Daniel Schramm//November 10, 2023//
Daniel Schramm//November 10, 2023//
This article confronts a disturbing trend in how Missouri appellate courts are applying Supreme Court Rule 84.04(d). As a retired lawyer on inactive status, I no longer feel constrained by how my opinion on this topic might affect clients.
Missouri appellate lawyers appreciate the importance of Rule 84.04(d) in framing issues or “points relied on” for appeal. The point must be presented in substantially the following format: “The trial court erred in [identify the challenged ruling or action] because [state the legal basis 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].” To my knowledge, Missouri is the only state that has this unique appellate rule.
The seminal case under Rule 84.04(d) is Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). The Supreme Court in Thummel declared: “The 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 the appellate courts.” Id. at 686. (emphasis supplied) Instead, the Court insisted the rule was “rooted in sound policy.” Id. The most important objective was to give notice to the party opponent of “the precise matters which must be contended with and answered.” Id. The Court also viewed such notice as “essential to inform the court of the issues.” Id.
No matter how justifiable these objectives might be, I worry the courts are turning the application of Rule 84.04(d) into just the kind of “judicial word games” and “hypertechnicalities” rejected by Thummel. Historically, the courts often applied the rule to dismiss appeals brought by pro se litigants. But recently, the appellate courts began attacking counsel for perceived rule violations. Just within the last year or so, the Missouri Supreme Court and intermediate appellate courts repeatedly dismissed appeals or individual points relied on because of counsel’s noncompliance with the mandatory briefing requirements of Rule 84.04. Even if the court “gratuitously” chooses to take up the offending lawyer’s point, the decision on the merits typically becomes a foregone conclusion.
In my view, this turn of events began nearly a decade ago with Ivie v. Smith, 439 S.W.3d 189 (Mo. banc 2014). The Court observed in Ivie that the appellant’s brief combined into the same point relied on a substantial evidence challenge, a misapplication-of-law challenge, and an against-the-weight-of-the-evidence challenge. The Court ruled these were distinct claims that must appear in separate points relied on to be preserved for appellate review.
Ivie changed the customary practice under Rule 84.04(d). How does an appellant’s lawyer comply with Ivie when a single claim of error presents a mixed question of fact and law? I view this dilemma as an “Ivie trap.”
Before Ivie, the Missouri Supreme Court recognized in Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012) that a single claim could present a mixed question of law and fact. The reviewing court would segregate the parts of the issue dependent upon factual determinations from those dependent on legal determinations. But under Ivie, the appellant must raise separate points for legal and factual issues. Does this mean the appellant’s lawyer must draft separate points on a mixed question of fact and law?
The Missouri Supreme Court has never reconciled its conflicting approaches in Pearson and Ivie. Even if an appellant is allowed to present a mixed question as a single point, would an appellate court necessarily have to accept a lawyer’s characterization of the issue as a true mixed question? This is more than an abstract hypothetical question. In multiple cases, courts treated a single claim on appeal as a mixed question of fact and law.
A second Ivie trap is that the rule may impose limitations on what the appellant may say in a factual challenge. The first element of such a challenge is to “identify a challenged factual proposition, the existence of which is necessary to sustain the judgment.” Defining that factual proposition may be a question of law. Surely Ivie does not bar the appellant from citing statutes or cases to show that a particular factual proposition is necessary to sustain the judgment. But how far can the appellant go without being accused of combining legal and factual issues?
I cannot answer these troubling questions. Without more guidance, the appellant’s lawyer must navigate the minefield of drafting points without getting his or her appeal dismissed.
