Barbero v. Wilhoit Props., Inc., ED 109472

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Angela T. Quigless, Judge
• Citation: 637 S.W.3d 590
• Parties: Theresa Marie BARBERO, Appellant, v. WILHOIT PROPERTIES, INC., Respondent.
• Docket Number: No. ED 109472,ED 109472
• Decision Date: 16 November 2021

637 S.W.3d 590

Theresa Marie BARBERO, Appellant,
v.
WILHOIT PROPERTIES, INC., Respondent.

No. ED 109472

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: November 16, 2021
Motion for Rehearing and/or Transfer to Supreme Court Denied December 20, 2021
Application for Transfer Denied February 8, 2022

Theresa M. Barbero, Pro Se, 1615 Grand Avenue, Apt # 501, Perryville, Mo. 63775, for Appellant.

Nicholas A. Fax, 901 St. Louis Street, 20^th Floor, Springfield, Mo. 65806, for Respondent.

Angela T. Quigless, Judge

The plaintiff, Theresa Marie Barbero, appeals pro se the judgment entered by the Circuit Court of Pike County, Associate Judge Division, in favor of the defendant, Wilhoit Properties, Inc. Following a bench trial, the court entered judgment in favor of Wilhoit Properties on all of Barbero's claims. Barbero's appeal fails to comply with Supreme Court Rules 81.12(a), 81.12(b), 84.04(c), 84.04(d), 84.04(e), 84.04(h), and 84.13(a) to the extent that we cannot review it.^{1 ,2} Therefore, we dismiss the appeal.

Facts

Viewed in the light most favorable to the judgment, the record reveals that Barbero sued Wilhoit Properties, the management company for an apartment she rented in Bowling Green, Missouri. Barbero asserted claims for: (1) negligence; (2) witness tampering; (3) failure to refund security deposit; (4) violation of the Fair Credit Reporting Act; (5) harassment; (6) retaliation; and (7) discrimination. This case was tried before the associate circuit judge. Following a bench trial, the court entered judgment in favor of Wilhoit Properties on all seven counts. Barbero filed a motion for new trial. In her motion, Barbero alleged that she appeared at trial pro se , and so did not know how to offer her exhibits into evidence, resulting in a judgment based only on Wilhoit Properties’ evidence. Barbero never sought to have her motion heard, the court did not rule on it, and the

637 S.W.3d 593

motion for new trial was thus deemed denied 90 days after filing.³ Barbero appeals.

Discussion

"Pro se appellants are held to the same standards as attorneys, and must comply with Supreme Court Rules of Appellate Procedure." Landwehr v. Hager , 612 S.W.3d 220, 223 (Mo. App. E.D. 2020). "Failure to conform with the mandates of Rule 84.04 results in unpreserved allegations of error and can constitute grounds for the dismissal of an appeal." Id. While we prefer to resolve cases on the merits whenever possible, here Barbero has failed to comply with Rules 81.12, 84.04, and 84.13 so substantially that we cannot review her appeal.

Barbero's brief and the record she compiled contain numerous violations of Supreme Court Rules. First, Rule 81.12(a) states "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision. It is divided into two components: the legal file and the transcript." Barbero's legal file is incomplete because she did not include a copy of her petition. Rule 81.12(b)(1)(C) states that the legal file shall always include the pleadings on which the action was tried, which in this case is Barbero's petition. In addition, the record Barbero has presented lacks critical information. It is unclear, whether Barbero's case was tried under the provisions of chapter 517, Procedure Before Certain Associate Judges, because she sought $25,000 or less in damages, or whether her case was tried under the provisions of chapter 535, Landlord-Tenant Actions.⁴ The basis for trying the case before an associate circuit judge is important because it determines the next procedural step for an aggrieved party—a trial de novo under section 512.180.1 or a direct appeal to this Court under section 512.180.2.

Second, Barbero's statement of facts is not "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). Instead, Barbero gives an argumentative recitation of the procedural history of the case, stating numerous times that the court did not consider her evidence, she filed a motion for new trial, and she has a right to a trial de novo.⁵ In further violation of Rule 84.04(c), the statement of facts does not include required citations to the record on appeal, i.e. legal file, transcript, or exhibits. From Barbero's statement of facts, we cannot ascertain the fundamental facts of the case beyond the argumentative statement that the case involves "landlord abuses against a tenant."

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