Concrete Coring Company of North America, Inc., Halcyon, LLC, and Howard H. Hall III, Appellants, v. American Contractors Indemnity Company, Respondent.

CONCRETE CORING COMPANY OF NORTH AMERICA, INC., HALCYON, LLC, AND HOWARD H. HALL III, Appellants, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, Respondent. )

) ) ) ) ) ) ) ) ) ) ED 113390

Appeal from the Circuit Court of St. Louis County The Honorable David L. Vincent III, Judge Introduction Concrete Coring Company of North America, Inc., Halcyon LLC, and Howard H. Hall III (collectively, "Appellants") appeal the circuit court's judgment in American Contractors Indemnity Company's ("ACIC") favor on its contractual indemnity claim. Appellants' sole point on appeal alleges the circuit court erred in entering judgment in ACIC's favor because genuine issues of material fact precluded summary judgment.

2 This Court holds it has jurisdiction to consider Appellants' appeal. However, Appellants' failure to comply with Missouri Supreme Court Rule 84.04's appellate briefing requirements compels this Court to dismiss their appeal. 1

1 All Rule references are to Missouri Supreme Court Rules 2024. Factu al and Procedural History In 2017, Appellants entered into a subcontract to perform work on the Robert A. Young federal building. The subcontract required Appellants to secure a performance bond, which they obtained from ACIC. In return, ACIC and Appellants entered into a general indemnity agreement, with ACIC acting as the surety and Appellants acting as the indemnitors. A dispute arose regarding which entity was entitled to receive the payments for Appellants' completed subcontract work. Complex litigation ensued. ACIC was named as a defendant whom was potentially liable for payments under the performance bond. ACIC sued Appellants, bringing three counts: (1) contractual indemnity; (2) common law indemnity/equitable subordination; and (3) specific performance to perform their contractual indemnity obligations. ACIC moved for summary judgment on its contractual indemnity claim, which the circuit court granted. This appeal follows. While the appeal was pending, this Court directed Appellants to show cause why the appeal should not be dismissed for lack of a final judgment. This Court noted ACIC's complaint asserted three counts, but the circuit court's judgment addressed only the contractual indemnification count, leaving the remaining counts unresolved. This Court

3 further noted the circuit court did not certify the judgment for immediate appeal under Rule 74.01(b). Appellants were directed to file a supplemental legal file containing documents necessary to demonstrate a final, appealable judgment or otherwise show cause as to why their appeal should not be dismissed. This issue was taken with the case. Jurisdiction "The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." Wilson v. City of St. Louis, 600 S.W.3d 763, 767 (Mo. banc 2020) (quoting First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners' Ass'n, Inc., 515 S.W.3d 219, 221 (Mo. banc 2017)). Section 512.020(5) states the general rule that parties can appeal from "final judgments." 2 2 All statutory references are to RSMo 2016. Roberts v. Reserve at Heritage, LLC, 681 S.W.3d 261, 263 (Mo. App. E.D. 2023). A final judgment has two components. "First, it must be a judgment (i.e., it must fully resolve at least one claim in a lawsuit and establish all the rights and liabilities of the parties with respect to that claim)." Wilson, 600 S.W.3d at 771. "Second, it must be 'final,' ... because it disposes of all claims (or the last claim) in a lawsuit ...." Id. Thus, an appellate court generally "only has jurisdiction over final judgments disposing of all issues and parties, which leave nothing for future determination." MJDZ, L.L.C. v. De La Cruz, 553 S.W.3d 422, 424 (Mo. App. W.D. 2018) (emphasis added and citation modified) (quoting Crest Constr. II, Inc. v. Hart, 439 S.W.3d 246, 249 (Mo. App. W.D. 2014)). "Any judgment as to fewer than all claims or all parties does not

4 end the action, which makes it subject to the [circuit] court's revision at any time until final judgment." Id. (quoting Steelhead Townhomes, L.L.C. v. Clearwater 2008 Note Program, LLC, 504 S.W.3d 804, 806 (Mo. App. W.D. 2016)). ACIC's complaint brought three counts against Appellants. Count One was for "contractual indemnification" to enforce Appellants' obligations under the indemnity agreement. This count alleged Appellants must indemnify ACIC for attorney's fees, costs, expenses, and any loss ACIC may sustain related to the performance bond. Count Two was for "common-law indemnification/equitable subordination," which incorporated the preceding paragraphs of the complaint. This count also alleged Appellants must indemnify ACIC for attorney's fees, costs, expenses, and any loss ACIC may sustain related to the performance bond, but under common law principles. Finally, Count Three was for "specific performance," which incorporated the preceding paragraphs of the complaint. This count sought "an injunction/judgment compelling [Appellants] to perform" their obligations under the indemnity agreement and to indemnify ACIC for attorney's fees, costs, expenses, and any loss ACIC may sustain related to the performance bond. The circuit court's judgment found ACIC was entitled to judgment as a matter of law on "its contractual indemnity claims," which it later described as "First Count – Contractual Indemnification" against Appellants. This judgment was the basis of this Court's show cause order. ACIC responded to the show cause order first. It asserted the judgment was final because the claims for relief in the second and third counts were identical to the relief granted on summary judgment under the first count. ACIC further asserted the judgment resolved all claims against all