Let me offer a couple hypothetical examples of “judicial word games” or “hypertechnicalities”:
First, assume an appellant is appealing from a modification of child custody. Suppose the appellant’s lawyer argues the trial court’s finding of a substantial change in circumstances was against the weight of the evidence. But assume the appellate court on its own questions whether “substantial change in circumstances” was the proper legal standard. The court concludes it was. But the court accuses the appellant’s lawyer of raising this legal issue and improperly combining legal and factual issues in violation of Ivie. You can assume the appellant’s lawyer disagrees. Instead, assume the lawyer simply believes he or she was following the four-pronged analytical framework for a weight-of-the-evidence challenge. For part of this framework, the lawyer cited cases to show the finding of a substantial change in circumstances was a factual finding necessary to sustain the judgment. Fortunately for the lawyer, you can assume the criticism ultimately has no practical effect because the appellate court gratuitously affirms the judgment on the merits.
Second, assume an appellate court accuses an appellant’s lawyer of a glaring defect under Rule 84.04(d) of improperly setting out the standard of review as the legal basis for a claim of error. Yet suppose the lawyer actually stated the legal basis for the claim of error was that the trial court misapplied the law. And assume the lawyer made reference to the standard of review later in the “in that” portion of his or her point. You will find nothing in Rule 84.04(d) to prevent the lawyer from arguing about the standard of review in his or her point relied on. Indeed, the appellant must state the standard of review as a compulsory part of any argument. Once again, you can assume no harm is done because the appellate court gratuitously affirms the judgment on the merits.
I don’t expect to get much traction with my opinion. But I hope the Missouri Supreme Court will reconsider the structure of Rule 84.04(d). The rule compels appellants to say “the trial court erred in doing [x] because [y] in that [z].” By demanding substantial compliance with this format, I believe the Court is forcing lawyers to create long, convoluted, run-on sentences for each point. The points often run a page or longer.
Rule 84.04(d) cautions the point should be concisely stated. Yet if the lawyer omits matters to be concise, the court could construe the omission as a waiver of parts of the argument. The appellant’s argument must follow the point relied on. The respondent is allowed to make arguments not included in the appellant’s points. The appellant does not have the same luxury.
I reviewed appellate rules from other jurisdictions and found nothing remotely comparable to Missouri’s Rule 84.04(d). Many jurisdictions apply what is commonly called the “notice” method of presenting issues. The federal appellate rules say only that an appellant’s brief must include “a statement of the issues presented for review.” Kansas and Illinois take a similar bare notice approach.
If the Court adopts the notice approach, the Court might want to add some of the slightly more detailed rule language used in some states. To my mind, these details can satisfy the Thummel objectives of giving notice of the issues to the opposing party and the court. For instance, the Court could adopt the Indiana requirement that the appellant “shall concisely and with particularity describe each issue presented for review.” Or the Court could consider the Ohio requirement that the statement of issues must include “references to the assignments of error to which each issue relates.” In a similar vein, Kentucky requires the appellant to “set forth succinctly and in the order in which they are discussed in the body of the argument, the appellant’s contentions with respect to each issue of law relied upon for a reversal.”
Beyond these specific rules, the Missouri Supreme Court might consider requiring the appellant to include enough facts in a point to ensure it is more than an abstract proposition of law. Under this approach, the lawyer should not have to spell out each detail necessary for the court to rule in the appellant’s favor. I taught law students to apply this approach to framing issues under the federal appellate rules when I was coaching moot court teams at Saint Louis University Law School.
Regardless of the approach taken, I believe the Court has options for satisfying the Thummel notice objectives without forcing appellants to comply with the onerous burdens of the current rule.
In sum, the Missouri Supreme Court obviously possesses sole authority to continue applying Rule 84.04(d). Still, I believe there are sound reasons for reconsidering the rule. I have shown how the Court can look to the appellate rules of federal courts and other states for guidance.
If the Court wants to keep Rule 84.04(d), I hope the Missouri appellate courts at least might begin taking a more lenient view of the rule in its application. The appellant’s lawyer ought to be given the benefit of the doubt. The Supreme Court told lawyers and courts many years ago that the rule should not be “simply a judicial word game or a matter of hypertechnicality.” Appellate lawyers should not be put at risk by an increasingly arcane rule.