Points Relied On (PRO) Go PRO – A Must for Effective Appellate Advocacy Eddie Smith.

Points Relied On (PRO)

Go PRO – A Must for Effective Appellate Advocacy

Eddie Smith

© 2011 Polsinelli Shughart PC

PRO Required by Rule 84.04(a)

Contents. The brief for appellant shall contain:

. . .

(4) The points relied on;

. . .


Purpose of PRO Briefing Requirement

• The purpose of the PRO briefing requirement “is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts,” rather it is “to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.” Waller v. Shippey, 251 S.W.3d 403, 405 (Mo. App. 2008) ( citations omitted).


Location of PRO in Brief

• PRO are to be listed immediately after Statement of Facts. Rule 84.04(a)(1)(4). However, failure to do so is not fatal to review on the merits. Hudson v. State, 270 S.W.3d 464, 467 (Mo. App. 2008).

• A PRO “shall be restated at the beginning of the section of the argument discussing that point.” Rule 84.04(e).


(A) (B) (C)s of a PRORule 84.04(d) – Decisions of Trial Court

(1) Where the appellate court reviews the decision of a trial court, each point shall:

(A) identify the trial court ruling or action that 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.


Required Form of PRO

• “The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons 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].’” Rule 84.04(d)(1).


Components of Compliant PRO

• To comply with Rule 84.04(d)(1), a PRO must have three components:

(A) The trial court erred - ID of specific ruling or action being challenged;

(B) “because” - statement of legal reason why challenged ruling or action is erroneous;

(C) “in that” - explanation as to why, in the context of the case, the stated legal reason applies (evidence that supports application of legal reason). House, 292 S.W.3d 478, 482 (Mo. App. 2009).


(A) ID of Specific Ruling or Action Challenged

• Mere references or blanket challenges to general rulings of the trial court, such as “the trial court limited the party’s ability to present evidence,” do not comply with Rule 84.04(d)(1)(A). Eagle Star Group, Inc., 334 S.W.3d 548, 553-54 (Mo. App. 2011); see also Arch Insurance Company v. Progressive Casualty Insurance Company, 294 S.W.3d 520, 523 (Mo. App. 2009) (holding that challenge to trial court’s refusal to consider “all known facts and evidence” was not compliant with rule).

• “A point relied on that does not identify the specific circuit court error preserves nothing for appellate review.” Eagle Star Group at 554 (citing Columbia Mut. Ins. Co. v. Long, 258 S.W.3d 649, 473 (Mo. App. 2008)); see also Arch, 294 S.W.3d at 523.


(B) (“Because”) Statement of Legal Reason Why Error

• The “because” requirement “essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court’s conclusion of law on the point being addressed.” House, 292 S.W.3d at 482 (quoting Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978)).


Rule 84.04(d)(1)(B) - Specific Legal Reason

• Conclusory statements as to general principles of law do not satisfy the specificity required by Rule 84.04(d)(1)(B). Roberson v. KMR Construction, LLC, 208 S.W.3d 320, 322 (Mo. App. 2006).

• A mere statement of error with respect to the standard of review in a judge-tried case (Murphy v. Carron), does not satisfy the specificity required by Rule 84.04(d)(1)(B), U.S. Bank v. Lewis, 326 S.W.3d 491, 494 (Mo. App. 2010); Smith v. Smith, 283 S.W.3d 271, 274 (Mo. App. 2009), nor does a bare allegation that it was error to grant summary judgment because there was a genuine dispute of material fact, Marketing & Creative Support Services, Inc. v. Ellison-Auxier Architects, Inc., 62 S.W.3d 607, 610 (Mo. App. 2001).


Rule 84.04(d)(1)(C) Explanation of Why Legal Reason Applies

• To satisfy Rule 84.04(d)(1)(C), the appellant must explain how the facts of the case cause the stated legal reason for error to apply to the challenged ruling. House, 292 S.W.3d at 482; Smith, 283 S.W.3d at 274; Waller, 251 S.W.3d at 406.


Failure to Satisfy Rule 84.04(d)(1)(B)(C)

• Failure to satisfy Rule 84.04(d)(1)(B) or (C) results in nothing more than an abstract statement of law that is not sufficient to inform the court of the precise claim of error, as required in order to warrant review on the merits. Rule 84.04(e); Smith, 283 S.W.3d at 274.


PRO Compliance – Reversible Error

• Inasmuch as Rule 84.04(d)(1)(B)(C) expressly references “reversible error”, does PRO to be compliant have to include “legal reasons” and factual explanation as to why the stated trial error is reversible error?

• For error to be reversible error, appellant must have been prejudiced thereby (outcome determinative). State v. Garrett, 139 S.W.3d 577, 582-83 (Mo. App. 2004).


Reversible Error

• No appellate decision appears to have expressly addressed the sufficiency of a PRO as to allegations of prejudice. Very few PRO include allegations of specific prejudice suffered by reason of the stated legal reason for trial error.

• It has been held that it is sufficient if appellant has advised court in the argument of the prejudice claimed as a result of the specific claim of error stated in PRO. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 165 (Mo. App. 2007).

