Court of Appeals of Missouri, Western District, Second Division
from the Labor and Industrial Relations Commission.
Before: Thomas H. Newton, P.J., Anthony Rex Gabbert, and
Thomas N. Chapman, JJ.
N. Chapman, Judge.
Walker appeals the decision of the Labor and Industrial
Relations Commission dismissing his claim for unemployment
benefits. The Commission determined that Mr. Walker failed to
demonstrate good cause for failing to participate in a
hearing. The appeal is dismissed.
and Procedural History
Walker worked for City Wide Maintenance (Employer), and was
terminated for directing profanity at his supervisor during a
telephone conversation (where his absence from work was being
discussed). Mr. Walker filed a claim for unemployment
compensation benefits. A Deputy of the Division of Employment
Security (Division) found Mr. Walker ineligible to receive
unemployment insurance benefits. Mr. Walker appealed that
decision, and was mailed a notice of the hearing before the
Appeals Tribunal, on November 5, 2018, at 12:30 pm. Mr.
Walker failed to call in, and his appeal was dismissed. He
requested a new hearing, which was conducted. At that hearing
Mr. Walker acknowledged that the address where the notice was
sent was correct, that he had received the notice for the
12:30 pm hearing, and that he did not participate in the
hearing. He testified that he received notice of another
hearing (regarding his ability to work) for that same date,
set at 1:15 pm, and that he did call in for that hearing.
When asked why he didn't participate in the 12:30 pm
hearing, he testified as follows:
Q: All right. Why didn't you call in for that hearing?
A: Because, uh, I deal with - I was confused about the, uh,
the first package or the second package which I had called in
at 12:30 but the one prior to that, I believe it was 1:15 I
mean. I didn't - I called in at 1:15 but I didn't
call in at 12:30 because I was confused and I deal with a
mental illness and I just - I got overwhelmed. This is my
first time, uh, going through, uh, appeals or trying to get
unemployment so I was just confused and it - it - it - it - I
couldn't understand what I needed - what I needed to
Q: Okay. So - so I just want to be clear and I believe we
asked this but I wasn't - I wasn't sure I understood
it. When - when you received all the documents in the mail
for the two hearings, uh, on - on November 5th,
did you notice that they - they were two different notices
with two different times?
A: No, sir. I - I only read, uh, the one at 1:15 and I made
sure that I called in that day because that's the only
one. I-I-I reckon I missed - I reckon the other one at
decision dismissing Mr. Walker's claim, the Commission
found that, when he received the two notices, Mr. Walker
"only read the notice for the 1:15 pm hearing." The
Commission further found that Mr. Walker "suffers from a
mental health issue…that sometimes causes him
confusion. The claimant did not present any medical evidence
regarding his condition." In its conclusions of law, the
Commission found as follows:
The claimant did not demonstrate good cause for failing to
participate (sic) the previous hearing. The claimant failed
to participate because he did not read the notices provided
to him.…The claimant's failure to review the
documents provided to him does not constitute good cause. The
claimant did not demonstrate reasonableness and good cause
under the circumstances.
The claimant failed to provide any competent evidence to show
that his mental health issues caused him to miss the hearing.
The claimant admitted he had not read the notice. It was the
claimant's failure to read the notice, not any confusion,
which prevented him from participating in the
decision, the Commission concluded: "Good Cause has not
been shown for failing to participate in the prior
hearing….The claimant's appeal is dismissed."
This appeal by Mr. Walker followed.
sole point on appeal, Mr. Walker contends that the Commission
erred in finding him disqualified for unemployment benefits
based on his discharge for misconduct connected with work.
Because Mr. Walker does not properly appeal the only ruling
made by the Commission (that he had failed to demonstrate
good cause for failure to participate) and he does not comply
with the briefing requirements of Rule 84.04 for the good
cause issue, the appeal is dismissed.
84.13(a) provides that "allegations of error not briefed
or not properly briefed shall not be considered in any civil
appeal." Rather than addressing the Commission's
decision to dismiss appeal of his claim, Mr. Walker's
sole point on appeal addresses the merits of his
claim. While Mr. Walker does discuss the reasons
he missed the hearing in his one-paragraph conclusion, he
does not even mention the phrase "good cause" in
his brief. A question not presented in an
appellant's brief will be considered abandoned on appeal.
Stanton v. Div. of Emp't Sec., 321 S.W.3d 486,
488 (Mo. App. W.D. 2010).
Stanton, the appellant's claim for unemployment
compensation benefits was dismissed by the Commission due to
his failure to call in and participate in the hearing before
the Appeals Tribunal; and the appellant, like Mr. Walker,
challenged the merits of the claim on appeal, rather than the
dismissal for failure to participate. Id. at 487-88.
In dismissing the appeal in Stanton, we observed:
Our review is confined to those points of error that the
appellant properly raises on appeal. In this case, Stanton
has failed to allege any reviewable point of error on the
part of the Commission. The Commission's decision upheld
the dismissal of Stanton's case. Stanton, however, does
not address this issue in his brief. Rule 84.13(a) provides
that allegations of error not briefed or not properly briefed
shall not be considered in any civil appeal. Furthermore, a
question not presented in an appellant's brief will be
considered abandoned on appeal and no longer an issue in the
case. Because Stanton's appeal does not contest the
dismissal of his case for failure to appear at the hearing,
he has abandoned that issue. Having failed to raise the
grounds upon which the Commission dismissed his claim,
Stanton presents no appealable issue for this court to
Id. at 488 (internal quotes and citation omitted).
