Opinion

THE EXECUTIVE BOARD )

OF THE MISSOURI BAPTIST CONVENTION, )

)

Plaintiff/Appellant, )

)

vs. ) No. SD32699 and SD32735

) Consolidated

WINDERMERE BAPTIST CONFERENCE ) Filed: March 25, 2014

CENTER, INC., JAMES L. HILL, RELIANCE )

TRUST COMPANY, NATIONAL CITY BANK )

OF THE MIDWEST, CONSOLIDATED )

MORTGAGE, INC., and FIRST AMERICAN )

TITLE MISSOURI AGENCY, INC., )

)

Defendants/Respondents.1 )

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

Honorable Ralph Jaynes, Senior Judge

AFFIRMED

This is an appeal by The Executive Board of the Missouri Baptist Convention (“The

Executive Board”), from the trial court’s entry of judgments against The Executive Board in

favor of Respondents Windermere Baptist Conference Center, Inc. (“WBCC”), James L. Hill

1

This lawsuit, as captioned above, filed in Camden County, was originally styled “Larry Atkins, et al. v. William

Jester, et al.” However, during the course of this lawsuit, spanning seven years, various amendments to the original

petition have taken place removing or replacing party plaintiffs. In addition, numerous other defendants have been

parties to this lawsuit, and as best we can discern from the record, these defendants were all disposed of or dismissed

at various times leaving only those defendants/respondents listed in the caption above as parties to this appeal.

(“Hill”); Reliance Trust Company (“RTC”); and National City Bank of the Midwest,

Consolidated Mortgage, Inc., and First American Title Missouri Agency, Inc., (collectively the

“NCB defendants”). We affirm the judgments of the trial court.

Overview

An overview of this case is necessary and an exercise in complexity due to the long

history of this dispute. The history and record of this case is that this is now the fourth time this

matter has been presented in some way to an appellate court. In addition, the current matter

before this Court includes The Executive Board’s brief containing 18 points and more than 4,000

pages of legal file, including numerous motions for summary judgment. The nature of the issues,

the multiple parties, and the wrangling among the parties, made it difficult for this Court to

engage in all issues asserted. The “disingenuous” position of The Executive Board, along with

their “convoluted and fastidious” distinctions, have made this appeal even more challenging, not

to mention the burdens placed upon the trial court. The Executive Bd. of the Missouri Baptist

Convention v. Windermere Baptist Conference Center, 280 S.W.3d 678, 687, 689 (Mo.App.

W.D. 2009).

In order to fully explain our decision, it is necessary to address the Byzantine journey this

case has made through our courts. The three previous opinions are: The Executive Bd. of

Missouri Baptist Convention v. Carnahan, 170 S.W.3d 437 (Mo.App. W.D. 2005)

(Windermere I); The Executive Bd. v. Windermere, 280 S.W.3d at 678 (Windermere II); and

Atkins v. Jester, 309 S.W.3d 418 (Mo.App. S.D. 2010) (Windermere III). We borrow freely

from the facts and opinions contained in Windermere I, II and III, only for purposes of this

overview and to establish clear context, without further attribution. Windermere I and II were

lawsuits filed in Cole County by The Executive Board in which the Western District ultimately

2

affirmed the circuit court’s dismissal of claims and a grant of summary judgment in favor of

WBCC. The case out of which this appeal arises was filed in Camden County prior to the

Western District’s opinion in Windermere II. In Windermere III, this Court dismissed that

appeal because the judgment was not final. 309 S.W.3d at 422. The matter was remanded, and

after the trial court below granted motions for summary judgment in favor of Respondents, this

matter is now before this Court once again.

Facts and Procedural History

In light of the extensive nature of this case, and because this case is the culmination of

two separate lawsuits, an exhaustive explanation of the factual and procedural history is

necessary in understanding the claims now before this Court, and our ultimate holding, in order

to clearly understand the context of this case. In reviewing the facts, we have utilized the

statements of uncontroverted facts in the record, as well as Windermere I, II and III.

The Executive Board is a Missouri non-profit corporation which purports to act on behalf

of the Missouri Baptist Convention (“MBC”),2 an unincorporated association of representatives

(known as “messengers”) from affiliated Southern Baptist churches in the state of Missouri.

Prior to 2001, The Executive Board was the titled owner of a conference and recreational facility

located on 1,300 acres (“the Property”), which was known as the “Windermere Baptist

Conference Center,” and located in Camden County. “[The Property] was titled in the name of

[T]he Executive Board of [MBC].” Windermere II, 280 S.W.3d at 684. This Property, and its

ownership, is the heart of this lawsuit. The record reflects The Executive Board is attempting to

reclaim the Property, and has been trying to do so since Windermere I.

2

The Executive Board’s ability to act on behalf of MBC is not an issue in this appeal.

