Thompson v. Flagstar Bank, Fsb, No. SD 29866.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Robert S. Barney
• Citation: 299 S.W.3d 311
• Parties: Timothy and Marcie THOMPSON, Appellants, v. FLAGSTAR BANK, FSB, et al., Respondents.
• Decision Date: 23 November 2009
• Docket Number: No. SD 29866.

299 S.W.3d 311 Timothy and Marcie THOMPSON, Appellants,
v.
FLAGSTAR BANK, FSB, et al., Respondents. No. SD 29866. Missouri Court of Appeals, Southern District, Division One. November 23, 2009.

[299 S.W.3d 313]

Timothy and Marcie Thompson, Nixa, pro se.

Nancy M. Wilson, South & Associates, P.C., Overland Park, KS, for respondent.

ROBERT S. BARNEY, Judge.

Timothy and Marcie Thompson ("Appellants") appeal the judgment of the trial court entered in favor of Flagstar Bank, FSB ("Flagstar"), South & Associates ("South"), Robert Marti, and Barbara Marti.¹ Due to briefing deficiencies, this Court is unable to address the merits of Appellants' claims and we dismiss the appeal.

At the outset it is important to note that Appellants appear before this Court pro se. "While [they are] fully entitled to proceed pro se, [they are] bound `by the same rules of procedure as those admitted to practice law and [are] entitled to no indulgence [they] would not have received if represented by counsel.'" Moran v. Mason, 236 S.W.3d 137, 139 (Mo. App.2007) (quoting Brumfield v. Div. of Empl. Sec., 54 S.W.3d 741, 742 (Mo.App. 2001)). "`This principal is not grounded in a lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.'" Id. (quoting State ex rel. Morgan ex rel. Div. of Child Support Enforcement v. Okoye, 141 S.W.3d 410, 411 (Mo. App.2004)). "As such, Appellant is required to substantially comply with the mandatory briefing requirements of Rule 84.04" as well as the other Missouri Rules of Court.² Id.

First, Appellants' brief does not contain "a table of cases (alphabetically arranged) ..." as required by Rule 84.04(a)(1). Second, Appellants' brief contains an "INDEX" as opposed to a "detailed table of contents, with page references ..." as mandated by Rule 84.04(a)(1). Third, Appellants' jurisdictional statement violates Rule 84.04(b), which requires that the jurisdictional statement in a brief "shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution whereon jurisdiction is sought to be predicated" and shall not contain "[b]are recitals that jurisdiction is invoked...." Id. Here, Appellants' entire jurisdictional statement reads: "This Court has jurisdiction over the underlying action wherein Christian County is within the territorial jurisdiction of the Southern

299 S.W.3d 314

District, [s]ection 477.060 Revised Statutes of Missouri, [s]ection 10 of the Missouri Constitution and Article 5 of the United States Constitution." This jurisdictional statement contains no facts regarding the nature or claims of the underlying case to indicate that jurisdiction is proper in this Court and merely concludes that jurisdiction is proper, violating the prohibition against conclusory statements of Rule 84.04(b). See White v. Darrington, 91 S.W.3d 718, 722 (Mo.App.2002).

Fourth, Appellants present this Court with a deficient statement of facts which violates Rule 84.04(c) in that it is not "a fair and concise statement of the facts relevant to the questions presented for determination without argument." The requirements of Rule 84.04(c) serve "`to define the scope of the controversy and afford the appellate court an immediate, accurate, complete, and unbiased understanding of the facts of the case.'" Murphy v. City Utilities of Springfield, 283 S.W.3d 767, 768 (Mo.App.2009) (quoting Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 562 (Mo.App.2001)). "If this [C]ourt is to adjudicate an appeal without becoming an advocate for the appellant, the appellant must define the scope of the controversy ... fairly and concisely...." Deloch v. Hughes, 896 S.W.2d 668, 670 (Mo.App.1995). "`It is not the function of the appellate court to serve as advocate for any party to an appeal.'" Low v. State Dept. of Corrections, 164 S.W.3d 566, 569 (Mo.App.2005) (quoting Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App.1999)).

Here, Appellants' statement of facts is unwieldy and difficult to discern; it contains numbered paragraphs which are often in no discernable factual order; it contains inappropriate argument and commentary on the evidence; it contains improper statutory and case law references; and it is certainly not "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). Further, Appellants' statement of facts violates Rule 84.04(i) which requires "[a]ll statements of fact and argument shall have specific page references to the legal file...." While there are several references to exhibits that were apparently before the trial court, there is not a single...