Opinion
No. ED88144
May 15, 2007
Appeal from Circuit Court of St. Louis County, Hon. Gloria Reno.
Stephen R. Gleason, Counsel for Appellant.
Demitrius Glass, Pro Se, Counsel for Respondent.
Opinion
Introduction
Appellant W. Dale Finke, Director of Insurance, State of Missouri ("Director") appeals from the decision of the Circuit Court of St. Louis County, the Honorable Gloria Reno presiding, after the circuit court reversed the decision of the Missouri Department of Insurance ("Department") to deny the issuance and renewal of several insurance licenses of Respondents Versatile Management Group, Inc. ("Versatile") and Demitrius Glass ("Glass"). We dismiss.
Factual and Procedural Background
On 19 August 2004, the Director filed a complaint against Glass and Versatile with the Administrative Hearing Commission ("AHC"), seeking to discipline Glass after two of his clients complained that he and his insurance agency, Versatile, had mishandled their insurance premium payments. On 12 January 2005, a hearing was held before the AHC, where Glass and Versatile appeared with counsel. On 25 July 2005, the AHC issued its "Findings of Fact and Conclusions of Law," and determined that sufficient cause existed to discipline the insurance licenses of Glass and Versatile. The Department then held a disciplinary hearing in Jefferson City on 25 October 2005, where Glass and Versatile again appeared with counsel. Counsel for the Department presented evidence, including the decision, record, and order of the AHC, and recommended that Glass's and Versatile's insurance licenses be revoked. Counsel for Glass and Versatile also presented evidence on their behalf. The Department ultimately revoked Glass's insurance producer license and Versatile's business entity producer license in a written order issued on 4 November 2005. Following the issuance of the Department's order, Glass filed a Petition for Review with the Circuit Court of St. Louis County, pursuant to Section 536.100 RSMo. (2000). In a written "ORDER/JUDGMENT" issued on 21 April 2006, the Circuit Court reversed the Department's decision to revoke Glass's and Versatile's licenses. Without explanation, the Circuit Court ordered the Department to "reinstate Plaintiff's Missouri insurance producer's license for Accident and Health, Life and Variable Contract insurance." The Circuit Court also ordered the Department to "issue [Glass] a Property and Casualty insurance producer's license and to renew Plaintiff's [Versatile's] Missouri business entity license and issue same." This appeal followed.
All statutory references are to RSMo. (2000).
Discussion
The Director raises one self-denominated point on appeal. Since the Director is formally designated as the Respondent in this case pursuant to Rule 84.05(e), it might appear that we are mistaken in referring to a respondent's claim of error. However, as we will explain below, the Director has the burden of persuading this Court either why the circuit court erred or why the prior administrative decisions were correct. Unfortunately for the Director, he failed to satisfy this burden because, as we will also explain, his brief was woefully inadequate in its compliance with Rule 84.04.
To begin, the procedural and briefing posture of this case presents an unusual circumstance where although the Director is challenging the circuit court's decision, he should have been designated as the "respondent." This is because Rule 84.05(e) establishes a specific briefing order when "the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than the circuit court." In such a circumstance, Rule 84.05(e) requires the party aggrieved by the agency decision to file the appellant's brief (and any reply), while the party aggrieved by the circuit court's decision must prepare the respondent's brief.
In this case, however, the parties filed their briefs using the incorrect (although otherwise logical) party designations: the Director filed the "appellant's" brief, and Glass/Versatile filed the "respondent's" brief. Although the parties reversed their procedural designations, they did manage to file their briefs in the correct order: Versatile/Glass filed the first brief and the Director filed the second brief. As the dissent points out, this briefing posture would seem to place the burden of making an affirmative argument before this Court on the "appellant," or the first party to file a brief (Glass/Versatile). The dissent notes that a respondent is generally not required to file a brief on appeal. See e.g., State ex rel. Neal v. Karl, 627 S.W.2d 913, 914 (Mo.App.W.D. 1982). Although this is generally a correct statement of Missouri law, we believe that the unusual briefing order prescribed by Rule 84.05(e) does not relieve such a "respondent" (the Director) of its burden of arguing, and supporting with sufficient authority, why the circuit court erred (or in the alternative, why the administrative decision was correct) inasmuch as there is a judgment that can be enforced by Glass/Versatile.
