author: SHERRI B. SULLIVAN, P.J.

text:
    STATE of Missouri ex rel. SGI HOTELS, L.L.C., d/b/a Seven Gables Inn, HEF 1-STL No. 1 L.L.C., d/b/a The Ritz-Carlton St. Louis, and Cheshire Inn Motor Hotel, Inc., d/b/a The Cheshire Lodge, Appellants/Relators, v. CITY OF CLAYTON, City of Richmond Heights, Board of Election Comm’rs, Richard Kellett, Julie R. Jones, Anita Yeckel and Ann Pluemer, Respondents/Respondents.
    No. ED 95465.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 21, 2010.
    Application for Transfer to Supreme Court Denied Oct. 26, 2010.

      David R. Bohm, Jennifer L. Geschke, Danna McKitrick, P.C., St. Louis, for Appellants.
    Kevin O’Keefe, Kenneth J. Heinz, Edward J. Sluys, Steven W. Garrett, Curtis, Heinz, Garrett & O’Keefe, P.C., St. Louis, for Respondents.
    Mark G. Arnold, Husch Blackwell Sanders LLP, St. Louis, Victor S. Williams, John Young, for Amicus Curiae.
   SHERRI B. SULLIVAN, P.J.

Introduction

SGI Hotels, L.L.C., d/b/a Seven Gables Inn, HEF 1-STL No. 1 L.L.C., d/b/a The Ritz-Carlton St. Louis, and Cheshire Inn Motor Hotel, Inc., d/b/a The Cheshire Lodge (Appellants) appeal from the trial court’s judgment denying their claims for Writ of Prohibition, Injunction and Declaratory Judgment, and granting the counterclaim for Declaratory Judgment made by the City of Clayton, the City of Richmond Heights, the Board of Election Commissioners, Richard Kellett, Julie R. Jones, Anita Yeckel and Ann Pluemer (Respondents). We affirm.

Factual and Procedural Background

On August 10, 2010, the City of Clayton enacted Ordinance 6116 and on August 16, 2010, the City of Richmond Heights enacted Ordinance No. 5148, both pursuant to Section 67.1003, which is a permissive enabling statute authorizing the cities to levy a transient guest tax of not more than five percent on occupied hotel and motel rooms for the sole purpose of the “promotion of tourism.” The ordinances propose to the respective cities’ voters whether to levy the tax and are to be placed on the ballot for the voters to decide in the November 2, 2010 election.

Appellants maintain that the ordinances are unconstitutional on their face, according to the language of the enabling statute itself, and challenged them in the trial court via claims for a writ of prohibition and declaratory and injunctive relief. Respondents counterclaimed for a declaratory judgment that the proposed taxes are valid. The trial court denied Appellants’ claims and granted that of Respondents. This appeal follows.

Points on Appeal

In their first point, Appellants assert the trial court erred in denying their claim for writ of prohibition, and in granting Respondents’ counterclaim for declaratory judgment, because Ordinances No. 6116 and 5148 are unconstitutional on their face, in violation of Art. X, Sec. 1 of the Missouri Constitution, in that pursuant to Section 67.1003.2, Respondents are prohibited from imposing a tax on charges for sleeping rooms used by transient guests as such cities are located within St. Louis County, which already imposes such a tax.

In their second point, Appellants claim that interpreting Section 67.1003 to prohibit a county from imposing a tax on charges for sleeping rooms on hotels located in cities within that county which already impose such a tax does not violate the uniformity clause of Art. X, Sec. 3 of the Missouri Constitution because imposing a tax on charges for sleeping rooms located in a portion of a county outside of cities which impose their own tax on charges for sleeping rooms, while not imposing such a tax on hotels located in cities within the county which cities impose their own tax on sleeping rooms, in that there is a reasonable basis supporting such separate treatment.

Jurisdiction

This Court has considered whether this appeal should be transferred to the Supreme Court of Missouri, which has exclusive appellate jurisdiction of cases involving “the construction of the revenue laws of this state.” Mo. Const. Art. V, Sec. 3; Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 910 (Mo.banc 1997).. The constitutional phrase “construction of the revenue laws of this state” assigns original appellate jurisdiction to the Supreme Court when each of the three separate elements are present: (1) construction; (2) of revenue laws; (3) of this state. Alumax, 939 S.W.2d at 910. A “revenue law” directly creates or alters an income stream to the government that imposes a tax or fee on property owned or used or an activity undertaken in that government’s area of authority. Id. A revenue law “of the state” is a law adopted by the General Assembly to impose, amend or abolish a tax or fee on all similarly-situated persons, properties, entities or activities in this state, the proceeds of which are deposited in the state treasury. Id. Thus, a revenue law either establishes or abolishes a tax or fee, changes the rate of an existing tax, broadens or narrows the base or activity against which a tax or fee is assessed, or excludes from or creates exceptions to an existing tax or fee. Id. A law that raises revenue only within a single political subdivision for the benefit of that political subdivision at the direction of the legislative body or the voters of the political subdivision is not a revenue law “of the state.” Id. at 911.

Based on the foregoing definitions, we conclude that the statute at issue is not a revenue law of this state, and therefore the Supreme Court does not have exclusive jurisdiction of this case.

Standard of Review

When reviewing a declaratory judgment, an appellate court’s standard of review is the same as in any other court-tried case. Woods v. QC Financial Services, Inc., 280 S.W.3d 90, 94 (Mo.App. E.D.2008). That is, the trial court’s decision should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id.

“ ‘The standard of review for writs of mandamus and prohibition ... is abuse of discretion, and an abuse of discretion occurs where the circuit court fails to follow applicable statutes.’ ” Depauw v. Luebbers, 285 S.W.3d 805, 806 (Mo.App. E.D.2009), quoting State ex rel City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007).

