Point Relied on or Point Waived: It's Up to You

by Thomas A. Sheehan¹

Missouri's "Point Relied On" rule presents unique challenges to appellate practitioners. To comply with its strict requirements, counsel need to understand the language of the rule itself and the policies behind the rule, as well as be familiar with the penalties courts may impose for failing to comply.

Introduction

In a perfect world, Missouri's "Point Relied On" rule would pose no obstacle to practitioners seeking justice in the appellate courts.² Like the rules regulating the length of briefs, font size, or color of cover, the "Point Relied On" rule would be nothing more than another administrative requirement to be checked off during final review of a brief.

But the world is not perfect, and choosing the proper color cover hardly compares with the intricacies of Mo. R. Civ. P. 84.04 (d). More importantly, however, while the courts will allow practitioners to cure violations of many rules, a violation of the "Point Relied On" rule may result in the outright dismissal of an issue raised on appeal. Indeed, many times each year the Missouri appellate courts refuse to even consider issues because the point relied on was faulty.

For this reason, Rule 84.04(d) demands special consideration. The rule itself naturally should be consulted. Case law is an ideal source, too, because it explains the policy behind the rule. An understanding of the purpose behind the rule will remove any ambiguities that may appear in the rule's literal language.

The Rule

Rule 84.04 sets forth the requirements for briefs filed in Missouri's Courts of Appeals and Supreme Court. It discusses such topics as table of contents, jurisdictional statement, argument, and conclusion. Subsection (d), titled "Points Relied On," contains the most detailed portion of the rule. It states:

(1) Where the appellate court reviews the decision of a trial court, each point shall:

(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.³

Like the five "W's" of journalism (who, what, when, where, and why), Rule 84.04(d) has its own rhythm: identify, state, and explain. Identify what ruling is being challenged, state the legal basis for the challenge, and explain why that legal rule applies to the facts of your case.

The drafters of the rule even go so far as to offer a sample format for use.

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].⁴"

This format seems simple on its face, but has caused much confusion among the practicing bar.⁵ Consider a point relied on from a reported decision, no doubt drafted by a practitioner unaware of the requirements of Rule 84.04: "The court erred in awarding actual damages because the only proof of such damages was speculative, and without foundation."⁶ The Court of Appeals refused to consider this point relied on because it violated Rule 84.04 (d).⁷

Any examination of the point shows the court was correct. The only thing the point explicitly accomplishes is identifying the challenged ruling - the award of actual damages. It alludes to the legal basis for the challenge (speculation and lack of foundation), but does not clearly state it. Moreover, it wholly fails to explain how, in the circumstances of the case, the ruling was wrong.

The following point, while certainly not eloquent, comes closer to satisfying Rule 84.04(d):

The trial court erred in awarding actual damages because plaintiff's proof of damages was impermissibly speculative and lacking in foundation in that there was no evidence that plaintiff's business had been profitable in the past or that plaintiff had a commercially viable product to sell in the future.

The legal basis for the challenge, the first requirement missing in the reported decision, is that plaintiff's proof was impermissibly speculative and lacking in foundation. The finale, or the "why" clause, ensures that the court understands the unique facts of your case. Without it, the point simply provides an abstract statement of the law that serves no useful purpose.⁸

But, What I Really Meant to Say is. . . .

Rule 84.04(d) states no penalty for its violation. The courts have created several on their own, ranging from outright dismissal of the issue to consideration of it using a standard of review that rarely results in a reversal. Neither of these results offers much comfort to the faulty point drafter.

The most severe penalty is that the court will not consider the point at all; the issue alluded to will be deemed abandoned. The courts save this harsh result for the most egregious violations of Rule 84.04(d). For example, in State v. Nunley,⁹ a pro se¹⁰ appellant challenged his conviction for driving a motorcycle without a helmet and the $25 fine imposed. His four points relied on stated as follows:

I. The U.S. Constitution, specifically the 14th Amendment's 'due process' clause forbids the enforcement of any law that does not define the offense so that the ordinary citizen of ordinary intelligence can know with certainty what is required of them in order to comply with that law.

II. R.S.Mo. 302.020 gives power to the director of the DMV to set the state standard for motorcycle headgear.

III. The enforcement of the standards set by the director of the DMV constitutes an enforcement of Federal Motor Vehicle Safety Statute 218.

IV. Enforcement of FMVSS 218 constitutes an enforcement of a law that does not specify the offense so that citizens of ordinary intelligence can know with certainty what is required to comply.¹¹

By now it should be clear that these points relied on don't comply with Rule 84.04(d). Even after citing its natural reluctance "to decline appellate review in a criminal case for briefing deficiencies,"¹² the court had no real option but to affirm Mr. Nunley's conviction and fine.

