Timothy G. Vogel v. Robert S. Steffen

In the Missouri Court of Appeals Western District TIMOTHY G. VOGEL, ) ) Respondent, ) WD83856 ) v. ) OPINION FILED: June 29, 2021 ) ROBERT S. STEFFEN, ) ) Appellant. )

Appeal from the Circuit Court of Morgan County, Missouri The Honorable Matthew P. Hamner, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Mark D. Pfeiffer, Judge and W. Douglas Thomson, Judge

Robert Steffen ("Steffen") appeals from the Circuit Court of Morgan County, which following a bench trial entered judgment against Steffen and in favor of Timothy Vogel ("Vogel") as to Vogel's claims of breach of contract and fraudulent misrepresentation. The circuit court found in favor of Steffen and against Vogel as to Vogel's claim for a violation of the Missouri Securities Act. Steffen appeals pro se. *2 Because Steffen's briefing does not comply with Rule 84.041 and because Steffen has failed to provide a transcript of the proceedings below, we dismiss the appeal.

"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." Bartsch v. BMC Farms, LLC, 573 S.W.3d 737, 742 (Mo. App. W.D. 2019) (internal quotations omitted). "Failure to substantially comply with Rule 84.04 preserves nothing for review and is a proper ground for dismissing an appeal." Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 867 (Mo. App. W.D. 2008). "The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). "The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case." Lattimer v. Clark, 412 S.W.3d 420, 422 (Mo. App. W.D. 2013) (quoting Tavacoli v. Div. of Emp't Sec., 261 S.W.3d 708, 710 (Mo. App. W.D. 2008)). In the instant case, Steffen's Statement of Facts does not contain the necessary facts for us to determine the merits of his claim, and this court would be required to become an advocate to properly address his claims, which we cannot do. Rademan v. Al Scheppers Motor Co., 423 S.W.3d 834, 836-37 (Mo. App. W.D. 2014). Further, the rule requires "[a]ll factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal." Rule 84.04(e). Other than generally stating that this is a dispute regarding the transfer of part ownership of a limited

1 All rule references are to the Missouri Court Rules (2021).

liability company, there are scant factual statements as to even what the nature of the dispute entailed or how it arose.

Additionally, Rule 84.04(e) requires in relevant part that: "For each claim of error, the argument shall also include . . . the applicable standard of review." Steffen's appeal raises three claims of error but does not state which standard of review governs any one of his claims. Bench-tried cases are subject to review as set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and judgments will be affirmed "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." It is impossible to determine from Steffen's briefing whether he claims the judgment is not supported by substantial evidence, whether he claims it against the weight of the evidence, or whether he claims the circuit court erroneously declared or applied the law. Because those are three separate claims, which require distinct analyses, we would again have to become an advocate on Steffen's behalf to properly address the merits of his appeal, which we cannot do. Because Steffen's briefing does not comply with Rule 84.04(e), his argument has not been preserved for our review. Washington v. Blackburn, 286 S.W.3d 818, 822 (Mo. App. E.D. 2009).

Furthermore, "we cannot review evidentiary sufficiency claims without knowing the evidence presented." Bishop v. Heartland Chevrolet, Inc., 152 S.W.3d 893, 897 (Mo. App. W.D. 2005) (quoting Pierson v. Laut, 113 S.W.3d 298, 300 (Mo. App. E.D. 2003)). "It is the duty of an appellant to furnish a transcript containing a record of the proceedings which he desires to have reviewed. In the absence of such record there is *4 nothing for the appellate court to decide." Milone v. Duncan, 245 S.W.3d 297, 301 (Mo. App. W.D. 2008) (quoting Cooper v. Gen. Standard, Inc., 674 S.W.2d 117, 122 (Mo. App. W.D. 1984)); Rule 81.12(c)(2) ("The transcript shall contain the portions of the proceedings and evidence not previously reduced to written form and necessary to determination of the issues on appeal."). Because Steffen has not provided a transcript of the proceedings that occurred in the circuit court, we cannot conduct any meaningful review of Steffen's claims of error, and, although Steffen is before this Court pro se, he is bound by the same rules of procedure as parties represented by counsel. Rademan, 423 S.W.3d at 836. "This principal [sic] is not grounded in a lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties." Id. (quoting Thompson v. Flagstar Bank, FSB, 299 S.W.3d 311, 313 (Mo. App. S.D. 2009)).

We find the deficiencies in Steffen's brief and in the failure to file a transcript are such that we simply cannot dispose of the case on the merits. For the foregoing reasons, we dismiss Steffen's appeal.

__________________________________ Gary D. Witt, Judge

All concur