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Regions Bank v. Davis

Court of Appeals of Missouri, Southern District, Second Division

June 19, 2017

REGIONS BANK, Trustee of the Page G. Schumacher Trust dated June 25, 1996, Petitioner-Respondent,
v.
RON DAVIS, Individually and as the Personal Representative of the Estate of Page G. Schumacher, Respondent-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Tony W. Williams

          GARY W. LYNCH, P.J.

         AFFIRMED AND REMANDED WITH DIRECTIONS

         Regions Bank, Inc. ("the Trustee"), Trustee of the Page G. Schumacher Trust ("the Trust"), petitioned the trial court for "discovery of assets which properly belong to the Trust but are claimed to be assets of the Estate [of Page G. Schumacher]" ("the Estate") and also sought the removal of Ronald F. Davis as the personal representative of the Estate.[1] The trial court entered a judgment against Davis, individually, that removed him as personal representative of the Estate, awarded damages in favor of Trustee for the discovery of assets, and ordered the payment of Trustee's attorney fees. Davis timely appeals that judgment.

         Davis represents himself in this appeal. "We fully acknowledge [his] right to do so, but [he] is bound by the same rules of procedure as parties who are represented by counsel." Reliable Roofing, LLC v. Jones, 302 S.W.3d 232, 234 (Mo.App. 2009). "All briefs filed in an appellate court must comply with Rule 84.04."[2] Id. Claims of error that are not properly briefed "shall not be considered in any civil appeal." Rule 84.13(a). As observed by the Eastern District of our Court,

Rule 84.04 provides the requirements for appellate briefs. . . . Compliance with the briefing requirements of Rule 84.04 is mandatory, and a brief that fails to comply with Rule 84.04 preserves nothing for appellate review. Compliance with the rule is required in order that the appellant may give notice to the party opponent of the precise matters which must be contended with and answered. Compliance is also mandatory so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant by speculating facts and arguments that have not been made.

Osthus v. Countrylane Woods II Homeowners Ass'n, 389 S.W.3d 712, 714-15 (Mo.App. 2012) (internal citations and quotation marks omitted).

         Davis's brief is notably deficient in many respects, including, but not limited to the following:

• Rule 84.04(c) requires that Davis's brief contain "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Davis's facts are not presented fairly or concisely. Rather, his factual background consists of 77 pages of argument. In violation of our standard of review, he repeatedly relies on facts favorable to his position.[3]
• Rule 84.04(c) and (e) require that within the Statement of Facts and Argument sections, "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal[.]" (Emphasis added). "'This requirement is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if the factual assertions in the brief are supported by the record. To do so would effectively require the court to act as an advocate for the non-complying party.'" FIA Card Servs., NA v. Hayes, 339 S.W.3d 515, 517 (Mo.App. 2011) (quoting Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. 2008)). Davis's Statement of Facts and Argument routinely and almost universally fail to comply with this requirement. Moreover, rather than referencing the record on appeal, Davis purports to support his stated facts with citations to what he labels as exhibits that he attached to his brief and that are not in the record on appeal.
• Davis's point relied on purports to consist of multiple points relied on; however, his brief contains only one argument section. Because the "argument shall substantially follow the order of the 'Points Relied On[, ]'" Rule 84.04(e), he cannot possibly have more than one point relied on. The contentions set forth in any other point would be abandoned.[4] Therefore, we understand his brief to contain one multifarious point relied on.[5]
• In addition to being multifarious, the point relied on wholly fails to comply with the requirements of Rule 84.04(d).[6]
• Rule 84.04(e) also requires 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." Davis's brief does not comply with any of these requirements.
• Davis's argument is not supported by authority, and he offers no reasonable explanation for such absence. "An appellant has an obligation to cite appropriate and available precedent if he expects to prevail, and, if no authority is available to cite, he should explain the reason for the absence of ...

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