Appeal Dismissed! Avoiding Premature Dismissal in the Court of Appeals

by Brad M. Wilson¹

Appeals are often dismissed prematurely because attorneys make three common-but easily-avoided-errors.

You worked hard. You won at the trial court level and told your client the great news. But the court of appeals dismissed your appeal without even discussing the merits. What went wrong? And, more importantly, how will you explain this disaster to your client?

Appeals are routinely dismissed because attorneys fail to understand and appreciate the rules of appellate procedure. Three errors stand out as frequent causes for dismissal. Attorneys ignore Rule 84.04, fail to file timely notices of appeal, or fail to submit critical information to the appellate court. Each error guarantees that your appeal will suffer a swift and premature demise and could also subject you to malpractice liability.² Thus, if you hope to survive on appeal and keep your malpractice premiums low, you must avoid the three errors below.

I. Ignoring Rule 84.04

Supreme Court Rule 84.04 dooms more appeals than any other rule or statutory requirement. Rule 84.04 sets forth the briefing requirements for all appellate briefs. It lists the contents required for each brief and details carefully the information that must be included in each section of the appellant, respondent, and reply briefs. Failing to substantially comply with Rule 84.04 preserves nothing for review and guarantees an early dismissal.³

The rule is designed to clarify issues on appeal⁴ and notify the parties and the court of the "precise matters which must be contended with and answered."⁵ If a brief violates Rule 84.04 such that the court cannot ascertain or understand the issues or arguments, the court is forced into an advocacy position and must speculate as to the party's arguments.⁶ This leaves the court "with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency."⁷ Courts are reluctant to do this and will, instead, dismiss the appeal.⁸

Violating Rule 84.04 does not result in an automatic dismissal, however. Only substantial violations require dismissal.⁹ A violation is substantial if it impedes disposition¹⁰ or "fail[s] to make the issues on appeal clear to the parties and the appellate court."¹¹ Courts also prefer to dispose of cases on the merits, and thus may exercise discretion and review an appeal in the interest of justice despite Rule 84.04 violations.¹² It is safer, however, to simply comply with the rule.

A. Rule 84.04(d) - Points Relied On

Most attorneys know that points relied on are absolutely crucial. Careful attention is required when crafting points because "[d]eficient points relied on preserve nothing for . . . review. . . ."¹³ Rule 84.04(d) states that points relied on must:

(A) identify the trial court ruling or action that the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

Much time has been devoted to helping lawyers understand Rule 84.04(d).¹⁴ Despite the critical importance of points relied on, attorneys generate deficient points on a regular basis. Several errors are common.¹⁵

Convoluted or confusing points force the court to struggle to understand your appeal.¹⁶ After tiring of the struggle, the court may simply dismiss your appeal. The court may,¹⁷ but need not,¹⁸ dig through the rest of your brief to ferret out your arguments.

Combining multiple claims of error into a single point is another common error. Each point must address a single issue.¹⁹ Cramming three allegations of error into one point relied on, for example, ensures your point-and perhaps your entire appeal-will be dismissed.²⁰

Points relied on that state nothing more than general, abstract principles of law violate the rule as well. Your point relied on must say more than, for example, "The trial court 'erred in granting defendant's motion for summary judgment in that there are material facts in dispute because the burden of proving depreciation is on defendant.'"²¹ This point states only a general principle of law and is expressly forbidden by Rule 84.04(d)(4).

B. Rule 84.04 (e) - Argument

The argument section of your brief is obviously critical to your appeal. Here, you present your substantive position and analyze key cases to support your argument. The argument section may be second nature to most attorneys, and they may fail to review the specific rules governing the argument. This is risky and can lead to dismissal.