We find support for this proposition in a Missouri case dealing with another unusual circumstance arising from the confusing nature of Rule 84.05(e). In State ex rel. Riverside Pipeline Co., L.P. v. Public Service Com'n of Missouri, 165 S.W.3d 152 (Mo. banc 2005) (Riverside I) rev'd on other grounds by State ex rel. Riverside Pipeline Co. v. Public Service Commission of Missouri, 215 S.W.3d 76 (Mo. banc 2007), the Missouri Supreme Court held that despite the "anomalous procedure" and briefing order required by Rule 84.05(e), this "does not affect the designation of which party must establish standing in order to appeal." Id. at 155. In Riverside I, the circuit court reversed a decision of the Public Service Commission ("PSC"), and the PSC appealed to the Western District of the Court of Appeals. Id. at 153. The Western District dismissed, sua sponte, for lack of jurisdiction. Id. On transfer, however, the Supreme Court reversed the dismissal, holding that "[t]he only determination necessary to establish appellate jurisdiction is whether the PSC was aggrieved by the judgment of the circuit court." Id. at 155. The Supreme Court further noted that, "surely it was by virtue of the fact that the judgment was entered against it." Id.
Therefore, since being aggrieved by the circuit court's decision is the dispositive factor in determining standing before the Court of Appeals, we believe it is also the dispositive factor in determining which party has the burden of persuasion before this Court. In this case, since the Director was aggrieved by the circuit court's decision, it is the party that must convince this court either: (a) why the circuit court erred; or (b) why the administrative decision was correct. However, as we will discuss in detail below, the Director's brief failed to persuade this Court of anything — except that it failed to comply with virtually any aspect of Rule 84.04, and thus, that nothing has been preserved for appellate review.
In this regard, the dissent further maintains that it would be improper to dismiss the Director's brief for failure to comply with Rule 84.04 because it owed no duty to make an affirmative argument. However, based upon the foregoing authority, we believe that dismissal of the Director's appeal is a proper disposition of this case in light of the deficiencies in the Director's brief.
In Missouri, "[a]ppellate courts are not required to review an appeal on the merits where there are flagrant violations of Rule 84.04 concerning the requirements of an appellate brief in a civil case." Coleman v. Gilyard, 969 S.W.2d 271, 273 (Mo.App.W.D. 1998). This rule exists because "it is not proper for the appellate court to speculate as to the point being raised by the appellant and the supporting legal justification and circumstances." Boyd v. Boyd, 134 S.W.3d 820, 823 (Mo.App.W.D. 2004). Appellate courts are not permitted to speculate on an appellant's arguments because "[t]o do so would cast the court in the role of an advocate for the appellant." Id. at 824.
In this case, the Director's Point Relied On and argument failed to comply with several aspects of Rule 84.04. First, the Point Relied On fails to follow the format prescribed by Rule 84.04(d)(2), which deals with an appellate court's review of an administrative agency decision. Second, the Director's self-denominated "ARGUMENT" section contains nothing more than bald legal conclusions, without any supporting explanation or authority. Given these deficiencies, we find that the Director's brief preserves nothing for appellate review.
Missouri appellate courts require a Point Relied On to comply with the specific requirements of Rule 84.04(d), and have held that, "[a]n insufficient point relied on, which cannot be understood without resorting to the record or the argument portion of the brief, preserves nothing for appellate review." Coleman, 969 S.W.2d at 274. Furthermore, "[a]n appellant must cite authority in support of his points relied on if the point is one for which precedent is appropriate and available." Luft v. Schoenhoff, 935 S.W.2d 685, 687 (Mo.App.E.D. 1996). "Arguments raised in the points relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review." Id. A point is considered abandoned "[i]f a party fails to support a contention with relevant authority or argument beyond conclusions. . . ." Id.
In this case, the Director's Points Relied On is woefully inadequate in its compliance with Rule 84.04(d). The Director's point reads as follows: "The AHC and Appellant [Director] did not err in their decisions because the decisions are supported by substantial and competent evidence."
First, this point fails to clearly identify the specific "administrative ruling or action" being challenged, as required by Rule 84.04(d)(2)(A). Rather, the Director only vaguely references the decisions in dispute, and this would require resort to the record to determine which specific rulings are at issue.