5 parties and left nothing for future determination. Appellants' answer—filed later that same day—acknowledged ACIC filed a response, but alleged they were "unable to review [it]" and filed their "response without an opportunity to review or analyze the information and arguments contained" in the filing. Appellants stated they were "unable to fashion an argument to show cause as to why this appeal should not be dismissed for lack of [a] final appealable judgment ...." Despite Appellants' inability to articulate a legal argument why their appeal should not be dismissed for lack of jurisdiction, this Court finds the judgment was final and appealable. "Under the doctrine of 'implicit finality,' '[i]f a judgment, by implication, necessarily carries with it a finding upon other counts, the judgment will be sustained as final even though the count is not specifically mentioned.'" CoMo Premium Constr. LLC v. Pulster, 724 S.W.3d 823, 828 (Mo. App. W.D. 2025) (quoting Jefferson v. Am. Fin. Grp., Inc., 163 S.W.3d 485, 487 n.2 (Mo. App. E.D. 2005)); see also First Cmty. Credit Union v. Levison, 395 S.W.3d 571, 577 (Mo. App. E.D. 2013). Here, ACIC alleged three claims all based on the same harm: Appellants' failure to indemnify ACIC under the parties' indemnity agreement. By finding Appellants liable under the contractual indemnification count, the circuit court implicitly denied the other two counts alternatively pled seeking the exact same relief. "A plaintiff is only entitled to be made whole once," and thus cannot recover "more than one full recovery for the same harm." Twehous Excavating, Inc. v. Jefferson City Ret., LLC, 613 S.W.3d 499, 504 (Mo. App. W.D. 2020) (quoting Trimble v. Pracna, 167 S.W.3d 706, 711 (Mo. banc 2005)). Hence,

6 "the judgment resolved all issues in the case, leaving nothing for future determination, and thus was a final judgment." CoMo Premium Construction, 724 S.W.3d at 829. This Court has jurisdiction to hear Appellants' appeal. Rule 84.04 Appellate Briefing Deficiencies Although this Court has jurisdiction to hear this appeal, Appellants' failure to comply with Rule 84.04's mandatory briefing requirements prevents us from reaching the merits. "Although our preference is to decide cases on their merits, deficient briefs hinder our ability to review the merits of the issues raised." Renegar v. Borman, 712 S.W.3d 33, 36–37 (Mo. App. E.D. 2025) (quoting Jones v. Impact Agape Ministries, 693 S.W.3d 122, 126 (Mo. App. E.D. 2023)). "Rule 84.04 plainly sets forth the required contents of briefs filed in all appellate courts." Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022). "Rule 84.04's requirements are mandatory." Id. (quoting Fowler v. Mo. Sheriffs' Ret. Sys., 623 S.W.3d 578, 583 (Mo. banc 2021)). "Rule 84.04 is not designed to hamstring appellants with hyper-technicalities." Renegar, 712 S.W.3d at 37 (quoting Parkside Fin. Bank & Tr. v. Allen, 688 S.W.3d 83, 87 (Mo. App. E.D. 2024)). "Compliance with Rule 84.04 is essential to ensure that this Court retains its role as a neutral arbiter and avoids becoming an advocate for any party." Jones, 693 S.W.3d at 126 (quoting Hutcheson v. Dep't of Soc. Servs., Fam. Support Div., 656 S.W.3d 37, 40 (Mo. App. E.D. 2022)). Although ACIC did not move to dismiss Appellants' appeal for Rule 84.04 violations, this Court cannot overlook how Appellants' brief fails to conform with the rule in both its substance and form.

