Sours v. Pierce

• Decision Date: 24 October 1995
• Docket Number: No. 20132,20132
• Citation: 908 S.W.2d 863
• Parties: William Scott SOURS, Plaintiff-Appellant, v. William J. PIERCE, Sheriff, Jasper County, Missouri, and Jasper County Drug Task Force, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 863

908 S.W.2d 863

William Scott SOURS, Plaintiff-Appellant, v. William J. PIERCE, Sheriff, Jasper County, Missouri, and Jasper County Drug Task Force, Defendants-Respondents.

No. 20132.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 24, 1995.

William Scott Sours, pro se.

Jeffrey L. Groves, Matthew E. Turner, Shook, Hardy & Bacon, P.C., Kansas City, for respondents.

PARRISH, Judge.

William Scott Sours (plaintiff) appeals a summary judgment entered in a replevin action he brought against the sheriff of Jasper County, Missouri. By that action, plaintiff sought to recover possession of items taken from his residence by law enforcement personnel when he was arrested for possession of controlled substances and items seized the day after his arrest in the course of executing a search warrant. He also sought money damages. This court affirms.

Plaintiff's petition alleges that he was arrested at his residence in Jasper County October 28, 1993, by members of the Jasper County Drug Task Force. It alleges that $700, four audio speakers and a radio scanner were taken from his residence at the time of his arrest. It alleges that the next day, October 29, 1993, law enforcement officers returned to plaintiff's residence with a search warrant and seized other items of property listed on an affidavit attached to the petition.

A motion for summary judgment was filed, together with a legal memorandum explaining the grounds asserted for granting the motion. The memorandum included a copy of the search warrant that was executed the day following plaintiff's arrest. An affidavit of Sheriff Pierce relating to actions that resulted in the seizure of property at plaintiff's residence was also filed.

Plaintiff filed written objections to the motion for summary judgment. The trial court heard arguments on the motion and, after taking it under submission, granted summary judgment.

Plaintiff appears pro se. He is, nevertheless, required to adhere to the same standard with respect to the proceeding as a party represented by a licensed attorney. Schneller v. GEICO, 873 S.W.2d 679, 680 (Mo.App.1994); Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App.1993).

The requirements for appellate briefs are prescribed by Rule 84.04. "The brief for appellant shall contain: (1) A concise statement of the grounds on which jurisdiction of the review court is invoked; (2) A statement of the facts; (3) The points relied upon; and (4) An argument which shall substantially follow the order of 'Points Relied On.' " Rule 84.04(a).

Arguably, the jurisdictional statement in plaintiff's brief fails to state grounds from which this court's jurisdiction can be gleaned. It states only that the appeal is from an order of the Circuit Court of Jasper County entered March 1, 1995, granting a motion for summary judgment, and that a notice of appeal was filed March 20, 1995. That chronology is followed by the statement, "The jurisdiction of the Court of Appeals was pursuant to Article V, Sections 11 and 14 of the Constitution for the State of Missouri."

A statement of the chronological history of a proceeding does not suffice as a jurisdictional statement. In re Estate of Schell, 370 S.W.2d 816, 817-18 (Mo.App.1963). Respondents, however, have not challenged the sufficiency of the jurisdictional statement. By perusing the remainder of plaintiff's brief and the record on appeal, this court has determined that the subject matter of the appeal does not fall within the exclusive jurisdiction of the Supreme Court of Missouri; that it, therefore, is within this court's jurisdiction. See Mo. Const. art. V, § III.

Plaintiff's first point on appeal asserts the trial court erred in granting summary judgment because facts in addition to those in the affidavit filed in support of the motion for summary judgment "were not available but were forthcoming." The motion for summary judgment was filed January 17, 1995. Plaintiff filed a response to the motion February 14, 1995. No affidavit was attached to his response. The trial court heard argument February 27, 1995, and took the motion under advisement. On March 1, 1995, the trial court granted the motion and entered summary judgment.

Plaintiff claims information existed that was contrary to statements in the affidavit filed in support of the motion for summary judgment. In support of that contention, plaintiff includes a copy of an affidavit of a person he describes as a "police informant" in the argument portion of his appellant's brief. The date of the notary's acknowledgment on the affidavit is March 31, 1995.

Rule 74.04(c)(2) imposes the following requirements on parties responding to motions for summary judgment:

Within thirty days after a motion for summary judgment is served, the adverse party shall serve a response on all parties, and, if the adverse party is relying on affidavits, the response shall have attached thereto affidavits not previously filed.

"Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). An affidavit directed to a motion for summary judgment that is filed beyond the time prescribed by Rule 74.04(c) is inadequate and fails to preserve any dispute on a material fact. Oliver, Oliver & Waltz, P.C. v. Absher, 878 S.W.2d 75, 76 (Mo.App.1994); Uhle v. Sachs Electric, 831 S.W.2d 774, 777 (Mo.App.1992). Point I is denied.

Plaintiff's brief attempts to set forth six additional points on appeal. None of them comply with Rule 84.04(d). As such, they fail to preserve anything for appellate review. Estate of Goslee, 807 S.W.2d 552, 556 (Mo.App.1991).

"A point relied on must meet three requirements; (1) it must state the trial court's action or ruling about which the appellant complains; (2) it must state why the ruling was erroneous; (3) it must state what was before the trial court...