Not every faulty point relied on spells disaster, however. When the point relied on is deficient, but the argument portion of the brief supplies the necessary details, some courts will still consider the issue in certain, limited circumstances. "We will review a point relied on that does not technically comply with Rule 84.04(d) as long as we are able to ascertain the issues being raised to some degree of certainty by reading the point relied on in conjunction with the argument thereon and provided that in doing so we are not forced to become an advocate for the appellant."¹³

But forgiveness is not universal. As one court has stated, a "point relied on written contrary to the mandatory requirements of Rule 84.04(d), which cannot be comprehended without resorting to other portions of the brief, preserves nothing for appellate review."¹⁴ The deciding factor in whether the court addresses the issue or deems it abandoned may be whether the appellee has addressed it in its brief.¹⁵ Thus, if counsel for appellee somehow stumbles upon the true intent of the point and addresses it in a cautionary fashion, the court is likely to follow suit and decide the issue.

Finally, some courts will consider an improperly raised point relied on, but apply an extremely deferential standard of review. When a point relied on preserves nothing for appellate review, the courts may look to the argument portion of the brief to decide if there was plain error that would allow relief under Mo. R. Civ. P. 84.13(c).¹⁶ "Plain error" is a lofty standard, though. It is used sparingly and will not justify review of every trial error that has not been properly preserved for appellate review.¹⁷

The requirement for plain error review is that, on face of the appellant's claim, substantial grounds exist for believing that the trial court committed 1) a "plain" error, that 2) resulted in manifest injustice or a miscarriage of justice.¹⁸ For the error to be considered "plain," it must be "evident, obvious and clear."¹⁹ In one case, the court found an error to be "plain" where the lower court granted summary judgment based on an erroneous reading of clearly-established Missouri Supreme Court precedent.²⁰ Suffice it to say, most errors do not rise to this level.

Even when they do, however, the prejudice standard is unusually high in plain error review. Unlike normal errors, which must only affect the legal rights of appellant to qualify for reversal, plain errors create "manifest injustice or a miscarriage of justice."²¹ In other words, they must be decisive of the outcome of the case.²²

What's the Point?

You may ask: What's the point? Why does it matter that issues be framed in a certain way? The answers to these questions do not appear in the rule, but rather in the policy behind the rule. As the Supreme Court of Missouri has noted, "[t]he requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts. It is rooted in sound policy."²³

That policy is based on the recognition that each appeal has at least three participants: the appellant, the respondent, and the court. The respondent and the court are initially at the mercy of the appellant, who frames the issues as it sees fit. The respondent may try to reframe them in a more favorable light, but in the end still needs to address the issues raised by the appellant. The court is then left with the task of deciding first what the real issues are and, second, who should prevail on each of them.

This gives a decided advantage to the appellant. Few among us would ever lose an argument if we could always frame the issue. Twenty-four hour news channels are overflowing with talking heads not debating issues, but rather redefining them. Indeed, not long ago Republicans tried to impeach President Clinton for committing perjury during a deposition. Rather than address whether perjury was an impeachable offense, Democrats argued that Mr. Clinton should not lose the presidency for simply lying about sex.

Politics may thrive on such double talk, but courts need concrete issues. Enter Rule 84.04(d). Simply put, the "point relied on" rule levels the playing field in several important ways. First, by requiring appellant to concisely state each issue up front, the rule ensures that respondent has notice of the precise matters that must be addressed and the court understands the issues presented for resolution.²⁴ By doing so, the rule reduces the likelihood that appellant's argument, like a chameleon, will change as the need arises.²⁵ The respondent need not chase rabbits down holes and the court can focus on what is really important-the genuine issues in the case.

The second policy consideration is the importance of timing. The rule requires that respondent be given notice of what is at issue at a time when the knowledge is most useful. To first learn what the real issue is at oral argument is to learn nothing at all, but to learn it when the appellant's brief is filed is to possess real power.

Third, a properly drafted point relied on prevents the court from having to assume the role of advocate for the appellant. If the point is vague, the court may use its considerable skill to expose errors not seen by the appellant:

If this Court must resort to searching the argument portion of the brief or the record on appeal to determine or clarify the nature of the asserted claims, we may interpret the claims differently than the opponent or than was intended by the party asserting the claim. The appellate court's function is to examine trial court error asserted by the party, not to serve as advocate for any party to an appeal. Where a brief fails to comply with the applicable rules and does not sufficiently advise the court of the contentions asserted and the merit thereof, "the court is left 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." "Courts should not be asked or expected to assume such a role."²⁶

As the court makes plain, justice is jeopardized when the court assumes the role of advocate for the appellant. In addition, the level playing field envisioned by the drafters of Rule 84.04(d) would vanish because the timing of the court's involvement - after the case has been fully briefed - would deprive respondent of the right to address the issues raised by the court.