Discussion

Appellants maintain that Ordinances No. 6116 and 5148 are unconstitutional because Respondents are not allowed to impose a tax on charges for sleeping rooms under Section 67.1003.2 because St. Louis County already imposes a tax on sleeping rooms, pursuant to other statutory authority. Namely, St. Louis County imposes two separate taxes on sleeping rooms, one pursuant to Section 67.619, for the St. Louis Convention and Visitors Commission, and one pursuant to Section 67.657, for the St. Louis Regional Convention and Sports Complex Authority-

Section 67.1003 provides for a tax to be imposed on sleeping rooms strictly for the purposes of the promotion of tourism. It provides in pertinent part:

1. The governing body of any city or county, other than a city or county already imposing a tax on the charges for all sleeping rooms paid by the transient guests of hotels and motels situated in such city or county or a portion thereof pursuant to any other law of this state, having more than three hundred fifty hotel and motel rooms inside such city or county ... may impose a tax on the charges for all sleeping rooms paid by the transient guests of hotels or motels situated in the city or county or a portion thereof, which shall be not more than five percent per occupied room per night.... 2. Notwithstanding any other provision of law to the contrary, the tax authorized in this section shall not be imposed in any city or county already imposing such tax pursuant to any other law of this state....

[Emphasis added.]

Appellants maintain that the language in subsection 2 of the statute, to-wit: the tax authorized in this section shall not be imposed in any city or county already imposing such tax pursuant to any other law of this state, precludes the cities of Clayton and Richmond Heights from imposing the Section 67.1003 tourism tax because St. Louis County already imposes two other taxes on charges for sleeping rooms in St. Louis County, pursuant to Sections 67.619 and 67.657. In so arguing, Appellants construe the “or” in Section 67.1003.2 to be all-inclusive of cities and counties, and not mutually exclusive of cities and counties. In other words, Appellants believe the language prohibits a city like Clayton or Richmond Heights from imposing the tourism tax under Section 67.1003 if a county such as St. Louis County is already imposing a tax on the sleeping rooms, and likewise prohibits St. Louis County from imposing the tourism tax under Section 67.1003 if Clayton or Richmond Heights is already taxing the motel rooms.

We disagree that the wording of Section 67.1008.2 prohibits both a city and a county in which that city is located from imposing a tax on charges for sleeping rooms. Giving the words in the statute their plain and ordinary meaning, we find that Sections 67.1008.1 and 67.1003.2, read in pari materia, prohibit a city or county from levying a tax on sleeping rooms, only if that particular city or county is itself already levying a tax on those rooms pursuant to another authority. Here, neither Clayton nor Richmond Heights is currently levying a tax on such sleeping rooms pursuant to any other authority and, therefore, they are free to place on the ballot an initiative to levy a tax on sleeping rooms pursuant to Section 67.1003 for the voters to decide.

Reading subsection one (other than a city or county already imposing a tax on the charges for all sleeping rooms paid by the transient guests of hotels and motels situated in such city or county or a portion thereof pursuant to any other law of this state) and subsection two (the tax authorized in this section shall not be imposed in any city or county already imposing such tax pursuant to any other law of this state) in conjunction with each other and construing them to co-exist harmoniously, and not in conflict, makes clear that the General Assembly intended for a city or county itself already imposing a tax on its hotels under another authority, not to be able to also tax under Section 67.1003’s authority. The language “already imposing such tax ” clearly refers back to and modifies or describes the previous words “city” or “county.”

The very similar phrasing of the prohibitive language set forth in subsection one of Section 67.1003 should be read to be in harmony with the prohibitive language set forth in subsection two. Generally, a provision in a statute must be read in harmony with the entire section. Anderson ex rel. Anderson v. Ken Kauffman & Sons Excavating, L.L.C., 248 S.W.3d 101, 107 (Mo.App. W.D.2008). Appellants’ reading of these two subsections puts them in conflict.

Section 67.1003 was enacted by the General Assembly in 1999. At that time, the text of Section 67.1003.2 provided:

Notwithstanding any other provision of law to the contrary, the tax authorized in this section shall not be imposed in any city or county where another tax on the charges for all sleeping rooms paid by the transient guests of hotels and motels situated in such county or a portion thereof is imposed.

In 2000, the General Assembly amended this section to read:

Notwithstanding any other provision of law to the contrary, the tax authorized in this section shall not be imposed in any city or county already imposing such tax pursuant to any other law of this state....

The new language in the 2000 version of the statute changes the 1999 version’s prohibition on the imposition of the tax in a city or county where such a tax is already imposed by any entity, to a prohibition on the imposition of the tax in a city or county where such a tax is already imposed by that city or county seeking to impose the Section 67.1003 tax. Appellants’ interpretation of the new language of Section 67.1003.2 does not recognize and acknowledge the significance of the General Assembly’s change of the prohibitive wording from non-specific to specific in Section 67.1003.2, therefore rendering it meaningless. It is presumed that the legislature did not intend a meaningless act. Missouri ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123 (Mo.App. E.D.2002).

In fact, the 1999 prohibitory language of Section 67.1003.2 is identical to the current prohibitory language of Section 67.1005.2, which was enacted to enable cities and counties to propose a tax to its voters “solely for the promotion of tourism and for funding a convention and visitors bureau which shall be a general not-for-profit organization with whom the city or county has contracted, and which is established for the purpose of promoting the city or county as a convention, visitor and tourist center,” to-wit:

The tax authorized in this section shall not be imposed in any city or county where another tax on the charges for all sleeping rooms paid by the transient guests of hotels and motels situated in such city or county or a portion thereof is imposed pursuant to any other law of this state....

Appellants acknowledge that Section 67.1005.2 establishes a general prohibition against duplicative taxes, non-specific to the identity of the taxing authority. Therefore, Appellants would have to concede that the General Assembly changed that language in Section 67.1003.2 for a reason. That reason is made obvious by a plain reading of the words the General Assembly chose to replace the old words, i. e., the tax authorized in this section shall not be imposed in any city or county already imposing such tax. The city or county itself has to be imposing a sleeping room tax before that city or county is prohibited from imposing one under Section 67.1003.