Rule 84.04(e) requires that you restate your point relied on "at the beginning of the section of the argument discussing that point." Your argument must follow the order of your points relied on. Citations to the record are required as well.²² Citations allow the court to verify each assertion;²³ without citations, the court becomes an advocate, searching the record for evidence to support a party's assertions.²⁴ Citing to the "entire record"²⁵ is frowned upon as well because "[i]t is not the function of the appellate court to search the record to discover the facts that substantiate a point on appeal."²⁶ Thus, the court may deem your point abandoned if you fail to "cite relevant authority in support of [your] position."²⁷

Another critical aspect of your argument is something you learned in law school - you must cite the law²⁸ and apply it to your facts. Your argument must "show how the principles of law and the facts of the case interact."²⁹ Merely citing cases and general principles of law is a far cry from demonstrating how those principles apply to your facts.³⁰ "[I]t is not [the appellate court's] duty or responsibility to spend judicial time searching through argument portions of briefs in an attempt to interpret the thrust of counsel[s'] contentions."³¹ If you fail to apply law to facts, the court may deem your point abandoned.³²

Another common error in the argument section is failing to provide the "concise statement of the applicable standard of review for each claim of error" required by Rule 84.04(e).³³ Rule 84.04(e) requires that you both know the applicable standard of review and state it in your argument. Thus, an incorrect or insufficient statement of the standard of review violates Rule 84.04(e)³⁴ the same as forgetting to include a standard altogether. Stating, for example, that "the standard of review is de novo, legal issues,"³⁵ is simply inadequate.

C. Rule 84.04 (c) - Statement of Facts

The statement of facts is another critical aspect of all appeals. The statement of facts gives you the opportunity to present your story to the court. Unfortunately, many attorneys neglect this important part of their brief and provide only a measly procedural history or exclude important facts. This is a mistake because failing to heed Rule 84.04(c) is grounds, alone, for dismissal.³⁶

"The statement of facts [must] be a fair and concise statement of the facts relevant to the questions presented. . . ."³⁷ Rule 84.04(c)'s requirements "serve[] 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."³⁸ Your statement should present a clear, unbiased picture and give the appellate court all relevant facts needed to resolve your appeal.

As obvious as it may seem, attorneys sometimes forget to use complete sentences or include page references.³⁹ This is a mistake - the longer the court must hunt through the legal file to verify your statements, the less patient the court may become with your position.

Finally, the statement of facts should not consist of "conclusory assertions" or "a few numbered paragraphs, which contain argumentative facts and conclusions."⁴⁰ Merely stringing together a short procedural history is insufficient as well.⁴¹ Without a complete picture of all relevant facts, the court may dismiss your appeal.

D. Rule 84.04 (b) - Jurisdictional Statement

Finally, the jurisdictional statement cannot be overlooked. Though not nearly as "sexy" as points relied on or argument sections, an adequate jurisdictional statement is absolutely critical. Without it, the court lacks jurisdiction and must dismiss your appeal.⁴²

The appellant's brief must include "[a] concise statement of the grounds on which jurisdiction of the review court is invoked . . . ."⁴³ Your statement must "set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution"⁴⁴ upon which you believe jurisdiction rests. "Bare recitals that jurisdiction is invoked" violate the rule.⁴⁵ You should instead identify: (1) the constitutional provision on which you rely for jurisdiction, (2) the judgment from which you appeal, and (3) "the court [below] that entered that judgment."⁴⁶ "[F]acts showing that the appeal is within the territorial jurisdiction of [the] court" must be included also.⁴⁷

Citing a jurisdictional provision that is entirely unrelated to your argument violates Rule 84.04(b) as well. For example, the Eastern District held in Giesler v. Burlington Northern Railroad Co. that the following jurisdictional statement failed to invoke the court's jurisdiction:

This appeal requires the application of established constitutional principles rather than the construction of the constitution. Therefore, this appeal is within the general appellate jurisdiction of the Missouri Court of Appeals.⁴⁸

The jurisdictional statement violated the rule because, although it invoked constitutional principles, the appellant's point relied on and argument "deal[t] entirely with venue statutes."⁴⁹

In short, your jurisdictional statement must invoke the appellate court's jurisdiction. Otherwise, you can expect a dismissal.

