The opinion
In the Missouri Court of Appeals
Eastern District
DIVISION ONE
KENNETH ROSA, ) No. ED112003
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. )
) Honorable Amanda B. NcNelley
STATE OF MISSOURI DEPT. )
OF SOCIAL SERIVES )
CHILDREN’S DIV., )
)
Respondent. ) Filed: October 15, 2024
This appeal stems from the placement of Kenneth Rosa’s name on the Central Registry as
a perpetrator of child abuse and/or neglect. The circuit court denied Mr. Rosa’s petition for judicial
review, finding the preponderance of the evidence showed that Mr. Rosa had perpetrated child
abuse and/or neglect and thus Mr. Rosa’s name should remain on the Central Registry as a
perpetrator of child abuse and/or neglect. Mr. Rosa now appeals the circuit court’s judgment. We
dismiss the appeal, however, due to Mr. Rosa’s failure to comply with Supreme Court Rule 84.04
regarding appellants’ briefs.
Factual and Procedural Background
The following facts are gleaned from our search of the record. On January 6, 2018, a
hotline call was initiated to the Franklin County Children’s Division (“Children’s Division”)
alleging that Mr. Rosa perpetrated physical abuse upon his daughter, a minor, who was fifteen
years old at the time. The Children’s Division substantiated the allegations of physical abuse by a
preponderance of evidence. The Child Abuse and Neglect Review Board reviewed the
substantiated findings of the Children’s Division and on July 23, 2020, notified Mr. Rosa that it
upheld the Children’s Division decision to substantiate the claim of physical abuse. Mr. Rosa filed
a petition for de novo judicial review.
The circuit court’s review was limited to a determination, by a preponderance of the
evidence standard, as to whether Mr. Rosa perpetrated child abuse and/or neglect and thus whether
his name should remain on the Central Registry as a perpetrator of child abuse and/or neglect. The
circuit court, upon reviewing the evidence and testimony, found based upon the competent
evidence that Mr. Rosa perpetrated child abuse and/or neglect and thus his name would remain on
the Central Registry as a perpetrator of child abuse and/or neglect.
Mr. Rosa appealed, and filed his appellant’s brief in this Court on March 18, 2024. That
brief failed to comply with Supreme Court Rule 84.04 regarding appellants’ briefs in multiple
ways. Mr. Rosa’s jurisdictional statement, statement of facts, points relied on, and arguments all
failed to comply with Rule 84.04. Mr. Rosa also did not file an appendix. This Court issued an
order that outlined the deficiencies and directed Mr. Rosa to file an amended brief that complied
with Rule 84.04. The order stated that Mr. Rosa’s failure to do so would result in his appeal being
dismissed. Following two extensions of time, Mr. Rosa filed an amended brief that still failed to
comply with Rule 84.04. Among other deficiencies, Mr. Rosa’s brief failed to include a fair and
concise statement of facts relevant to the question presented in the appeal with citation to specific
pages in the record on appeal and without including impermissible argument as required by Rule
84.04(c). Next, Mr. Rosa did not present points relied on that complied with Rule 84.04(d), in that
the points did not specifically identify the action of the trial court being challenged, the legal
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reasons for his claims of reversible error, and why, in the context of the case, those legal reasons
support the claims of reversible error. Further, Mr. Rosa did not present argument corresponding
to his points relied upon with reference to supporting legal authority as required by Rule 84.04(e).
Finally, Mr. Rosa again failed to include an appendix as required by Rule 84.04(h). This Court,
on its own motion, dismissed Mr. Rosa’s appeal for failure to file a brief conforming to the
Supreme Court Rules. The Court subsequently granted Mr. Rosa’s motion to reinstate the appeal
and again notified Mr. Rosa that his brief failed to comply with Rule 84.04(h) and Eastern District
Rule 365 as it did not contain an appendix. We informed Mr. Rosa that his failure to correct the
deficiency within ten days would result in an order being entered striking the brief. To date, Mr.
Rosa has yet to file an appendix or a new brief. Respondent, the Missouri Department of Social
Services, Children’s Division, (“Department”) has filed a motion to strike Mr. Rosa’s brief based
on Mr. Rosa’s failure to comply with this Court’s order and file an appendix. The Department has
also noted the presence of multiple briefing deficiencies in Mr. Rosa’s brief. This Court ordered
the Department’s motion taken with the case. 1
Discussion
Mr. Rosa represented himself without the assistance of an attorney. He has the right to do
so. Pearson v. Keystone Temporary Assignment Group, Inc., 588 S.W.3d 546, 549 (Mo. App.
E.D. 2010). “We cannot and will not penalize [Mr. Rosa] for not utilizing the assistance of an
attorney; but likewise, we cannot and will not lend [him] any assistance in prosecuting his appeal
because he is not represented by counsel.” Pearson, 588 S.W.3d at 549 (internal quotation
omitted). “This is not a matter of our personal preference, but rather the demands placed upon us
by our oaths of office, our commitment to uphold the rule of law, and the very nature of the
1
Upon Mr. Rosa’s request, this appeal was set for oral argument before this Court on October 2, 2024. Mr. Rosa,
however, did not appear for that argument.
