Carden v. Missouri Intergov. Risk Managem.

• Decision Date: 15 July 2008
• Docket Number: No. 28890.,28890.
• Citation: 258 S.W.3d 547
• Parties: Richard Alan CARDEN, Plaintiff-Appellant, v. MISSOURI INTERGOVERNMENTAL RISK MANAGEMENT ASSOCIATION, and Genesis Insurance Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

258 S.W.3d 547

Richard Alan CARDEN, Plaintiff-Appellant, v. MISSOURI INTERGOVERNMENTAL RISK MANAGEMENT ASSOCIATION, and Genesis Insurance Company, Defendants-Respondents.

No. 28890.

Missouri Court of Appeals, Southern District, Division Two.

July 15, 2008.

Richard Alan Carden, pro se.

David P. Bub and Kenneth R. Goleaner, Brown & James, P.C., St. Louis, MO, for respondent.

GARY W. LYNCH, Chief Judge.

Richard Alan Carden ("Appellant") appeals the trial court's dismissal without prejudice of his petition for declaratory judgment against Missouri Intergovernmental Risk Management Association ("MIRMA") and Genesis Insurance Company ("Genesis") (collectively "Respondents"). Respondents filed motions to strike Appellant's brief and dismiss the appeal for failure to comply with Rule 84.04 and sought sanctions for frivolous appeal under Rule 84.19.¹ We dismiss the appeal and impose sanctions.

Procedural Background

Appellant filed a petition for declaratory judgment in the Circuit Court of Phelps County under sections 527.010-527.130² and Rule 87, naming Respondents as defendants. In that petition, Appellant initially advised the court that "he is Pro Se in this action. As such he is entitled to all the empowerment and protections of the Court as though he were a Bar Attorney." The factual allegations in the petition consist of the following, verbatim:

Point 1. — [MIRMA] is an insurance entity licensed and supervised by the Missouri State Department of Insurance. (See Exhibit 1, pgs 1-18)[³] Point 2. — MIRMA is the Insurer for the City of Rolla MO. (See Exhibit 2, pgs 1-31)[⁴]

Point 3. — MIRMA has a liability capacity of 1M,(one million dollars) within its policy.

Point 4. — Genesis Insurance Co. is the Re-Insurer that has excess liability coverage, a.k.a. Back End of 1.5m,(one million five hundred thousand dollars) (See Exhibit 3, Pg 1)[⁵]

Point 5. — On June 13, 2007 MIRMA acknowledged that the Plaintiff had a legitimate Claim against the Insured, The City of Rolla MO. MIRMA then issued a formal Claim No. 59266. (See Exhibit 4, Pg1)[⁶]

Point 6. — On June 17, 2007 Plaintiff filed with MIRMA a formal demand for Claim Settlement as set forth in the Missouri State Department Of Insurance. (See Exhibit 5, Pgs 1, 2)[⁷] Point 7. — MIRMA or Genesis Insurance have not made any attempt to satisfy this legitimate Claim. They have instead filed frivolous pleadings to frustrate the Plaintiffs Civil Action which is directed at the City of Rolla and seeks to collect damages for which MIRMA and Genesis have already acknowledged they are responsible for.

Point 8. — MIRMA attempts to justify this action by claiming abstract policy language not allowed under the law.

These factual allegations are followed by four paragraphs of legal conclusions and abstract statements of law with case citations. The next and concluding paragraph of the petition states: "The Plaintiff has provided sufficient basis under the applicable laws for Declatory [sic] Judgement [sic]."

Respondents filed a motion to dismiss for failure to state a cause of action for which relief could be granted and a memorandum of law in support of that motion. In these filings, Respondents laid out their legal position with citations to relevant legal authority that: (1) Appellant lacked any legal standing to bring a declaratory judgment action related to the contractual rights between the City of Rolla and the Respondents because Appellant was not a party to those contracts; and (2) Appellant's action impermissibly sought "to file a direct action against insurance carriers without first having obtained a Judgment of liability against Rolla[.]"

Appellant then filed a "Memorandum of Support for Declatory [sic] Judgement [sic]." However, nothing in this filing addressed Appellant's standing to bring this action, his attempt to bring a direct action without first obtaining a judgment against the City of Rolla, or responding to the legal authority supporting these issues, as alleged and cited in Respondents' motion to dismiss and memorandum in support.

The trial court entered judgment dismissing Appellant's petition without prejudice, and this appeal timely followed. The initial tender of Appellant's brief in this court was rejected for filing because it failed to comply with court rules. The second brief submitted by Appellant was filed as presented. Before Respondents' brief was initially due to be filed, Respondents filed a motion for extension of time within which to file their brief. This court granted Respondents a twenty-day extension.

