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State ex rel Hawley v. Robinson

Court of Appeals of Missouri, Eastern District, Third Division

May 28, 2019


          Appeal from the Circuit Court of the City of St. Louis 1622-CC00503 Honorable Steven R. Ohmer


          JAMES M. DOWD, JUDGE.

         James Robinson appeals from the judgment entered against him following a jury trial in the Circuit Court of the City of St. Louis. The Missouri Attorney General (the State) filed suit against Robinson alleging violations of the Missouri Merchandising Practices Act (MMPA) § 407.020.[1] None of Robinson's 15 points relied on complies with Rule 84.04.[2] However, we exercise our discretion to review ex gratia Robinson's points one and two and we find no error with respect to either. We dismiss the remaining points due to their failure to comply with Rule 84.04. Accordingly, the trial court's judgment is affirmed.


         The State filed suit against Robinson, Beverly Holmes Diltz, and Critique Services LLC (along with three other co-defendants immaterial to this opinion) alleging violations of the MMPA. The State alleged that Diltz, who is not an attorney, founded Critique Services as a low-cost, high-volume bankruptcy law firm. Critique contracted with lawyers, including Robinson, and used their names, signatures, and bar enrollment identification numbers to make it appear that attorneys were providing legal services, but the attorneys performed little or no legal work for Critique's clients. These practices by Critique caused harm to more than 136 customers, according to the State. The suit asserted claims against Robinson for fraud, unfair practices, and false promises in connection with his work as a bankruptcy attorney associated with Critique.

         Robinson asserted his Fifth Amendment right against self-incrimination in his answer to the State's first amended petition, and in his responses to the State's requests for production and interrogatories. Similarly, Robinson asserted his Fifth Amendment right in response to every question during his deposition.

         In February 2017, the State moved for summary judgment against defendant Robinson only. In response to most of the State's statement of uncontroverted material facts, Robinson again asserted his Fifth Amendment right. The trial court granted partial summary judgment in favor of the State on the false promises and fraud counts and enjoined Robinson from providing bankruptcy services in Missouri. The court denied the State's motion as to the unfair practices count because that count raised multiple violations of Missouri Supreme Court Rule 4, [3] and such claims are not cognizable under the MMPA. The court left the issue of damages, specifically restitution and civil penalties as authorized under §§ 407.100.4 and 407.100.6, respectively, to be decided at trial.

         Prior to trial, the State and defendants Critique and Diltz entered into a consent judgment, pursuant to which Critique and Diltz admitted liability and to the award of over $100, 000 in damages. Robinson then filed a motion to dismiss, asserting that the consent judgment mooted the State's claims against him. The trial court denied Robinson's motion.

         At trial, the State called as witnesses three former clients of Robinson who claimed to be victims of his conduct. All three testified that Robinson made false or misleading statements about the bankruptcy legal services he would provide. The jury found in the State's favor with regard to all three victims, awarding restitution to two of the victims in the amount of $17, 187 pursuant to § 407.100.4 and civil penalties in the amount of $5, 000 pursuant to § 407.100.6. This appeal follows.

         The State's Motion to Dismiss

         Before we reach the merits of Robinson's appeal we address the State's motion to dismiss this appeal based on the failure to comply with our briefing rules. Compliance with the Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become a party's advocate by speculating on facts and arguments that have not been asserted. Brown v. Brown, 530 S.W.3d 35, 40 (Mo.App.E.D. 2017). Failing to follow the requirements of Rule 84.04 constitutes sufficient grounds for this Court to dismiss an appeal. Id. However, we do have the discretion to review non-compliant briefs ex gratia when the argument is readily understandable. Id.

         The State argues that Robinson's brief contains a deficient statement of facts, points relied on, and argument section, in violation of Rule 84.04(c), (d), and (e), respectively. We agree because to decipher Robinson's brief, this Court would have to sift through the legal file, speculate on Robinson's legal arguments and essentially become Robinson's advocate, something we cannot do. See Rothschild v. Roloff Trucking, 238 S.W.3d 700, 701 (Mo.App.E.D. 2007).

         1. The Statement of Facts in Robinson's brief violates Rule 84.04(c).

         Rule 84.04(c) requires an appellant's brief to contain a "fair and concise statement of the facts relevant to the questions presented for determination without argument" and that "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal[.]" "The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case." Rothschild, 238 S.W.3d at 702.

         Robinson's statement of facts falls short of this standard. Robinson routinely fails to cite to the record and omits large portions of relevant facts. Also, Robinson included only facts favorable to his position. "Emphasizing facts favorable to the appellant and omitting others essential to the respondent does not substantially ...

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