7 First, Rule 84.04(b) requires the appellant to provide a jurisdictional statement. "The jurisdictional statement shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of article V, section 3, of the Constitution upon which jurisdiction is sought to be predicated." Id. Appellants' jurisdictional statement cites section 512.020(5), the statutory authority to appeal from a final judgment, but it does not invoke this Court's appellate jurisdiction under the Missouri Constitution. See Renegar, 712 S.W.3d at 37 (holding appellant's mere citation to the statute authorizing an appeal from an order denying an application to compel arbitration was insufficient to invoke this Court's jurisdiction and violated Rule 84.04(b)). Second, Rule 84.04(c) governs the statement of facts. "The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. All statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits." Id. Appellants' entire statement of facts consists of only seven sentences to explain several years of complex transactions and litigation between the parties. One sentence asserts a legal conclusion, while another sentence makes a legal argument. The statement of facts contains no procedural history or facts explaining or supporting the circuit court's judgment. "When a party fails to include the facts necessary to determine the issues presented on appeal or omits facts supporting the circuit court's findings, this violation, 'standing alone, constitutes grounds for dismissal of an appeal.'" Renegar,

8 712 S.W.3d at 37 (quoting Washington v. Blackburn, 286 S.W.3d 818, 820 (Mo. App. E.D. 2009)). Third, Appellants' point relied on is deficient. Rule 84.04(d)(1) requires "a point on appeal shall: (A) identify the challenged ruling or action; (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." Kruse v. Karlen, 692 S.W.3d 43, 48 (Mo. App. E.D. 2024). "The purpose of the points 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 before it." Id. (quoting Hutcheson, 656 S.W.3d at 41). "A deficient point relied on requires the respondent and appellate court to search the remainder of the brief to discern the appellant's assertion and, beyond causing a waste of resources, risks the appellant's argument being understood or framed in an unintended manner." Lexow, 643 S.W.3d at 505. "Points relied on that do not comply with Rule 84.04(d) are grounds for dismissal." Parkside Financial, 688 S.W.3d at 88. Appellants' sole point relied on states: The trial court erred in finding no genuine issue of material fact remained before granting summary judgment to [ACIC]. This honorable Court should reverse the trial court's February 6, 2025 Order granting summary judgment to [ACIC] against Appellants because a genuine issue of material fact still exists and must be decided by a fact-finder before judgment can be entered in this matter. This point relied on is deficient because it does not explain in summary fashion why, in the context of this case, the legal reason supports the claim of reversible error nor does it

9 articulate which genuine issue of material fact still exists to preclude summary judgment. Rule 84.04(d)(1)(A)–(C). This point also does not give ACIC notice of the precise matter at issue nor does it inform this Court of the issue presented for review, which requires us to search the remainder of the brief to discern Appellants' assertion. This point also violates Rule 84.04(d)(5), which states, "Immediately following each 'Point Relied On,' the appellant ... shall include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies." This point does not list the cases Appellants rely upon to support their argument. Fourth, Rule 84.04(e) states "[f]or each claim of error, the argument shall also include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review." While Appellants cited the applicable standard of review, their brief contains no preservation statement. Finally, the brief's argument section "should show how principles of law and the facts of the case interact." Washington, 286 S.W.3d at 821 (quoting Snyder v. Snyder, 142 S.W.3d 780, 783 (Mo. App. E.D. 2004)). Appellants' argument section cites three cases and then makes six statements, unsupported by any citation to the record. See Rule 84.04(e) (requiring "[a]ll factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal .... If the citation is to the system-generated legal file, it shall include the system-generated appeal document number and page number (e.g., D6 p. 7)"). Further, these six assertions are conclusory statements which do not elucidate how the law and facts interact.

10 When considering Appellants' briefing deficiencies, "[r]eaching the merits would require considerable advocacy on our part and would thereby increase the likelihood of reaching the wrong decision and generating questionable precedent." Renegar, 712 S.W.3d at 40 (quoting Titus v. Dunavant, 692 S.W.3d 434, 438 (Mo. App. S.D. 2024)). "When briefing deficiencies materially impede impartial appellate review, dismissal of the appeal is required." Id. (quoting Sprueill v. Lott, 676 S.W.3d 472, 475 (Mo. App. S.D. 2023)). This Court would have to assume the role of advocate to address the merits of Appellants' claim, by deciphering the vague point relied on, researching legal authority for the argument, and searching for factual support in the record to first glean what transpired between the parties and then apply those facts to Appellants' legal argument. This Court lacks the authority to take such actions. Conclusion Appellants' appeal is dismissed. ________ _____________________________ P hilip M. Hess, Judge Michael S. Wright, Presiding Judge and Virginia W. Lay, Judge concur.