Court of Appeals of Missouri, Eastern District, Fourth Division
UNIFUND CCR PARTNERS, ASSIGNEE OF CITIBANK OF SOUTH DAKOTA N.A. (VISA/MASTERCARD), Plaintiff/Respondent,
THOMAS MYERS, Respondent/Appellant.
from the Circuit Court of the City of St. Louis Hon. Jason
VAN AMBURG, JUDGE.
Myers appeals from the trial court's order and judgment
of revival in favor of Unifund CCR Partners, as assignee of
Citbank of South Dakota N.A. (Visa/Mastercard), in this debt
collection matter. We dismiss the appeal for substantial
violations of Rule 84.04.
October 2005, Unifund obtained a default judgment against
Myers in the amount of $13, 396.66. The debt remained
outstanding for nearly ten years. In August 2015, Unifund
filed a motion to revive the judgment under Rule 74.09. In
February 2017, Myers received service and an accompanying
order to show cause why the judgment should not be revived.
Both parties appeared for a hearing, though evidently no
transcript was taken. The trial court granted Unifund's
motion to revive the judgment, finding that Myers failed to
show good cause why the judgment should not be revived. Myers
appeals pro se and attempts to assert one or two
points of error, the gist of which seem to involve due
process and timeliness. However, due to significant
deficiencies in Myers's appellate brief, we must dismiss
se appellants are held to the same standards as
attorneys and must comply with rules of appellate
procedure." Houston v. Weisman, 197 S.W.3d 204,
205 (Mo. App. E.D. 2006). "Failure to comply constitutes
grounds for dismissal." Id.
84.04(b) requires a jurisdictional statement containing
sufficient factual data to demonstrate the applicability of
the particular provision of article V, section 3 of the
Missouri Constitution on which jurisdiction is predicated.
Myers's jurisdictional statement contains argumentative
assertions and no reference to the constitutional basis for
this court's jurisdiction.
84.04(c) requires a fair and concise statement of the facts
relevant to the issues on appeal, with corresponding
citations to the legal file. Myers's statement of facts
recounts past circumstances involving his family and
neighbors, also impugning Unifund's principals in various
respects. These facts are not relevant to the motion or
judgment of revival. To the extent Myers raises them in an
effort to attack the factual basis for the underlying debt,
we cannot consider his claims at this juncture in the case.
The procedural avenues for such a challenge are found in
Rules 74.05(d) (motion to set aside a default judgment for
good cause) and 74.06(b) (motion for relief from judgment for
misconduct of an adverse party).
84.04(d) requires that a point relied on identify the
challenged ruling or action of the trial court, state
concisely the legal basis for the alleged error, and explain
in summary fashion why, in the context of the case, those
legal reasons support the claim of reversible error.
"The function of this rule is 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." Wilkerson v. Prelutsky, 943 S.W.2d
643, 647 (Mo. 1997). Myers's brief presents two points
relied on; neither point satisfies the foregoing criteria or
follows the format prescribed by Rule 84.04(d)(1).
Myers's first point is a narrative of the motion
proceedings in which Myers asserts that he was denied an
opportunity to be heard and given an unsigned draft of the
order. His second point argues that Unifund's motion to
revive was untimely and again impugns in narrative fashion
the status of Unifund's representatives in various
respects not relevant to the case. While Myers succeeds at
vaguely identifying due process and timeliness as alleged
claims, his points relied on are nonetheless so convoluted
that this court cannot decipher them, much less exercise
appellate review. "When confronted with a deficient
point relied on, it is not proper for this court to speculate
as to the point being raised and supporting legal
justification because to do so would place the court in the
role of an advocate for the appellant." Boyd v.
Boyd, 134 S.W.3d 820, 823-24 (Mo. App. W.D. 2004). An
insufficient point relied on that cannot be understood
without resorting to the record or argument portion of the
brief preserves nothing for appellate review. Roberson v.
KMR Construction LLC, 208 S.W.3d 320, 322 (Mo. App.
84.04(e) requires that the argument section of the brief be
limited to the issues presented in the points relied on,
which should be re-stated at the beginning of each argument,
followed by the standard of review for each point. Similarly,
Rule 84.13(a) states that allegations of error not properly
briefed shall not be considered in any civil appeal.
Houston, 197 S.W.3d at 206. To properly brief the
alleged error, an appellant must develop the contention
raised in the point relied on in the argument section of the
brief. Id. If a party does not support contentions
with relevant authority or argument beyond conclusory
statements, the point is deemed abandoned. Id. The
argument section should advise the appellate court how
principles of law and the facts of the case interact. In
re Marriage of Fritz, 243 S.W.3d 484, 487 (Mo. App. E.D.
2007). If an appellant fails to support his claim beyond mere
conclusion, the point is considered abandoned. Id.
Here, Myers's entire argument section, titled "Point
Relied On I, " consists of one paragraph containing
irrelevant commentary similar to the points and lacking any
legal authority or analysis.
matter of policy, this court prefers to rule on the merits
whenever possible and will do so provided we can ascertain
the gist of an appellant's arguments, notwithstanding
minor shortcomings in briefing. Comp & Soft, Inc. v.
AT&T Corp., 252 S.W.3d 189, 193-94 (Mo. App. E.D.
2008). However, if the brief is so deficient that we cannot
competently rule on the merits without first reconstructing
the facts and supplementing the appellant's legal
arguments, then nothing is preserved for review and we must
dismiss the appeal. Elkins v. Elkins, 257 S.W.3d
617, 618 (Mo. App. E.D. 2008).
se parties are bound by the same rules of procedure as
parties represented by lawyers and are not entitled to
indulgences they would not have received if represented by
counsel." Elkins, 257 S.W.3d at 618.
"While this court recognizes the problems faced by
pro se litigants, we cannot relax our standards for
non-lawyers." It is not for lack of sympathy but,
rather, a ...