Second, the Director's Point Relied On fails to "state concisely the legal reasons for the appellant's claim of reversible error," as required by Rule 84.04(d)(2)(B). Rather, the Director simply states that the Department's decision was "supported by substantial and competent evidence." Written as such, this Court would be forced to improperly speculate on what that "substantial and competent evidence" is, had we attempted to review this claim of error on the merits. However, as we noted previously in Boyd, appellate courts are not permitted to engage in such speculation and advocacy. Furthermore, understanding the Director's Point Relied On would require this Court to resort to the record and the argument section, which is impermissible under Missouri law. Coleman, 969 S.W.2d at 273. For these reasons, we find that the Director's Point Relied On does not comply with Rule 84.04(d), and thus, preserves nothing for appellate review.
Despite the obvious deficiencies in the Director's Point Relied On, we might have been able to overlook them if the supporting argument had contained sufficient information to review the merits of the case. However, the Director's argument is also woefully inadequate in this regard, and as such, we find that it likewise preserves nothing for appellate review.
Rule 84.04(e) requires that an appellant's brief include an argument section that discusses the appellant's point on appeal. Specifically, an appellant's argument should "show how the principles of law and the facts of the case interact." Boyd, 134 S.W.3d at 824. However, like the Point Relied On, appellate courts may not "act as an advocate for the appellant by supplying his argument." Id. Furthermore, Rule 84.04(e) requires the appellant to "include a concise statement of the applicable standard of review for each claim of error." Accordingly, an Appellant's "failure to develop an argument results in our treating the appellant's point as abandoned." Id. Thus, an insufficient argument section is also grounds for dismissal of the appeal.Id.
In this case, the Director's argument merely states that, "[t]he substantial and competent evidence in the record establishes that Respondents have improperly withheld money received in the course of doing insurance business, a ground for discipline under . . . [Missouri insurance law]." The Director further states that "[s]uch evidence is set forth in the affidavits of Sonya James . . . and Veronica Osborne. . .," two of Glass's clients who initially complained to the Department. In support of this assertion, the Director cites to specific pages of the legal file, and asks this Court to divine from the record the precise statements relied upon for this argument. Furthermore, the Director expects this Court to construe how these statements support the alleged violations of the insurance regulations at issue, which the Director also fails to detail and explain. However, as we have noted repeatedly, Missouri appellate courts may not act as advocates when an appellant's brief is deficient. Accordingly, this Court will not entertain such vague and conclusory arguments in an appellate brief.
Finally, the Director's argument fails to discuss the evidence in light of the applicable standard of review. The Director's brief opens by asserting that, "[t]he decisions of the AHC and Appellant must be supported by substantial and competent evidence. . . ." Although this statement correctly refers to the general scope of judicial review regarding an administrative decision, the Director's argument does not discuss whether this case was a "contested" or "non-contested" case, and how this distinction affects this Court's review of the claim of error. Accordingly, the Director's brief does not properly address the standard of review, which is a threshold matter critical to any appellate court's review of a lower court or administrative proceeding. As such, the Director's brief is deficient in this area as well.
We note that since Glass appealed the Department's decision to the circuit court by virtue of Section 536.100, this matter was handled as a "contested" case. However, we do not consider that fact dispositive of this issue. That said, because our disposition of this case involves the dismissal of the Director's brief without reaching the merits, we need not further address this question. Rather, we simply point this out as another shortcoming of the Director's brief.
Since we find that the Director's brief failed to comply with several essential requirements of Rule 84.04, we hold that the Director's self-denominated Point Relied On and "ARGUMENT" have been abandoned. Therefore, pursuant to established Missouri precedent, the Director's brief is dismissed. We do not reach this conclusion to exalt form over substance. These rules provide a simple, clear, and effective manner in which to present persuasive argument to an appellate court. Following the rules is not an option or a mere suggestion; rather, it is good and effective practice.
Conclusion
Finally, this unusual and complex case begs the familiar question: What's in a name? According to Shakespeare, "[t]hat which we call a rose by any other name would smell as sweet." In this case, however, those whom we call "respondents" do not always smell as sweet at the Court of appeals. On the contrary, common sense notions of fairness require a Rule 84.05(e) "respondent" to carry the burden of persuasion with this Court, and unfortunately for the Director, he simply failed to carry his.
William Shakespeare, Romeo Juliet, act II sc. 2.
The appeal is DISMISSED.
I dissent not because the Director fulfilled his duty to file a compliant brief, but rather because he owed no such duty. For purposes of this appeal, the Director was responsible for filing the respondent's brief. Thus, dismissal of the appeal is an inappropriate sanction and this Court should adjudicate the merits of the appeal.