Attorneys cannot afford to ignore Rule 84.04. It does not consist of suggestions. Your points relied on, argument, statement of facts, and jurisdictional statement must comply with the rule or you may be sent home early.

II. Failing to File a Timely Notice of Appeal

Appellate jurisdiction hinges on a timely notice of appeal.⁵⁰ Yet attorneys often fail to file a timely notice of appeal. This error is fatal, because the appellate court lacks jurisdiction until all procedural requirements are met.

There are three components to a timely notice of appeal: the notice must be filed on time; it must be in the proper form;⁵¹ and the correct docket fee must be paid in full.⁵² Until each requirement is satisfied, the appellate court lacks jurisdiction.

Parties generally have 10 days⁵³ to file a notice of appeal "after the judgment or order appealed from becomes final."⁵⁴ Notice must be filed with the trial court clerk⁵⁵ and must follow Civil Procedure Form 8-A, 8-B, or 8-C, located in the Missouri Rules of Civil Procedure.⁵⁶ In addition, each district has a special rule requiring attorneys to file a case information form along with their notice of appeal.⁵⁷ And, if appealing to the Supreme Court of Missouri, Rule 81.08's additional requirements must be met.

Clerks cannot "accept or file a notice of appeal," however, until the proper docket fee is paid.⁵⁸ Thus, a notice of appeal is untimely unless all docket fees are paid.⁵⁹ Rule 81.04(c) sets the docket fee at $70, which includes the $20 surcharge required by § 488.031.1, RSMo.⁶⁰ Both fees are jurisdictional.⁶¹ Therefore, courts must dismiss for lack of jurisdiction if appellants have not paid the correct fees.⁶²

Courts demand strict compliance with the fee requirement.⁶³ In Deever v. Karsch & Sons, Inc., the appellant had 30 days to appeal a decision of the Labor and Industrial Relations Commission.⁶⁴ Within 30 days of the commission's decision, the appellant paid the docket fee as required by Rule 81.04(c). The appellant failed, however, to pay the $20 statutory surcharge until after the 30-day time limit had expired. The Southern District rejected the appellant's excusable neglect argument and dismissed the appeal because "[b]y the time the full docket fee had been paid, the time for appeal . . . had passed."⁶⁵ Another attorney attempted to appeal a U.S. bankruptcy court's decision but paid the docket fee with a check that later bounced.⁶⁶ When the attorney finally paid the fee with good money, time for appeal had lapsed and the court dismissed the appeal.

Cross-appellants receive no special treatment-they too must file a timely notice of appeal⁶⁷ and pay the proper docket fee.⁶⁸ They cannot rely on the appellant's notice and, in fact, relying on the appellant's notice can be fatal. In Rogiers v. Boatmen's Trust Co., the appellant filed a notice of appeal, and the respondent filed a notice of cross-appeal within 10 days pursuant to Rule 81.04(b).⁶⁹ This is the typical procedure for filing a cross-appeal. But the appellant's notice turned out to be untimely and, because the respondent's notice was filed after the appellant's untimely notice, it too was untimely. The Eastern District dismissed the cross-appeal, noting that the respondent had not requested an extension under Rule 81.07.

Thus, attorneys must take great care to file a timely notice of appeal and pay their docket fees in full and on time. Failure to do so will result in a dismissal.

III. Failing to Submit a Complete Record on Appeal

Appellate courts rely on the record to make decisions,⁷⁰ and it is the attorney's job to supply a complete record of the proceedings below. Yet, attorneys often omit critical information and fail to supply a complete and accurate record,⁷¹ thereby preventing the court from rendering a full and fair decision. This error is fatal-critical evidence omitted from the record will be taken as supporting the judgment below.⁷² And, if an appellant fails to supply "the documents necessary for appellate review," the appeal must be dismissed.⁷³ Thus, the rules governing the record on appeal must be understood.