3

In 1999, MBC and The Executive Board planned to organize some of its ministries and

assets into “subsidiary non-profit corporations.” The Executive Board asserted the intent was for

oversight and direction of the subsidiary non-profit corporations to remain with The Executive

Board and MBC. The plan to organize the ministries and assets was titled the “New Directions

Plan.” The Property was part of the New Directions Plan.

At its October 1999 annual meeting, the recommendations in the New Directions Plan

were adopted, and MBC messengers voted to authorize the creation of a new Missouri non-profit

corporation, WBCC, “to take over the assets and operations of [the Property].” Windermere II,

280 S.W.3d at 684. On July 11, 2000, The Executive Board authorized Hill, the then-Executive

Director of The Executive Board,3 to proceed with the necessary steps to implement the

incorporation of WBCC and the Property, including working with The Executive Board’s legal

counsel, Mark Comley (“Comley”). Thereafter, Hill worked with Comley to prepare and file the

articles of incorporation to create WBCC, a Missouri non-profit corporation. “The stated

purpose for [WBCC] was to establish and maintain conference and recreational facilities to

facilitate Christian renewal and commitment.” Windermere III, 309 S.W.3d at 421.

In drafting the articles of incorporation for WBCC, Comley advised Hill that a clause

requiring MBC approval of charter amendments (referred to as an “approval clause”) in the

WBCC articles of incorporation was not mandatory for purposes of incorporation.4 Comley

advised Hill by letter that Missouri law did not require an approval clause, stating: “Article 12

[(approval clause)] is not a mandatory article for purposes of incorporating the Conference

3

Hill admitted in his pleadings that he was “the Executive Director-Treasurer of MBC and [T]he Executive Board.”

4

An approval clause was originally contained in the WBCC articles of incorporation as Article 12.

4

Center. It is strictly optional.”5 The WBCC articles of incorporation were filed by Comley on

August 25, 2000. The WBCC articles did contain a provision requiring MBC election of certain

trustees; however, it did not contain an approval clause requiring MBC approval of WBCC

charter amendments.

At MBC’s annual meeting on October 31, 2000, The Executive Board presented its

“Recommendation No. 3” (the “Recommendation”) for MBC to ratify WBCC’s August 25, 2000

articles of incorporation, which did not contain an approval clause, and authorize the transfer of

assets and liabilities from The Executive Board to WBCC, effective January 1, 2001.

The official record of the October 31, 2000 annual meeting indicates 3,074 messengers

were in attendance when MBC voted on the Recommendation. The WBCC articles of

incorporation were printed in the October 31, 2000 “Tuesday Bulletin [sic]”6 for the “MBC

Annual Meeting,” and messengers were provided an opportunity to express their opinions about

the Recommendation. See Windermere II, 280 S.W.3d at 280. At the meeting, the messengers

discussed concerns that if the WBCC articles of incorporation were ratified, the WBCC board

might be able to “break away” from MBC like another affiliated agency had done the previous

month. There is no record of Hill making any representations to MBC regarding the

Recommendation. Thereafter, MBC messengers voted in favor of the Recommendation,

5

While Comley noted an approval clause was not mandatory, he pointed out that the approval clause “[a]s written”

before incorporation, did not require written approval of The Executive Board and MBC for amendments to the

articles. He suggested that if the approval clause was included, it should be modified to make amendments subject

to the approval in writing of MBC upon recommendation of The Executive Board.

6

This publication is also referred to in the record as the “Daily Bulletin.” However, a copy of the publication

contained in the record indicates the correct name is the “Tuesday Bulletin [sic].”

5

ratifying WBCC’s articles of incorporation and authorizing the transfer of the Property and the

liabilities to WBCC.7

MBC messengers also voted to select WBCC’s six initial trustees. The WBCC articles of

incorporation provided for nine trustees, and that three of the trustees “shall be permanent

members by virtue of office.” The three ex officio trustees were to be the MBC Executive

Director—then Hill; the MBC president—then Robert D. Collins (“Collins”); and the “Chairman

of the Windermere Board of Advisors.”

On November 16, 2000, MBC, through The Executive Board, filed an application with

the Internal Revenue Service for IRC 501(c)(3) exempt status for WBCC. In the letter attached

to the application for exempt status, it was noted that WBCC “‘functions as a separate

corporation with a separate governing body and is not managed or controlled by [MBC].’”

Windermere II, 280 S.W.3d at 685. Between December 2000 and April 2001, The Executive

Board conveyed the Property to WBCC by deed, in compliance with MBC’s approval of the

Recommendation.

Then, on July 30, 2001, the WBCC board of trustees adopted amended articles of

incorporation, without seeking the permission or approval of MBC or The Executive Board

before amending the articles of incorporation. The amended articles no longer granted MBC the

privilege of nominating and selecting WBCC’s trustees, and in the event of dissolution, no

longer required the distribution of corporate assets to MBC’s affiliated organizations. With the

amendment to the articles, WBCC became a self-perpetuating entity.

