Opinion
ED112264
06-11-2024
LARRY RICE, Appellant, v. MIDLAND STATES BANK, and MIDLAND STATES BANCORP, INC., Respondents.
Appeal from the Circuit Court of Franklin County Honorable Craig E. Hellmann
KURT S. ODENWALD, Presiding Judge
Introduction
Larry Rice ("Rice") appeals from the circuit court's judgment dismissing with prejudice his claim against Midland States Bank and Midland States Bancorp, Inc. (collectively, "Respondents"). Rice raises five points on appeal. Because Rice has failed to include the pleadings on which the action was tried, as required by Rule 81.12, we conclude the legal file is inadequate and dismiss his appeal.
In Point One, Rice argues the circuit court erred in dismissing the case for lack of derivative standing because a shareholder derivative action can be brought against any party the company can rightfully sue. Point Two alleges the circuit court erred in dismissing the case for lack of individual standing, in that Rice suffered harm because of Respondents' actions. Points Three and Four maintain the circuit court erred in dismissing the case for failure to state a claim of fraud and theft (Point Three) and negligence, unprofessional conduct, breach of warranty, and failure to exercise a duty of care (Point Four). Lastly, Rice argues in Point Five that the circuit court erred in dismissing the case with prejudice, because a dismissal for lack of standing is not a ruling on the merits and must be without prejudice.
All Rule References are to Mo. R. Civ. Pro. (2023).
Factual and Procedural History
We include only those facts necessary to our disposition of this appeal.
Rice, acting pro se, filed an Initial Petition following an alleged incident of check washing, seeking relief against Respondents in an individual and derivative capacity. Respondents filed a motion to dismiss on two grounds, arguing that either Rice did not have standing to bring the claims in his individual or derivative capacity, or, in the alternative, Rice failed to state a claim upon which relief could be granted. Rice subsequently filed a motion to amend his Initial Petition with the Proposed Amended Petition. Without ruling on the motion to amend, the circuit court granted Respondents' motion to dismiss and entered judgment dismissing the cause with prejudice.
Check washing is a fraudulent activity in which a check is stolen, often from the mail system, and then "washed" in a chemical solution to remove and replace the existing payee name and dollar amount. Check Washing, United States Postal Inspection Serv., https://www.uspis.gov/news/scam-article/check-washing (last updated Oct. 23, 2023); FinCen Alerts Banks to Nationwide Surge in Mail Theft-related Check Fraud Schemes, Fed. Banking L. Rep. (CCH) ¶ 158-770 (Feb. 27, 2023).
Now on appeal, Rice has filed a non-system generated legal file. The legal file contains the Proposed Amended Petition but not the Initial Petition. Respondents urge us to dismiss the appeal, arguing that Rice's failure to include the Initial Petition renders the record inadequate under Rule 81.12. Rice addresses Respondents' argument in his reply brief, stating: "Respondents could have filed the original document had they felt it was important, and this Court of course may order Rice to supplement the legal file under Rule 81.12(f)(2)." Rice did not move to supplement or amend his legal file.
Discussion
Before we can reach the merits of the appeal, we must first determine whether Rice has provided a record that allows for meaningful appellate review. See J.W. ex rel. A.W. v. St. Louis Pub. Schs., 653 S.W.3d 905, 910 (Mo. App. E.D. 2022).
Requirements for the record on appeal are governed by Rule 81.12, which provides, in relevant part: "The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision." Rule 81.12(a); A.W., 653 S.W.3d at 910. Rule 81.12 places the duty on the appellant to prepare a complete legal file. Rule 81.12(b); A.W., 653 S.W.3d at 911. "The legal file serves the purpose of providing the appellate courts exact copies of the relevant documentary record necessary to decide the issues on appeal and to facilitate the accessibility of these documents." A.W., 653 S.W.3d at 910 (internal citation omitted).
Rule 81.12 directs that the legal file must "always" contain "the pleadings upon which the action was tried." Rule 81.12(b)(2)(C) (emphasis added); A.W., 653 S.W.3d at 910. An appellant's failure to include such pleadings is grounds for dismissal. A.W., 653 S.W.3d at 912 (dismissing an appeal for failure to include the operative petition in the legal file); Barbero v. Wilhoit Props., Inc., 637 S.W.3d 590, 593 (Mo. App. E.D. 2021); see also Bank of New York Mellon Tr. Co., N.A. v. Jackson, 484 S.W.3d 814, 816 (Mo. App. E.D. 2015) (dismissing an appeal for failure to include a transcript, as required by Rule 81.12). While we prefer to resolve appeals on their merits, we are foreclosed from doing so when we lack an adequate record of the circuit court's proceedings. A.W., 653 S.W.3d at 911.
We apply our rules of appellate procedure to pro se and represented litigants alike. Barbero, 637 S.W.3d at 593; Jackson, 484 S.W.3d at 816. Although we are mindful of the challenges faced by pro se litigants, judicial impartiality, judicial economy, and fairness to all parties prohibit us from relaxing our standards. Jackson, 484 S.W.3d at 816.
Here, Rice attempted to amend his Initial Petition with the Proposed Amended Petition after Respondents filed a motion to dismiss. As Respondents had filed a responsive pleading, Rice could amend his pleadings only with the circuit court's leave or Respondents' written consent. See Fox v. White, 215 S.W.3d 257, 261 n.6 (Mo. App. W.D. 2007) (citing Rule 55.33(a)). Because the record on appeal discloses neither the circuit court's leave nor Respondents' consent, the Proposed Amended Petition was never before the circuit court. See id. Accordingly, the Initial Petition served as the pleadings on which Rice's action was tried. See id.
Rice's legal file, however, includes only the Proposed Amended Petition and not the Initial Petition. The legal file is thus noncompliant with Rule 81.12 and is grounds for dismissal. See Rule 81.12(b)(2)(C); A.W., 653 S.W.3d at 912; Barbero, 637 S.W.3d at 593. Rice's omission forecloses our ability to review the questions of error raised on appeal. See A.W., 653 S.W.3d at 910. By way of obvious example, without the Initial Petition, we cannot possibly review points of error alleging that Rice's pleadings state a claim upon which relief can be granted.
Rice contends that Respondents should file the Initial Petition, or, in the alternative, this Court could order Rice to supplement the legal file. Rice's argument fails to appreciate that Rule 81.12 unequivocally places the burden of preparing the legal file on the appellant. See Rule 81.12(b); A.W., 653 S.W.3d at 911. Respondents' brief put Rice on notice of his error, and still he failed to supplement the legal file. Respondents need not help Rice carry his burden. Nor must we direct Rice to correct his omission; although Rule 81.12 permits us to do so, it does not require it. See Rule 81.12(f)(2); A.W., 653 S.W.3d at 911.
Because Rice's legal file fails to comply with Rule 81.12, we must dismiss all points on appeal. See A.W., 653 S.W.3d at 912; Barbero, 637 S.W.3d at 593; see also Jackson, 484 S.W.3d at 816.
Conclusion
The appeal is dismissed.
Michael E. Gardner, J., concurs.
Renée D. Hardin-Tammons, J., concurs.