The record on appeal consists of a legal file and transcript.⁷⁴ The record must be filed "within ninety days from the date" the notice of appeal was filed unless the record "consists only of a legal file," in which case the record must be filed "within thirty days from the date" the notice was filed.⁷⁵ This deadline can creep up quickly, but extensions are possible.⁷⁶

Attorneys may be tempted to throw every piece of paper accumulated along the litigation trail into the legal file. This is a mistake.⁷⁷ The rules are specific. Your legal file must include, for example, the pleadings, "the findings of the court or jury, the judgment or order appealed from," as well as post-trial motions and the notice of appeal.⁷⁸ Certain things must be excluded.⁷⁹ The record should not include abandoned pleadings, opening or closing statements, evidence of damages, motions to extend time, or "affidavits and admissions of service and mailing."⁸⁰ Items required to be omitted under 81.12(b) should be included, however, if they are "specifically requested and necessary to determination of issues on appeal."⁸¹

Aside from the legal file, the appellant must "order the transcript, in writing, from the reporter or from the clerk of the trial court if the proceedings were recorded . . . ."⁸² This must be done within 10 days of filing the notice of appeal.⁸³ Then, within 10 days of ordering the transcript, the appellant must pay for the transcript in full.⁸⁴ After the transcript has been ordered and paid for, the appellant must certify this to the court of appeals and serve the certificate "on all other parties."⁸⁵

Appellants hoping to survive on appeal must give careful attention to the record on appeal, especially when challenging the sufficiency of the evidence. In Fansher v. Director of Revenue, Fansher argued that his driver's license should not have been revoked because there was insufficient evidence to prove he drove while intoxicated.⁸⁶ Fansher, however, did not supply a trial transcript, and nothing in the record indicated what evidence the trial court reviewed. Thus, the Western District dismissed his appeal. Similarly, in the Eastern District, a mother and father challenged a decision to remove their children from their legal custody. The parents claimed the circuit court abused its discretion, but they "did not file any transcript or exhibits that would allow [the court] to determine whether the family court abused its discretion."⁸⁷ The court simply could not evaluate the parents' claim, and the appeal was dismissed.

Thus, appellants must provide the appellate court the pertinent information it needs. Failure to do so will lead to dismissal.

IV. Conclusion

Winning in the lower court is not enough-you must survive on appeal. If you ignore Rule 84.04, fail to file a timely notice of appeal, or fail to supply a complete record on appeal, you can expect a quick dismissal. By avoiding these errors, you help ensure your appeal-and your client-receive the attention they deserve.

Footnotes

¹ Brad M. Wilson is a judicial law clerk for the Missouri Court of Appeals-Western District and a member of the KCMBA. He received his J.D. from the University of Missouri-Kansas City in 2004, where he graduated with distinction and was a managing editor for the UMKC Law Review. The author does not purport to speak for, or on behalf of, members of the Missouri judiciary.

² See generally Steven Wisotsky, Appellate Malpractice, 4 J. App. Prac. & Process 577 (2002).

³ Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978); Richmond v. Springfield Rehab & Healthcare, 138 S.W.3d 151, 153 (Mo. App. S.D. 2004).

⁴ See Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997).

⁵ Thummel, 570 S.W.2d at 686.

⁶ E.g., Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302, 305 (Mo. App. W.D. 2004).

⁷ Thummel, 570 S.W.2d at 686.

⁸ E.g., Nicholson, 144 S.W.3d 302.

⁹ E.g., In re Marriage of Shumpert, 144 S.W.3d 317, 321 (Mo. App. E.D. 2004) ("The failure to substantially comply with Rule 84.04 preserves nothing for review."); Woodson v. City of Independence, 124 S.W.3d 20, 24 (Mo. App. W.D. 2004) ("Substantial compliance with Rule 84.04 is mandatory."). Cumulative minor violations may, however, lead to dismissal because several small errors can impede disposition as well as show disregard for the rules. E.g., Snyder v. Snyder, 142 S.W.3d 780, 782 (Mo. App. E.D. 2004) ("Although courts of appeals attempt to address the merits of even defective briefs, the numerous violations of Rule 84.04 . . . make Husband's brief undeserving of our review."); State v. Jones, 786 S.W.2d 926, 926-27 (Mo. App. W.D. 1990) ("The cover of the brief is bright red, in violation of Rule 84.06(c)(1), which requires that . . . briefs on the merits for appellants will be white. Upon opening the brief we read (much to our surprise) that jurisdiction for this appeal 'lies in the Missouri Court of Appeals, Eastern District.' These preliminary points are de minimis but are mentioned as an indication of the quality of the brief.").

