Points Relied On (PRO)
Go PRO – A Must for Effective
Appellate Advocacy
Eddie Smith
PRO Required by Rule 84.04(a)
Contents. The brief for appellant shall
contain:
...
(4) The points relied on;
...
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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).
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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).
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(A) (B) (C)s of a PRO
Rule 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.
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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).
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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).
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(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.
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(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)).
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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).
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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.
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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.
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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).
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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.
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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).
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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.
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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
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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.
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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).
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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.
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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.
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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.
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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.
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