State ex rel. Hawley v. Allen

• Decision Date: 11 January 2018
• Docket Number: No. SD 34916,SD 34916
• Citation: 536 S.W.3d 380
• Parties: STATE of Missouri, EX REL. Attorney General Joshua D. HAWLEY, Plaintiff-Respondent, v. Calvin ALLEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

536 S.W.3d 380

STATE of Missouri, EX REL. Attorney General Joshua D. HAWLEY, Plaintiff-Respondent,

v.Calvin ALLEN, Defendant-Appellant.

No. SD 34916

Missouri Court of Appeals, Southern District, Division Two.

Filed: January 11, 2018

Appellant' pro se: Calvin Allen, of Springfield, Missouri.

Respondent'(s) Attorney: Joshua Hawley, Attorney General, and John W. Grantham, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., J.

Calvin Allen ("Allen"), pro se appellant, appeals the judgment of the trial court, in which the trial court sustained the State's "Motion for an Order to Show Cause and for Judgment of Civil Penalties Against Defendant Calvin Allen." The State asserts in its brief that Allen's appeal should be dismissed because of numerous Rule 84.04 violations.¹ We agree and dismiss Allen's appeal.

The current appeal is Allen's eleventh before this Court. Out of Allen's ten prior appeals, all² were dismissed—save one³ —due to Allen's non-compliance with the rules, procedures, and laws governing appellate review.

The deficiencies that led to the dismissal of many of Allen's prior appeals now appear in Allen's current brief. We note the most grievous of Allen's violations:

• Statement of Facts : 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 without argument. " (Emphasis added). In Allen's attempt at facts, apocryphally styled "Statement of Uncontroverted Facts," argument and legal conclusions are embedded in a rambling 21-page recitation of nearly the entire underlying hearing, violating Rule 84.04(c)'s "concise," "relevant," and "without argument" mandates. Some meager portions of the hearing escape Allen's recitation—namely, portions he apparently views as contrary to his defense at trial, thus violating Rule 84.04(c)'s "fair" mandate.

• Points Relied On : Rule 84.04(d) requires that each point relied on "be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].’ " None of Allen's five points relied on belie even a token effort at compliance with this mandatory "erred in/because/in that" formula.⁴ "Given that a template is specifically provided for in Rule 84.04(d)(1), appellants simply have no excuse for failing to submit adequate points relied on." Scott v. King , 510 S.W.3d 887, 892 (Mo.App. E.D. 2017). Further, Rule 84.04(d)(5) requires that "[i]mmediately following each ‘Point Relied On,’ the appellant ... shall include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies." Allen wholly fails to comply with this requirement.

• Argument Section : Rule 84.04(e) mandates that "[f]or each claim of error, the argument shall also include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review [based on preservation status]." Allen's brief makes cosmetic approaches at this requirement, but in substance, these efforts land well short of compliance.⁵

• Appendix : Rule 84.04(h) requires the submission of an appendix, which includes the judgment appealed from, "[t]he complete text of all statutes, ... [and] rules of court ... claimed to be controlling as to a point on appeal"; it allows the inclusion of certain other materials "pertinent to the issues" in the appendix, but the authorized record on appeal is the firm boundary of our consideration—materials cannot be shoehorned into the record via the appendix, and such attempts may be stricken by the reviewing court. State ex rel. Greitens v. Am. Tobacco Co. , 509 S.W.3d 726, 745 n.21 (Mo. banc 2017). Allen does not include the text of any statutes and rules in his appendix, despite the fact that his table of authorities (if relied on as an accurate tally) cites twenty of them. Allen's brief also attempts to rely on exhibits contained in his appendix, but not in the legal file. See , U.S. Bank v. Lewis , 326 S.W.3d 491, 495-96 & n.2 (Mo.App. S.D. 2010).

While we sympathize with the burden Allen faces as a pro se litigant, he has received prior admonitions from this Court as to the import and substance of the appellate rules and procedures at issue—Allen's current brief does not reflect acquiescence to these admonitions.⁶

Proverbial equality before the law depends on equal enforcement of our Missouri Court Rules, including Rule 84.04. See , Sullivan v. Holbrook , 211 Mo. 99, 109 S.W. 668, 670 (1908). The burden imposed on pro se litigants, who are held to the same standard as counsel in complying with Rule 84.04, is the self-same guarantor of equal treatment for pro se litigants in our courts. See , Carden v. CSM Foreclosure Trustee Corp , 479 S.W.3d 164, 165 (Mo.App. S.D. 2015).

The State requests that Allen's brief be dismissed for non-compliance with Rule 84.04. For the reasons discussed in this opinion, that request is granted. Appeal dismissed.

JEFFREY W. BATES, J.—Concur

DANIEL E. SCOTT, J.—Concur

1 All rule references are to Missouri Court Rules (2017).

2 See , Allen v. G & J Enterprise s , 856 S.W.2d 347 (Mo.App. S.D. 1993) (appeal dismissed on June 10, 1993, for lack of final judgment); McGee v. Allen , 929 S.W.2d 278 (Mo.App. S.D. 1996) (appeal dismissed on August 29, 1996, for untimely filing of notice of appeal); Keiner v. Allen , SD21727 (appeal dismissed on December 1, 1997, for failure to file record on appeal); Estate of Natalia Allen , SD25946 (appeal dismissed on March 19, 2004, for failure to perfect appeal); Hodge v. Ford , SD27248 (appeal dismissed in unpublished opinion on June 28, 2006, for lack of final judgment); Allen v. Director of Revenue , SD27371 (appeal dismissed on March 2, 2006, for failure to perfect appeal); State ex rel. Koster v. Allen , 298 S.W.3d 139 (Mo.App. S.D. 2009) (appeal dismissed on October 4, 2009, for failure to "substantially" comply with Rule 84.04); Allen v. Jones , SD30834 (appeal dismissed on November 3, 2010, for lack of jurisdiction—no appealable judgment); and Allen v. Jones , SD31011 (motion to file late notice of appeal denied on December 20, 2010). While acknowledging the possibility that there may...