Executive Board v. Windermere Baptist Conference Center, Inc.

DANIEL E. SCOTT, J.

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 81.0k

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:

*287 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 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).

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 *288 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.

. Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993). Appellant’s arguments to the contrary ring hollow.

. 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 .