Appellants’ position that the statute’s language prohibits a city like Clayton or Richmond Heights from imposing the tourism tax under Section 67.1003 if a county such as St. Louis County is already imposing a tax on the sleeping rooms, and likewise prohibits St. Louis County from imposing the tourism tax under Section 67.1003 if Clayton or Richmond Heights is already taxing the motel rooms, is overly broad in its prohibition, and does not reflect recognition of the change the General Assembly made to the wording of the statute in 2000.

Furthermore, Appellants’ interpretation leads to absurd results because it would create a race to the ballot box between a county and the cities within the county to secure the right to impose the Section 67.1003 tourism tax. Under Appellants’ interpretation of Section 67.1003, if the City of Clayton “won” the race, for example, and its constituents voted to impose the tax, then St. Louis County would be prohibited from imposing the Section 67.1003 tourism tax within the entire county of St. Louis, if it was otherwise qualified. “Construction of statutes should avoid unreasonable or absurd results.” Reichert v. Bd. of Educ. of St Louis, 217 S.W.3d 301, 305 (Mo.banc 2007).

We believe Appellants’ interpretation of Section 67.1003 is contrary to the plain wording of the statute; ignores the implication of the 2000 change in statutory language; and leads to an absurd result. Accordingly, Point I is denied.

Appellants also claim that interpreting Section 67.1003 to prohibit a county from imposing a tax on charges for sleeping rooms on hotels located in cities within that county which already impose such a tax does not violate the uniformity clause. This point is moot as we have decided that Section 67.1003 does not prohibit a county from seeking voter approval of a proposed tax on charges for sleeping rooms in hotels located in cities within that county which already impose such a tax, as long as that county is otherwise qualified to do so. Accordingly, Point II is denied as moot.

Conclusion

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J., concur.

      . All statutory references are to RSMo 2008, unless otherwise indicated.

      . Hotel and motel rooms will sometimes be referred to as "sleeping rooms” in this opinion, and die terms "hotel” and "motel” are used interchangeably, the use of one not intended to be in exclusion of the other.


source: Caselaw Access Project

author: GARY W. LYNCH, Judge.

license: Public Domain

text:
    U.S. BANK, Plaintiff-Appellant, v. Leroy W. LEWIS and Paula Lewis, Defendants-Respondents.
    No. SD 30047.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 26, 2010.
    Motion for Rehearing and Transfer Denied Nov. 16, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Mayer S. Klein and Michael M. Sebold, Frankel, Rubin, Bond, Dubin, Siegel & Klein, P.C., Clayton, MO, for Appellant.
    James T. Crump, Crump Law Offices, Rolla, MO, for Respondents.
   GARY W. LYNCH, Judge.

U.S. Bank (“Bank”) appeals the trial court’s adverse judgment in its action brought against Leroy W. Lewis and Paula Lewis seeking recovery of an alleged balance due for charges to a Bank-issued credit card. Finding no trial court error as alleged by Bank, we affirm the judgment.

Factual and Procedural Background

Bank filed a three-count petition seeking recovery for the Lewises’ alleged breach of contract (Count I) or, alternatively, for repayment of money had and received (Count II) or on an account stated (Count III). Bank later withdrew its claim under Count III and proceeded to bench trial on Counts I and II. In Count I, Bank alleged that the Lewises entered into a credit card agreement with Bank, Bank extended credit pursuant to the terms and conditions of the credit card agreement, and the Lewises breached the agreement by failing to pay $21,730.42 owed under the terms of the agreement. Under Count II, pleaded in the alternative in the event no credit card agreement was found to have existed, Bank alleged that it paid for services and goods purchased by the Lewises on the Lewises’ behalf and was entitled to recover $21,730.42 from the Lewises for money had and received.

At trial on Bank’s petition, Bank called one witness, Tiffany Pritchett, a manager of Bank’s branch bank in Rolla, Missouri. The evidence adduced at trial consisted only of Ms. Pritchett’s testimony and Bank’s Exhibits 1, 4, and 5, which were admitted into evidence during her testimony.

Ms. Pritchett stated she was custodian of Bank’s records, which were in her custody and control and prepared and kept in the ordinary course of business. She further testified that the Lewises applied for a credit card account some time in the 1970s, that a credit card was issued to the Lewises upon their application, that the Lewises used that credit card to purchase services and goods totaling $21,730.42 after all credits were applied, that demand for payment was made, and that payment was refused. Ms. Pritchett disclosed, however, that the only existing records Bank has related to the purported account are those dated December 11, 2004, and afterward, as it was Bank’s policy to purge its records after a certain period of time, and records prior to that time were intentionally destroyed by Bank. The destroyed records included the purported original agreement with the Lewises. Ms. Pritchett had no independent knowledge of any of the transactions of the alleged account; her knowledge came from her review of Bank’s records.

Through Ms. Pritchett’s testimony, as Bank’s custodian of records, Bank’s Exhibits 1, 4, and 5 were admitted into evidence. Ms. Pritchett identified Bank’s Exhibit 1 as monthly statements of credit card activity dating from December 2004 through November 2007. Ms. Pritchett further testified that the monthly statements reflect all of the activity of the credit card account for those months and support a current balance in the amount of $21,730.42. Ms. Pritchett identified Bank’s Exhibit 4 as containing “12 checks made payable to U.S. Bank[,]” dated between July 2005 and January 2007, the amounts for which Ms. Pritchett testified, “were posted as a credit to the credit card as a payment.” Finally, Ms. Pritchett identified Bank’s Exhibit 5 as “an agreement when you get off of a credit card.” Her further testimony regarding this exhibit was that it provided terms and conditions, which changed from time to time, for the alleged account, it contained only Bank’s address, it did not name the Lewises, it was “mailed out generic to all of [Bank’s] customers[,]” and it was “the one we send out to everyone that has a credit card with [Bank].” She had no knowledge, however, whether such an agreement was mailed to or received by the Lewises.

The trial court entered judgment in favor of the Lewises and against Bank. No findings of fact or conclusions of law were requested, and none were provided in the trial court’s judgment. Bank filed a timely notice of appeal, raising two points of alleged trial court error.

