Maxwell v. Div. of Emp't Sec.

• Docket Number: WD85874
• Decision Date: 05 July 2023
• Parties: SHANNON MAXWELL, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

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SHANNON MAXWELL, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD85874

Court of Appeals of Missouri, Western District, First Division

July 5, 2023

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Mark D. Pfeiffer, Presiding Judge, Karen King Mitchell, Judge and W. Douglas Thomson, Judge

W DOUGLAS THOMSON, JUDGE

Shannon Maxwell appeals from the Labor and Industrial Relation Commission's (the "Commission") dismissal of her appeal from the denial of her request for unemployment benefits. Maxwell argues first that the Commission erred in determining that she left work voluntarily without good cause attributable to her work or employer. She also argues that the Commission erred in determining that Maxwell did not have a just reason to not appear at her scheduled hearing. Because Maxwell's brief fails to substantially comply with the briefing requirements of Rule 84.04,^[1] her appeal is dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

Maxwell worked at the Missouri Department of Social Services for approximately ten years and six months. In June 2022, Maxwell voluntarily resigned from her position as a Children's Service Supervisor. Shortly after resigning, Maxwell moved out of state and applied for unemployment benefits. A deputy for the Commission's Division of Employment Security denied Maxwell's request for benefits on July 29, 2022. The deputy determined that Maxwell resigned her position for personal reasons, not for reasons relating to her work or employer.

Maxwell appealed the deputy's determination. Maxwell thereafter received a packet of information from the Commission regarding a telephone hearing on her appeal. Maxwell received a "Notice of Telephone Hearing," that included the following instructions: "To Participate in the Telephone Hearing: YOU MUST CALL the toll-free number 800-471-7894 at the time of the hearing." Maxwell also received a document titled "Telephone Hearing Information," which stated in part that, "If you filed the appeal and do not participate in the hearing, your appeal will be dismissed."

The telephone hearing took place on October 6, 2022 and Maxwell did not appear. On October 7, 2022, the appeals tribunal issued its decision, finding that Maxwell "did not participate in the hearing to pursue the appeal." The tribunal dismissed Maxwell's appeal.

Maxwell authored a letter on October 7, 2022 requesting a new hearing and outlining her reasons for not appearing at the first hearing. Maxwell stated that she incorrectly believed that someone involved in the hearing would be contacting her and that she had been battling the flu and was "out of sort[s]."

After reviewing Maxwell's letter, the Commission issued an order affirming the dismissal of Maxwell's appeal. The Commission determined that "[Maxwell's] allegations if true, will not support a finding of good cause for [Maxwell's] failure to participate in the scheduled hearing."

This appeal follows.

II. Rule 84.04 Briefing Deficiencies

Numerous deficiencies in violation of Rule 84.04 are contained within Maxwell's brief. As a result, we are unable to reach the merits of this appeal.

Maxwell appeals pro se. Pro se appellants are held "to the same procedural rules as attorneys; we do not grant them preferential treatment regarding compliance with those rules." Wallace v. Frazier, 546 S.W.3d 624, 626 (Mo. App. W.D. 2018).

The importance of adhering to briefing requirements has been explained as follows:

When [parties] fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role. In addition to being inherently unfair to the other party to the appeal, it is unfair to parties in other cases awaiting disposition because it takes from them appellate time and resources which should be devoted to expeditious resolution of their appeals.

Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022) (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). Further,

"[c]ompliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." "An appellant's failure to substantially comply with Rule 84.04 preserves nothing for our review and constitutes grounds for dismissal of the appeal." "This is particularly true where, as here, we cannot competently rule on the merits of [the Appellants'] argument without first reconstructing the facts . . . and then refining and supplementing [their] points and legal argument."

Sharp v. All-N-One Plumbing, 612 S.W.3d 240, 244 (Mo. App. W.D. 2020) (second and third alterations in original) (internal citations omitted) (internal quotations omitted) (quoting Wallace v. Frazier, 546 S.W.3d 624, 626 (Mo. App. W.D. 2018)).

