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Midtown Home Improvements, Inc. v. Taylor

Court of Appeals of Missouri, Eastern District, Second Division

March 5, 2019

MIDTOWN HOME IMPROVEMENTS, INC., Respondent,
v.
ANTOINETTE TAYLOR, Appellant.

          Appeal from the Circuit Court of St. Louis County 17SL-SC00608-01 Honorable Richard Morris Stewart

          OPINION

          Honorable Mary K. Hoff Judge.

         Antoinette Taylor ("Taylor") appeals pro se from the trial court's Judgment following a trial de novo on Midtown Home Improvements, Inc.'s ("Midtown") small claims petition against her for her failure to pay the balance due under a contract for exterior work on her home. After a trial de novo, the trial court entered its Judgment in favor of Midtown in the amount of $4, 138.28 plus costs. As Taylor's brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, we dismiss it. We sustain Midtown's motion for an award of attorney's fees on appeal.

         Factual and Procedural Background

         On July 30, 2016, Taylor contracted with Midtown to have exterior siding work conducted on her home. Under the contract terms, Taylor initially agreed to pay $21, 941.00 for Midtown to replace the siding on her home with 4.5-inch, cream-colored "Midtown" siding. After several change orders, including the additions of stone panels and gutter screens to the home, the total amount due under the contract was $25, 756.00. Throughout the work, Taylor made several payments, but when the work was completed in January of 2017, Midtown did not receive the remaining balance of $2, 977.33 and requested payment. When Taylor failed to pay, Midtown filed a small claims petition against her for the amount owed, prejudgment interest, and attorney's fees. On October 10, 2017, a small claims judgment was entered in favor of Taylor. On October 19, 2017, Midtown filed an application for trial de novo, and on November 7, 2017, it filed an application for a change of judge.

         On November 9, 2017, Midtown's request for a change of judge was granted, and on April 12, 2018, a trial de novo was held. During the trial de novo, Taylor noted that she had filed a counterclaim on December 5, 2017, but that she was later informed "that there was no record of my counterclaim anywhere." A copy of a file-stamped document denoted "Counter Claim" was submitted to the court, which provided that Midtown "did not provide the siding that I ordered" and that Midtown wrongfully hauled away over-ordered, unused material that Taylor had paid for.[1]

         Robert Winchester ("Winchester"), Midtown's General Manager, testified that Taylor signed Midtown's standard contract for exterior work, and that the contract provided that the siding to be installed was "Midtown" siding. Winchester testified that "Midtown" siding is the only type of siding that Midtown sells and that it would not have been possible for a sales representative to sell any other type of siding to Taylor. Winchester testified that he heard of no complaints from Taylor about the work until after Midtown initiated collection efforts on the remaining $2, 977.33 owed.

         Taylor testified that prior to signing the contract, a Midtown sales representative, Zach Kleine ("Kleine"), visited her home several times to discuss the siding she wanted. Taylor testified that Kleine did not provide samples of siding to her, but that he showed her "pictures of what they offered" on an iPad. Taylor testified that while the contract she signed noted that the siding to be installed was "Midtown" siding, she had "no idea what that mean[t]." Taylor testified that as the siding was being installed, she discovered that it was not the siding she wanted or that she thought she purchased; she noted that she later learned that the siding she wanted on her home was Dutch lap siding. She explained that although she told Midtown's workers to stop the installation, they did not, and stated that she could not reach anyone from Midtown by phone to order a stop. Taylor testified that once the work was completed, a Midtown representative requested payment of the remaining balance, but that she answered that he "needs to have his bosses call me because we need to negotiate something…because I didn't order that siding." Taylor further testified that after the work was completed, she noticed several unopened cases of siding and buckets of unused nails. Taylor testified that although she requested to be credited "for all this product that [Midtown] ordered that [that she] paid for," Midtown declined, explaining that it normally uses those extra materials "for the next job."

         Following the trial de novo, the court entered a Judgment in favor of Midtown, awarding $2, 977.33 plus costs, and on May 2, 2018, Midtown filed a motion to amend the Judgment, seeking prejudgment interest and attorney's fees. A hearing on the motion to amend was set for July 12, 2018. Taylor failed to appear, and on July 12, 2018, the court entered its amended Judgment, awarding $4, 138.28 in damages, prejudgment interest, and attorney's fees and assessing costs against Taylor.