Standard of Review

Upon review of a bench-tried civil case, this Court must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. Capital One Bank v. Hardin, 178 S.W.3d 565, 571 (Mo.App.2005). “[I]n a court-tried case such as this, the ‘credibility of the witnesses and the weight to be given their testimony are matters for the trial court, which is free to believe none, part, or all of the testimony.’ ” Id. (quoting Norris v. Nationwide Mut. Ins. Co., 55 S.W.3d 366, 369 (Mo.App.2001)). “All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(c).

Discussion

We address Bank’s two points in reverse order.

Bank’s second point does not comply with Rule 84.04(d) that provides, in pertinent part,

(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.
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, suppoH the claim of reversible error].”

Bank’s second point reads: “[t]he trial court erred in entering judgment for [the Lewises] and against [Bank] because the trial court erroneously declared and applied the law and its judgment is against the weight of the evidence in that there is no substantial and credible evidence to support the trial court’s judgment.”

This point is defective in two respects. First, while it abstractly claims an erroneous declaration and application of the law by the trial court as one of its two stated legal reasons for error, it fails to state or identify any specific law so erroneously declared or applied. Rule 84.04(d)(1)(B). Second, it does not in any manner explain why, in the context of the case, the stated legal reasons support the claim of reversible error. Rule 84.04(d)(1)(C).

These deficiencies render this point nothing more than four abstract statements of law that essentially regurgitate our standard of review in a court-tried civil case. See Capital One Bank, 178 S.W.3d at 571. The abstract nature of this point is highlighted and reinforced by its universal applicability in virtually every appeal of a court-tried civil case regardless of the facts of the case. Such abstract statements, unsupported by any facts, preserve nothing for appellate review. Kunz v. City of St. Louis, 602 S.W.2d 742, 748 (Mo.App.1980). Bank’s second point is denied.

In its first point, Bank contends the trial court erred in entering judgment for the Lewises because “[t]he trial court erroneously declared and applied the law and its judgment is against the weight of the evidence in that there is no substantial evidence to support a finding that the [Lewises] did not breach the credit card agreement with [Bank].” In its argument, Bank bases this claim on what it describes as “overwhelming evidence” that demonstrated that a long-standing credit card agreement existed between the parties under which both parties performed for many years, and there was “substantial and uncontroverted evidence” establishing that the Lewises breached that agreement.

“The basic elements of a contract are offer, acceptance of that offer, and consideration to support the contract.” Citibank (S.Dakota), N.A. v. Wilson, 160 S.W.3d 810, 813 (Mo.App.2005). As the party asserting the existence of a contract, Bank bore the burden of proving that proposition. Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999). Likewise, Bank had the burden of proving the Lewises’ breach of that contract. Hayes v. Reorganized Sch. Dist. No. 4, 590 S.W.2d 115, 116 (Mo.App.1979). It is “well established that where a party has the burden of proof on an issue and where the evidence presented thereon is not conclusive, a judgment in favor of the opposing party requires no evidentiary support because the trier of fact may disbelieve the proponent’s uncon-tradicted or uncontroverted evidence.” Stiff, 989 S.W.2d at 628 (citing Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963)).

In the argument portion of its brief on this point, Bank relies upon its exhibits admitted at trial to support its claims, in addition to Tiffany Pritchett’s testimony. Unfortunately, Bank failed to deposit those exhibits with this Court, as required by Rules 81.12(e) and 81.16. When confronted during oral argument with such failure, Bank’s counsel acknowledged the failure, but excused it as not being necessary because the exhibits were included in Bank’s appendix to its brief.

“ ‘[Documents attached to a party’s brief but not contained in the legal file are not part of the record and will not be considered in any appeal.’ ” Lester E. Cox Med. Ctrs. v. Richards, 252 S.W.3d 236, 238 n. 2 (Mo.App.2008) (quoting In re Trust of Nitsche, 46 S.W.3d 682, 684 (Mo.App.2001)). “Rule 81.12 requires that the record on appeal contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision.” Bridgeman v. Bridgeman, 63 S.W.3d 686, 692 (Mo.App.2002). It also provides that “[a]ll exhibits shall be deposited pursuant to Rule 81.16.” Rule 81.12(e) (emphasis added). Rule 81.16(a) mandates that “[i]f original exhibits are necessary to the determination of any point relied on, they shall be deposited in the appellate court.” (Emphasis added). Nothing in those rules provides an exception for copies of purported exhibits included in an appendix. We are confident that if our Supreme Court intended such an exception, it could have easily provided for it in its rules. While “Rule 84.04(h) allows an appendix to contain copies of exhibits, the originals of those exhibits must be filed or deposited with the court, as required by Rule 81.16.” In re Marriage of Weinshenker, 177 S.W.3d 859, 864 (Mo.App.2005).

Moreover, Rule 4 of the Southern District Special Rules directs that “[a]n appellant is responsible for ensuring that all exhibits necessary for the determination of any point relied on are deposited or filed with the Court.” Rule 4 also provides that “[c]opies of exhibits may be contained in a legal file which is prepared in accordance with all applicable court rules.” Furthermore, “[o]riginal exhibits may be deposited with the Court in accordance with Supreme Court Rule 81.16.” Rule 4, Southern District Special Rules. Here, copies of exhibits were not included in the legal file and the originals were not deposited with the Court in accordance with Rule 81.16.

Rule 81.16(c) further provides that “[a]ny exhibits not timely deposited may be considered by the court as immaterial to the issues on appeal.” Rule 81.16(c). See also Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 51 (Mo.App.2004) (“An exhibit omitted from the record on appeal may be treated by an appellate court either as immaterial to the issues presented or as supporting the judgment of the trial court.”); Bridgeman, 63 S.W.3d at 692; Kelly v. Ellis, 875 S.W.2d 612, 614 (Mo.App.1994). Accordingly, we will consider Bank’s Exhibits 1, 4, and 5 as immaterial to any issue on appeal and proceed to consider Bank’s point based solely upon Ms. Pritchett’s testimony.