7

At all relevant times, the Bylaws of MBC stated in pertinent part that “[t]he adoption by the Convention . . . of any

motion or recommendation, as amended, shall be regarded as an expression of the Convention’s will and therefore

binding on any party or parties specified or implied therein until further action by the Convention.” At all relevant

times, the articles of incorporation for The Executive Board stated in pertinent part that “the Board shall not have

power to reverse any action of the Convention[.]”

6

Hill abstained from the WBCC vote to adopt the amended articles of incorporation. In

August 2001, The Executive Board knew that Hill supported WBCC’s decision to amend its

articles, and that Hill had abstained from voting on the amendment because he felt his

responsibilities as MBC’s executive director did not allow him to vote on the action.

Even though he was a member of the WBCC board of trustees, Collins did not attend the

July 30, 2001 board meeting, nor did he attend any of the six preceding monthly board meetings.

When the WBCC board of trustees was considering amending its articles to become

self-perpetuating, written information about the changes to the articles was sent to all trustees,

including Collins.

The Executive Board admitted in its response to Hill’s statement of uncontroverted facts

that Collins learned “within probably a few days, if not a week” of the July 30, 2001 board

meeting, that the WBCC board of trustees had voted to amend its articles of incorporation and

become self-perpetuating. The Executive Board believed that when the incorporation of WBCC

and transfer of assets was approved in 2000, Hill represented that WBCC would “remain under

the jurisdiction of [MBC]” through the process of electing trustees. When Collins learned that

WBCC adopted amended articles within a few days or a week after the vote, he believed Hill had

broken his promise that “there would not be changes in terms of how these agencies related to

[MBC].”8

On August 9, 2001, the then-official newspaper of MBC, the Word & Way, published an

article with the headline: “Windermere: Selfperpetuating board.” This article reported that

WBCC’s board of trustees had adopted amended articles of incorporation and that “[a]ttempts to

reach Collins for comment were unsuccessful.”

8

The record does not contain any admissible evidence of this belief or any evidence of a “broken promise” by Hill.

7

In the fall of 2001, Hill met with Collins and MBC Vice President Bob Curtis (“Curtis”),

to inform them of his desire to resign, his reasons for doing so, and the terms of a proposed

severance package and release. At the end of September, a joint meeting was held with Collins,

Curtis, Hill, and two other officers of The Executive Board to prepare a severance agreement and

release.

At a special meeting held on October 4, 2001, The Executive Board considered a

recommended severance package to Hill, and whether to authorize execution of a “Cooperation

Agreement and Release” (“Release”) with Hill. The Release was prepared by the Comley law

firm, and purported to discharge Hill from liability for all claims known and unknown arising out

of his employment with The Executive Board. In a letter dated October 3, 2001, the Comley law

firm informed Collins that by executing the Release, both The Executive Board and Hill “will

release all existing claims against one another for the consideration included in the agreement.”

During the October 4, 2001 meeting, prior to debate on the Release, Hill told The

Executive Board that he was resigning because of the “growing division” within The Executive

Board in 2001, because “some board members do not have confidence in my leadership,”

because some individuals want to file litigation against the breakaway agencies and “do not trust

me,” and because he no longer had the trust required to lead as executive director: “Some who

do not trust me will not allow me to lead and others will not follow my leadership.”

The motion to authorize execution of the Release was debated and carried with

opposition. Collins, on behalf of The Executive Board, executed the Release on October 4,

2001; Hill’s resignation was effective October 19, 2001. Included within the terms of the

Release was a recitation of money paid to Hill, along with other consideration for the Release;

8

mutual release language whereby each party was releasing the other (“mutual release”); and the

following paragraph:

10. The parties declare and represent that no promise, inducement or

other agreement not expressly contained herein has been made; that this release

contains the entire agreement between the parties; and that the terms of this

release are contractual and not a mere recital.

The Cole County Lawsuit

On August 13, 2002, The Executive Board filed its first lawsuit in Cole County against

WBCC, asserting various legal theories in an attempt to invalidate the amended articles of

incorporation and thereby allow it to ultimately re-acquire the Property and assets.

On March 11, 2004, the Cole County lawsuit was dismissed, after which an appeal was

filed and the case was remanded. Windermere I, 170 S.W.3d at 453. On remand, the court

dismissed The Executive Board’s conspiracy claims against WBCC and granted summary

judgment in favor of WBCC on The Executive Board’s remaining claims. The Western District

affirmed the judgment on February 3, 2009. Windermere II, 280 S.W.3d at 699.