         Discussion

         Pro se appellants are held to the same standards as attorneys, and all appellants must comply with the Supreme Court Rules, including Rule 84.04, which governs the content of appellate briefs. Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 584 (Mo. App. E.D. 2009). Although we are mindful of the problems that pro se litigants face, judicial impartiality, judicial economy, and fairness to all parties mandate that we do not grant pro se appellants preferential treatment with regard to complying with the rules of appellate procedure. Id. While we prefer, whenever possible, to dispose of a case on the merits, we must dismiss the appeal if the deficiencies in the brief are such that no claims are preserved for appellate review. Hamilton v. Archer, 545 S.W.3d 377, 379 (Mo. App. E.D. 2018).

         Here, Taylor's brief fails to conform with Rule 84.04 in several respects. First, Taylor's jurisdictional statement is insufficient. A jurisdictional statement must "set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of article V, section 3 of the Constitution upon which jurisdiction is sought to be predicated." Rule 84.04(b). Taylor's jurisdictional statement, however, notes only that this action is an appeal from the trial court's Judgment and lists the amounts that were awarded to Midtown. It makes no reference to the constitutional basis for this Court's jurisdiction, and therefore, is deficient. Unifund CCR Partners v. Myers, 563 S.W.3d 740, 742 (Mo. App. E.D. 2018).

         Second, Taylor's statement of facts fails to comply with Rule 84.04(c). Rule 84.04(c) mandates that the statement of facts be a fair and concise statement of the facts relevant to the questions presented for determination without argument. "The primary purpose of the statement of facts is to set forth an immediate, accurate, complete and unbiased understanding of the facts of the case." Waller v. A.C. Cleaners Management, Inc., 371 S.W.3d 6, 10 (Mo. App. E.D. 2012) (quoting Rice v. State, Dept. of Social Services, 971 S.W.2d 840, 842 (Mo. App. E.D. 1998)). An appellant must give a "statement of the evidence in the light most favorable to the verdict, not simply recount [appellant's] version of the events." Id. (quoting Hoer v. Small, 1 S.W.3d 569, 572 (Mo. App. E.D. 1999)). Here, Taylor presents a statement of facts that is biased in her favor while ignoring those facts that support the verdict. While she claims that Midtown installed the "wrong siding," she omits the facts that she signed a contract explicitly calling for the installation of "Midtown," not "Dutch lap" siding, and that after Midtown completed the work, she declined its request to pay the remaining balance of $2, 977.33. "Emphasizing facts favorable to the appellant and omitting others essential to the respondent does not substantially comply with Rule 84.04." Id. Moreover, Rule 84.04(c) provides that "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits." Here, however, Taylor's four-page statement of facts cites to the record on only four occasions. The remainder of her assertions are left without citation to the transcript or legal file. "[A]n appellate court will not supply the deficiencies of an inadequate brief by independent, additional research because to do so would be inherently unfair to the opposition and parties in other cases awaiting disposition on appeal." P & J Ventures, LLC v. Yi Yu Zheng, 479 S.W.3d 748, 752 (Mo. App. E.D. 2016) (quoting Anderson v. American Family Mut. Ins. Co., 173 S.W.3d 356, 359 (Mo. App. W.D. 2005)). It is not the role of an appellate court to serve as an advocate for a litigant, and "we have no duty to search the transcript or record to discover the facts which substantiate a point on appeal. That is the duty of the parties, not the function of an appellate court." Id.

         Third, Taylor's brief fails to comply with Rule 84.04(d), which provides, in part, that a point relied on shall identify the ruling or action that the appellant challenges. Rule 84.04(d)(1)(A). "The error contemplated by Rule 84.04(d) in a court-tried case is not the judgment itself but the trial court's actions or rulings on which the adverse judgment is based." In re Marriage of Fritz, 243 S.W.3d 484, 486 (Mo. Ap. E.D. 2007) (quoting Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n.2 (Mo. App. E.D. 1999)). Here, however, Taylor's two points relied on merely challenge the trial court's Judgment, asserting that the trial court "erred in concluding in favor of Midtown." Because Taylor's ...


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