Commentary: Points Relied On, Part 3: Inclusiveness

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This is the third article about the Missouri requirement that an appellant’s brief must include “points relied on.”  Rule 84.04(a)(4). Each point 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 for reversal, and (c) explain “in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.”

For a detailed discussion of this requirement, the reader is encouraged to review our previous articles as well as the recent decision of the Supreme Court of Missouri in Lexow v. Boeing Co., 643 S.W.3d 501 (Mo. banc 2022).  As Lexow explains, the requirements of Rule 84.04 are mandatory. Id. at 505.

A point relied on can be held to be improper if it is either overinclusive or underinclusive, based on whether the argument section of the brief is consistent with the claim of error set forth in the point relied on.  Rule 84.04(a)(5) provides that an appellant’s brief shall contain an argument, “which shall substantially follow the order of the points relied on.”  Rule 84.04(e) states that the argument “shall be limited to those errors included in” the points relied on.

A recent opinion from the Missouri Court of Appeals summarized the issues of overinclusiveness and underinclusiveness: “If a point relied on is not developed in the argument portion of the brief by showing how the principles of law and facts of the case interact, it is deemed abandoned.  And claimed errors that are raised only in the argument portion of the brief but not contained in a point relied on are not preserved for our review.”  Lamy v. Stahl Speciality Co., 649 S.W.3d 330, 336 (Mo. App. 2022) (citations omitted).

A point relied on can be underinclusive if it does not include a claim of error advanced in the argument section of the brief. For example, in Maxwell v. Division of Employment Security, 671 S.W.3d 742 (Mo. App. 2023), the argument section of an appellant’s brief in a claim involving unemployment benefits stated that the commission had misstated the standards for determining whether the appellant had left work without good cause. The Missouri Court of Appeals held that this argument was not preserved because it was not included in the appellant’s points relied on. Based on this and other briefing deficiencies, the appeal was dismissed.

Similarly, in a criminal appeal, the Court of Appeals noted that the defendant “appears to argue that the trial court abused its discretion in denying his alternative request for a continuance, but that argument is not captured in any point relied on.”  See State v. Garner, 670 S.W.3d 262, 266 n.2 (Mo. App. 2023). The Court noted that it would not consider arguments raised in the argument portion of the brief that were not encompassed in the points relied on.

In a recent opinion, the Court of Appeals stated: “We will not afford even ex gratia review of an error raised in the argument section of an appellant’s brief but not captured in an associated point relied on.”  Wallace v. Byrne, 672 S.W.3d 96, 106 (Mo. App. 2023). In the Wallace case, the appellant’s argument raised issues about whether an easement was non-exclusive, whether the circuit court exceeded its jurisdiction, and whether necessary parties were absent.  These issues did not appear in the appellant’s three points relied on, and the Court of Appeals deemed the issues abandoned.

Conversely, a point relied on can be overinclusive if it sets forth a claim of error that is not supported in the argument section of the brief. The issue raised in the point relied on must be developed in the argument section of the brief. Ruhl v. K.A.S. Enterprises, LLC, 658 S.W.3d 253 (Mo. App. 2022). When an appellant’s argument fails to support a point relied on, the point is deemed abandoned.

Because of the potential for a finding of waiver or abandonment, the practitioner is cautioned to take care that all issues raised in a point relied on are developed in the argument section of the brief, and also that all arguments are encompassed within a point relied on. For this reason, many writers will draft the points relied on after the argument.

RELATED:

Commentary: Points Relied On, Part 2: Multifariousness

Commentary: Points Relied On: Part One