                                        In the
                        Missouri Court of Appeals
                                 Western District
 RUTH F. BARTSCH,                            )
                                             )
                Appellant,                   )   WD81750
                                             )
 v.                                          )   OPINION FILED: April 30, 2019
                                             )
 BMC FARMS, LLC,                             )
                                             )
               Respondent.                   )

             Appeal from the Circuit Court of Miller County, Missouri
                     The Honorable Peggy D. Richardson, Judge

 Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge
                          and Cynthia L. Martin, Judge


      Ruth F. Bartsch ("Bartsch") appeals from the trial court's judgment entered to

enforce an earlier judgment that partitioned in kind several tracts of real property owned

by Bartsch and BMC Farms, LLC ("BMC Farms") pursuant to the terms of a settlement

agreement. Bartsch argues on appeal that the trial court erred because a proper survey was

not prepared to partition the real property and because BMC Farms misled the trial court.

Bartsch also argues that we should remand this matter because the legal file does not

contain necessary exhibits. Finding no error, we affirm.
                             Factual and Procedural History

       In September 2015, Bartsch filed a petition ("petition") for the partition of

approximately 731.68 acres of real property in Miller County ("property"). The petition

alleged that Bartsch owned a one-third interest in the property as a tenant in common with

Donald R. Brown, Gerald R. Brown, Stephen E. Brown, Susan Bloomquist, Sandra

Washburn, and Sharron Wolf (collectively "six co-tenants in common"), each of whom

owned a one-ninth interest. The petition further asserted that the six co-tenants in common

were attempting to sell their interests in the property to BMC Farms and that Bartsch did

not wish to sell her interest in the property. Thus, the petition asked the trial court to enter

judgment partitioning Bartsch's one-third interest in the property from the collective two-

thirds interest of the six co-tenants in common.

       Bartsch filed a first amended petition for partition ("first amended petition") in

December 2015. The first amended petition alleged that, on information and belief, the six

co-tenants in common had transferred their collective interests in the property to BMC

Farms. The first amended petition added BMC Farms as a defendant. The first amended

petition reiterated that Bartsch did not wish to sell her interest in the property to BMC

Farms and again asked the trial court to enter judgment partitioning Bartsch's interest in

the property.

       In September 2016, BMC Farms filed both an answer to Bartsch's first amended

petition and a counterclaim. The answer alleged that BMC Farms was now Bartsch's sole

co-tenant in common. The answer further alleged that the property was not susceptible to

being partitioned in kind without causing prejudice to the parties. Thus, the answer asked

the trial court to deny the petition's request for partition in kind and to order instead that
                                               2
the property be sold with the proceeds divided between Bartsch and BMC Farms according

to their respective interests. BMC Farms' counterclaim reiterated the request to partition

the property by sale and to divide the proceeds.

       On March 1, 2017, Bartsch voluntarily dismissed all defendants other than BMC

Farms, and the trial court set the case for a bench trial on November 8, 2017.

       On the day of trial, Bartsch and BMC Farms announced that they had reached a

settlement. BMC Farms explained that the property is comprised of five tracts, and that

Bartsch and BMC Farms had reached an agreement to divide the tracts so that BMC Farms

would receive three tracts, and Bartsch would receive one tract. The parties agreed the

remaining tract would be divided with Bartsch receiving the portion of the tract that lies

south of a creek bisecting the tract, while BMC Farms would receive the portion of the

tract to the north of the creek. The parties agreed to split the cost of a survey to establish

the centerline of the creek, since that would serve as the dividing line for that tract. In

addition, because the division of the property pursuant to the terms of the settlement did

not equitably divide the property based on its value, the parties agreed that BMC Farms

would pay Bartsch $62,000, with $31,000 paid within thirty days of the entry of a judgment

incorporating the terms of the settlement, and with the remaining $31,000 paid following

the creek survey and the exchange of required deeds. On January 12, 2018, the trial court

entered a judgment ("January 12, 2018 judgment") incorporating the terms of the

settlement agreement. Neither Bartsch nor BMC Farms appealed the January 12, 2018

judgment.




                                              3
         On April 18, 2018, BMC Farms filed a motion to enforce the January 12, 2018

judgment pursuant to Rule 74.071 ("motion to enforce the judgment"). The motion to

enforce the judgment alleged that BMC Farms had satisfied all of its obligations under the

judgment, including providing a payment of $31,000 to Bartsch; preparing and executing

a warranty deed to Bartsch reflecting the transfer of property to her that was required by

the January 12, 2018 judgment; paying for the survey of the tract of land on the property

to be divided along the creek; and making an agreement with Bartsch's attorney that BMC

Farms would deduct Bartsch's half of the cost of the creek survey from the second $31,000

payment to Bartsch. The motion to enforce the judgment further alleged that Bartsch had

failed and refused to execute and deliver a warranty deed to BMC Farms transferring the

property to it required by the January 12, 2018 judgment. BMC Farms' motion to enforce

the judgment alleged that, upon receipt of a warranty deed from Bartsch transferring the

property to BMC Farms or upon entry of a judgment by the trial court conveying the

property to BMC Farms, it would remit to Bartsch the second $31,000 payment, less

Bartsch's share of the cost of the creek survey. The motion to enforce the judgment asked

the trial court "to enter judgment divesting the title of the property from [Bartsch] . . . and

vesting it in the name of [BMC Farms] in lieu of directing a conveyance thereof, with such

judgment having the effect of a conveyance executed in due form of law."




