Surgery Ctr. Partners, LLC v. Mondelez Int'l, Inc., ED 109776

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKelly C. Broniec, Judge
Citation647 S.W.3d 38
Parties SURGERY CENTER PARTNERS, LLC d/b/a Timberlake Surgery, Respondent, v. MONDELEZ INTERNATIONAL, INC., and Indemnity Insurance Company of North America, Appellants.
Docket NumberED 109776
Decision Date05 July 2022

647 S.W.3d 38

SURGERY CENTER PARTNERS, LLC d/b/a Timberlake Surgery, Respondent,
MONDELEZ INTERNATIONAL, INC., and Indemnity Insurance Company of North America, Appellants.

No. ED 109776

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: May 31, 2022
Motion to Modify Opinion Denied July 5, 2022

FOR APPELLANTS: Michael J. Schaller, Holtkamp, Liese, Schultz & Kafoury, P.C., 217 North 10th Street, Suite 400, St. Louis, Missouri 63101.

FOR RESPONDENT: Jack B. Spooner, Spooner Law, LLC, 34 North Brentwood Boulevard, Suite 210, St. Louis, Missouri 63105.

Kelly C. Broniec, Judge

I. Introduction

Mondelez International, Inc. and Indemnity Insurance Company of North America (collectively, "Appellants") appeal from a final award issued by the Labor and Industrial Relations Commission. Appellants bring two points on appeal, but both fail to substantially comply with Rule

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84.04.1 Surgery Center Partners, LLC, doing business as Timberlake Surgery Center ("Timberlake"), cross-appeals from the same final award, arguing that the Commission erred in denying its demand for prejudgment interest.

We dismiss Appellants’ appeal and affirm the Commission's final award as to Timberlake's cross-appeal.

II. Factual and Procedural Background

On July 12, 2013, a Mondelez employee suffered a work-related accident that left him with a torn left rotator cuff. On August 11, 2014, Indemnity Insurance Company, Mondelez's workers’ compensation insurance carrier, authorized surgery on the employee's rotator cuff. Timberlake then treated the employee and repaired his torn rotator cuff on September 24, 2014.

Timberlake charged $38,986.21 for the medical services performed on the employee. Appellants sent two checks to Timberlake for the services provided. Timberlake received the first check, in the amount of $5,552.18, on October 28, 2014; and the second check, in the amount of $3,147.24, on March 16, 2015. Timberlake made repeated demands for the remainder of the amount due from Appellants. However, Appellants never responded to Timberlake's demands or explicitly stated they disputed the remainder of the bill, so Timberlake filed an Application for Payment of Additional Reimbursement of Medical Fees with the Division of Workers’ Compensation on September 3, 2015. In doing so, Timberlake entered "TBD" in the section of the application asking for the "Date Notice of Dispute Received From Employer/Insurer."

The Division accepted the application, and an administrative law judge held a hearing on September 21, 2020, in which the parties submitted documents without live testimony. Then, on November 20, 2020, the administrative law judge issued an award with her findings of facts and conclusions of law on the seven issues left for her determination. She found: (1) Timberlake's charges were fair, reasonable, and permissible; (2) Timberlake is not entitled to an award of prejudgment interest; (3) Timberlake is not entitled to attorney's fees or costs; (4) the Division has jurisdiction and the absence of a date regarding the notice of the dispute does not deprive the Division of that jurisdiction; (5) Timberlake did not charge more than allowed under § 287.140.32 ; (6) Timberlake is not entitled to additional reimbursement; and (7) Appellants are not entitled to attorney's fees.

Both parties filed applications for review by the Labor and Industrial Relations Commission on December 7, 2020. On June 9, 2021, the Commission issued a supplemental opinion in which it affirmed and adopted the administrative law judge's findings, conclusions, decisions, and award.

This appeal follows.

III. Standard of Review

The Court of Appeals "reviews the Commission's decision to determine if it is ‘supported by competent and substantial evidence upon the whole record.’ " Lexow v. Boeing Co. , No. SC 99199, 643 S.W.3d 501, 504 (Mo. banc Mar. 15, 2022) (quoting Mo. Const. art. V, § 18 ). The Court will affirm the award unless: (1) the Commission acted without or beyond its powers; (2) the decision was fraudulently procured; (3) the Commission's findings of

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fact do not support the award; or (4) there was not sufficient competent evidence to support the award. § 287.495.1; Schoen v. Mid-Missouri Mental Health Ctr. , 597 S.W.3d 657, 659 (Mo. banc 2020). The Commission's findings of fact are binding and conclusive and we only examine questions of law, § 287.495.1; Annayeva v. SAB of TSD of City of St. Louis , 597 S.W.3d 196, 198 (Mo. banc 2020), which we review de novo , Schoen , 597 S.W.3d at 659. Questions of statutory interpretation are similarly reviewed de novo. Lexow , 643 S.W.3d at 504.

IV. Discussion

A. Appellants’ Points and Rule 84.04

Rule 84.04 provides the requirements for appellate briefs in Missouri. Its contents are straightforward and simple, and compliance is mandatory. Id. at 504.

Rule 84.04 is not merely designed to enforce hypertechnical procedures or to burden the parties on appeal; rather, "[c]ompliance with the briefing requirements is required, not only so the appellant may give notice of the precise matters at issue, but also so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant."

Hoock v. SLB Acquisition, LLC , 620 S.W.3d 292, 303 (Mo. App. E.D. 2021) (quoting Blanks v. Fluor Corp. , 450 S.W.3d 308, 324 n.1 (Mo. App. E.D. 2014) ). Despite seeking reversal of the Commission's final award on an alleged failure to follow the rules, and then stressing the importance of following rules during oral arguments, Appellants themselves fail to adequately follow Rule 84.04, thus preserving nothing for appellate review.

First and foremost, Appellants’ points relied on fail to comply with Rule 84.04(d). This subsection governs an appellant's points relied on and requires him or her, in an appeal from an administrative agency decision, to "(A) Identify the administrative ruling or action the appellant challenges; (B) State concisely the legal reasons for the appellant's claim of reversible error; and (C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(2). The rule itself even provides a template for how to structure a point relied on:

The point shall be in substantially the following form: "The [name of agency ] erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review ], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error ]."

Id. The rule also requires the use of separate points to challenge separate rulings or actions. Lexow , 643 S.W.3d at 505–06. In addition, the rule informs the appellant that "[a]bstract statements of law, standing alone, do not comply with this rule," Rule 84.04(d)(4), and directs him or her to "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," Rule 84.04(d)(5). Rule 84.04(d) is particularly important, as points relied on are vital to an appellant's brief. Lexow , 643 S.W.3d at 504. Points relied on function 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." Id. (quoting Wilkerson v. Prelutsky , 943 S.W.2d 643, 647 (Mo. banc 1997) ).

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Both of Appellants’ points relied on egregiously violate Rule 84.04(d). Point I, which does not follow the template provided by the rule, reads:


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