The Camden County Lawsuit

The current appeal arises from the Camden County lawsuit. Before the Western District

issued its opinion in Windermere II, The Executive Board filed a lawsuit in Camden County on

November 1, 2006.9 In the Camden County lawsuit, The Executive Board “tried a different

track, filing a[n alleged] quiet title claim in Camden County, the county in which [the Property]

is located.” Windermere III, 309 S.W.3d at 421. Unlike the Cole County lawsuit, the

defendants in the Camden County lawsuit consisted of Hill, RTC, and the NCB defendants,

along with WBCC, that was previously named in the Cole County lawsuit. RTC and the NCB

9

A First Amended Petition was filed on November 16, 2006. A copy of the Cole County petition, along with a

preliminary injunction entered in the Cole County lawsuit, was attached to the First Amended Petition filed in the

Camden County lawsuit.

9

defendants asserted a financial interest in the Property, the specifics of which are unclear from

the record. The Executive Board’s pleadings allege these Respondents “may claim an adverse

interest in the . . . Property.”

A Second Amended Petition was filed, and on April 9, 2009, the court granted WBCC’s

motion to dismiss all claims against it in the Second Amended Petition. The Executive Board

and MBC appealed and this Court dismissed the appeal because the April 9, 2009 judgment was

not a final judgment for purposes of appeal. Windermere III, 309 S.W.3d at 422.

After remand to the Circuit Court of Camden County, The Executive Board and MBC

filed their “Fourth Amended and Restated Petition” (“Fourth Amended Petition”) on June 21,

2010, which is the pleading now at issue before this Court. The Fourth Amended Petition

alleged RTC and the NCB defendants “assert[ed] a right or interest in the . . . Property.”

The Fourth Amended Petition contained numerous allegations to the effect that Hill made

fraudulent misrepresentations and/or omissions to The Executive Board and MBC. Count I

alleged a claim for fraudulent misrepresentation against Hill; Count II sought damages for breach

of fiduciary duties against Hill; and Count III sought “Quiet Title and Rescission” against

WBCC, RTC, and the NCB defendants on the basis of Hill’s alleged fraud.

Four separate motions for summary judgment were eventually filed. On July 5, 2011,

Hill filed a motion for summary judgment and statement of material uncontroverted facts

pursuant to Rule 74.04,10 alleging the claims against Hill in Count I (fraudulent

misrepresentation) and Count II (breach of fiduciary duty), were “barred by three affirmative

defenses: statute of limitations, release, and collateral estoppel/res judicata.” Hill further alleged

there was “no genuine dispute as to the existence of each of the facts necessary to support these

10

All rule references are to Missouri Court Rules (2013), and all references to statutes are to RSMo 2000, unless

otherwise indicated.

10

defenses.” As to Count III (“Quiet Title and Rescission”), Hill alleged he was entitled to

summary judgment because “plaintiff could not establish, after an adequate period of discovery,

any interest in the Property, which is an essential element of a quiet title action.”11

WBCC’s motion for summary judgment alleged it was entitled to summary judgment

because: (1) the claim for rescission against WBCC is barred by the doctrines of res judicata

and collateral estoppel; (2) The Executive Board failed to state a claim against WBCC;

(3) rescission relief is barred in whole or in part because The Executive Board’s claims were

barred by full performance of the contracts, and rescission is not an available remedy; (4) the

statute of limitations barred The Executive Board’s claims; (5) WBCC’s claim to title to the

Property is superior to claim of The Executive Board and MBC; and (6) The Executive Board

failed to establish fraud by Hill.

The basis for the NCB defendants’ motions for summary judgment included:

(1) collateral estoppel/res judicata; (2) failure of The Executive Board to establish a claim to

quiet title; (3) failure of The Executive Board to establish a claim for rescission; (4) failure to

name the NCB defendants in The Executive Board’s Count I; (5) the Release of Hill; (6) statute

of limitations; and (7) The Executive Board’s claims for quiet title are barred against all

defendants if the claim for quiet title is barred as against any defendant.

RTC filed its motion for summary judgment alleging it was entitled to summary

judgment for two reasons: (1) the doctrine of issue preclusion prevented The Executive Board

from relitigating claims already decided in earlier litigation; and (2) because the 5-year statute of

limitations barred The Executive Board’s claims.

11

The Executive Board’s response to Hill’s statement of uncontroverted facts to this effect was that “[The Executive

Board] is filing a Voluntary Dismissal of [Hill] as to Count III, so this item is moot.”

11

As a part of Respondents’ motions for summary judgment, The Executive Board filed

responses to the statements of material uncontroverted facts, as well as its additional material

facts alleged to be in dispute. Many of The Executive Board’s responses and additional material

facts were supported by and relied upon the “Affidavit of Robert D. Collins” (the “Collins

Affidavit”). However, the Collins Affidavit was stricken by the trial court in response to Hill’s

motion to strike. The Executive Board has not challenged the trial court’s ruling as to the Collins

Affidavit.

