AUDWIN PORTER v. DIPASQUALE MOORE LLC ET AL (2026)

Audwin Porter appeals the judgment of the Circuit Court of Jackson County, Missouri (“trial court”), dismissing his Fourth Amended Petition filed February 19, 2025. We dismiss Porter's appeal as his brief fails to conform to Rules 84.04 and 81.12 ¹ to such a degree that this Court cannot consider his claims without improperly becoming his advocate.

Factual and Procedural Background

Based on the almost indecipherable brief Porter has filed with this Court, it appears this matter is somehow an amalgamation of a worker's compensation matter, a legal malpractice claim, and a claim regarding an alleged violation of the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104–191, 110 Stat. 1936 (HIPAA).

On October 17, 2024, Porter filed a lawsuit, case number 2416-CV29831, against the attorney handling his workers’ compensation claim, essentially claiming that the attorney violated HIPAA and fiduciary duties by improperly disclosing his personal medical information. Following the attorney's answer, Porter filed amended petitions adding additional parties on November 27, 2024; January 17, 2025; and February 13, 2025. On February 19, 2025, the collective defendants filed a motion to dismiss on the basis that HIPAA does not create a private right of action and that none of the defendants was a “covered entity” under HIPAA. Porter did not respond to the motion to dismiss, but instead he filed a fourth amended petition on March 4, 2025.² On April 16, 2025, the court dismissed Porter's February 19, 2025 petition “and all related pleadings” with prejudice, stating that it had “reviewed the pleadings and relevant Missouri law” and noting that Porter had not responded to the motion for summary judgment.³ On April 22, 2025, Porter filed a “MOTION OF ERRONEOUS DISMISSAL” which was essentially a motion for the court to reconsider its judgment of dismissal; the motion was denied on May 6, 2025. Porter did not appeal the judgment in case 2416-CV29831, and that judgment became final.

Instead, on May 14, 2025, Porter filed a new petition, case number 2516-CV15444, alleging that his workers’ compensation counsel committed legal malpractice by missing an unidentified “crucial deadline” that “prevent[ed him] from appealing the denial of [his] claim to be dismissed with prejudice.” Porter's petition again alleged the mishandling of his personal medical information, and, although the allegations are unclear, he appears to allege that the mishandling of his medical information caused his workers’ compensation counsel to miss the unidentified “crucial deadline.” Porter filed an amended petition on June 2, 2025. On June 23, 2025, defendants filed their answer and a motion for summary judgment on the basis that res judicata served as a bar to Porter's claims. On September 12, 2025, the trial court entered an order of dismissal with prejudice, and the order was amended to include the denomination of judgment on October 21, 2025. This appeal follows.

Analysis

As he did in both actions 2416-CV29831 and 2516-CV15444 below, Porter appears before this Court pro se, which he has a right to do. Pearson v. Keystone Temporary Assignment Grp., Inc., 588 S.W.3d 546, 549 (Mo. App. E.D. 2019). This court, however, may not assist Porter and create arguments on his behalf in is appeal. Id. Pro se litigants must comply with the Supreme Court Rules, including Rule 84.04, which prescribes the requirements for appellate briefing. Acton v. Rahn, 611 S.W.3d 897, 900-01 (Mo. App. W.D. 2020). Compliance with the Rule's requirements is mandatory for all appellants to guarantee that the Court does not become an advocate by speculating on facts and arguments that have not been made by the appellant. R.M. v. King, 671 S.W.3d 394, 397 (Mo. App. W.D. 2023). Appellate briefs must include: (1) a detailed table of contents; (2) a concise statement of the jurisdictional grounds; (3) a statement of facts; (4) the points relied on; (5) an argument; and (6) a short conclusion. Rule 84.04. Although this Court prefers to reach the merits of a case, excusing technical deficiencies in a brief, it will not consider a brief “so deficient that it fails to give notice to this Court and to other parties as to the issue presented on appeal.” J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo. banc 1998); see also Lexow v. Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022). The briefing requirements of Rule 84 are equally applicable to parties represented by counsel and unrepresented parties. Acton, 611 S.W.3d at 900-01.

Porter's first appellate brief was stricken due to non-compliance with Rule 84.04 by an Order from this Court that set forth the reasons for the brief being stricken and particular violations of Rule 84.04 contained within the first brief. Porter filed an amended brief but failed to correct the briefing deficiencies and continued to fail to comply with the requirement of Rule 84.04. Rule 84.04(c) requires the statement of facts in an appellate brief to be “ ‘a fair and concise statement of the facts relevant to the questions presented for determination without argument.’ ” Interest of S.R.W., 715 S.W.3d 223, 229 (Mo. App. W.D. 2025). Porter's statement of facts includes mostly facts pertaining to the merits of his first suit against the defendants, 2516-CV29831, which was dismissed by the court; those facts are largely irrelevant to this appeal.

