Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County 17SL-SC00608-01
Honorable Richard Morris Stewart
Honorable Mary K. Hoff Judge.
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.
and Procedural Background
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.
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
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.
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."
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.
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).
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).
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."
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 ...