"Although this Court prefers to reach the merits of a case, excusing technical deficiencies in a brief, it will not consider a brief 'so deficient that it fails to give notice to this Court and to the other parties as to the issue presented on appeal.'" Lexow, 643 S.W.3d at 505 (quoting J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo. banc 1998)). This is because "Rule 84.04 is not merely an exhortation from a judicial catechism nor is it a suggestion of legal etiquette." Shockley v. State, 579 S.W.3d 881, 917 n.9 (Mo. banc 2019) (citation omitted). Indeed, as the Missouri Supreme Court has recently reminded us, "[t]he appellate courts' continued reiteration of the importance of the briefing rules without enforcing any consequence 'implicitly condones continued violations and undermines the mandatory nature of the rules.'" State v. Minor, 648 S.W.3d 721, 728-29 (Mo. banc 2022) (quoting Alpert v. State, 543 S.W.3d 589, 601 (Mo. banc 2018) (Fisher, J., dissenting)).

We begin by addressing the deficiencies found in Maxwell's statement of facts.

A. Statement of Facts

Maxwell's statement of facts is deficient. In relevant part, Rule 84.04(c) requires that "[t]he statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination" and "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits." "'The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.'" Acton v. Rahn, 611 S.W.3d 897, 901 (Mo. App. W.D. 2020) (quoting Lattimer v. Clark, 412 S.W.3d 420, 422 (Mo. App. W.D. 2013)). "'Failure to substantially comply with Rule 84.04(c) preserves nothing for review.'" Sharp, 612 S.W.3d at 245 (quoting Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 217 (Mo. App. S.D. 1999)).

Maxwell's statement of facts fails to include all of the relevant facts necessary for us to determine her appeal. Maxwell's statement of facts is but two short paragraphs and does not include any information about notices she received regarding hearings before the appeals tribunal and any instructions that accompanied such notices, her responses to same, or why she did not appear. Instead, Maxwell's statement of facts focuses on her relocation to Arkansas after she left her employment:

In June 2022, Maxwell relocated to Arkansas to be close to her ailing father who is 96 years of age. Upon moving to AR, Maxwell had applied for employment in the arear [sic] of relocation and was told by several employers that they would be hiring the next fiscal year[,] which would have been June. (Tr2). Maxwell was able to maintain income with the Department until July 2022 in which Maxwell applied for unemployment assistance. (Tr3). In that time, Maxwell registered with the Arkansas Division of Workforce Services to assist with obtaining employment as well as completing online searches and phone contact.

These four sentences comprise 80% of the sentences in Maxwell's statement of facts. And, few if any of these facts are relevant to determining Maxwell's arguments on appeal. "'It is not the function of the appellate court to search the record to discover the facts that substantiate a point on appeal.'" Sharp, 612 S.W.3d at 24 (quoting Jimmy Jones Excavation, Inc. v. JDC Structural Concrete, LLC, 404 S.W.3d 922, 924 (Mo. App. S.D. 2013)). Such a "failure to provide a fair and concise statement of facts is sufficient basis to dismiss an appeal." Acton, 611 S.W.3d at 901 (citation omitted).^[2]

B. Points Relied On

The Points Relied On are an integral component of an Appellant's brief. "'The function of [points relied on] [are] to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.'" Minor, 648 S.W.3d at 727 (first alteration in original) (quoting Lexow, 643 S.W.3d at 505 (Fisher, J., dissenting)). "A deficient point relied on requires the respondent and appellate court to search the remainder of the brief to discern the appellant's assertion and, beyond causing a waste of resources, risks the appellant's argument being understood or framed in an unintended manner." Lexow, 643 S.W.3d at 505 (citation omitted).

Rule 84.04(d)(2) is clear on the requirements for a point relied on in this case:

(2) Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:

(A) Identify the administrative ruling or action

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