On March 19, 2013, the trial court conducted a hearing on the various motions for

summary judgment. The trial court granted Hill’s motion for summary judgment finding the

claims against Hill “are barred by the Statute of Limitations (§ 516.120(5) RSMo.) and by virtue

of a valid Release executed by [The Executive Board] on or about October 4, 2011.” WBCC’s

motion for summary judgment was granted “for the reasons stated in WBCC’s Motion for

Summary Judgment, its Legal Memoranda in Support, and its Statements of Uncontroverted

Material Facts, as well as for the reasons orally argued to the Court[.]” RTC’s motion for

summary judgment was also granted; however, an “Amended Judgment” notes it was granted on

the “basis of issue preclusion, also known as collateral estoppel.” The trial court also noted it

granted summary judgment in favor of WBCC, which in effect terminated all claims of right,

title, and interest of The Executive Board to the Property causing The Executive Board to no

longer have standing to pursue claims against RTC. Finally, the trial court granted the NCB

defendants’ motion for summary judgment “for the reasons stated in [the NCB] [d]efendants’

legal memorandum and supplemental legal memorandum, . . . as well as those reasons orally

argued before the [c]ourt[.]” This appeal followed.

12

The Executive Board’s Rule Violations

Our examination of this appeal must begin with not only the various motions to dismiss

asserted by Hill, RTC, and WBCC for The Executive Board’s violations of Rule 84.04(c), but

also The Executive Board’s failure to recognize its violations of Rule 74.04 in its statement of

facts. Because of the rule violations, it is unnecessary for us to reach the eighteen points asserted

on behalf of The Executive Board.

Respondents argue that The Executive Board’s brief fails to comply with the

requirements of Rule 84.04(c) for a proper statement of facts, and Rule 84.04(e) for a proper

argument.12 We agree that The Executive Board failed to comply with Rule 84.04. To

understand our decision, it is critical to understand our standard of review.

Standard of Review

Our review in a case involving the granting of a summary judgment is de novo, and we

view the record in the light most favorable to the party against whom judgment was entered.

ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376

(Mo. banc 1993); American Std. Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2000).

When the moving party is the defendant, as in this case, summary judgment can be established

by showing one of the following:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-

movant, after an adequate period of discovery, has not been able to produce, and

will not be able to produce, evidence sufficient to allow the trier of fact to find the

existence of any one of the claimant’s elements, or (3) that there is no genuine

dispute as to the existence of each of the facts necessary to support the movant’s

properly-pleaded affirmative defense.

12

Hill’s motion to dismiss includes a claim that The Executive Board’s brief, “in its statement of facts and

argument, includes improper facts and omits admitted material facts in violation of Rule 84.04(c) and (e).” Rule

84.04(c) details the requirements of a statement of facts, while (e) addresses the argument section of a party’s brief.

Because Hill’s complaint with respect to 84.04(e) relates back to the “facts” included in the argument, we combine

our response to Hill’s Rule 84.04 rule violation complaint.

13

ITT Commercial Fin., 854 S.W.2d at 381 (emphasis in original).

Once the movant has made “a prima facie showing that there are no genuine issues of

material fact and that movant is entitled to judgment as a matter of law,” the burden shifts to the

non-movant to show that one or more of the material facts shown by movant not to be in dispute,

is actually genuinely disputed. Id. “The non-movant may not rest upon the allegations and

denials of the pleadings, but rather must use affidavits, depositions, answers to interrogatories, or

admissions on file to show the existence of a genuine issue for trial.” Crow v. Crawford & Co.,

259 S.W.3d 104, 113 (Mo.App. E.D. 2008). “A genuine dispute is one that is real, not merely

argumentative, frivolous, or imaginary.” Id.

Rule 74.04 Violations

Rule 74.04 governs motions for summary judgment, and the requirements of Rule 74.04

are mandatory. Wichita Falls Prod. Credit Ass’n v. Dismang, 78 S.W.3d 812, 814 (Mo.App.

S.D. 2002). “[F]ailure to respond to the factual allegations in a defendant’s motion for summary

judgment is an admission of those facts.” Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App.

1999). Here, The Executive Board’s responses to Respondents’ statement of uncontroverted

material facts did not comply with Rule 74.04(c)(2), which requires that a response to a motion

for summary judgment: (1) “admit or deny each of movant’s factual statements”; (2) “set forth

additional material facts that remain in dispute”; and (3) “support each denial [and factual

statement asserted in response] with specific references to the discovery, exhibits, or affidavits.”

Rule 74.04(c)(2); see Wichita Falls Prod. Credit Ass’n, 78 S.W.3d at 815. Specifically, The

Executive Board failed to just admit or deny each of Respondents’ numbered statements of fact.

Instead, The Executive Board’s responses also “STATE[D]” additional facts beyond those in the

paragraph, and denied facts not included in the paragraphs.

