Section 6.8 Points Relied On
Library | App Ct Prac 2015 Supp |
E. (§6.8) Points Relied On
The convention of points relied on garners the longest treatment in Rule 84.04 of any component of an appellant’s brief, see Rule 84.04(d); has been the subject of a law review article, Paula R. Hicks, Note, Five Decades of Explanation and Evolution, Yet the Rule Appears Unchanged: Missouri’s Points Relied On Rule, 60 Mo. L. Rev. 931 (1995); and continues to befuddle many brief writers. The essential purpose of a point relied on 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.” Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997) (citing Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). In that light, and in view of the detailed treatment that points receive in Rule 84.04(d), drafting a proper point is easily accomplished.
For most appeals (cases in which the appellant challenges a trial court’s or an administrative agency’s ruling), a point relied on contains three basic components:
1. It identifies the challenged ruling.
2. It concisely states the legal reason that merits reversal.
3. It applies, in summary fashion, the law to the specific facts of the case that demonstrate why the appellant should prevail.
Rule 84.04(d)(1), (2). In an original writ proceeding before an appellate court, the point relied on will contain one more element. At
the beginning, it will state what relief the petitioner or relator seeks from the appellate court. Rule 84.04(d)(3).
The point (or points) relied on must cover all of the issues that the appellant wishes to raise. If the appellant raises an issue in the argument section that is not stated in the point relied on, the appellate court may deem that issue waived and refuse to review it. State v. Xia, 60 S.W.3d 28, 30 (Mo. App. S.D. 2001); Russ v. Russ, 39 S.W.3d 895, 899 (Mo. App. E.D. 2001); Banks v. Vill. Enters., Inc., 32 S.W.3d 780, 793 (Mo. App. W.D. 2000). Additionally, “[n]othing is preserved for appellate review if the point relied on is insufficient.” Dickinson v. Ronwin, 935 S.W.2d 358, 366 (Mo. App. S.D. 1996).
The point must nevertheless be succinct. In Thummel, 570 S.W.2d 679, the Supreme Court noted that separate issues should be stated in separate points. Id. at 688. Further, the portion of the rule requiring the legal reasons to be set forth explicitly requires that they be “concisely” stated. Rule 84.04(d)(1)(B), (2)(B), (3)(C). Reference to the record must “be limited to the ultimate facts...
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