Michele Berry, Appellant v. T.F.L., Inc., Defendant/Division of Employment Security, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Michele Berry, Appellant v. T.F.L., Inc., Defendant/Division of Employment Security, Respondent. Case Number: WD68312 Handdown Date: 07/01/2008 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Michele Berry, Pro Se Counsel for Respondent: Rachel Marie Lewis Opinion Summary: Michele Berry appeals the Labor and Industrial Relations Commission's decision to deny her unemployment benefits. The commission determined she left her job voluntarily without good cause attributable to her employer. She argues the commission's decision was based on fraudulent evidence from the employer. DISMISSED. Division holds: Berry's appeal is dismissed. Pro se appellants are held to the same standards as counsel. Berry's statement of facts violates Rule 84.04 because it is argumentative and not cited to the legal file or transcript. In further violation of Rule 84.04, Berry's points relied on do not incorporate the standard of review and her argument cites no relevant legal authority. Citation: Opinion Author: Ronald R. Holliger, Presiding Judge

Opinion Vote: DISMISSED. Lowenstein, J., and Newton, J., concur. Opinion: Michele Berry ("Berry") appeals a determination by the Labor and Industrial Relations Commission ("Commission") denying her unemployment benefits because she voluntarily quit work without good cause attributable to her employer. Because Berry's brief fails to comply with numerous provisions of Rule 84.04, we grant the Division of Employment Security's ("Division") motion to dismiss her appeal. Pro se appellants are held to the same standards as counsel and are expected and required to comply with the briefing requirements of Rule 84.04. Blakey v. AAA Prof'l Pest Control, Inc. 219 S.W.3d 792, 793 (Mo.App. 2007). See also Bradley v. Capps, 200 S.W.3d 545, 546 (Mo. App. E.D. 2006). A brief may be so deficient as to justify dismissal on the appeal. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo. App. E.D. 2005). The first violation of Rule 84.04 is in Berry's statement of facts. The rule requires that "[t]he statement of facts shall be a fair and concise statement of the facts relevant to the questions to be determined without argument." Rule 84.04(c). The Rule also requires all statements of fact to have specific page references to the legal file or the transcript. Rule 84.04(i). Berry's statement of facts is almost entirely argument and contains quotations with no attribution. In fact, the statement contains not a single page reference to the legal file or transcript. Although her brief contains the proper standard of review, her points relied on, in violation of Rule 84.04(d), do not incorporate that standard and direct our attention to the reviewable error committed by the Commission. For example, she asserts in Point I only that the decision was based on "fraudulent" evidence from the employer. Point I contains only one citation to any authority, but that case has nothing to do with the proposition for which it was cited. It, thus, also

violates Rule 84.04(d)(5). Point II asserts that the Commission erred because it affirmed the Appeals Tribunal's decision, which was based on fraudulent evidence. The only citation to legal authority is the same case cited in Point I, which, again, does not stand for the proposition for which it is cited. It is not our function to serve as an advocate for a party, represented or not. Boyd v. Boyd, 134 S.W.3d 820, 823--24 (Mo. App. W.D. 2004). We do note, ex gratia, that the gravamen of Berry's complaint seems to be that the Commission did not believe her evidence as opposed to the employer's. The court defers to the Commission on findings of credibility. Partee v. Winco Mfg. Inc., 141 S.W.3d 34, 37 (Mo. App. E.D. 2004). The Commission made a specific finding of credibility in favor of employer. The appeal is dismissed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.