14

Factual allegations in a motion for summary judgment which are not properly denied in

accordance with Rule 74.04(c)(2) are deemed admitted. Id. (noting “[t]his Court is not required

to compare each averment in Appellants’ suggestions to each averment in Respondent’s . . . .

motion for summary judgment in order to ascertain which factual statements were admitted or

denied.”). The Executive Board’s responses to Respondents’ statement of uncontroverted

material facts fall woefully short of the requirements of Rule 74.04(c)(1) & (2).

The Executive Board completely disregarded the requirements of Rule 74.04, and this

Court’s de novo review standard. We remind The Executive Board that while the trial court sits

as one judge reviewing the motions, evidence, and applicable law, our review is de novo; the

only difference in the function of the trial court and this Court in evaluating motions pursuant to

Rule 74.04, is that this Court sits as three judges reviewing the motions, evidence, and applicable

law (unless the Court sits en banc).

Rule 84.04 Violations

However, this was not the only procedural violation committed by The Executive Board.

Rule 84.04(c) requires The Executive Board’s brief to contain a “fair and concise statement of

the facts relevant to the questions presented for determination without argument.” Rule 84.04(c).

Since the trial court adjudicated this case by summary judgment, the facts on which the trial

court based its decision were those established pursuant to Rule 74.04(c)(1) & (2). Chopin v.

Am. Auto. Ass’n of Missouri, 969 S.W.2d 248, 251 (Mo.App. S.D. 1998). As a result, “the

statement of facts in [The Executive Board’s] brief should have set forth the material facts

established by Rule 74.04(c)(1) and (2), together with the pages in the legal file where such facts

are established.” Id. We must scrutinize those facts, and as a consequence, when we do so here,

The Executive Board’s statement of facts in its brief also falls woefully short of setting forth the

15

material facts established by Rule 74.04(c)(1) & (2), along with the pages in the legal file where

such facts are established. Id.

An appellant has the duty to define the scope of the controversy by stating

the relevant facts fairly and concisely. Haynes Family Corp. v. Dean Properties,

Inc., 923 S.W.2d 465, 466[2] (Mo.App. S.D.1996); Amparan v. Martinez, 862

S.W.2d 497, 498 (Mo.App. E.D.1993). The purpose of the statement of facts is to

afford an immediate, accurate, complete and unbiased understanding of the facts

of the case. Haynes Family Corp., 923 S.W.2d at 466–67[3]; Amparan, 862

S.W.2d at 498. A statement of facts containing practically no facts relating to any

issue raised on appeal does not comply with Rule 84.04(c). Haynes Family

Corp., 923 S.W.2d at 467[5]; Mease v. McGuire, 886 S.W.2d 654, 655[2]

(Mo.App. S.D.1994).

Chopin, 969 S.W.2d at 251.

A statement of facts that does not identify: (1) the material facts established by a party’s

motion for summary judgment and the party opposing the motion for summary judgment’s

response, or (2) the material facts, if any, pled in the motion for summary judgment properly

denied by the opposing party’s response, violates Rule 84.04(c). Id. “Violations of Rule

84.04(c) constitute grounds for dismissal of an appeal.” Haynes Family Corp. v. Dean

Properties, Inc., 923 S.W.2d 465, 467 (Mo.App. S.D. 1996). See also Wichita Falls Prod.

Credit Ass’n, 78 S.W.3d at 816 (noting “[b]ecause the Appellants’ statement of facts violates

Rule 84.04(c), this Court is justified in dismissing this appeal on this basis.”).

The “Statement of Facts” in The Executive Board’s brief sets forth an account of the facts

that does not correspond to the factual statements in the consecutively numbered paragraphs of

the various motions for summary judgment filed by WBCC, Hill, RTC, and the NCB defendants.

We are unable to determine from the Statement of Facts in The Executive Board’s brief which

material facts were established by Respondents’ various motions for summary judgment, nor can

we determine which material facts, if any, pled by Respondents’ motions, were properly denied

by The Executive Boards’ responses. See Chopin, 969 S.W. 2d at 251. The purpose of Rule

16

84.04(c) is to “define the scope of the controversy and afford the appellate court an immediate,

accurate, complete, and unbiased understanding of the facts of the case.” Thompson v. Flagstar

Bank, FSB, 299 S.W.3d 311, 314 (Mo.App. S.D. 2009) (internal quotation and citation omitted).

We are simply unable to determine from The Executive Board’s Statement of Facts which

material facts were established by the motions for summary judgment and which material facts

were properly denied in response. See Wichita Falls Prod. Credit Ass’n, 78 S.W.3d at 816;

Haynes Family Corp., 923 S.W.2d at 467 (holding failure to “substantially comply with Rule

84.04(c) preserves nothing for appellate review.”).

