Vodicka v. Upjohn Co.

• Decision Date: 04 January 1994
• Docket Number: No. 17851,17851
• Citation: 869 S.W.2d 258
• Parties: Edward A. VODICKA and Shirley Vodicka, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 258

869 S.W.2d 258

Edward A. VODICKA and Shirley Vodicka, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Defendant-Respondent.

No. 17851.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 4, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 21, 1994.

Application to Transfer Denied Feb. 22, 1994.

Kevin D. Meyers, Kansas City, for plaintiffs-appellants.

John W. Cowden, Phillip C. Rouse, Baker, Sterchi & Cowden, Kansas City, R. Lynn Myers, Springfield, for defendant-respondent.

PARRISH, Chief Judge.

Edward A. Vodicka sought damages for personal injuries that he alleged were sustained from inhaling fumes from a chemical product manufactured and sold by The Upjohn Company (Upjohn). Shirley Vodicka, his wife, sought damages for loss of consortium based on Edward's injuries. The case was tried before a jury. The jury returned verdicts for Upjohn. Judgment was entered in accordance with the verdicts. Plaintiffs appeal. For the reasons that follow, the appeal is dismissed.

Facts

Edward Vodicka was employed by Dayco Corporation (Dayco), a manufacturing company. One of the products Dayco manufactures is fan belts. Dayco uses an isocyanate product that is manufactured and sold by Upjohn under the trade name PAPI. Dayco mixes PAPI with toluene to make a substance known as J-1019. ¹ J-1019 is a dip Dayco uses in the manufacturing process for fan belts.

The first stage in Dayco's manufacture of fan belts is processing and chemically treating a thread-like cord. The treated cord is then embedded in a rubber product that is cured and vulcanized in steam pots. The rubber product is cut into fan belts.

J-1019, the chemical mixture that includes the isocyanate product (usually PAPI), is used in the first stage of the manufacturing process. It is one of two chemical dips ² through which the thread-like cord passes. The process entails pulling the cord, on rollers, through several ovens and the chemical dips.

Mr. Vodicka claims that he sustained disabling respiratory injuries from isocyanate poisoning. He claims he had been constantly exposed to isocyanate fumes caused by the PAPI that was part of the J-1019 mixture. Mr. Vodicka contends that the poisonous fumes were in the air that circulated throughout the plant. He contends that he was also exposed to fumes that exited the plant through ventilation stacks and to fumes inside rooms in the plant where the ovens were located that cured the products being manufactured. He claims that fumes were emitted from cracks in the oven doors. He also testified that he inhaled isocyanate fumes when he extinguished a fire in the plant in December 1979.

There was evidence that Mr. Vodicka was a heavy cigarette smoker. Dayco attributed Mr. Vodicka's disabilities to his heavy smoking.

Respondent's Motion to Dismiss

Plaintiffs filed their brief April 7, 1993. The brief contained no jurisdictional statement. Rule 84.04(a)(1). On May 3, 1993, plaintiffs moved to "insert a jurisdictional statement" in the brief. Upjohn filed a motion entitled "Respondent's Motion to Dismiss Appeal" May 4, 1993. Upjohn's motion sought dismissal of the appeal because plaintiffs failed to include a jurisdictional statement in their brief and failed to comply with other Supreme Court Rules applicable to appellate briefs.

Respondent's Motion to Dismiss Appeal was ordered taken with the case. Plaintiffs' request to insert a jurisdictional statement in its brief was denied, but plaintiffs were allowed ten days in which to file a corrected brief. Plaintiffs filed an Amended Appellants' Brief that contained a jurisdictional statement but did not change other parts of the original brief that Upjohn claimed violated requirements for appellate briefs.

Upjohn's motion to dismiss asserts noncompliance with rules applicable to appellate procedure. The rules that Upjohn claims plaintiffs violated include Rules 84.04(c) and 84.04(h). Upjohn contends the statement of facts in plaintiffs' Amended Appellants' Brief violates Rule 84.04(c); that it is not a fair and concise statement of facts, without argument, relevant to questions for determination on appeal. The motion contends that the statement of facts and argument also violate Rule 84.04(h) because they do not consistently "have specific page references to the legal file or transcript" and contain references to material not admitted into evidence at trial.