Parting Thoughts

In the author's opinion, appeals are the purest form of law practice: reasonable time pressures exist; sleight of hand and reliance on sympathy are unnecessary. Trial lawyers will no doubt disagree, but there is something magical about crafting an argument to convince a panel of learned jurists that justice has prevailed and that years of legal work should be brought to a close.

The work of appellant's counsel is far more difficult, but no less rewarding. This advocate must convince the same jurists that the judgment below was for naught and that the whole process should start anew. This formidable task is starkly evidenced by the high affirmance rate in appellate courts.

Given the battle facing appellants, it simply makes no sense to surrender hope of success to a faulty point relied on. Identify, state, explain. If the case was worth appealing, it is worthy of an audience with the court. Give yourself (and your client) that audience by making sure your points relied on comply with Rule 84.04(d).

Footnotes

¹ Thomas A. Sheehan is a sole practitioner with The Sheehan Law Firm. After graduating magna cum laude from Washburn University School of Law in 1986, Mr. Sheehan was a judicial law clerk for the Honorable Floyd R. Gibson, United States Court of Appeals for the Eighth Circuit. He practices in the area of appeals, extraordinary writ proceedings, and general civil litigation.

² Rule 84.04(d).

³ Rule 84.04(d)(1).

⁴ Id. (emphasis original). Subsection (2) describes the requirements for challenging administrative agency decisions. Subsection (3) states the requirements for original writ proceedings. The rules relating to these points relied on are virtually identical to those described in this article and will not be discussed separately.

⁵ The dual requirements of Rule 84.04(d) "that the point relied on state wherein and why the action or ruling is claimed to be erroneous are apparently the most common source of error in appellate briefing." Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978).

⁶ Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 339 (Mo. App. S.D. 1991).

⁷ Id.

⁸ Another example of an abstract statement of law is as follows: "The trial court erred in granting summary judgment in favor of defendant because material issues of fact exist that should be decided by a jury." Legally correct, but so abstract as to apply to every appeal from a grant of summary judgment.

⁹ 103 S.W.3d 374 (Mo. App. W.D. 2003).

¹⁰ Pro se appellants are given no quarter when it comes to the requirements of Rule 84.04(d). Pro se litigants are "bound 'by the same rules of procedure'" as attorneys. Libberton v. Phillips, 995 S.W.2d 66, 67 (Mo. App. S.D. 1999). While the courts recognize the problems faced by pro se litigants, they do not relax their standards for them. Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo. App. E.D. 1993). This refusal to relax the standards for an appeal for pro se litigants "is not for a lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties." Id.

¹¹ Nunley, note 8 at 376.

¹² Nunley, note 8 at 377.

¹³ Loumiet v. Loumiet, 103 S.W.3d 332, 345 (Mo. App. W.D. 2003).

¹⁴ State v. Dodd, 10 S.W.3d 546, 556 (Mo. App. W.D. 1999).

¹⁵ In Roth v. La Societe Anonyme Turbomeca France, 120 S.W.3d 764 (Mo. App. W.D. 2003), the court would not consider one faulty point relied on because respondents did not address it, but exercised its discretion to construe another point in light of the arguments because respondents addressed that issue.

¹⁶ Harris v. Parman, 54 S.W.3d 679, 688 (Mo. App. S.D. 2001). Under this standard of review, the court looks to see if "the error has affected the parties' rights so substantially that a miscarriage of justice or manifest injustice would occur if the error were left uncorrected." Peterson v. National Carriers, Inc., 972 S.W.2d 349, 357 (Mo. App. W.D. 1998).

¹⁷ Messina v. Prather, 42 S.W.3d 753, 763 (Mo. App. W.D. 2001).

¹⁸ Bedwell v. Bedwell, 51 S.W.3d 39, 43 (Mo. App. W.D. 2001).

¹⁹ Cody v. Missouri Board of Probation and Parole, 111 S.W.3d 547, 551 (Mo. App. W.D. 2003).

²⁰ Wilson ex rel. Wilson v. Simmons, 103 S.W.3d 211, 219-20 (Mo. App. W.D. 2003).

²¹ Slankard v. Thomas, 912 S.W.2d 619, 628 (Mo. App. S.D. 1995); Rule 84.13(c).

²² Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).

²³ Thummel, note 4 at 686.

²⁴ Linton v. Linton, 117 S.W. 3d 198, 203 (Mo. App. S.D. 2003); Thummel, note 4 at 686.

²⁵ Appellants still change issues mid-stream, but Rule 84.04(d) allows the courts to disregard such shenanigans.

²⁶ Linton, note 23 at 203-04.

JOURNAL OF THE MISSOURI BAR
Volume 60 - No. 6 - November-December 2004