Furthermore, The Executive Board’s Statement of Facts improperly relies almost

exclusively on the Collins Affidavit, which was stricken by the trial court. The Executive Board

did not challenge the ruling as to the Collins Affidavit. Therefore, The Executive Board’s

reliance on the Collins Affidavit is improper, although its response contains references to the

legal file citing Collins Affidavit at least 20 times in its brief.13 See Miller v. River Hills

Development, 831 S.W.2d 756, 757 (Mo.App. E.D. 1992) (holding “[u]nless the record on

appeal demonstrates that the documents purportedly relied upon in the trial court were properly

made part of the trial record, we cannot say that they were considered by the trial court and they

may not be considered on appeal.”); Lay v. St. Louis Helicopter Airways, Inc., 869 S.W.2d 173,

174 (Mo.App. E.D. 1993) (“We cannot consider records that were not before the trial court.”).

The Executive Board’s misguided reliance on the Collins Affidavit to support additional material

facts alleged to be in dispute is fatal to The Executive Board’s claims because we may not

consider the Collins Affidavit on appeal. Id.

13

The Executive Board’s Statement of Additional Material Facts in Dispute filed in response to the motion for

summary judgment references the Collins Affidavit over 80 times to argue additional material facts were still in

dispute.

17

Our Supreme Court has instructed that “[a]n appellate court’s role is to review

specifically challenged trial court rulings, not to sift through the record . . . [and] assume the role

of advocate.” Smith v. City of St. Louis, 395 S.W.3d 20, 29 (Mo. banc 2013). It is not the

function of this Court to develop the facts and thereby do the work of an advocate on appeal. See

id.

We adhere to the rule that an 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. We will not seine the record to locate factual support for assertions by

the appellant.

Anderson v. American Family Mut. Ins. Co., 173 S.W.3d 356, 359 (Mo.App. W.D. 2005)

(internal quotations and citations omitted).

We hold The Executive Board’s violation of Rule 84.04(c) warrants dismissal of this

appeal, although we do not resort to that extreme remedy. We note that absent the motions to

dismiss, our duty is to verify compliance with Rule 84.04, sua sponte, if necessary. See Ward v.

United Engineering Co., 249 S.W.3d 285, 287 (Mo.App. E.D. 2008). A brief containing

violations of Rule 84.04, including Rule 84.04(c) violations, preserves nothing for this Court’s

review. Tavacoli v. Division of Employment Sec., 261 S.W.3d 708, 710 (Mo.App. W.D. 2008).

Occasionally, this Court reviews non-compliant briefs ex gratia. However, a violation of

briefing rules may leave this Court nothing suitable even for ex gratia review. See Jones v.

Jones, 819 S.W.2d 773, 774 (Mo.App. E.D. 1991). If addressing the appeal would require this

Court to become an advocate for a party by searching the record for the facts of the case, we

cannot do so. See Willis v. Missouri Farm Bureau Services, Inc., 396 S.W.3d 451, 454

(Mo.App. W.D. 2013).

18

Here, The Executive Board’s failure to comply with Rule 84.04 is so serious as to impede

our appellate review. See Yates v. Briggs & Stratton, 302 S.W.3d 776, 778 (Mo.App. S.D.

2010). The Executive Board has now presented its claim to a Missouri appellate court on four

occasions, and at this stage, we simply cannot overlook The Executive Board’s gross violations

of Rule 84.04.14

Conclusion

Because of our decision documenting The Executive Board’s Rule 84.04 violations, there

are no valid points before us; therefore, the judgments are affirmed in that The Executive Board

has failed to persuade us as to the validity of its position. Hardy v. McNary, 351 S.W.2d 17, 20

(Mo. 1961) (finding appellant has the burden of affirmatively establishing alleged error on

appeal).

WILLIAM W. FRANCIS, JR., C.J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - Concurs

DANIEL E. SCOTT, J. - Concurs in Separate Opinion

14

We do not have to reach other Rule 84.04 violations, including defective points relied on.

19

THE EXECUTIVE BOARD OF THE )

MISSOURI BAPTIST CONVENTION, )

)

Plaintiff/Appellant, )

)

vs. ) No. SD32699 and SD32735

) Consolidated

WINDERMERE BAPTIST CONFERENCE ) Filed: March 25, 2014

CENTER, INC., JAMES L. HILL, RELIANCE )

TRUST COMPANY, NATIONAL CITY BANK )

OF THE MIDWEST, CONSOLIDATED )

MORTGAGE, INC., and FIRST AMERICAN )

TITLE MISSOURI AGENCY, INC., )

)

Defendants/Respondents. )

OPINION CONCURRING IN RESULT

I concur in the result for slightly different reasons. The principal opinion

charitably understates Appellant’s disregard of Rule 84.04 and developed case law,

but I think we can affirm on the merits as to two of Appellant’s three pleaded counts.