Rule 84.04(c)

Rule 84.04 prescribes requirements for appellate briefs. Its subsection (a) states:

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."

Subsection (c) provides:

The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument....

Many cases and articles have explained the importance of Rule 84.04(c) (and its predecessor Rule 1.08(2) (revoked)). In Kleinhammer v. Kleinhammer, 225 S.W.2d 377 (Mo.App.1949), respondent filed a motion to dismiss an appeal for failure to comply with Rule 84.04(c)'s predecessor, Rule 1.08(2). The court granted the motion saying:

After a careful examination of all the evidence in this transcript, a mere reading of the statement of facts in appellant's brief discloses that appellant has ignored the evidence presented on behalf of respondent....

. . . . .

It is well established even under the liberal interpretation of the new rules concerning appeals that such an omission is not substantial compliance with the rules and is fatal to the appeal....

Id. at 378.

In State v. Division 1287 of Amalgamated Ass'n of Street, Electric Railway, and Motor Coach Employees of America, 361 S.W.2d 33 (Mo. banc 1962), the court, with considerable reluctance due to numerous breaches of rules relating to briefing requirements in appellate cases, ruled on the merits of the case saying, "Except for the fact that this case involves matters of great public importance, we should not hesitate to dismiss this appeal for the failure of appellants to comply with the rules of this Court governing the preparation and contents of appellants' briefs." Id. at 45.

In Geiler v. Boyer, 483 S.W.2d 773 (Mo.App.1972), the court granted a motion to dismiss an appeal for appellant's failure to comply with Rule 84.04(c), saying:

[A]ppellant's statement of facts edits much of the content of plaintiff's proof of the injury in order to present a view of facts favorable to his contention that the verdict and judgment were excessive....

. . . . .

The provision of Civil Rule 84.04(c), V.A.M.R., that: "The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument" is intended to "afford an immediate, accurate, complete and unbiased understanding of the facts of the case". Wipfler v. Basler, Mo., 250 S.W.2d 982, 984 [1952]. Appellant's statement which emphasizes facts favorable to himself and omits others essential to the position of the respondent plaintiff is not a substantial compliance with that rule. In re Adoption of P.J.K., Mo.App., 359 S.W.2d 360, 363 [1962].

Id. at 774.

In Devoy v. Devoy, 502 S.W.2d 428, 430 (Mo.App.1973), the court reiterated, "The failure of an appellant to comply with the requirements for a sufficient statement of facts, alone, constitutes ground for dismissal of an appeal. Markowitz v. University City, 335 S.W.2d 455 (Mo.App.1960)."

In State v. White, 529 S.W.2d 22 (Mo.App.1975), this court acknowledged that the dismissal of civil cases for noncompliance with Rule 84.04 was occurring with considerable frequency and pointed out that briefs in criminal cases were fraught with the same danger of dismissal as civil cases for noncompliance with procedural rules in briefing. ³ White states:

While evidencing a reluctance to do so, and in case after case overlooking clear violations of Rule 84.04 and ruling the appeal on its merits, the appellate courts of this state are finding it more and more necessary to require and demand observance of and compliance with the rules governing appeals. Dismissal of civil cases for non-compliance with Rule 84.04 is becoming more commonplace.

Id. at 24 (footnote omitted). ⁴ White quoted from Sullivan v. Holbrook, 211 Mo. 99, 104, 109 S.W. 668, 670 (1908):

The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once and for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it--the very ones it should not injure.

See White, 529 S.W.2d at 25.

The topic of noncompliance with rules applicable to appellate briefs was addressed in Weier and Fairbank, Why Write A Defective Brief? Give Your Client A Chance On Appeal, 33 J.Mo. Bar 79 (1977). The article chronicled dismissals by appellate courts from January 1, 1972, to June 30, 1976.

Thirty-two appeals were dismissed after submission because of defective briefs by Missouri appellate courts from January 1, 1972 to June 30, 1976. Eight of these dismissals occurred in 1975 and eight in only the first half of 1976. During the full period, seventy-one additional cases had one or more points dismissed as presenting nothing for appellate review, with eighteen of these occurring in 1975 and seven in the first six months of 1976. In addition, one hundred twenty-five more cases decided between January 1, 1972 and June 30, 1976 involved briefing...