In re Allen, No. ED 108484

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMICHAEL E. GARDNER, Judge
Citation615 S.W.3d 851
Parties In the ESTATE OF: John Fingal ALLEN, III a/k/a Jack F. Allen.
Docket NumberNo. ED 108484
Decision Date22 December 2020

615 S.W.3d 851

In the ESTATE OF: John Fingal ALLEN, III a/k/a Jack F. Allen.

No. ED 108484

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: December 22, 2020


For Appellant: Stephen C. Banton, 16024 Manchester Rd., Ellisville, MO 63011.

For Respondent David C. Allen: Robert J. Selsor, 100 S. Fourth St., Ste. 1000, St. Louis, MO 63102.

For Respondent Central Trust Co.: Michael W. Bartolacci, One U.S. Bank Plaza, St. Louis, MO 63101.

MICHAEL E. GARDNER, Judge

Yvonne Allen ("Appellant") appeals three probate orders relating to the administration of the estate of John Fingal Allen, III. Because Appellant's failure to comply with the appellate briefing requirements of Rule 84.04 preserves nothing for our review, we dismiss the appeal.1

Discussion

"Rule 84.04 sets forth mandatory rules for appellate briefing." Wong v. Wong , 391 S.W.3d 917, 918 (Mo. App. E.D. 2013). Compliance with those rules is necessary "to ensure that appellate courts do not become advocates by inferring facts and arguments that the appellant failed to assert." City of Perryville v. Brewer , 376 S.W.3d 691, 693 (Mo. App. E.D. 2012). We prefer to decide cases on the merits when possible and may exercise our discretion to review an appeal ex gratia when an appellant's failure to comply with Rule 84.04 does not substantially prevent meaningful review. McGuire v. Edwards , 571 S.W.3d 661, 667-68 (Mo. App. E.D. 2019). But "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).

Appellant's third amended brief fails to comply with Rule 84.04 in several respects, and we cannot reach the merits of this appeal without acting as her advocate by searching the record for the relevant facts of the case and developing a legal argument on her behalf. See Porter v. Santander Consumer USA, Inc. , 590 S.W.3d 356, 357-58 (Mo. App. E.D. 2019).

First, Appellant's statement of facts fails to comply with Rule 84.04(c), which requires a brief to include "a fair and concise statement of the facts relevant to the questions presented for determination without argument" and requires "specific page references to the relevant

615 S.W.3d 854

portion of the record on appeal." "The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case." Kent v. Charlie Chicken, II, Inc. , 972 S.W.2d 513, 515 (Mo. App. E.D. 1998). Appellant's statement of facts is deficient because it contains inadequate references to the record to support its assertions and omits relevant facts necessary to support Appellant's claims on appeal. There are no references to the transcripts anywhere in the statement of facts, and seven factual assertions have no references to the record at all. The statement of facts...

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2 practice notes
  • Schultz v. Bank of Am. Merrill Lynch Credit Corp., ED 109959
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 2022
    ...that appellate courts do not become advocates by inferring facts and arguments that the appellant failed to assert.'" Estate of Allen, 615 S.W.3d 851, 853 (Mo. App. E.D. 2020) (internal quotation omitted). We prefer to decide an appeal on the merits "where disposition is not hampered by rul......
  • Krysl v. Treasurer of Mo., No. ED 108958
    • United States
    • Court of Appeal of Missouri (US)
    • December 22, 2020
    ...award reinstating benefits awarded by the ALJ to consider the Fund's challenge to the permanency of Claimant's preexisting disability 615 S.W.3d 851 under section 287.220.2, we do not address the Fund's third point. 6 Point III is denied. Conclusion The Commission did not misinterpret this ......
2 cases
  • Schultz v. Bank of Am. Merrill Lynch Credit Corp., ED 109959
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 2022
    ...that appellate courts do not become advocates by inferring facts and arguments that the appellant failed to assert.'" Estate of Allen, 615 S.W.3d 851, 853 (Mo. App. E.D. 2020) (internal quotation omitted). We prefer to decide an appeal on the merits "where disposition is not hampered by rul......
  • Krysl v. Treasurer of Mo., No. ED 108958
    • United States
    • Court of Appeal of Missouri (US)
    • December 22, 2020
    ...award reinstating benefits awarded by the ALJ to consider the Fund's challenge to the permanency of Claimant's preexisting disability 615 S.W.3d 851 under section 287.220.2, we do not address the Fund's third point. 6 Point III is denied. Conclusion The Commission did not misinterpret this ......

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