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adversarial process, which requires fair, impartial and disinterested decision makers.” Pearson,
588 S.W.3d at 549 (internal quotation omitted). “We would be true to none of these principles if
we applied the law in one manner to litigants represented by counsel and then in a different manner
to litigants that are not represented by counsel.” Pearson, 588 S.W.3d at 549 (internal quotation
omitted). “We recognize the problems faced by pro se litigants, but we cannot relax our standards
for non-lawyers.” Kruse v. Karlan, 692 S.W.3d 43, 47 (Mo. App. E.D. 2024).
Accordingly, pro se appellants such as Mr. Rosa “are bound by the same rules as a party
represented by an attorney.” Pearson, 588 S.W.3d at 549. Pro se appellants must comply with
the Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate
briefs. Pearson, 588 S.W.3d at 549. “We do not grant pro se appellants preferential treatment
regarding compliance with those rules.” Pearson, 588 S.W.3d at 550. “This is not from lack of
sympathy, but rather is necessitated by the requirement of judicial impartiality, judicial economy,
and fairness to all parties.” Pearson, 588 S.W.3d at 550.
Compliance with the requirements of Rule 84.04 is mandatory. Pearson, 588 S.W.3d at
550. In addition to the other Rule 84.04 deficiencies in Mr. Rosa’s brief, Mr. Rosa failed to comply
with Rule 84.04(h), which requires that a party’s brief shall be accompanied by a separate appendix
containing the judgment from which the party appeals, including the relevant findings of fact and
conclusions of law filed in a judge-tried case or by an administrative agency. The appendix shall
also contain the “complete text of all statutes, ordinances, rules of court, or agency rules claimed
to be controlling as to a point on appeal.” 2 Rule 84.04(h). “An appendix also may set forth matters
pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written
record, and copies of new cases or other pertinent authorities.” Rule 84.04(h).
2
The appendix must also include the “complete text of any instruction to which a point relied on relates.” There are
no instructions at issue in this appeal.
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This Court has informed Mr. Rosa of his briefing failures, including his failure to file an
appendix on three separate occasions and has repeatedly directed him to file an appendix. Mr.
Rosa filed his initial non-compliant brief on March 18, 2024, but failed to file an appendix. This
Court informed Mr. Rosa of the numerous briefing deficiencies, including his failure to include an
appendix. By order, this Court granted Mr. Rosa additional time in which to file a brief that
complied with Rule 84.04, and expressly noted that his failure to do so would result in his appeal
being dismissed. Mr. Rosa filed an amended brief, but again failed to file an appendix, and his
amended brief still failed to comply with Rule 84.04 in numerous respects. Due to the numerous
deficiencies in Mr. Rosa’s brief, this Court dismissed Mr. Rosa’s appeal. In our order dismissing
the appeal, this Court again set out the briefing deficiencies, including Mr. Rosa’s failure to file an
appendix as required by Rule 84.04(h). Mr. Rosa filed a motion requesting the Court to reinstate
his appeal. After this Court reinstated Mr. Rosa’s appeal, we again notified Mr. Rosa of his failure
to comply with the Rules and his failure to include an appendix with his brief. We directed him
to file an appendix within ten days, expressly noting that his failure to do so would result in his
brief being stricken. To date, Mr. Rosa has yet to file an appendix.
Failure to file an appendix is sufficient grounds for dismissal of the appeal. See, Kruse,
692 S.W.3d at 47. Due to Mr. Rosa’s failure to comply with Rule 84.04, and pursuant to the
Court’s order of June 25, 2024, Mr. Rosa’s appellant’s brief is stricken. Consequently, this appeal
is dismissed. The Department’s motion to strike Mr. Rosa’s brief based on Mr. Rosa’s failure to
include an appendix is denied as moot. “We do not take lightly the decision to dismiss an appeal
without reaching its merits; but we also do not take lightly the mandatory briefing requirements
set forth by the Supreme Court of Missouri.” Parkside Financial Bank & Trust v. Allen, 688
S.W.3d 83, 90 (Mo. App. E.D. 2024); see Brown v. Brown, 645 S.W.3d 75, 81 (Mo. App. W.D.
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2022) (noting dismissal is particularly appropriate where an appellant, after being put on notice,
makes no effort to correct deficiencies in their brief); see also Lexow v. Boeing, Co., 643 S.W.3d
501, 509 (Mo. banc 2022) (finding significant to its dismissal the appellant’s failure to correct
briefing deficiencies cited by the Court of Appeals).
This Court has discretion to conduct ex gratia review of a non-compliant brief. Parkside
Financial Bank & Trust, 688 S.W.3d at 89. We only do so, however, “where we can ascertain the
gist of an appellant’s arguments, notwithstanding minor shortcomings in briefing.” Parkside
Financial Bank & Trust, 688 S.W.3d at 89 (emphasis in original; internal quotation omitted). In
some cases, however, a brief may be so deficient that it precludes appellate review. And such is
the case here. The shortcomings in Mr. Rosa’s briefing are not minor, but rather are numerous
and pervasive. An appendix could have aided this Court in an ex gratia review, but none was filed
here. To conduct any meaningful review, this Court would be forced to speculate, make
assumptions, and shoulder the inappropriate burden of not only ferreting out and reconstructing
the facts of the case, but also crafting Mr. Rosa’s argument on appeal. In short, we are not able to
conduct a review of this case without becoming Mr. Rosa’s advocate. This we cannot do.
Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978); Pearson, 588 S.W.3d at 552.
Appeal dismissed.
_______________________________
Angela T. Quigless, J.
James M. Dowd, P.J., and
Cristian M. Stevens, J., concur.
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