         1
          All rule references are to the Missouri Supreme Court Rules (2018), unless otherwise noted. Rule 74.07
provides, in pertinent part, that "[i]f a judgment directs a party to execute or deliver a deed or other document or to
perform any other specific act and the party fails to comply within the time specified, the court may direct the act to
be done at the cost of the disobedient party by some other person appointed by the court, and the act when so done
has like effect as if done by the party. . . . If real . . . property is within the state, the court may enter a judgment
divesting the title of any party and vesting it in others in lieu of directing a conveyance thereof, and such judgment
has the effect of a conveyance executed in due form of law."
                                                            4
       Bartsch filed a response to the motion to enforce the judgment. She disputed BMC

Farms' assertion that it had complied with the January 12, 2018 judgment. Bartsch's

response asserted that the survey, titled a "conditional line description," and warranty deeds

she received were unacceptable. Bartsch argued that, contrary to assurances she received,

the survey did not identify the twenty-seven acres she agreed to sell to BMC Farms in

exchange for $62,000. Further, Bartsch asserted that the survey she received did not

include the amount of total acreage Bartsch and BMC Farms would each receive, the date

the survey was completed, a surveyor's seal or stamp, or the name of the surveyor. Bartsch

claimed that the warranty deeds she received were also inaccurate in that they did not show

the total amount of acreage awarded to Bartsch and BMC Farms, and they were not dated

or certified. Bartsch summarized her argument as follows:

       I am entitled to know exactly how many acres I am selling; just as I am
       entitled to know how many acres I am receiving in the parcel that is being
       divided.

       . . . I am entitled to 1/3 of the total farm (732 acres) and the survey and
       warranty deeds should clearly state I own 244 acres minus the 27 acres I
       agreed to sell which brings the total to 217 acres.

(Emphasis omitted.)

       The trial court issued a Rule 74.07 judgment ("Rule 74.07 judgment") on April 30,

2018. The Rule 74.07 judgment concluded that Bartsch "failed to comply with the

Judgment entered on January 12, 2018, in that [Bartsch] . . . failed to transfer ownership of

the above described property to [BMC Farms]." As such, the Rule 74.07 judgment, using

the legal descriptions of the various tracts making up the property at issue, divested Bartsch

of her interest in the property awarded to BMC Farms and vested said interest in BMC

Farms in lieu of directing that Bartsch execute a deed, and divested BMC Farms of its
                                              5
interest in the property awarded to Bartsch and vested said interest in Bartsch in lieu of

directing that BMC Farms execute a deed. The Rule 74.07 judgment further ordered BMC

Farms to pay Bartsch the second $31,000 payment less $1,750, Bartsch's share of the cost

of the creek survey.

       Bartsch appeals.

                                     Motion to Dismiss

       Before addressing the merits of Bartsch's appeal, we must consider BMC Farms'

motion to strike Bartsch's brief and to dismiss her appeal ("motion to dismiss the appeal").

The motion to dismiss the appeal asserts that Bartsch's brief fails to comply with Rule 84.04

in several respects: (1) the statement of facts does not comply with Rule 84.04(c) in that it

does not include specific page references to the record on appeal; (2) the points relied on

do not substantially follow the form required by Rule 84.04(d); (3) the argument does not

comply with Rule 84.04(e) in that the points relied on are not separately stated, there is no

statement indicating whether the claimed errors are preserved for appellate review, and the

applicable standard of review is not included; and (4) Bartsch's cited authorities are abstract

statements of the law and her brief fails to explain how the statements of law interact with

the facts of this case.

       "'An appellant who proceeds pro se is subject to the same procedural rules as parties

represented by counsel, including the rules specifying the required contents of appellate

briefs.'" Johnson v. Mo. Dep't of Corr., 534 S.W.3d 869, 871 (Mo. App. W.D. 2017)

(quoting Nichols v. Div. of Emp't Sec., 399 S.W.3d 901, 902 (Mo. App. W.D. 2013)).

"'Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that

appellate courts do not become advocates by speculating on facts and on arguments that
                                          6
have not been made.'" Wallace v. Frazier, 546 S.W.3d 624, 626 (Mo. App. W.D. 2018)

(quoting Summers v. Mo. Dep't of Corr., 459 S.W.3d 922, 923 (Mo. App. W.D. 2015)).

The failure to comply substantially with Rule 84.04 preserves nothing for review and

constitutes grounds for dismissing the appeal. Id. However, we prefer to resolve appeals

on their merits, especially when we are able to discern the gist of the appellant's allegations

of error. Hoeper v. Liley, 527 S.W.3d 151, 161 (Mo. App. W.D. 2017).