¹⁰ Gray v. White, 26 S.W.3d 806, 816 (Mo. App. E.D. 1999) ("We will not exercise our discretion to dismiss an appeal for technical deficiency under Rule 84.04 unless the deficiency impedes disposition on the merits.").

¹¹ Ludwig v. Ludwig, 126 S.W.3d 466, 471-72 (Mo. App. W.D. 2004) (citing Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997)).

¹² E.g., Perry v. Tiersma, 148 S.W.3d 833 (Mo. App. S.D. 2004). "[T]he procedural rules are to be liberally construed to promote justice and minimize the number of cases disposed of on technical grounds." Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 639 (Mo. App. W.D. 2001).

¹³ Nicholson, 144 S.W.3d at 306.

¹⁴ Thomas A. Sheehan, Point Relied On or Point Waived: It's Up to You, 60 J. Mo. Bar 303 (2004).

¹⁵ Because points relied on have received attention elsewhere, see, e.g., id., their treatment here will be brief and some of the more obvious errors will not be addressed.

¹⁶ E.g., Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456 (Mo. App. W.D. 2004).

¹⁷ E.g., Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo. App. W.D. 2004).

¹⁸ Stroup v. Facet Auto. Filter Co., 919 S.W.2d 273, 277 (Mo. App. S.D. 1996) ("There is no obligation on the court to review briefs which are not in conformity with these rules.").

¹⁹ E.g., Martin v. Reed, 147 S.W.3d 860, 863 (Mo. App. S.D. 2004) ("Structuring a point relied on so that it groups together contentions not related to a single issue violates Rule 84.04."); Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157 (Mo. App. S.D. 2002) (refusing to review a point where "appellants collapse[d] disparate contentions of error into a single point relied on . . .").

²⁰ DeCota Elec. & Indus. Supply, Inc. v. Cont'l Cas. Co., 886 S.W.2d 940 (Mo. App. S.D. 1994). The point relied on stated:

Appellant seeks review of the Trial Court's Decision wherein it ruled that the Plaintiff below did not present sufficient evidence from which the Trial Court could reasonably find or infer that the Plaintiff sold materials to the contractor, that the materials were incorporated into the project, and that the Plaintiff was not paid. The Trial Court erred as it failed to follow a stipulation entered into by the parties that would require a judgment for the plaintiff of at least $4,386.03. The issues presented to the Court, were over the amount of credits due from this project and whether the Insurance Company that posted the surety bond could claim credits, allegedly due the contractor, on other projects. All other issues necessary to meet the burden of proof, with the exception of the dispute over credits, were admitted or stipulated to by the parties. Stipulations as to fact are binding on the Trial Court and the Court should have awarded a minimum of $4,386.03 as stipulated by the parties.

The trial court further erred as it required a burden of proof identical to that required in an open account case including proof of the reasonableness of plaintiff's charges. The plaintiff was required only to present evidence from which the Trial Court could reasonably find or infer that the Plaintiff sold materials to the contractor, that the materials were incorporated into the project, and that the Plaintiff was not paid. Id.

²¹ Bridges, 146 S.W.3d at 457.

²² Rule 84.04(i); e.g., Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo. App. W.D. 2004); Stroup, 919 S.W.2d at 277.

²³ E.g., In re Marriage of Shumpert, 144 S.W.3d 317, 321 (Mo. App. E.D. 2004); Boyd, 134 S.W.3d at 824.