Mr. Walker fails to comply with the Rule 84.04 briefing
requirements for the good cause issue. Rule 84.04 describes
mandatory requirements for appellate briefs. Hubbard v.
Schaefer Autobody Ctrs., Inc., 561 S.W.3d 458, 460-61
(Mo. App. E.D. 2018).
In the interest of judicial impartiality, judicial economy
and fairness to all parties, pro se appellants are
held to the same standards as attorneys regarding the
mandatory appellate briefing rules. All litigants are
required to comply with Rule 84.04; an appellate court should
not speculate as to the parameters of the appellant's
argument because doing so would cast the court in the role of
the appellant's advocate.
Id. at 461 (internal citations omitted). "While
we prefer to dispose of a case on the merits whenever
possible, if the deficiencies in the brief are such that no
claims are preserved for appellate review, then we must
dismiss the appeal." Scott. v. Potter.
Elec. Signal Co., 310 S.W.3d 311, 312 (Mo. App. E.D.
appellate brief must contain a "Point Relied On"
for each issue on appeal and an argument that substantially
follows the corresponding "Point Relied On."
Hubbard, 561 S.W.3d at 461. Specifically, Mr.
Walker's brief fails to comply with Rules 84.04(d)(2) and
84.04(e). Under Rule 84.04(d)(2), "each point relied on
must identify the administrative ruling or action the
appellant challenges, provide a concise statement of the
legal reasons for the claim on appeal, and explain why the
legal reasons support the claim of error."
Hubbard, 561 S.W.3d at 461 (internal quotes and
citation omitted). Rule 84.04(e) requires the argument to
substantially follow the order of the "Point Relied
On." The argument shall include the applicable standard
of review. Id. Moreover, "[a]ll factual
assertions in the argument shall have specific page
references to the relevant portion of the record on
appeal." Id. The argument "should develop
the claim of error by showing the interaction between the
relevant principles of law and the facts of the particular
case." Hubbard, 561 S.W.3d at 461 (internal
quotes and citation omitted). "Mere conclusions and the
failure to develop an argument with support from legal
authority preserve nothing for review." Wallace v.
Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018)
(internal quotes and citation omitted).
Walker's brief fails to comply with Rule 84.04 in a
number of ways. He fails to assert a "Point Relied
On" challenging the Commission's decision that he
failed to demonstrate good cause for his failure to appear.
While he does raise the good cause issue in his conclusion,
he makes only conclusory claims not supported by legal
argument. He fails to set forth the applicable standard of
review for that issue, to present legal authority or argument
for reversal, or to cite to specific page references to the
relevant portions of the record.
with the briefing requirements of Rule 84.04 is required to
give notice to the other party of the precise matters at
issue and to ensure that appellate courts do not become
advocates for the appellant by speculating facts and
arguments that have not been made. Thornton v. City of
Kirkwood, 161 S.W.3d 916, 919 (Mo. App. E.D. 2005). In
Hampton v. Davenport, 86 S.W.3d 494, 496 (Mo. App.
S.D. 2002), the Southern District of our court dismissed an
appeal for briefing deficiencies, noting the importance of
giving the court and other parties notice of the issues on
Rule 84.04 mandates what an appellant's brief shall
contain. Violations of Rule 84.04 are grounds for a court to
dismiss an appeal. Whether an appeal will be dismissed for
failure to comply with Rule 84.04 is discretionary. That
discretion is generally not exercised unless the deficiency
impedes disposition on the merits. A brief impedes
disposition on the merits where it is so deficient that it
fails to give notice to [the court] and to the other parties
as to the issue presented on appeal.
The garnishee's appellant's brief impedes disposition
of the case on its merits. It does not identify any issue
that permits meaningful review. It is the appellant's
obligation to identify, with particularity, the proposition
on which the party relies and to provide accurately
referenced authority for the proposition. Likewise, an
appellant's obligation includes providing authority in
support of alleged trial court errors with accurate citations
to that authority. Were the appellate court to undertake
these things when an appellant has failed to do them, the
appellate court would be assuming the role of advocate. It is
not the function of the appellate court to serve as advocate
for any party to an appeal.
Id. at 496 (internal quotations and citations
Walker's brief discussion in his conclusion of the
reasons he did not call into the hearing does not adequately
identify the proposition on which he relies or provide
authority for that proposition to permit meaningful review.
Again, Mr. Walker does not even mention the phrase "good
cause" in his brief. To engage in a good cause analysis,
therefore, would require this court to assume the role of
advocate for Mr. Walker on appeal, which we cannot do. Having
failed to properly raise or brief the grounds upon which the
Commission dismissed his claim, Mr. Walker presents no
appealable issue for this court to review.
appeal is dismissed.
N. Chapman, Judge, ...