On appeal, Versatile and Mr. Glass contend that there was not substantial and competent evidence presented at the AHC hearing to support the Department's decision to discipline Versatile's insurance business entity producer's license or the Department's decision to refuse to renew Mr. Glass's Missouri insurance producer's license. I would find that the Department's decisions are supported by substantial and competent evidence. Accordingly, I would reverse the judgment of the circuit court, and remand the cause with an order to the trial court to reinstate the decision of the Department.
Though at first blush this seems peculiar, Rule 84.05(e) is clear. If, as here, the circuit court reverses an agency decision and the appellate court reviews the agency decision rather than the circuit court decision, the parties aggrieved by the agency decision, Mr. Glass and his insurance company, are to file the appellants' brief. The party aggrieved by the circuit court decision, the Director, is to file the respondent's brief. In accordance with this Rule, this Court issued an order directing Mr. Glass and his insurance company, as the parties aggrieved by the agency decision, to file the first brief, which they did. The Director, as the party aggrieved by the circuit court decision, then followed with his deficient brief, responding to the allegations and arguments raised in the first brief.
In full, Rule 84.05(e) reads as follows:
If the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than of the circuit court, the party aggrieved by the agency decision shall file the appellant's brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs. The party aggrieved by the circuit court decision shall prepare the respondent's brief and serve it in a time otherwise required for the respondent to serve briefs.
This Court should not dismiss this appeal where the Director filed the second brief and was not claiming error, but rather responding to the error claimed by Mr. Glass and his company in the first brief. Although the provisions of Rule 84.05(e) are perfectly clear, my position finds additional support in both Rule 84.04(d)(2), which sets forth the requirements and form of an appellant's point relied on, where this Court reviews the decision of an administrative agency, rather than a trial court, and in Rule 84.16(b)(4), which clarifies that the appellate court is to review whether the agency decision is supported by competent and substantial evidence. Because the Director prevailed in his position in the agency decision, it is not his burden to claim error in an appellant's brief because, to put it simply, he won at the agency level, which is the decision to be reviewed by the appellate court. Under the Rule, he is to file the respondent's brief, and, as respondent the Director did not have to file any brief. See e.g., State ex rel. Neal v. Karl, 627 S.W.2d 913, 914 (Mo.App.W.D. 1982) (noting "[a] respondent is not required to file a brief on appeal."). Without a duty to file any brief, he cannot be logically faulted for filing a deficient brief.
Rule 84.04(d)(2) reads as follows:
(d) Points Relied On.
(2) Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:
(A) identify the administrative ruling or action 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 [name of agency] erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review ], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error ]."
Rule 84.16(b)(4) reads as follows:
(b) Memorandum Decisions and Written Orders. In a case where all judges agree to affirm and further believe that an opinion would have no precedential value, disposition may be by a memorandum decision or written order. A memorandum decision or written order may be entered only when the appellate court unanimously determines that any one or more of the following circumstances exists and is dispositive of a matter submitted for decision:
. . .
(4) That the order of an administrative agency is supported by competent and substantial evidence on the whole record;
Nor is this analysis changed by considerations of which party has standing to appeal. The question of standing is entirely distinct from the duty to brief. State ex rel. Riverside Pipeline Co., L.P. v. Public Service Com'n of Missouri Of State, 165 S.W.3d 152, 155 (Mo. banc 2005) (Rule 84.05(e) "pertains only to the determination of which party files its brief first and how the parties are designated. It is a procedural rule that provides a more logical order for filing briefs, but it does not affect the designation of which party must establish standing in order to appeal."). The sanction of dismissal is being imposed for the Director's filing of a deficient brief yet Rule 84.05(e) unequivocally establishes that it is only Mr. Glass and his company that have the duty to file a compliant appellants' brief. It may well be that Missouri courts follow an "anomalous procedure" in having appellate courts review an agency decision rather than the circuit court's judgment. Riverside Pipeline Co., 165 S.W.3d at 155. Two anomalies have resulted from the procedural posture of this appeal: where the circuit court reverses an agency decision, but the appellate court reviews the agency decision rather than the circuit court decision. First, it leaves the party prevailing at the circuit court with the duty to file the first brief, but, having prevailed in the circuit court, this party has insufficient incentive to effectively prosecute the appeal. Second, it leaves the appellate court with insufficient authority to compel the prompt professional litigation of the appeal because the normal remedy, dismissal of the appeal, would reward the appellant by reinstating the circuit court's decision. But these anomalies are the consequence of the unequivocal wording of a Supreme Court Rule. The remedy for such anomalies should be the forthright reconsideration of the Rule's wisdom.