²⁴ Boyd, 134 S.W.3d at 824.

²⁵ Snyder v. Snyder, 142 S.W.3d 780, 783 (Mo. App. E.D. 2004).

²⁶ Boyd, 134 S.W.3d at 824.

²⁷ State v. Isa, 850 S.W.2d 876, 900-01 (Mo. banc 1993); In re Marriage of Mahan, 129 S.W.3d 874, 876 (Mo. App. E.D. 2004).

²⁸ Beatty v. State Tax Comm'n, 912 S.W.2d 492, 498-99 (Mo.banc 1995); Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 164-65(Mo. App. S.D. 2002).

²⁹ Jenkins v. Manpower on Site at Proctor & Gamble, 106 S.W.3d 620, 624 (Mo. App. W.D. 2003).

³⁰ Martin v. Reed, 147 S.W.3d 860, 863 (Mo. App. S.D. 2004).

³¹ Snyder, 142 S.W.3d at 783.

³² E.g., Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302, 306 (Mo. App. W.D. 2004).

³³ Richmond v. Springfield Rehab & Healthcare, 138 S.W.3d 151, 154 (Mo. App. S.D. 2004).

³⁴ See, e.g., Woodson v. City of Independence, 124 S.W.3d 20, 25 (Mo. App. W.D. 2004).

³⁵ Snyder, 142 S.W.3d at 783; see Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo. App. W.D. 2003).

³⁶ In re Marriage of Mahan, 129 S.W.3d 874, 876 (Mo. App. E.D. 2004); Lemay, 108 S.W.3d at 709.

³⁷ Rule 84.04(c).

³⁸ Perkel v. Stringfellow, 19 S.W.3d 141, 146 (Mo. App. S.D. 2000).

³⁹ Rule 84.04(i); Snyder, 142 S.W.3d at 782; Richmond v. Springfield Rehab & Healthcare, 138 S.W.3d 151, 154 (Mo. App. S.D. 2004).

⁴⁰ Bridges, 146 S.W.3d at 459.

⁴¹ E.g., Perkel, 19 S.W.3d at 146.

⁴² E.g., In re Marriage of Shumpert, 144 S.W.3d 317 (Mo. App. E.D. 2004); Finnical v. Finnical, 81 S.W.3d 554, 558 (Mo. App. W.D. 2002).

⁴³ Rule 84.04(a)(2).

⁴⁴ Rule 84.04(b).

⁴⁵ Id.; e.g., Finnical, 81 S.W.3d at 558.

⁴⁶ In re Marriage of Shumpert, 144 S.W.3d at 319.

⁴⁷ Id.

⁴⁸ Giesler v. Burlington N. R.R. Co., 791 S.W.2d 491, 492 (Mo. App. E.D. 1990).

⁴⁹ Id.

⁵⁰ Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 294 (Mo. App. E.D. 2002).

⁵¹ Rule 81.04(a); e.g., Miller v. City of St. Louis, 140 S.W.3d 602, 603 (Mo. App. E.D. 2004); Moore ex rel. Moore, 87 S.W.3d at 296 ("Our jurisdiction depends on the timely filing of a notice of appeal and lacking that our only permissible action is to dismiss the appeal.").

⁵² Rule 81.04(c); Kattering v. Franz, 231 S.W.2d 148, 150 (Mo. 1950).

⁵³ Rule 81.04(a). Parties can seek a "special order" from the appellate court under Rule 81.07(a), asking for additional time to file a notice of appeal if their "delay was not due to . . . culpable negligence." The party must request the order within six months from the date of final judgment." Rule 81.07(a). If the special order is granted, the appellant has 10 days to file a notice of appeal unless the order says otherwise. Id.

⁵⁴ Rule 81.04(a). Rules 74.01 and 81.05(a) detail when a judgment becomes final. Determining whether, and when, you have a final judgment is absolutely critical but beyond the scope of this article. Immediate attention must be devoted to determining whether you have a final judgment from which you may appeal.

