Brown v. Brown

• Decision Date: 28 June 2022
• Docket Number: WD 84347
• Citation: 648 S.W.3d 55
• Parties: Susan L. BROWN (a/k/a Susan Brown-Thill), TRUSTEE OF the EUGENE D. BROWN TRUSTS CREATED BY TRUST AGREEMENT DATED FEBRUARY 27, 1989, et al., Respondents, v. Richard L. BROWN, et al., Appellants.
• Court: Missouri Court of Appeals

648 S.W.3d 55

Susan L. BROWN (a/k/a Susan Brown-Thill), TRUSTEE OF the EUGENE D. BROWN TRUSTS CREATED BY TRUST AGREEMENT DATED FEBRUARY 27, 1989, et al., Respondents,

v.Richard L. BROWN, et al., Appellants.

WD 84347

Missouri Court of Appeals, Western District.

OPINION FILED: June 28, 2022

Richard Brown, Kansas City, MO, Appellant Acting Pro Se.

George Barton, Overland Park, KS, Counsel for Respondent Brown-Thill.

William Hubbard, Kansas City, MO, Counsel for Respondent, Brown-Thill.

James Morrow, Kansas City, MO, Counsel for Respondent, Cooper.

Peggy Wilson, Kansas City, MO, Co-Counsel for Respondent, Cooper.

Brittain McClurg, Kansas City, MO, Co-Counsel for Respondent, Cooper.

Jason Zager, Kansas City, MO, Counsel for Respondent, Theodore Brown.

Jason Zager, Kansas City, MO, Counsel for Respondent, Emealia Brown.

Michael George, St. Louis, MO, Counsel for Respondent, George.

Before Division Four: Cynthia L. Martin, C.J., Karen King Mitchell and Janet Sutton, JJ.

Janet Sutton, Judge

Mr. Richard L. Brown has filed a pro se appeal from a Jackson County Circuit Court Probate Division (probate court) order denying eight post-judgment motions associated with a 2016 judgment approving the final distribution of the Brown family estate. In his return to this Court, Mr. Brown challenges any order the probate court issued while he had a prior appeal pending before this Court, as well as the probate court's approval of the termination of certain limited family partnerships and its approval of a former attorney's hourly legal fees and attorney's lien. He also challenges the probate court's and this Court's prior rulings on redirecting his purported individual interests in one of the partnerships into the court's registry as part of the contested trust distribution.

Because Mr. Brown has failed to remedy significant briefing shortcomings under Rule 84.04,¹ for which we struck his initial brief, we dismiss the appeal.² We do not address the merits. We also grant the motion for sanctions filed by the Trustee Respondents, who include Ms. Susan Brown-Thill and Mr. James Cooper, each a trustee of one of the two trusts created by Mr. Brown and Ms. Brown-Thill's parents. ³

We remand for the probate court to determine the amount of reasonable fees and costs on appeal and to make an appropriate award against Mr. Brown.

The dispute between and among these parties has been described by this Court as costing "a shocking amount of time, money, and personal anguish," Brown v. Brown-Thill , 543 S.W.3d 620, 639 (Mo. App. W.D. 2018) (affirming probate court's July 2016 judgment ordering final distribution of trust assets and approving trustees’ final accountings "in all respects," while expressing, in vain as it turned out, that "a final conclusion will be a blessing to all concerned"),⁴ and as "scorched earth litigation regarding the assets of this estate" by Mr. Brown. Brown v. Brown , No. WD84312, 645 S.W.3d 75, 85 (Mo. App. W.D. Apr. 26, 2022) (rehearing and transfer motions overruled and denied May 31, 2022).⁵

The facts underlying the parties’ disputes and leading to the probate court's judgment are set forth in Brown-Thill , 543 S.W.3d at 625-26. We will discuss the facts relevant to this appeal as needed. For purposes of context, the parents whose trusts and estates are at the core of this dispute between siblings both passed away by 2009. Id. at 624. Thus, within the span of 13 years, Mr. Brown filed in this Court, by our count, six previous appeals involving the Trustee Respondents. See Appendix A. Each time the relief he requested was denied, Mr. Brown unsuccessfully sought rehearing or transfer, although he twice voluntarily dismissed his appeals when we questioned the finality of the order or judgment appealed from. See Appendix A. Mr. Brown unsuccessfully filed two motions for appeal out of time and two motions for leave to file late notice of appeal in 2020, when he was also occupied with filing related motions that the probate court denied in the omnibus order at issue in this appeal. See Appendix A. Not listed in Appendix A is an appeal Mr. Brown filed challenging a court's order confirming a partition sale of real property owned by one of the limited partnerships involved in these proceedings as a tenant in common with a Texas-based general partnership. Cohen v. Normand Prop. Assocs., L.P. , 498 S.W.3d 473, 481 n.8 (Mo. App. W.D. 2016) (affirming circuit court's approval of sale, finding appeal frivolous, declining to award sanctions, and warning Mr. Brown "that further frivolous filings in this court in this matter may not yield the same response."). In his reply brief, Mr. Brown asks us to correct the facts and law in Cohen , referenced for the first time in his reply brief, as well as two others (WD79914, WD82949), neglecting to mention that motions to rehear or transfer in all three cases were overruled and denied.

