Kent v. Charlie Chicken, II, Inc., 70469

• Decision Date: 12 May 1998
• Docket Number: No. 70469,70469
• Parties: Harold J. KENT and Kim B. Nguyen, Plaintiffs/Respondents, v. CHARLIE CHICKEN, II, INC. and Michael A. Hutter and Eric J. Snyder, Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 513

972 S.W.2d 513

Harold J. KENT and Kim B. Nguyen, Plaintiffs/Respondents, v. CHARLIE CHICKEN, II, INC. and Michael A. Hutter and Eric J Snyder, Defendants/Appellants.

No. 70469.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 12, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 8, 1998.

Application for Transfer Denied

Aug. 25, 1998.

Eric J. Snyder, St. Louis, for appellants.

Steven M. Hamburg, Summers, Compton, Wells & Hamburg, St. Louis, for respondents.

Before CRANE, P.J., and RHODES RUSSELL and JAMES R. DOWD, JJ.

PER CURIAM.

Defendants, Charlie Chicken II, Inc., Michael Hutter, and Eric Snyder, appeal from the trial court's judgment in favor of plaintiffs, Harold Kent and his wife, Kim Nguyen, in a dispute arising out of defendant Hutter's sale of commercial real estate to plaintiffs. In their petition to obtain declaratory and injunctive relief, a statutory penalty for refusal to release a deed of trust, and quiet title, plaintiffs claimed that they had fully performed their obligations under an agreement to purchase real estate, a promissory note, and a deed of trust. Specifically, they sought a declaration that a $30,000 payment made to defendants prior to closing was part of the purchase price and that they had reasonably withheld $3,795.00 as a cure to repair the leaking roof when defendants failed to honor a roof warranty contained in the contract of sale.

The trial court made extensive findings of fact and entered judgment in plaintiffs' favor on Count I for declaratory judgment, declaring that the written agreements between the parties were in all respects valid and enforceable and that the plaintiffs had fully performed. By way of further relief, the court awarded plaintiffs judgment in the amount of $2,037.10, representing their deposit of $2,037.10 in excess of the amount that was then outstanding on the note and deed of trust into the registry of the court. The court also entered judgment for plaintiffs on Count III in the amount of 10% of the note ($13,000.00) and, after a hearing, awarded attorney's fees in the amount of $20,716.00. The court entered a supplemental judgment on Count IV quieting title in favor of plaintiffs. The court dismissed Count II without prejudice. The court also found against defendants on their counterclaim. Defendants appeal from these judgments. On appeal they have filed a 299 page legal file and a 712 page transcript. They also have filed a 93 page brief containing twenty-seven points of error and a 26 page reply brief, both in less than twelve point font. Because of multiple violations of Missouri Rules of Civil Procedure on defendants' part, we dismiss the appeal.

Defendants filed their original brief on October 28, 1997. Plaintiffs filed a motion to strike appellants' brief and to dismiss the appeal for deficiencies in the jurisdictional statement, the statement of facts, the points relied on, and the argument. On November 14, 1997 we sustained that motion and granted defendants 15 days to file a proper brief conforming to the rules. Defendants filed an amended brief on December 1, 1997 which was not substantially different from the one originally filed. On December 5, 1997 plaintiffs filed a second motion to strike the brief and to dismiss the appeal, which was taken with the case. On December 12, 1997 defendants filed a second amended brief. In their brief plaintiffs again requested that this brief be stricken and the appeal dismissed.

We sustain plaintiffs' motion to strike defendants' brief, and we dismiss the appeal. Defendants have failed to comply with Rule 84.04 after being given ample opportunity to do so. See Biggs v. Loida, 488 S.W.2d 932 (Mo.App.1972). See also Jones v. Jones, 819 S.W.2d 773 (Mo.App.1991). They also have failed to comply with Rules 81.18 and 81.12. These violations, as they pertain to each rule, are set out in the remainder of this opinion.

Rule 84.04(c)-Statement of Facts

Rule 84.04(c) requires that the statement of facts be a fair and concise statement of the facts relevant to the questions presented for determination without argument. A violation of Rule 84.04(c) constitutes grounds for dismissal of an appeal. Deloch v. Hughes, 896 S.W.2d 668, 670 (Mo.App.1995).