Counts I and II – Release

For the express purposes “of resolving, settling and compromising any and all

of [Hill] and [Appellant]’s potential disputes and to avoid the expense of further

litigating the claims and defenses which each party may have,” these two parties

mutually released each other – prior to this lawsuit – from all claims, causes of

action, and liabilities “of whatever kind or nature, direct or indirect, in law, equity or

otherwise, whether known or unknown, vested or contingent, suspected or

unsuspected, which existed in the past or which currently exist ….”

This release is presumed valid,1 so to avoid summary judgment, Appellant had

to support its claim that Hill procured the release by fraud. If (as I believe)

Appellant’s fraud assertions hinged upon the Collins Affidavit stricken by the trial

court, summary judgment was proper. Thus, I would affirm the judgment in Hill’s

favor on Counts I and II based on release.

Count III – Rule 84.04

Unfortunately, I cannot similarly overcome Appellant’s Rule 84.04 violations

as to its final pleaded count. At the risk of parroting the principal opinion’s citations

to Chopin v. AAA of Missouri, 969 S.W.2d 248 (Mo.App. 1998), I quote that case

liberally because it mirrors Appellant’s failings and our dilemma caused thereby:

Inasmuch as the trial court adjudicated this case by summary

judgment, the facts on which the trial court based its decision were

those established pursuant to Rule 74.04(c)(1) and (2). It is thus

evident that in order to review the judgment, we must scrutinize

those facts. Consequently, the statement of facts in [Appellant]’s

brief should have set forth the material facts established by Rule

74.04(c)(1) and (2), together with the pages in the legal file where

such facts are established.

Id. at 251.

But as in Chopin, Appellant instead offers “an account of the facts that does

not correspond to the factual statements in the consecutively numbered paragraphs

1 Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993). Appellant’s arguments

to the contrary ring hollow.

2

of [Respondents’] motion[s].” Id. “Therefore, we cannot determine from the

statement of facts in [Appellant]’s brief which material facts were established by

[Respondents’] motion[s], nor can we determine which material facts, if any, pled by

[Respondents’] motion[s] were properly denied by [Appellant]’s response.” Id.

It was Appellant’s duty “to define the scope of the controversy by stating the

relevant facts fairly and concisely.” Id. “The purpose of the statement of facts is to

afford an immediate, accurate, complete and unbiased understanding of the facts of

the case.” Id. “A statement of facts containing practically no facts relating to any

issue raised on appeal does not comply with Rule 84.04(c).” Id.

Such observations, in Chopin, drove us to conclusions equally fitting here:

Because the statement of facts in Chopin’s brief does not identify

(1) the material facts established by Martindale’s motion for

summary judgment and Chopin’s response, or (2) the material facts,

if any, pled in Martindale’s motion and properly denied by Chopin’s

response, we hold the statement of facts violates Rule 84.04(c).

Violations of Rule 84.04(c) constitute grounds for dismissal of an

appeal.

We hold Chopin’s violation of Rule 84.04(c) warrants dismissal

of this appeal. However, as we are aware that dismissing it might

possibly result in manifest injustice or miscarriage of justice, we

have taken the precaution of reviewing the judgment under Rule

84.13(c). That rule empowers an appellate court, in its discretion, to

consider plain errors, though not raised or preserved, if manifest

injustice or miscarriage of justice resulted therefrom. Having

gratuitously examined the record, we find no plain error justifying

relief under that rule.

Id. (citations omitted). See also Jimmy Jones Excavation v. JDC Structural

Concrete, 404 S.W.3d 922, 923-24 (Mo.App. 2013); Wichita Falls PCA v.

Dismang, 78 S.W.3d 812, 815-16 (Mo.App. 2002).

3

Purposefully or otherwise, Appellant ignored these documented admonitions

when compliance was all the more crucial due to the complexity of this case and its

appellate record.2 This is not just a problem of making this court work harder. Do

we hedge our neutrality to keep Appellant “in the game” despite its rule violations?

Do we delay other cases and litigants, perhaps for weeks, while we do what Appellant

should have done? Such concerns admit of no hard and fast answers.

As in the cases cited above, I think a fair compromise is plain error review – is

it manifestly unjust to enforce Rule 84.04? The short answer, as in those cases, is

“no.” Compare Jimmy Jones Excavation, 404 S.W.3d at 924 n.4; Dismang, 78

S.W.3d at 816; Chopin, 969 S.W.2d at 251. I would reject Appellant’s Count III

challenges on this basis and, thus, reach the same result as the principal opinion.

DANIEL E. SCOTT, J. – SEPARATE OPINION AUTHOR

2 This legal file exceeds 4,200 pages, divided into 34 separate PDF files, and is not

word searchable. For comparison, the legal file in Jimmy Jones Excavation was

one-quarter this size. 404 S.W.3d at 923.

4