Mr. Brown's litigiousness prompted the probate court in December 2019 to grant Ms. Brown-Thill's motion to enjoin her brother from pursuing "further vexatious litigation." Finding "that [Mr.] Brown's petition in this matter presents legal questions which are identical to certain issues that [Mr.] Brown has repeatedly raised and have been ruled upon by this Court and other courts," the probate court ordered Mr. Brown to pay Ms. Brown-Thill's legal expenses associated with the petition and also enjoined Mr. Brown:

from pursuing further litigation against the Trustee of the Eugene D. Brown Trust, the Trustee of the Saurine L. Brown Trust, or any other individual or entity in connection with the disposition, accounting, or handling of the assets held by ... either the Eugene D. Brown Trust, the Saurine L. Brown Trust, and for such other relief as the Court deems just and equitable.

Declining a request that Mr. Brown be required to pay the Respondent Trustees’ legal fees, a federal court that dismissed Mr. Brown's first amended petition to enforce an arbitration agreement arising out of the same dispute nevertheless referred to the injunction when cautioning him that "further filings in violation of the Injunctive Order may subject [Mr. Brown] to sanctions." Brown v. Brown-Thill , No. 21-CV-00107-SRB, 2021 WL 3566341, slip op. at 10 (W.D. Mo. Aug. 12, 2021). We invoked the injunction as recently as April 2022, when we dismissed, for significant briefing deficiencies under our rules, Mr. Brown's tenth attempt to appeal to this Court and remanded for the trial court to determine the appropriate award against Mr. Brown of attorney's fees incurred by the Trustee Respondents in defending the appeal. Brown , No. WD84312, at 85.⁶

Undeterred, Mr. Brown files this appeal.

The salient events preceding the omnibus order at issue here began with an October 2019 hearing for the probate court to take testimony, admit exhibits, and hear arguments on Mr. Michael T. George's August 2019 motions to withdraw from representing Mr. Brown and to enforce an attorney's lien, in addition to the Respondent Trustees’ July 2019 motion to approve the resolutions terminating partnerships. The probate court granted Mr. George's motion to withdraw, after Mr. Brown said during the hearing that he did not object.⁷ The court issued orders in late December 2019 imposing Mr. George's attorney's lien on Mr. Brown's trust distribution and granting the motion to approve the partnership termination resolutions, which would finalize the distribution of trust assets approved in 2016 and affirmed by this Court in 2018.

Mr. Brown then filed motions in probate court throughout 2020 in an effort to derail the attorney's lien, the partnership resolutions, and the final trust distribution, including motions filed in December 2020 to set aside, under Rule 74.06, the probate court's December 2019 orders granting the enforcement of Mr. George's attorney's lien and approving the partnership resolutions. Mr. Brown filed nearly 20 motions in this case in probate court in 2020. The probate court's omnibus January 20, 2021, order denied eight of these motions.

We entered orders striking Mr. Brown's initial legal file and initial brief for violating our appellate-court briefing rules, and he filed a revised legal file and an amended brief, which, as discussed below, continues to fail to substantially comply with Rule 84.04, therefore precluding our meaningful review.

Legal Analysis

An appellate brief that does not comply with Rule 84.04 preserves nothing for our review. State ex rel. Koster v. Allen , 298 S.W.3d 139, 144 (Mo. App. S.D. 2009). Compliance with Rule 84.04 is mandatory. Id. "To hold otherwise would require an appellate court to become an advocate for the appellant by speculating about the facts, points relied on, and argument he or she failed to present." Id. at 144-45. And the rule's requirements "are equally applicable to pro se appellants." Id. at 145. "We are mindful of the problems that a pro se litigant faces; however, judicial impartiality, judicial economy, and fairness to all parties necessitate that we do not grant a pro se appellant preferential treatment" when assessing compliance with the rules of appellate procedure. Carlisle v. Rainbow Connection, Inc. , 300 S.W.3d 583, 584-85 (Mo. App. E.D. 2009).

This appeal was taken from the probate court's omnibus January 20, 2021, order denying post-judgment motions that Mr. Brown filed between April 2 and December 30, 2020.⁸ To best demonstrate what has become a hallmark of this litigation, we attach Appendix B, which includes in some detail each motion and the apparent basis for each motion's filing, while fully cognizant of the proscription on appellate courts scouring the record to find support for one party's position.⁹ See Acton v. Rahn , 611 S.W.3d 897, 904 (Mo. App. W.D. 2020) (dismissing appeal for appellant's failure to correct Rule 84.04 briefing deficiencies that led Court to strike first appeal brief, we observed that to address the merits would improperly require this Court "to act as [Appellant's]...