Gruhala v. Lacy, No. 38068

• Court: Missouri Court of Appeals
• Writing for the Court: HERBERT LASKY; GUNN, P. J., WEIER and KELLY, JJ., and ROBERT G. J. HOESTER
• Citation: 559 S.W.2d 286
• Parties: Eula GRUHALA, Plaintiff-Respondent. v. Bee LACY, D/b/a Mineral Area Realty, Defendant-Appellant. . Louis District, Division Three
• Decision Date: 08 November 1977
• Docket Number: No. 38068

Page 286

559 S.W.2d 286 Eula GRUHALA, Plaintiff-Respondent.
v.
Bee LACY, D/b/a Mineral Area Realty, Defendant-Appellant. No. 38068. Missouri Court of Appeals, St. Louis District, Division Three. Nov. 8, 1977.

Page 287

Colson & Wagner, David L. Colson, Farmington, for defendant-appellant.

Charles W. Medley, Farmington, for plaintiff-respondent.

HERBERT LASKY, Special Judge.

This appeal arises from a suit for breach of contract predicated upon the employer's refusal to pay her employee real estate commissions claimed due and upon the employer's alleged interference with her employee's performance of contractual duties. The jury returned a verdict for plaintiff awarding $6,370.50 in damages and interest. Defendant appeals from this judgment. We affirm.

Plaintiff was employed by defendant, a real estate broker, doing business as Mineral Area Realty. Under the terms of the employment agreement plaintiff, a licensed real estate agent, was to receive 25% of the commission earned by the realty company for the sale of any property upon which she had procured a listing and an additional 25% if she was responsible for the sale. Plaintiff claimed at trial that she was entitled to a listing and a sales commission on two parcels of property which shall be referred to as the Key and Morgan properties. Plaintiff further claimed that defendant usurped her opportunity to negotiate with a prospect, whom she had developed, for the sale of a third parcel of land which shall be referred to as the Smith property. The jury found for plaintiff on all three counts.

With respect to the Key and Morgan transactions defendant's allegations of error on appeal concern only the wording of the verdict directing instructions and not the factual basis for the jury's finding. Further recitation of the specific facts surrounding these transactions is unnecessary.

Defendant in the points relied on section of her brief has raised numerous allegations of error regarding the verdict directing instructions. The majority of these points, however, are wholly inadequate as they are not in compliance with Rule 84.04(d) V.A.M.R. Most are no more than abstract statements of law which fail to state concisely wherein and why the instructions are erroneous. As such they preserve nothing for appellate review. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976); Barber v. M. F. A. Milling Co., 536 S.W.2d 208 (Mo.App.1976); Speicher v. Dunn, 530 S.W.2d 45 (Mo.App.1975). This court has no duty to seine through either the argument portion of appellant's brief or the transcript to ascertain the "wherein and why" of the claimed error. Bell v. Bell, 538 S.W.2d 733 (Mo.App.1976); Cole v. Cole, 516 S.W.2d 518 (Mo.App.1974). "While other violations of briefing rules sometimes can be easily overlooked, defective points relied on cannot. More precision is required in the area because reviewing courts want to be sure they are deciding the case on the issue the appellant is trying to raise." Weier & Fairbanks, Why Write a Defective Brief? Give Your Client a Chance on Appeal, 33 J.Mo.Bar 79, 88 (1977). When counsel fails to point out clearly and specifically the focus of his complaint, he abrogates his duty as advocate and thrusts that responsibility upon the court. It is not fair to the opposing party for us to accept such responsibility. The following statement of Judge Lamm continues to be apposite:

"The rules of appellate practice in hand are simple and plain. They fill no office

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of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it the very ones it should not injure."

Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908).

Though we decline to rule on the merits of the majority of defendant's claims of error we will...