In this brief the statement of facts consists of three one-word headings, "Transaction", "Roof" and "Petition", each of which is followed by a numbered list of one-sentence statements followed by a reference to the transcript, legal file, or an exhibit. This is not a proper format for the statement of facts. See Schneller v. GEICO, 873 S.W.2d 679, 681 (Mo.App.1994).

The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Deloch, 896 S.W.2d at 670; Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo.App.1990). The statement of facts fails to do this. The numbered statements presume an understanding of the background and context of the case and of the parties. Standing alone they do not provide an immediate, accurate, complete and unbiased understanding of the facts of the case.

Further, facts relevant to the issues must be included. In the statement of facts many necessary facts relevant to the issues are omitted. To illustrate, as just one example, the first five points concern whether Eric Snyder is a proper party to the case. The only reference to Eric Snyder in the Statement of Facts is under the heading "Petition" and merely states that the petition alleged that Eric Snyder was identified in the deed of trust as trustee. There are no facts taken from the evidence from which a court could determine whether or not he was a proper party. While it is acceptable to add some factual detail to the argument section, particularly where it would be overlooked or out of context in the statement of facts, this is not that type of situation. Defendants' expansion of the facts in the argument portion of the brief is inadequate to cure the deficiency in his statement of facts. See Thompson, 786 S.W.2d at 892.

Failure to include, in the statement of facts, the facts upon which an appellant's claim of error is based fails to preserve the contention for appellate review. In re Marriage of Dombrowski, 873 S.W.2d 334, 335 (Mo.App.1994).

Rule 84.04(d)-Points Relied On

Rule 84.04(d) provides "[t]he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." Many of defendants' twenty-seven points relied on do not meet the requirement that points relied on be brief and concise. See Dewitt & Mitchell, 938 S.W.2d 305, 307 (Mo.App.1997). In particular these points do not follow the brief format set out in Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). Instead, plaintiffs begin each point with an abstract statement entitled "Point __". Under each of these statements are three separate paragraphs headed "Error", "Why" and "Wherein". This approach creates lengthy multi-sentence points, some over a page long, which do not clearly state the contention on appeal. See Thummel, 570 S.W.2d at 686.

In addition, the points should be addressed to actions of the trial court which an appellant claims are erroneous. Seven of defendants' twenty-seven points address the trial court's dismissal of Count II, which action was favorable to defendants and which they do not claim was erroneous.

Rule 84.04(e)-Argument

The text of the argument under each point is written in a manner which does not sufficiently advise the court of the contentions asserted or the merit thereof. The argument under each point consists of separately numbered paragraphs consisting of one or more sentences. Each paragraph sets out one or more separate propositions and no attempt is made to relate the matter from one paragraph to another into a cohesive argument. ¹ An argument should show how the principles of law and the facts of the case interact. State v. Jones, 786 S.W.2d 926, 928 (Mo.App.1990); Deloch, 896 S.W.2d at 671.

Many of the numbered paragraphs state conclusory propositions without linking them to specific testimony or evidence and without citing appropriate legal authority or explaining the reasons for the proposition. Some arguments have no legal authority at all. ² Failure to cite relevant authority supporting the point or to explain the failure to do so preserves nothing for review. State ex rel. Missouri Hwy. & Transp. Comm'n v. Jacob, 887 S.W.2d 661, 662 (Mo.App.1994). Sometimes the rationale or authority appears in a different separately numbered paragraph under the same or a different point, but there is no language to assist the reader in connecting or finding those paragraphs. It is not our duty or responsibility to spend judicial time searching through the argument portions of briefs in an attempt to interpret the thrust of counsel's contentions. Draper v. Aronowitz, 695 S.W.2d 923, 924 (Mo.App.1985).

Furthermore, many factual statements in support of defendants' argument are supported with the citation "See the entire record." Rule 84.04(h) requires all statements of fact to have "specific page references to the legal file or the transcript." The record consists of over 700 pages of transcript and almost 300 pages of legal file. For this court to search through a 1000 page record to find support for defendants' factual statements would require an inordinate amount of judicial time and resources. O'Dell v. State, 835 S.W.2d 548, 551 (Mo.App.1992). Such activity results in unfairness to parties with appeals pending who have observed the requirements of Rule 84.04. Id.

Rule 81.12(a) and (b)

The appeal is also dismissable on the ground that the record on appeal insufficiently complies with Rule 81.12(a) and (b) to allow review of the points asserted. Rule 81.12(a) provides that the record on appeal "shall contain all of the record, proceedings and...