A Quick Note to Missouri Appellate Lawyers

by Brian Rogers on September 5, 2012

in Contract Law Basics and Tips

I read a fair number of Missouri contracts cases for the blog and to stay abreast of the law, and I’ve noticed that Missouri appellate judges often cite ITT Commercial Finance Corp. v. Mid-American Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993), which has been referred to as the bible for summary judgment motions (a Shepard’s search shows it’s been cited over 2,000 times). Missouri Supreme Court Rule 84.04 is also cited frequently (about 1,400 times). References to ITT Commercial Finance Corp. are generally routine and are found in the standard of review section. Citations to Rule 84.04, however, are never good and the judges are often clearly irritated.

Rule 84.04 sets out the requirements for appellate briefs. The rule’s requirements seem simple enough, at least to the untrained eye (I don’t do appellate work), but parties often run afoul of the rule. Generally, the court merely notes the non-compliance, but then moves on with its analysis of the merits of the appeal: “Although Appellant fails to comply with the requirements of Rule 84.04 because … ” Other times, one of the parties is clearly trying to use the rule offensively and the court states something like, “Respondent asserts that Appellant’s brief should be stricken for failure to comply with Rule 84.04. Appellant’s brief will not be stricken because it sufficiently apprises this Court of his points on appeal.”

Occasionally, rarely, the court sounds the death knell: “Appellants have substantially failed to comply with Rule 84.04 so as to impair our review of the merits and preserve nothing for our review. Accordingly, we dismiss the appeal.”

I suspect that seasoned appellate lawyers have no trouble complying with Rule 84.04, and that most of those who get tripped up are operating outside their wheelhouse. Regardless, if you’re filing an appellate brief in Missouri, I’d highly recommend reading Rule 84.04 closely, and if you’re at the summary judgment stage, read ITT Commercial Finance Corp. also.

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