As previously noted, Bank had the burden of proof on all issues, Stiff, 989 S.W.2d at 628, and the trial court had the discretion to believe none of Ms. Pritchett’s testimony. Capital One Bank, 178 S.W.3d at 571. This is so even though Ms. Pritchett’s testimony may have been essentially uncontradicted or uncontroverted. Stiff, 989 S.W.2d at 628. Deferring to the trial court’s discretion to determine witness credibility, as we must, we are unable to say that the trial court’s judgment in favor of the Lewises is erroneous in any respect as alleged by Bank. Bank’s first point is denied.

Decision

The trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2010), unless otherwise indicated.

      . Bank filed with its brief an appendix containing a copy of the trial court’s judgment and what purported to be copies of Bank’s Exhibits 1 through 5, even though, according to the transcript, Bank’s Exhibits 2 and 3 were not admitted into evidence during the trial. Nowhere in the contents of Bank’s appendix are the copies of the purported individual exhibits designated with labels purportedly placed on them before their offer into evidence at trial or any other markings identifying them as copies of the actual trial exhibits received into evidence in this case and before the trial court for its consideration. In their responding brief, the Lewises challenged the accuracy of the purported copies of the exhibits in Bank’s appendix. Bank addressed this issue in its reply brief, arguing that the Lewises' complaint only amounted to quibbling over the fact that some of the pages in the exhibits were out of order. In their responding oral argument, the Lewises raised the failure of Bank to timely file its exhibits. In its reply oral argument, Bank tried to ameliorate this dispute by conceding that the copies of the exhibits contained in the Lewises' appendix were accurate copies of the challenged exhibits. Because this occurred during Bank's reply argument, the Lewises were not afforded any opportunity to respond to this turn of events. This ongoing dispute during the appellate process is an excellent example of why our Supreme Court and this Court chose not to allow a purported copy of an exhibit in an appendix to substitute for either the deposit of the original exhibit with the Court or a properly certified or stipulated legal file containing the exhibit. Any dispute about the accuracy of the record on appeal should be resolved at the earliest time possible in the appellate process to allow the parties and the Court to focus clearly on the legal issues asserted by the parties during the briefing and oral argument phases, which both occur in the latter part of that process.

      . Interestingly, no motion for leave to file these exhibits out of time was received by this Court following oral argument.


author: DANIEL E. SCOTT, Chief Judge.

text:
    Karsandra GORMAN, Respondent, v. VISITING NURSE ASSOCIATION OF SOUTHEAST MISSOURI, INC., Respondent, and State of Missouri, Division of Employment Security, Appellant.
    No. SD 30592.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 3, 2010.
    Shelly A. Kintzel, Jefferson City, MO, for Appellant.
    No appearance for Respondents.
   DANIEL E. SCOTT, Chief Judge.

Unemployment benefits are funded by employer tax contributions. The Division of Employment Security maintains separate employer accounts and charges benefits against accounts of a claimant’s prior employers. § 288.100. An employer is not charged, however, if it was “required to discharge an employee because the employee was placed on a disqualification list maintained by the department of health and senior services after the date of hire.” § 660.315.13.

The Labor and Industrial Relations Commission applied § 660.315.13 in this case, a decision now challenged in three respects by the Division which did not participate or present evidence below. We agree with the Division in part, reverse in part, and remand for further proceedings. § 288.210.

Facts and Background

The 13-page transcript indicates that Visiting Nurse Association (Employer) hired Karsandra Gorman (Claimant) to provide in-home care for elderly and disabled persons; sought to register her with the Family Care Safety Registry (§ 210.903); but got a disqualifying “hit.” Employer let Claimant keep working while she sought a waiver, which was denied six months later. Witnesses at the hearing agreed that state law forced Employer to terminate Claimant’s services at that point.

Claimant filed for unemployment benefits. A deputy denied Employer’s protest because Claimant’s discharge was not due to work-related misconduct. After a hearing, the Appeals Tribunal also ruled in Claimant’s favor. The Commission agreed on review, but modified the award per § 660.315.13:

While it is certainly true that employer failed to present evidence sufficient to demonstrate that claimant was discharged for misconduct connected with her work for employer, it is equally true that employer realistically had no choice in this matter. The legislature has recognized and addressed this problem in section 660.315.13 ... Accordingly, claimant should not be disqualified from receiving benefits but employer’s account should not be adversely charged as the result of benefits paid to claimant.

We may reverse, remand, or set aside the Commission’s decision if it is not supported by sufficient competent evidence in the record. § 288.210.

Point I

The Division asserts that § 660.315.13 “only applies when a claimant was discharged for being on the Employee Disqualification List and Claimant was discharged because she was on the Family Care Safety Registry, which is not the Employee Disqualification List.” This is at least partly true — the Family Care Safety Registry is a collection of lists — but the Division’s position is not fully consistent with the statutory language (following emphasis ours):

• By its terms, § 660.315.13 applies if an employee was discharged for being “on a disqualification list maintained by the department of health and senior services ....”
• Although other subsections of § 660.315 refer to “the employee disqualification list,” the Division admits that “Section 660.315.13 by its terms applies to any ‘disqualification list maintained by the department of health and senior services ’ ”
• The Family Care Safety Registry consists of eight lists and registries that are centrally maintained per enabling legislation (§ 210.903) which begins as follows:
To protect children, the elderly, the disabled, including the developmentally disabled individuals in this state, and to promote family and community safety by providing information concerning family caregivers, there is hereby established within the department of health and senior services a “Family Care Safety Registry .... ”

The Division notes that the record shows Claimant was on the Family Care Safety Registry, but not which list(s) she was on. Yet that registry, and thus each of its constituent lists, is maintained by “the department of health and senior services” identified in § 660.315.13.

The Appeals Tribunal sought information that might have mooted or resolved this issue. There will be a second chance to do so because, as shown below, we must remand under Point II. We decline to engage in statutory interpretation that is not now needed and may not be an issue later, and turn instead to Point II.

