Bishop v. Carper

• Decision Date: 21 May 2002
• Docket Number: No. WD 59155.,WD 59155.
• Citation: 81 S.W.3d 616
• Parties: Mabel BISHOP, Teena McCarty, and Vicki Bishop, Respondents, v. Brad CARPER, Appellant.
• Court: Missouri Court of Appeals

81 S.W.3d 616

Mabel BISHOP, Teena McCarty, and Vicki Bishop, Respondents, v. Brad CARPER, Appellant.

No. WD 59155.

Missouri Court of Appeals, Western District.

May 21, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

Richard F. Lombardo, Kansas City, for Appellant.

Andrew J. Gelbach, Warrensburg and John E. Turner, Kansas City, for Respondents.

Before VICTOR C. HOWARD, P.J., PATRICIA A. BRECKENRIDGE and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Dr. Brad Carper appeals the judgment of the trial court granting a new trial in the respondents' medical malpractice case against Dr. Carper. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal stems from a civil lawsuit regarding a medical malpractice/wrongful death action. The respondents are the widow and children of Mr. Elbert Bishop, who died on February 14, 1993, at the Western Missouri Medical Center. Mr. Bishop had been admitted to the hospital because of chronic diarrhea, which seemingly was a result of chemotherapy treatments he was receiving to treat his cancer. Respondents' theory of the case was that appellant's medical negligence caused Mr. Bishop's death. Specifically, it was alleged that appellant had failed to treat Mr. Bishop's low potassium level (hypokalaemia) sustained from persistent diarrhea, a symptom of chemotherapy treatment. It was alleged that this condition caused Mr. Bishop to sustain lethal cardiac arrhythmia.

This case was tried to a jury on June 12-15, 2000, before the Honorable Mary Ellen Young presiding in Pettis County Circuit Court.¹ On June 15, 2000, the jury returned a verdict on behalf of the defendant, Dr. Carper.

At trial, Dr. Stephen Williamson testified on behalf of appellant, stating that in his expert opinion he believed Mr. Bishop's death was caused by a lethal injection of chemotherapy, not as a result of low potassium levels in his body. During Dr. Williamson's testimony, respondents' attorney moved for a mistrial based on Dr. Williamson's testimony.

It was argued by respondents that Dr. Williamson was basing his opinion on a new study not disclosed to respondents' counsel during his deposition. This study was illustrative of appellant's theory that Mr. Bishop had entered into an "experimental chemotherapy treatment," which should have required Mr. Bishop's consent.² Because this theory had not been alleged before trial by this witness (or at anytime by the defense), it was argued by respondents that Dr. Williamson's testimony constituted a "new opinion" in violation of discovery rules, and that this violation mandated that a new trial be ordered by the court.³

The trial court, after hearing arguments by the parties on respondents' motion for mistrial, denied the motion. However, the trial court found that Dr. Williamson's testimony indeed consisted of a "new opinion" in violation of discovery rules. Accordingly, the trial court ruled that a limiting instruction be given to the jury on this matter, instructing the jury to disregard Dr. Williamson's testimony as it pertained to the "experimental chemotherapy treatment" theory. The court ordered that this limiting instruction to the jury would not state a ground as to why this testimony was improper, but should simply state that the jury shall not consider the substance of the "new opinion" testimony.

Subsequent to the jury's verdict in favor of appellant, respondents filed a Motion for New Trial on July 12, 2000, listing eleven grounds that allegedly warranted a new trial. Oral arguments on this motion were heard by Judge Young on September 25, 2000. The motion for a new trial was granted by the trial court on September 28, 2000. Dr. Carper now appeals from that judgment.

In appellant's sole point before this court, it is argued that the trial court erred when it granted the motion for a new trial because the trial court failed to state a basis or reason for its order in violation of Rule 78.03.⁴ In light of the alleged deficiency in the court's order for a new trial, it is argued that this judgment must be vacated, and the prior jury verdict in appellant's favor should be reinstated.

