation of the statement of facts, we are unable to decipher or to determine the pertinent facts of this appeal. Additionally, there are “facts” alleged in Defendants' brief which are not supported by the record. For example, Defendants state that First Bank transferred the debt owing by Defendants to a debt buyer/collector referred to throughout Defendants' brief as “DUNN,” and in the conclusion of the brief as “Cohen DUNN...