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American Senior Benefits v. Lewis

Court of Appeals of Missouri, Eastern District, Second Division

September 19, 2017

AMERICAN SENIOR BENEFITS, Respondent,
v.
DAN R. LEWIS, Appellant.

         Appeal from the Circuit Court of Jefferson County Honorable Travis D. Partney

          PHILIP M. HESS, JUDGE

         Introduction

         Dan Lewis ("Appellant") appeals from the judgment of the circuit court of Jefferson County, following a bench trial, in favor of American Senior Benefits, LLC ("Respondent"). Appellant asserts six points of error on appeal. However, Appellant's brief violates Rule 84.04 so substantially that we are unable to review any of his points. Appeal dismissed.

         Factual Background

         Appellant is a retired insurance salesman residing in Bountiful, Utah. Respondent is an Ohio Limited Liability Corporation authorized to do business in the State of Missouri, and its business primarily consists of insurance marketing. Prior to his retirement, Appellant entered into an agency agreement contract (the "Agreement") with Respondent in February 2012. Section 7 of the Agreement stated that Appellant would be paid commissions by Respondent on premiums collected from insurance policies he sold. If the Agreement was terminated within twenty-four months, Appellant would not be "vested, " which meant that he would not be entitled to further commissions. The Agreement also provided that Appellant would have to reimburse Respondent for commissions it paid Appellant if a policy sold by Appellant was cancelled. Section 6 of the Agreement provided that either party could terminate the contract "for any or no reason at any time by either party upon written notice to the other." Section 6 also provided that Respondent could terminate the Agreement "for cause" immediately upon mailing written notice to Appellant's last known address.

         In October 2012, Respondent's Chief Operating Officer ("COO") received a form requesting that Appellant's contractor status be terminated. The COO mailed notice to Appellant terminating the Agreement and demanding Appellant reimburse Respondent for commissions it had paid Appellant on a policy he sold that was cancelled prematurely.

         Appellant did not reimburse Respondent, and Respondent filed a petition demanding $6, 788.40 in damages for Appellant's breach of the Agreement, as well as attorney's fees. Following a bench trial, the trial court ordered Appellant to pay Respondent $6, 788.40, but declined Respondent's request for attorney's fees. This appeal follows.

         Standard of Review

         We will affirm the judgment in a court-tried case unless there is no substantial evidence to support it; it is against the weight of the evidence; it erroneously declares the law; or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. Banc 1976). "Substantial evidence means competent evidence from which the trial court could reasonably decide the case." T.S.I. v. A.L. (C.)B., 521 S.W.3d 317, 320 (Mo. App. E.D. 2017).

         Discussion

         Rule 84.04[1] sets forth mandatory requirements for appellate briefs. The requirements must be complied with "in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Duncan v. Duncan, 320 S.W.3d 725, 726 (Mo. App. E.D. 2010) (quotations omitted). We hold pro se appellants to the same standards as attorneys regarding Rule 84.04's mandatory briefing rules. Id. We acknowledge the problems faced by pro se litigants, but we cannot give preferential treatment to non-lawyers. Id. Appellant's brief fails to comply with multiple Rule 84.04 requirements such that his appeal is unreviewable.

         First, Appellant's brief violates Rule 84.04(c) because his statement of facts does not contain a "fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). Appellant's statement of the facts is plainly argumentative and repeatedly ignores unfavorable testimony. For example, Appellant argues in his statement of facts that "neither party ever gave or received a 'written notice' for contract termination, " even though Respondent's witness testified she sent a termination letter to Appellant using first-class mail.

         Appellant misconstrues the record multiple times in his statements of facts. For example, he asserts that "[t]he court agreed with [Appellant] that [Respondent] had defaulted on their own contract yet still made a final judgment in favor of [Respondent]." Appellant cites to ...


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