Carmen v. Olsen, No. ED 108505

CourtCourt of Appeal of Missouri (US)
Writing for the CourtColleen Dolan, P.J.
Citation611 S.W.3d 368
Parties Charles CARMEN, Appellant, v. Col. Eric T. OLSEN, et al., Respondents.
Decision Date20 October 2020
Docket NumberNo. ED 108505

611 S.W.3d 368

Charles CARMEN, Appellant,
v.
Col. Eric T. OLSEN, et al., Respondents.

No. ED 108505

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: October 20, 2020


Andrew J. Sartorius, 30 E. High St. Ste. B, Jefferson City, MO 65101, For Appellant.

Mary D. Morris, P.O. Box 861, St. Louis, MO 63188, For Respondent Olson.

Lopa M. Blumenthal, 1414 Market St. Room 401, St. Louis, MO 63101, For Respondent Gardner.

Raymond B. Flojo, 915 Olive St. Room 773, St. Louis, MO 63103, For Respondent Hayden.

OPINION

Colleen Dolan, P.J.

Charles Carmen ("Carmen") appeals the judgment of the trial court denying his petition for removal from the sex offender registry. In his sole point on appeal, Carmen argues the trial court erred in concluding that, pursuant to § 589.401, it did not have the authority to remove Carmen from the sex offender registry because the "interpretation relied on is in violation of the open access to courts provision of the Missouri Constitution, violates the rules of [lenity], and is inconsistent with the cannons [sic] of statutory interpretation."1

Carmen's failure to comply with the appellate briefing standards of Missouri Supreme Court Rule 84.04 preserves nothing for our review; therefore, we dismiss this appeal.2

I. Discussion

Rule 84.04 sets forth the requirements for appellate briefing. Bruce v. City of Farmington , 551 S.W.3d 65, 66 (Mo. App. E.D. 2018). Compliance with Rule 84.04 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). Our Court prefers to decide cases on the merits when possible and, despite an appellant's failure to comply with Rule 84.04, we may exercise our discretion to review an appeal ex gratia when the failure does not substantially prevent meaningful review.

611 S.W.3d 371

McGuire v. Edwards , 571 S.W.3d 661, 667–68 (Mo. App. E.D. 2019). "However, if the brief is so deficient that we cannot competently rule on the merits without first reconstructing the facts and supplementing the appellant's legal arguments, then nothing is preserved for review and we must dismiss the appeal." Unifund CCR Partners v. Myers , 563 S.W.3d 740, 743 (Mo. App. E.D. 2018).

Carmen's appellate brief violates Rule 84.04 in multiple respects, and we cannot reach the merits of this appeal without becoming Carmen's advocate by searching the record for the relevant facts of the case and crafting a legal argument on his behalf. See Porter v. Santander Consumer USA, Inc. , 590 S.W.3d 356, 357–58 (Mo. App. E.D. 2019).

First, under Rule 84.04(c), an appellant's brief must contain "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Carmen's statement of facts fails to detail the basic factual background necessary to resolve his claim on appeal; instead, he only provides six numbered paragraphs consisting of a short sentence, and his statement of facts is supported by reference to the trial court's judgment rather than to "specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits[,]" as required by Rule 84.04(c). Ultimately, Carmen fails to provide "an immediate, accurate, complete and unbiased understanding of the facts of the case." Hamilton v. Archer , 545 S.W.3d 377, 379 (Mo. App. E.D. 2018) (quoting Kuenz v. Walker , 244 S.W.3d 191, 193 (Mo. App. E.D. 2007) ).

Second, Carmen fails to comply with Rule 84.04(d)(1), which provides that each Point Relied On must: "(A) Identify the trial court ruling or action that the appellant challenges; (B) State concisely the legal reasons for the appellant's claim of reversible error; and (C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." This rule is not a judicial word game or a matter of hypertechnicality, rather it serves to notify the opposing party of the precise matters under contention and inform our Court of the issues presented for review. Scott v. King , 510 S.W.3d 887, 892 (Mo. App. E.D. 2017) ; McGuire , 571 S.W.3d at 667. Here, Carmen simply asserts the trial court erred in its interpretation of § 589.401 and lists different...

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3 practice notes
  • Williams v. Zellers, No. ED 108434
    • United States
    • Court of Appeal of Missouri (US)
    • October 20, 2020
    ...the trial court erred in determining that Best was served on June 17, 2019; erred in finding that Best defaulted when he did not file an 611 S.W.3d 368 answer within 30 days after June 17th; and erred in improperly entering a default judgment against Best. Accordingly, we reverse the trial ......
  • Acol v. Travers Autoplex & RV, Inc., No. ED 108917
    • United States
    • Court of Appeal of Missouri (US)
    • October 19, 2021
    ...This Court cannot act as an advocate for the parties and must carefully safeguard its role as a neutral adjudicator. Carmen v. Olsen , 611 S.W.3d 368, 372 (Mo. App. E.D. 2020). In addition to the preservation issues discussed above, Appellants’ brief violates the Missouri Supreme Court's br......
  • Murphree v. Lakeshore Estates, LLC, No. ED 109644
    • United States
    • Court of Appeal of Missouri (US)
    • December 14, 2021
    ...merits without "supplementing the appellant's legal arguments," then nothing has been preserved for review. Carmen v. Olsen , 611 S.W.3d 368, 371 (Mo. App. E.D. 2020). Here, numerous deficiencies in Appellants’ brief make it impossible for this Court to meaningfully review the cas......
3 cases
  • Williams v. Zellers, No. ED 108434
    • United States
    • Court of Appeal of Missouri (US)
    • October 20, 2020
    ...the trial court erred in determining that Best was served on June 17, 2019; erred in finding that Best defaulted when he did not file an 611 S.W.3d 368 answer within 30 days after June 17th; and erred in improperly entering a default judgment against Best. Accordingly, we reverse the trial ......
  • Acol v. Travers Autoplex & RV, Inc., No. ED 108917
    • United States
    • Court of Appeal of Missouri (US)
    • October 19, 2021
    ...This Court cannot act as an advocate for the parties and must carefully safeguard its role as a neutral adjudicator. Carmen v. Olsen , 611 S.W.3d 368, 372 (Mo. App. E.D. 2020). In addition to the preservation issues discussed above, Appellants’ brief violates the Missouri Supreme Court's br......
  • Murphree v. Lakeshore Estates, LLC, No. ED 109644
    • United States
    • Court of Appeal of Missouri (US)
    • December 14, 2021
    ...merits without "supplementing the appellant's legal arguments," then nothing has been preserved for review. Carmen v. Olsen , 611 S.W.3d 368, 371 (Mo. App. E.D. 2020). Here, numerous deficiencies in Appellants’ brief make it impossible for this Court to meaningfully review the cas......

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