Case number 2516-CV15444, the case that is the subject of this appeal, was dismissed purely on res judicata grounds. Notably, what is missing from Porter's statement of facts is anything alleging why he could not have brought his malpractice claim for failure to meet the “crucial deadline” as part of case number 2416-CV29831, especially since both claims appear to depend upon his prior counsel's inadvertent disclosure of his personal medical information. Porter, who bears the responsibility of providing the record on appeal pursuant to Rule 81.12, also failed to include in the record any of the proceedings from the underlying workers’ compensation action that might possibly help him establish that he could not reasonably have brought his malpractice claim for his counsel's alleged missing of the deadline as part of his action against the same counsel for having released his private medical information to a third party, which he alleges caused his counsel to miss said deadline.

Rule 84.04(d) governs an appellate brief's points relied on. It requires each point to:

(A) Identify the trial court ruling or action that the appellant challenges;

(B) State concisely the legal reasons for the appellant's claim or reversible error; and

(C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The points on appeal are prescribed to be in 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 the legal reasons, in the context of the case, support the claim of reversible error].” Rule 84.04(d) (emphasis in original). Porter's points on appeal do not attempt to follow this format and are indecipherable. His points on appeal read:

1. Case 2416-CV29831, is in fact a case within the case doctrine.

2. Judge Burnett of (Division 7) judgment of dismissal 16 April 2025, with prejudice on failure to respond was an FRCP Rule 60(b)(1) erroneous dismissal. It was based on a prejudiced dismissal that favored the defendants and defense attorney. Failure to respond is a procedural error not a legal malpractice and misconduct action like that of [respondents” counsel, who is not a party to any of the cases]. His action tainted both this case 2416-CV29831, legal malpractice and my workers compensation case 2516CV-15444.

3. My motion of erroneous dismissal filed 22 April 2025 explains the exact reason why it should have been reconsidered for retraction. I have stated that the January 10th 2025 amended petition that [respondents” counsel] accused me of writing was a MOTION OF AFFIRMATIVE DEFENSE OF DEFENDANTS, was his own motion. This is considered as a direct FRCP 60(b)(3) Fraud upon the court․

All of these points pertain to actions of the court in 2416-CV29831, his first suit against his workers’ compensation counsel, not the case that is the subject of the present appeal and was dismissed only upon res judicata grounds. Moreover, the points above erroneously state that case 2516-CV15444, the subject of this appeal, is Porter's workers’ compensation case, which it is not, and the points cite Federal Rules of Civil Procedure, which are inapplicable to this case.

Finally, Rule 84.04(e) governs the argument section of appellate briefs and requires the argument to “substantially follow the order of ‘Points Relied On.’ ” The argument is also to “include a concise statement” describing whether the error was preserved, setting forth the standard of review, and citations to the relevant portions of the record on appeal. Rule 84.04(e). Porter's argument consists of three short paragraphs, all of which pertain, not to any alleged error of the court below, but to actions of the defendants and their counsel in case number 2416-CV29831, which is not part of this appeal.

Conclusion

Due to the extensive insufficiencies in Porter's amended brief and his brief's failure to comply with all aspects of Rule 84.04 and Rule 81.12, we dismiss this appeal.

FOOTNOTES

1.   Unless otherwise indicated, all rule references are to the Missouri Supreme Court Rules (2025).

2.   There is no indication in the case record that Porter sought or obtained leave to amend his petition. On the contrary, the motion to dismiss, filed before Porter's proffered “fourth amended petition”, states, “Although Porter failed to obtain the leave required to amend his petition as he did, Defendants, in recognition of Porter's pro se status, are not objecting to the various amendments. Having said that, in filing five petitions, Porter has had ample and reasonable opportunity to refine and focus his claims as he sees fit.” Although the February 19 amended petition was actually Porter's third amended petition and not the fourth amended petition, it is clear from the motion that the defendants were objecting to any further amendments to Porter's petition.

3.   The trial court's judgment of dismissal refers to the February 19, 2025 amended petition as the “Fourth Amended Petition,” whereas our review of the case record reveals that the February 19 petition was in fact Porter's fourth petition, but his third “amended” petition. Defense counsel referred to the February 19 petition as the fourth amended petition below, and the trial court appears to have adopted this nomenclature. This mistake by the court is not material, however, as it is clear from the judgment as to which version of the petition the trial court based its judgment.

Gary D. Witt, Presiding Judge

All concur