⁵⁵ Rule 81.04(a).

⁵⁶ Rule 81.08(a). Effective January 1, 2005, Rule 81.08(a) was amended to eliminate different notices of appeal for appeals to the Missouri Supreme Court and courts of appeal.

⁵⁷ Mo. Ct. App. E.D. Spec. R. 300; Mo. Ct. App. S.D. Spec. R. 12; Mo. Ct. App. W.D. Spec. R. XIV.

⁵⁸ Rule 81.04(c).

⁵⁹ Kattering v. Franz, 231 S.W.2d 148, 150 (Mo. 1950); Deever v. Karsch & Sons, Inc., 144 S.W.3d 370 (Mo. App. S.D. 2004).

⁶⁰ Section 488.031.1, RSMo Supp. 2003.

⁶¹ E.g., Kattering, 231 S.W.2d at 150; Deever, 144 S.W.3d 370.

⁶² E.g., Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 296 (Mo. App. E.D. 2002) (dismissing cross-appeal for failure to pay docket fee).

⁶³ E.g., id.

⁶⁴ 144 S.W.3d 370, 372 (Mo. App. S.D. 2004).

⁶⁵ Id.

⁶⁶ In re Peggy Hardge-Harris, 845 S.W.2d 557 (Mo. banc 1993).

⁶⁷ Rule 81.04(b).

⁶⁸ Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 296 (Mo. App. E.D. 2002) (dismissing cross-appeal for failure to pay docket fee).

⁶⁹ E.g., Rogiers v. Boatmen's Trust Co., 918 S.W.2d 285, 287 (Mo. App. E.D. 1995) ("Because Plaintiffs' appeal must be dismissed as untimely, The Salvation Army's cross-appeal must likewise be dismissed as untimely.").

⁷⁰ "Recitals in motions and statements in briefs, when unsupported by the record and not conceded by a party's adversary, are not evidence; as such, they are insufficient to supply essential matters for review." McDonald v. Thompson, 35 S.W.3d 906, 909 (Mo. App. S.D. 2001).

⁷¹ E.g., Citibank (South Dakota) N.A. v. Edwards, 147 S.W.3d 810 (Mo. App. W.D. 2004); In re T.F., 142 S.W.3d 819, 821 (Mo. App. E.D. 2004); State v. Cotton, 32 S.W.3d 577, 579 (Mo. App. W.D. 2000) (stating that defendant's failure to include transcript of hearing on pre-trial motion to suppress precluded appellate review where defendant claimed that there was insufficient evidence for the circuit court's decision not to suppress evidence).

⁷² E.g., In re J.M., 1 S.W.3d 599, 600 (Mo. App. S.D. 1999); Sydnor v. Director of Revenue, 876 S.W.2d 627, 628 (Mo. App. W.D. 1994).

⁷³ Lewis v. Allstate Ins. Co., 131 S.W.3d 451, 453 (Mo. App. W.D. 2004); Buford v. Mello, 40 S.W.3d 400, 402 (Mo. App. E.D. 2001).

⁷⁴ Rule 81.12(a).

⁷⁵ Rule 81.19.

⁷⁶ Rule 81.20.

⁷⁷ E.g., Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 516-17 (Mo. App. E.D. 1998).

⁷⁸ Rule 81.12(a); see Kent, 972 S.W.2d at 517 ("Failure to include the findings of fact and conclusions of law with the judgment violates Rule 81.12(a) and is cause for dismissal.").

⁷⁹ Rule 81.12(b).

⁸⁰ Id.

⁸¹ Id.

⁸² Rule 81.12(c).

⁸³ Id.

⁸⁴ Section 512.050, RSMo 2000; Rule 81.12(c).

⁸⁵ Rule 81.12(c); see also Rule 81.15.

⁸⁶ 147 S.W.3d 873 (Mo. App. W.D. 2004).

⁸⁷ In re T.F., 142 S.W.3d 819, 821 (Mo. App. E.D. 2004).

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 6 - November-December 2005