Burgan v. Newman, No. ED 109137

CourtCourt of Appeal of Missouri (US)
Writing for the CourtColleen Dolan, P.J.
Citation618 S.W.3d 712
Docket NumberNo. ED 109137
Decision Date16 March 2021
Parties Bradley BURGAN, Appellant, v. Kenneth NEWMAN, et al., Respondents.

618 S.W.3d 712

Bradley BURGAN, Appellant,
v.
Kenneth NEWMAN, et al., Respondents.

No. ED 109137

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: March 16, 2021


Lawrence P. Kaplan, 101 S. Hanley Ste. 1310, St. Louis, MO 63105, For Appellant.

Gary R. Sarachan, 8182 Maryland Ave. 15th Floor, St. Louis, MO 63105, Sheila Greenbaum, 7701 Forsyth Blvd. 12th Floor, Clayton, MO 63105, For Respondents.

OPINION

Colleen Dolan, P.J.

Bradley Burgan ("Appellant") appeals the dismissal of his petition asserting a defamation claim against Kenneth D. Newman, Corina Newman, and Ted F. Frapolli ("Respondents"). Appellant raises three points on appeal. We dismiss Appellant's appeal for failure to comply with the appellate briefing standards of Missouri Supreme Court Rule 84.04.1

I. Discussion

"The briefing requirements of Rule 84.04 are mandatory, and the failure to substantially comply with Rule 84.04 preserves nothing for review." Interest of D.A.B. , 570 S.W.3d 606, 615 (Mo. App. E.D. 2019). While perfection is not required, compliance with appellate briefing rules is mandatory "to ensure that appellate courts do not become advocates by speculating on facts and arguments that have not been asserted." Pearson v. Keystone Temp. Assignment Group, Inc. , 588 S.W.3d 546, 550 (Mo. App. E.D. 2019) ; see also McGill v. Boeing Co. , 235 S.W.3d 575, 578 (Mo. App. E.D. 2007). Our Court has the discretion to review noncompliant briefs ex gratia rather than dismiss the appeal; however, we exercise this discretion only when "we can ascertain the gist of an appellant's arguments, notwithstanding minor shortcomings in briefing." Unifund CCR Partners v. Myers , 563 S.W.3d 740, 743 (Mo. App. E.D. 2018) ; see also Interest of D.A.B. , 570 S.W.3d at 615.

We decline to review Appellant's claims because his brief does not substantially comply with Rule 84.04 and we cannot address his appeal without impermissibly assuming the role of his advocate by sifting through the legal record, reconstructing the statement of facts, and crafting a

618 S.W.3d 715

legal argument on his behalf. See State ex rel. Hawley v. Robinson , 577 S.W.3d 823, 827 (Mo. App. E.D. 2019) ; Kim v. Won Il Kim , 443 S.W.3d 29, 31 (Mo. App. W.D. 2014).

First, " Rule 84.04(c) requires a fair and concise statement of the facts relevant to the questions presented for determination without argument." Duncan-Anderson v. Duncan , 321 S.W.3d 498, 499 (Mo. App. E.D. 2010) (quoting Rule 84.04(c) ). Appellant's statement of facts consists of a block quote from a letter referenced as "Exhibit A" and bullet points outlining "[t]he circumstances preceding Exhibit A." Appellant makes references without providing any context, leaving us to decipher their relevance to the issues he raises on appeal. He concludes his statement of facts by arguing that the "only reasonable explanation for the letter" was to defame Appellant. Appellant's statement of facts falls short of what Rule 84.04(c) requires and fails to afford our Court "an immediate, accurate, complete and unbiased understanding of the facts of the case." Washington v. Blackburn , 286 S.W.3d 818, 820 (Mo. App. E.D. 2009) (internal quotation marks and citations omitted). Also, his statement of facts fails to include "specific page...

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9 practice notes
  • Tolu v. Reid, ED109721
    • United States
    • Court of Appeal of Missouri (US)
    • December 28, 2021
    ...points relied on, we have elected, ex gratia, to review plainly discernible legal arguments raised in the points. See Burgan v. Newman, 618 S.W.3d 712, 714 (Mo. App. E.D. 2021) (holding that points on appeal that are not compliant with mandatory rules can be reviewed ex gratia when the &quo......
  • DLJ Mortg. Capital, Inc. v. Creative Client Recovery, Inc., No. ED 109090
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 2021
    ...advocate for the appellant by conducting its own research and crafting its own argument on behalf of the appellant. See Burgan v. Newman, 618 S.W.3d 712, 716 (Mo. App. E.D. 2021) (quoting Hamilton v. Archer, 545 S.W.3d 377, 381 (Mo. App. E.D. 2018) ) ("[T]he function of an appellate co......
  • Hale v. Burlington N. & Santa Fe Ry. Co., SD36912
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 2021
    ...sufficiently put the court and respondent on notice as to which specific ruling or action appellant is challenging. See Burgan v. Newman, 618 S.W.3d 712, 715 (Mo.App. 2021) ("The purpose of Rule 84.04(d) is to give notice to Respondents of the precise matters that must be contended wit......
  • Murphree v. Lakeshore Estates, LLC, No. ED 109644
    • United States
    • Court of Appeal of Missouri (US)
    • December 14, 2021
    ...must adhere to the rules of appellate procedure 636 S.W.3d 624 in order for this Court to review the appeal. See Burgan v. Newman , 618 S.W.3d 712, 714 (Mo. App. E.D. 2021) (internal citation omitted). "Failure to comply with the rules of appellate procedure is a proper ground for dism......
  • Request a trial to view additional results
9 cases
  • Tolu v. Reid, ED109721
    • United States
    • Court of Appeal of Missouri (US)
    • December 28, 2021
    ...points relied on, we have elected, ex gratia, to review plainly discernible legal arguments raised in the points. See Burgan v. Newman, 618 S.W.3d 712, 714 (Mo. App. E.D. 2021) (holding that points on appeal that are not compliant with mandatory rules can be reviewed ex gratia when the &quo......
  • DLJ Mortg. Capital, Inc. v. Creative Client Recovery, Inc., No. ED 109090
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 2021
    ...advocate for the appellant by conducting its own research and crafting its own argument on behalf of the appellant. See Burgan v. Newman, 618 S.W.3d 712, 716 (Mo. App. E.D. 2021) (quoting Hamilton v. Archer, 545 S.W.3d 377, 381 (Mo. App. E.D. 2018) ) ("[T]he function of an appellate co......
  • Hale v. Burlington N. & Santa Fe Ry. Co., SD36912
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 2021
    ...sufficiently put the court and respondent on notice as to which specific ruling or action appellant is challenging. See Burgan v. Newman, 618 S.W.3d 712, 715 (Mo.App. 2021) ("The purpose of Rule 84.04(d) is to give notice to Respondents of the precise matters that must be contended wit......
  • Murphree v. Lakeshore Estates, LLC, No. ED 109644
    • United States
    • Court of Appeal of Missouri (US)
    • December 14, 2021
    ...must adhere to the rules of appellate procedure 636 S.W.3d 624 in order for this Court to review the appeal. See Burgan v. Newman , 618 S.W.3d 712, 714 (Mo. App. E.D. 2021) (internal citation omitted). "Failure to comply with the rules of appellate procedure is a proper ground for dism......
  • Request a trial to view additional results

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