Point II

The Division argues that the record proves Claimant was not placed on a disqualification list after the date of hire as expressly required by § 660.315.13. The evidence is not that strong. There are references to a “hit” three weeks after Claimant was hired, but nothing about the specific list(s) involved or when Claimant may have been listed. Thus, the record does not prove § 660.315.13’s inapplicability.

That said, no competent evidence shows that this statute does apply. The § 660.315.13 ruling cannot stand because the record does not indicate whether Claimant was put on a disqualification list before or after she was hired. We remand pursuant to § 288.210 since this issue was not raised below. Indeed, fairness in these circumstances dictates that the Commission and parties be permitted on remand to address all of the Division’s points, none of which were raised until this appeal.

Conclusion

We reverse and remand the Commission’s § 660.315.13 finding for further consideration. The Commission may consider all points raised by the Division herein and shall allow the parties (including the Division) to offer additional evidence relating thereto. The Commission’s decision, being not otherwise challenged, is affirmed in all other respects, including the finding that Claimant is not disqualified from receiving benefits.

RAHMEYER, P.J., and BATES, J., concur.

      . Statutory citations are to RSMo 2000 & Cum.Supp.2009; regulation references are to the Code of State Regulations (CSR) 2008.

      . The Division enjoys statutory authority to bring this appeal. See § 288.210.

      . Evidence at the hearing, which was conducted by telephone conference call, did not establish the reason for or specifics of this hit. Based on testimony that Employer's human resource employee would know such information, the Appeals Referee called that witness, but could not reach her.

      .A waiver applicant may remain conditionally employed in some circumstances. Such employment must terminate immediately if a waiver is denied. See 19 CSR 30-82.060(14) & (15).

      . See footnote 3.

      . Including the Division’s third and final point, which asserts that § 660.315.13 does not apply to "reimbursable” employers (see § 288.090.3(1)), and that the .Commission failed to establish whether Employer is a reimbursable employer.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Bryan E. COOMER, Appellant.
    No. ED 92576.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.

      Laura G. Martin, Kansas City, MO, for appellant.
    Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Bryan E. Coomer appeals from the judgment entered upon a jury verdict finding him guilty of first-degree robbery, Section 569.020 RSMo 2000; and armed criminal action, Section 571.015 RSMo 2000. No jurisprudential purpose would be served by a written opinion. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Carlos C. JACKSON, Jr., Appellant.
    No. ED 94168.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Matthew Ward, Columbia, MO, for appellant.
    Chris Koster, Atty. Gen., Terrence M. Messoonnier, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Carlos Jackson appeals from the judgment entered upon a jury verdict finding him guilty of two counts of first-degree robbery, Section 569.020 RSMo 2000; one count of first-degree assault, Section 565.050 RSMo 2000; and three counts of armed criminal action, Section 571.015 RSMo 2000. No jurisprudential purpose would be served by a written opinion. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 30.25(b).


text:
    Dale E. MORRISON, Claimant/Respondent, v. MURPHY COMPANY, Employer/Appellant, and ACIG Insurance Company, Appellant.
    No. ED 94863.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.

      Timothy P. O’Mara, St. Peters, MO, for Claimant/Respondent.
    Charles L. Joley, Jennifer L. Dickerson, Belleville, IL, for Employer/Appellant Murphy Company and Appellant ACIG Insurance Company.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Murphy Company appeals from the Labor and Industrial Relations Commission’s (Commission) decision adopting the Administrative Law Judge’s (ALJ) decision awarding Dale E. Morrison (Employee) workers’ compensation benefits and concluding that Employee’s work exposure was the prevailing factor in the development of Employee’s injuries.

We have reviewed the briefs of the parties and the record on appeal and conclude that the Commission’s decision is supported by sufficient competent and substantial evidence, and is not against the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the decision pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Respondent, v. Eric SWEARENGEN, Appellant.
    No. ED 93671.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2010.
    Alexandra Johnson, Mo. Public Defender Office, St. Louis, MO, for Appellant.
    Chris A. Koster, Attorney General, Robert J. Bartholomew, Jr., Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Eric Swearengen (“Defendant”) appeals from the judgment upon his conviction by a jury for second-degree trafficking, Section 195.223, RSMo 2000, and possession of marijuana under 35 grams, Section 195.202. Defendant was then sentenced as a prior drug offender to ten years of imprisonment for second-degree trafficking and a concurrent term of one day of imprisonment for the marijuana possession. Defendant contends the trial court erred in denying his request for a new trial because he established that the prosecution withheld favorable material evidence from the defense at the time of trial.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).

      . All further statutory references are to RSMo 2000.


text:
    STATE of Missouri, Respondent, v. David Lee BLAKEMORE, Appellant.
    No. ED 93877.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2010.
    Craig A. Johnston, Woodrail Centre, Columbia, MO, for Appellant.
    Chris A. Koster, Attorney General, John W. Grantham, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

David Blakemore (“Defendant”) appeals from the judgment upon his convictions of robbery in the first degree, Section 569.020, RSMo 2000, forcible rape, Section 566.030, RSMo 2000, and kidnapping, Section 565.101, RSMo Cum.Supp.2009, for which Defendant was sentenced as a persistent offender to a total of twenty-five years’ imprisonment. Defendant contends the trial court erred (1) in denying his motion to dismiss for improper joinder and for severance, and (2) in refusing his presence at or near the scene instruction.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Antoine L. HAMILTON, Appellant.
    No. ED 93952.
    Missouri Court of Appeals, Eastern District.
    Nov. 16, 2010.
    Matthew M. Ward, Columbia, MO, for Appellant.
    Chris A. Koster, Attorney General, James B. Farnsworth, Asst. Attorney General, Jefferson City, MO, for Respondent.

      Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Antoine Hamilton (“Defendant”) appeals from the judgment upon his convictions by a jury of two counts of burglary in the first-degree, Section 569.160, RSMo 2000, and two counts of assault in the third degree, Section 565.070, RSMo 2000, for which he was sentenced as a persistent offender to concurrent sentences of thirty years’ imprisonment for each burglary count and ten days in jail for each assault count. Defendant asserts the trial court plainly erred in allowing a victim’s in-court identification because the in-court identification was tainted by a post-indictment viewing of the photographic line-up conducted without the presence of Defendant’s counsel.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Frederick HOWARD, Appellant.
    No. ED 93995.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Koster, John W. Grantham, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Frederick Howard (“Defendant”) appeals from the judgment of the trial court entered after a jury convicted him of unlawful use of a weapon — carrying a concealed weapon, in violation of section 571.030 RSMo 2000. He contends that the trial court erred by abusing its discretion in overruling his objection to statements by the prosecutor during closing argument indicating that he failed to call his friend, Juan Ward, to testify at trial, and in denying his motion for judgment of acquittal at the close of all the evidence because the State failed to prove that he was guilty beyond a reasonable doubt.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Eugene WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94047.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Koster, Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Eugene Williams (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying, without an evi-dentiary hearing, his Rule 29.15 motion for post-conviction relief.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Wendy E. HAMILTON and Estate of Blake Hamilton, by Stacey Velleca, Personal Representative, Appellants, v. GENERAL AMERICAN LIFE INSURANCE CO., Joseph Potter and Yvonne Potter-Mahan, Respondents.
    No. ED 94173.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    William W. Cheeseman, Sr., Troy, MO, Ronald S. Ribaudo, St. Charles, MO, for appellants.
    Ann E. Buckley, St. Louis, MO, David A. Dalton, II, St. Peters, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Stacey Velleca, the personal representative of the Estate of Blake Hamilton, appeals from the trial court’s judgment declaring that defendant General American Life Insurance Company correctly paid life insurance benefits to the decedent’s stepchildren, Joseph Potter and Yvonne Potter-Mahan, the named contingent beneficiaries of a life insurance policy issued to the decedent. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(5).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Lester A. MINNER, Defendant/Appellant.
    No. ED 94298.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Shaun J. Mackelprang, Robert J. Bartholomew, Jr., Jefferson City, MO, for Plaintiff/Resp ondent.
    Ellen H. Flottman, Columbia, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Lester A. Minner appeals from the trial court’s judgment entered upon a jury verdict convicting him of first-degree assault and armed criminal action. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court committed no plain error. Rule 30.20; State v. Washington, 260 S.W.3d 875, 879 (Mo.App. E.D.2008). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . All rule references are to Mo. R.Crim. P.2008, unless otherwise indicated.


text:
    Kenneth CARTER, Appellant, v. HUDSON SERVICES, and Division of Employment Security, Respondents.
    No. ED 94596.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.

      John J. Ammann, St. Louis, MO, for appellant.
    Hudson Services, St. Louis, MO, pro se.
    Larry R. Ruhmann, Jefferson City, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The claimant, Kenneth Carter, appeals the decision of the Labor and Industrial Relations Commission disqualifying him from receiving unemployment-compensation benefits on the basis that the employer, Hudson Services, discharged him for misconduct connected with his work. We affirm.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The decision of the Commission is affirmed. Rule 84.16(b). .


text:
    Kevin DODD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94501.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Jessica M. Hathaway, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Robert J. (Jeff) Bartholomew, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The movant, Kevin Dodd, appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Respondent, v. Henry L. FRAZIER, Appellant.
    No. ED 93021.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2010.

      Alexandra Johnson, Mo. Public Defender Office, St. Louis, MO, for Appellant.
    Chris A. Koster, Attorney General, Jayne T. Woods, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Henry Frazier (“Defendant”) appeals from the judgment upon his conviction by a jury of first-degree assault, Section 565.050, RSMo 2000, and armed criminal action, Section 571.015. Defendant argues the trial court (1) plainly erred in submitting instruction number five to the jury and (2) abused its discretion in failing to instruct the jury on third-degree assault.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).

      . All further statutory references are to RSMo 2000.


author: NANNETTE A. BAKER, Judge.

text:
    Michael STUDT, Appellant, v. FASTENAL COMPANY AND DIVISION OF EMPLOYMENT SECURITY, Respondents.
    No. ED 94439.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2010.
    Michael Studt, Pacific, MO, pro se.
    Fastenal Company, Winona, MN, pro se.
    Michael Pritchett, Jefferson City, MO, for respondents.
   NANNETTE A. BAKER, Judge.

Introduction

- Michael Studt (“Claimant”) appeals pro se from the decision of the Labor and Industrial Relations Commission (“the Commission”) finding him disqualified for unemployment benefits. We must dismiss Claimant’s appeal because his brief fails to comply with Rule 84.04.

Discussion

We hold pro se appellants to the same standards as licensed attorneys regarding the mandatory briefing requirements of Rule 84.04. Moseley v. Grundy County Dist. R-V Sch., 319 S.W.3d 510, 511 (Mo.App. E.D.2010). We apply this principle not due to a lack of sympathy for a pro se appellant but because it “is necessary to assure judicial impartiality, judicial economy, and fairness to all parties.” Hankins v. Reliance Auto., Inc., 312 S.W.3d 491, 494 (Mo.App. E.D.2010). Compliance with Rule 84.04 by all appellants is necessary to ensure that the record and arguments are sufficiently developed such that “appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Hardnett v. Div. of Employment Sec., 314 S.W.3d 397, 398 (Mo.App. E.D.2010) (internal citation omitted). A failure to comply with the requirements of Rule 84.04 is a proper basis for this court to dismiss an appeal. Id. Because Claimant’s brief fails to comply with multiple requirements imposed by Rule 84.04, we dismiss his appeal.

First, Claimant’s brief does not contain an adequate statement of facts. Rule 84.04(i) requires that “[a]ll statements of fact and argument shall have specific page references to the legal file or the transcript.” This requirement is “mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record.” Moseley, 319 S.W.3d at 512 (internal citation omitted). Here, Claimant’s statement of facts does not contain a single reference to the legal file or transcript. Claimant’s failure to provide an adequate statement of facts is sufficient grounds for our dismissal of Claimant’s appeal. Id.