II. Legal Analysis

Appellant argues that the trial court failed to specify any grounds for its new trial order, and therefore Rule 78.03 mandates that this court vacate its order for a new trial. Rule 78.03 states that "[e]very order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted." Id. Moreover, when "the grounds for a new trial are not specified, Rule 84.05(c) and (d) come into play on appeal." Rodman v. Schrimpf, 18 S.W.3d 570, 573 (Mo.App. W.D.2000). If the trial court fails to specify in its order the grounds for a new trial, Rule 84.05(c) states that "the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent." Id. Furthermore, this burden on the respondent extends to "affirmatively demonstrate `that there was some adequate, nondiscretionary ground for a new trial.'" Stewart v. Stewart, 901 S.W.2d 302, 303 (Mo.App. W.D.1995) (quoting McCarthy v. Halloran, 435 S.W.2d 339, 340 (Mo.1968)).

Pursuant to Rule 84.05(d) then, "[i]f the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds." (emphasis added). Therefore, in a Rule 78.03 situation, where the trial court does not specify its reason[s] for a new trial, and only discretionary grounds support the new trial order, "the action of the trial court cannot be sustained on that ground" and, thus, the new trial order must be vacated. Pretti v. Herre, 403 S.W.2d 568, 569 (Mo.1966); see also McCarthy, 435 S.W.2d at 341 (holding that a reviewing court may not presume the granting of a new trial on a discretionary ground where no such ground is stated in the order); Rodman, 18 S.W.3d at 574-75.

In making this distinction between discretionary and non-discretionary grounds, a useful definition is that the "trial court's power to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of the issues of fact. There is no discretion in the law of a case." Curtis v. Curtis, 491 S.W.2d 29, 33 (Mo.App.1973). Or put more succinctly, "[d]iscretionary grounds relate to issues of fact and non-discretionary grounds relate to matters of law." Rodman, 18 S.W.3d at 574. Accordingly, because all eleven points raised in the respondent's motion for new trial (as respondents concede on appeal)⁵ are "discretionary," Dr. Carper argues that the trial court's motion for a new trial must be deemed error, and the jury verdict in his favor should be reinstated.

In addressing appellant's argument on appeal, respondents bring several alternate theories as to why the trial court's judgment for new trial should be upheld. At the outset, however, it should be noted that the respondents do not dispute that the rules and case law of Missouri require the trial court to state a specific ground in its judgment for a new trial, and that if the trial court fails to do so, there is a presumption that the judgment is erroneous. See Rules 78.03 and 84.05(c). Additionally, it is stipulated by respondents that the trial court failed in this case to expressly state any grounds for its new trial judgment.⁶

However, it is argued by appellant that an exception to these rules exist. Under this court's ruling in Hightower v. Hightower, respondents argue that this presumption of error, that the trial court erred in granting a new trial for failure to state a basis for its ruling, is rebutted if the grounds in which the trial court based its ruling clearly appears from the record. 590 S.W.2d 99, 103 (Mo.App. W.D.1979). Hightower concerned a marital dissolution decree issued by the trial court which divided the assets of the formerly married couple's estate. Id. at 100. After the award was issued by the trial court, the appellant-husband made a motion for new trial which the trial court granted, but the order failed to state the grounds for granting the motion. Id. at 100-01. On appeal, this court upheld the trial court's order for a new trial, holding that where there exists a clear indication in the record of the grounds the trial court based its order for new trial, the presumption of error established by Rules 78.03 and 84.05(c) is rebutted by the respondent. Id. at 104.

It is urged by the respondents that this case falls into the Hightower paradigm because objections made by the respondents, as to whether appellant's testimony constituted a "new opinion" in violation of discovery rules, were argued by the parties at trial. In addition, it is stated that the grounds on which the new trial was ordered is readily apparent also because the hearing on the respondents' motion for new trial was subsumed by this issue. Therefore, it is argued by the respondents that, like in Hightower, it is clear from the record the ground the motion for new trial was granted, and as such Rules 78.03 and 84.05(c) are inapplicable to the matter at hand. Accordingly, it is urged that this court should apply the abuse of discretion standard in reviewing whether a new trial was properly ordered, and that under this standard it is clear that the motion was properly granted by the trial court.

Several problems exist with the analogy between Hightower and our case. In Hightower, the motion for new trial was verbally granted by the trial court, and at that time the court commented that this motion was granted on the grounds that "the original decree was `manifestly unfair to the respondent.'" Id. at 104. Here, no such verbal comments by the trial court are present in the record which give some specific indication as to why the court ordered a new trial. It is true that during the trial Judge Young...