Before the expiration of the extended period within which Respondents' brief was due to be filed, Respondents filed a "Motion to Strike Appellant's Brief and Dismiss Appeal" alleging that Appellant's brief was "significantly in noncompliance with Rule 84.04" and this "noncompliance has hindered Respondents' ability to prepare and file its Respondents' brief." Respondents specifically alleged in their motion that: (1) Appellant's brief violated Rule 84.04(a) because it did not contain a table of authorities and noted that "no cases are cited in appellant's entire brief"; (2) Appellant's brief violated Rule 84.04(a) because it did not contain a statement of facts as required; (3) Appellant's brief violated Rule 84.04(b) in that its jurisdictional statement was defective; (4) Appellant's brief violated Rule 84.04(d) in that the points relied on do not identify the trial court ruling or action that is being challenged as required by Rule 84.04(d)(1)(A), do not list any legal reasons why appellant claims the trial court committed reversible error as required by Rule 84.04(d)(1)(B), do not follow the format as required by Rule 84.04(d), and are not followed by a list of the cases or authority upon which Appellant principally relies for that point as required by Rule 84.04(d)(5); and (5) Appellant's brief violates Rule 84.04(e) because the argument portion of the brief does not follow the order of the points relied on portion, does not restate the point relied on immediately preceding the argument related to that point, and contains no legal argument or analysis in that it does not identify any specific reversible error allegedly committed by the trial court, does not contain any citations to the record on appeal and does not contain any citations to relevant legal authority. Following the listing of these specific deficiencies, Respondents then offered suggestions supported with citations to relevant legal authorities why compliance with Rule 84.04 is mandatory and how Appellant's failure to comply with that rule had hampered their ability to file a Respondent's brief.

Appellant's response to Respondents' motion to strike brief and dismiss appeal alleged that Respondents' attorney had violated Rule 4-3.3 in that he had sought an extension of time to file Respondents' brief, but instead had filed the motion to strike brief and dismiss the appeal in a "willful act to mislead the Court in an attempt to Gain [sic] advantage in the proceedings." Appellant failed to respond in any manner to any of the substantive issues related to the deficiencies in his brief as raised by the Respondents in their motion.

Simultaneously with the filing of their motion to strike brief and dismiss appeal, Respondents also filed a "Motion for Damages/Sanctions Pursuant to Rule 84.19" seeking damages of between $5,000 and $7,000 for Appellant's frivolous appeal due to Appellant's failure to cite any relevant legal authority supporting his standing to bring this action or any legal theory supporting a direct action against an insurer in the absence of a judgment against the insured. Appellant filed no response to this motion. This motion and the Respondents' motion to strike brief and dismiss appeal were ordered to be taken with the case. Respondents' brief was filed a few days later.

Appellant filed a reply brief but failed to address any of the issues raised by Respondents in their motion to strike brief and dismiss appeal and their motion for sanctions.

Appellant's Self Representation

Appellant appeals pro se. While pro se appellants have the right to appear without counsel, and we acknowledge the difficulties appellants encounter in proceeding pro se, "the same rules that apply to a party represented by an attorney are also applicable to a pro se litigant." Bishop v. Metro Restoration Servs., Inc., 209 S.W.3d 43, 45-46 (Mo.App.2006). Appellant acknowledges his understanding of this concept in his petition wherein he states that: "he is entitled to all the empowerment and protections of the Court as though he were a Bar Attorney." The only "empowerment" a litigant has in court, whether an attorney or not, is that granted by the rules. Likewise, the only "protections" a litigant has in court, whether an attorney or not, are those provided by the rules. If we did not fairly and impartially apply the rules to all litigants, regardless of their status as an unrepresented party, represented party or attorney, we would be abdicating the rule of law. See id.

Appellant's Brief is Deficient

"The function of an appellant's brief is to explain to the court why, despite the evidence seemingly favorable to the respondent, the law requires that appellant must prevail." Hoer v. Small, 1 S.W.3d 569, 571 (Mo.App.1999). Rule 84.04 sets forth the requirements for an appellant's brief. "There is both sound policy and purpose for Rule 84.04." Amparan v. Martinez, 862 S.W.2d 497, 499 (Mo.App. 1993). Compliance is required "in order that appellant may give notice to the party opponent of the precise matters which must be contended with and answered." Id. "An appellant's brief which is so deficient as to require respondent to guess at the nature and scope of claimed errors in an effort to respond creates difficulty for the respondent[,]" as well as for the appellate court. Id. Further, failure "to comply with procedural rules also creates the possibility that the...