Second, the argument section of Claimant’s brief is inadequate. As with the statement of facts, the argument section does not contain the page references to the legal file or transcript required by Rule 84.04(i). Claimant’s argument section is also deficient because it fails to include an applicable standard of review as required by Rule 84.04(e). Furthermore, a proper argument section must include relevant legal authority or explain why it fails to cite applicable authority. Hardnett, 314 S.W.3d at 398. An appellant must “explain in the argument why, in the context of the case, the law supports the claim of reversible error.” Moseley, 319 S.W.3d at 513. Here, Claimant’s argument contains little citation to relevant authority beyond reprinting a dissenting opinion filed by a member of the Commission and fails to show how the law and the facts interact to support his claims. Therefore, Claimant’s argument section preserves nothing for review. Hankins, 312 S.W.3d at 495.

Finally, Claimant’s brief is deficient because he failed to include a full copy of the Commission’s decision from which he appeals in his brief or in an appendix to his brief. Moseley, 319 S.W.3d at 513. Rule 84.04(h) dictates that a “party’s brief shall contain or be accompanied by an appendix containing ... [t]he judgment, order, or decision in question!)]” Claimant’s failure to comply with Rule 84.04(h) also merits dismissal of his appeal. Moseley, 319 S.W.3d at 513.

Conclusion

Because he did not comply with multiple requirements imposed by Rule 84.04, Claimant failed to preserve his claims for review and we dismiss his appeal.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All rule references are to Mo. Sup.Ct. R. (2010), unless otherwise indicated.


author: ROY L. RICHTER, Chief Judge.

text:
    Jermetra ALLEN, Appellant, v. ABM JANITORIAL SERVICES and Division of Employment Security, Respondents.
    No. ED 94675.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 16, 2010.
    Jermetra Allen, St. Louis, MO, pro se.
    Jeannie Desir Mitchell, Jefferson City, MO, for respondent.
   ROY L. RICHTER, Chief Judge.

Jermetra Allen (“Allen”) appeals the Labor and Industrial Relations Commission’s (“the Commission”) decision to reduce her unemployment benefits. We dismiss Allen’s appeal for failure to comply with Missouri Supreme Court Rule 84.04.

I. BACKGROUND

Allen worked as a general cleaner for ABM Janitorial Services (“ABM”) at Lambert International Airport. Allen was terminated after being involved in two altercations, one of them physical, in five days. Violence and horseplay are against ABM’s employee guidelines, and can lead to immediate discharge. ABM investigated the incidents, and Allen was discharged.

Allen filed for unemployment benefits with the Division of Employment Security (“the Division”). ABM protested the claim. A deputy with the Division determined that Allen was not disqualified from receiving benefits because the discharge was not for misconduct connected with work. ABM appealed the Division’s decision to the Appeals Tribunal. The Appeals Tribunal found that Allen was involved in two altercations that she could have walked away from, and that she was the aggressor and initiated physical contact in the first altercation. Further, the Appeals Tribunal found Allen’s testimony on her own behalf not to be credible. Finally, the Appeals Tribunal found that Allen committed misconduct, and therefore was not entitled to benefits, because she “willfully and deliberately was involved in verbal and physical altercations at the workplace.”

Allen appealed to the Commission. The Commission affirmed and adopted the decision of the Appeals Tribunal. Allen appeals.

II. DISCUSSION

Allen argues that the Commission erred in affirming the decision of the Appeals Tribunal. However, Allen’s brief falls short of the requirements of Rule 84.04 and therefore we dismiss her appeal.

In every case, we must determine our authority to hear a case sua sponte. Ward v. United Eng’g Co., 249 S.W.3d 285, 287 (Mo.App. E.D.2008). A party’s failure to substantially comply with Rule 84.04 preserves nothing for appellate review and is insufficient to invoke our authority to hear the case. Id. “Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Id. (quoting Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo.App. W.D.2004)). Failure to comply with the rules of appellate procedure is a proper basis for dismissing an appeal. Steltenpohl v. Steltenpohl, 256 S.W.3d 597, 598 (Mo.App. W.D.2008).

Rule 84.04(c) requires that “the statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” However, Allen’s brief fails to provide a statement of facts relevant to the questions presented. Rather, she only-mentions her schedule and duties, and the functions of ABM.

Further, Rule 84.04(i) requires that both the statement of facts and the argument section have specific page references to the legal file or the transcript. “This requirement is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if the factual assertions in the brief are supported by the record.” Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008). “To do so would effectively require the court to act as an advocate for the noncomplying party.” Id. Allen has provided no references to the legal file or transcript.

Finally, Allen cites no legal authority in her argument section. If a party does not cite legal authority and does not explain why it fails to do so, then the party is deemed to have abandoned that point. Donovan v. Temporary Help, 54 S.W.3d 718, 720 (Mo.App. E.D.2001).

III. CONCLUSION

Because of her substantial failure to comply with Rule 84.04, Allen’s brief preserves nothing for our review. The appeal is dismissed.

KENNETH M. ROMINES, J., and GARY G. WALLACE, Sp. J., concur.


text:
    STATE Of Missouri, Respondent, v. Darryl BURSE, Appellant.
    No. ED 93769.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Alexandra E. Johnson, St. Louis, MO, for appellant.
    Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Defendant Darryl Burse appeals the trial court’s judgment and sentence after a jury convicted him of three counts of sexual misconduct involving a child.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. William Edward CLAY, Appellant.
    No. ED 94010.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Chris Koster, Richard A. Starnes, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Defendant William Clay appeals the trial court’s judgment and sentence after a jury convicted him of first-degree burglary.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Timothy E. TYLER, Petitioner-Respondent, v. Maureen S. TYLER n/k/a Eckert, Respondent-Appellant.
    No. ED 94227.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Nathan S. Cohen, St. Louis, MO, for appellant.
    Lawrence G. Gillespie, Clayton, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Maureen Eckert (Wife) appeals the circuit court’s judgment modifying custody, child support, and maintenance in her divorce from Timothy Eckert (Husband).

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).