• To be safe, may want to include in legal reason that appellant was thereby prejudiced.


Compliance with Rule 84.04(d)(1)Ensures Adversarial Process

• Compliance with Rule 84.04(d)(1) is mandatory in order to ensure that the appellate court does not become an advocate for appellant by speculating on facts and arguments that have not been made. City of Lee’s Summit v. Cook, 337 S.W.3d 757, 758 (Mo. App. 2011); Arch, 294 S.W.3d at 522; House, 292 S.W.3d at 482; State v. Marrone, 292 S.W.3d 577, 579 (Mo. App. 2009).


Compliance with Rule 84.04(d)(1)Prevents Waste of Judicial Resources

• If compliance with Rule 84.04(d)(1) were not mandatory, appellate courts would be forced to search the record and argument in an attempt to discern the precise claim of error being raised, which would be a waste of judicial resources. House, 292 S.W.3d at 482; Marketing & Creating Support Services, 62 S.W.3d at 610.


Compliance with Rule 84.04(d)(1)Guards Against Poor Precedent

• Compliance with Rule 84.04(d)(1) is also mandatory to guard against the creation of poor precedent on issues which have not been subjected to and have not been fully vetted by the adversarial process. City of Lee’s Summit, 337 S.W.3d at 758; Arch, 294 S.W.3d at 522; Waller, 251 S.W.3d at 407


Failure to Comply with Rule 84.04(d)(1)Purported Claim of Error Dismissed

• Failure to substantially comply with Rule 84.04(d)(1) results in the purported claim of error not being preserved for review on the merits and being dismissed. City of Lee’s Summit, 337 S.W.3d at 758; Arch, 294 S.W.3d at 522-23; Waller, 251 S.W.3d at 407.


Test for Compliance with Rule 84.04(d)(1) Sufficient to Warrant Review

• Appellate courts prefer not to dismiss for failure to comply with Rule 84.04(d)(1). City of Lee’s Summit, 337 S.W.3d at 758; Arch, 294 S.W.3d at 522; Waller, 251 S.W.3d at 407. Balancing that preference against the purposes of the Rule, the court will review a PRO on the merits even though it does not technically comply with the Rule as long as the court is able to ascertain the issue being raised to some degree of certainty by reading the PRO in conjunction with the argument thereon and provided that in doing so it is not forced to engage in rank speculation or become an advocate for the appellant. City of Lee’s Summit, 337 S.W.3d at 758; House, 292 S.W.3d at 482; Koonce, 173 S.W.3d at 281.

• This is a one-way street in that the court may look at argument to discern the claim of error, but will not consider an issue raised in argument that is not raised in a compliant PRO. 8000 Maryland, LLC v. Huntleigh Financial Services Inc., 292 S.W.3d 439, 445 (Mo. App. 2011); Roberts v. Progressive Northwestern Insurance, 151 S.W.3d 891, 894 (Mo. App. 2004).


Only One Claim of Error Per PRO

• A PRO is only permitted to set forth one claim of error. Points that present two disparate claims of error are multifarious and preserve nothing for appellate review. Rogers v. Hester, 334 S.W.3d 528, 536 (Mo. App. 2011); State v. Yarbrough, 332 S.W.3d 882, 886 (Mo. App. 2011); Stuart v. Ford, 292 S.W.3d 508, 516 (Mo. App. 2009).

• The fact that Rule 84.04(d)(1), as to form, expressly provides that appellant is to “state the legal reasons for the claim of reversible error,” rather than the legal reason, would suggest that as to what constitutes a single claim is determined by the number of challenged rulings or actions rather than the number of legal reasons stated for challenging a ruling or action. State v. Marrone, 292 at 579; Stuart, 292 S.W.3d at 516.


Separate Legal Issues – Separate PRO

• Cases have held that the number of legal issues or theories for claimed error, not the number of challenged rulings or actions, is what determines whether separate PRO are required. Rogers, 334 S.W.3d at 536; State v. Clark, 263 S.W.3d 666, 670 (Mo. App. 2008)(appears to be at odds with State v Marrone).

• Practically speaking, to provide clarity and certainty, it is better to set out a separate claim of error for each legal reason stated as to a challenged ruling or action.


Respondent Should Challenge Sufficiency of PRO

• Respondents have routinely challenged the sufficiency of appellants’ PRO and have been successful in having appellants’ claims dismissed. Smith, 283 S.W.3d at 273; Clemens v. Eberenz Construction Company, Inc., 258 S.W.3d 458, 459 (Mo. App. 2008); Marketing & Creative Support Services, Inc., 62 S.W.3d at 610.

• Better practice is to challenge what appears to be a deficient PRO – IF you are proficient in drafting compliant PRO.


Compliant PRO Is Appellant’s Friend

• In addition to satisfying the stated purposes for the briefing requirements of Rule 84.04(d)(1), the PRO-cess of drafting compliant PRO has added benefit of honing and focusing appellant’s claim of error and shaping argument thereon, giving appellant best chance of succeeding on appeal.

Points Relied On (PRO) Go PRO – A Must for Effective Appellate Advocacy Eddie Smith.

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