       We agree that Bartsch's brief fails to comply with Rule 84.04 as alleged by BMC

Farms. However, we are able to discern the substance of Bartsch's allegations of error on

appeal without speculating or becoming an advocate. We therefore deny BMC Farms'

motion to dismiss the appeal, and exercise our discretion to review ex gratia Bartsch's

points on appeal.

                                    Standard of Review

       We will sustain a judgment from a court-tried case "unless there is no substantial

evidence to support it, unless it is against the weight of the evidence, unless it erroneously

declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976).

                                          Analysis

       Bartsch asserts four points on appeal. Bartsch's points on appeal can be divided into

three categories: (1) two complaints about the adequacy of the survey; (2) an assertion that

the information provided by BMC Farms to the trial court was intentionally misleading;

and (3) a claim that the legal file is incomplete because it does not include exhibits provided

to the trial court.


                                              7
Adequacy of the Survey

       Points one and two challenge the adequacy of the survey mandated by the

January 12, 2018 judgment and argue that because the survey was inadequate, the trial

court erred in entering its Rule 74.07 judgment. Point one argues that a survey that

complied with statutory and regulatory requirements was never completed and as a result,

the conditional line description cannot be recorded with the county's recorder of deeds.

Point two contends that the survey failed to determine the acreage and dimensions of all of

the tracts making up the property. Bartsch's claims of error are without merit as they are

premised on a fundamental misunderstanding of the January 12, 2018 judgment.

       The January 12, 2018 judgment provided that one tract of land of the several that

made up the property would be divided along the "centerline of Bear Creek." The

January 12, 2018 judgment provided that Bartsch and BMC Farms "shall [split] equally the

cost of having the property surveyed to more specifically set out and divide the real estate

. . . described therein." When the parties announced their settlement to the trial court on

November 8, 2017, they advised the trial court that they had agreed to "have the property

surveyed for the creek" because Miller County "[had] records that [the parties could] utilize

that [would] keep the costs down for the parties" in otherwise determining the legal

descriptions of the other tracts being divided between Bartsch and BMC Farms. There was

never an agreement by the parties, nor a decretal mandate in the January 12, 2018 judgment,

to survey the entirety of the property. Nor did the January 12, 2018 judgment direct that a

recordable survey be prepared to identify the centerline of Bear Creek. Instead, the

January 12, 2018 judgment ordered exactly what the parties asked for pursuant to the

reported terms of their settlement--a survey to permit division of one tract of land along
                                            8
the centerline of a creek bisecting the tract. Bartsch's first and second points on appeal

presume an obligation that was not a part of the parties' settlement agreement, and that was

therefore not a part of the January 12, 2018 judgment.

       Points one and two are denied.

Information Provided by BMC Farms to Trial Court

       Point three argues that the trial court erred in entering the Rule 74.07 judgment

because BMC Farms misled the trial court by claiming it sent warranty deeds and a $31,000

payment to Bartsch in January 2018, and by asserting that Bartsch had possession of the

check and warranty deeds for more than three months.

       Bartsch's response to BMC Farms' motion to enforce the judgment did not dispute

BMC Farms' recitation of these facts. "Arguments not raised before the trial court . . . are

not preserved for review on appeal" because "[w]e will not 'convict a trial court of error on

an issue that was not put before the trial court to decide.'" Loutzenhiser v. Best, 565 S.W.3d

723, 730 (Mo. App. W.D. 2018) (quoting Barner v. Mo. Gaming Comm'n, 48 S.W.3d 46,

50 (Mo. App. W.D. 2001)). Regardless, it is immaterial whether BMC Farms accurately

identified the date on which it tendered warranty deeds and a check to Bartsch. Bartsch

does not dispute receiving those documents at some point, and she concedes she has not

signed the warranty deeds provided by BMC Farms. The Rule 74.07 judgment is supported

by substantial evidence that Bartsch refused to perform the January 12, 2018 judgment

regardless when documents were tendered to Bartsch.

       Point three is denied.




                                              9
Legal File's Exclusion of Exhibits

       Point four asserts that we should remand this case because the legal file fails to

include exhibits provided to the trial court. It is the appellant's responsibility to deposit

with this court any exhibits necessary for the determination of a point on appeal. Rule

81.16(a). If the appellant does not have custody of the exhibits, the appellant may request

that the party in possession of the exhibits either deposit the exhibits with the appellate

court or deliver them to the appellant for deposit with the appellate court. Id. If there are

exhibits essential to the disposition of Bartsch's claims of error on appeal, responsibility

for their absence from the record on appeal is attributable to Bartsch, and not the trial court.

       Point four is denied.

                                         Conclusion

       The trial court's Rule 74.07 judgment is affirmed. Because the Rule 74.07 judgment

we are affirming affects title to real estate, and describes, as required, the property to be

divided between Bartsch and BMC Farms with sufficient certainty to act as a conveyance

of that property in lieu of a conveyance in due form, the Rule 74.07 judgment is attached

hereto as Appendix A. See Medical Plaza One, LLC v. Davis, 552 S.W.3d 143, 165 n.19

(Mo. App. W.D. 2018).



                                            __________________________________
                                            Cynthia L. Martin, Judge


All concur




                                              10
Appendix A




     129
130
131
132
133
134
135
136
