Burns v. Taylor

• Decision Date: 29 October 2019
• Docket Number: WD 81828
• Citation: 589 S.W.3d 614
• Parties: Randall E. BURNS, et al., Appellants, v. Jason TAYLOR, et al., Respondents.
• Court: Missouri Court of Appeals

589 S.W.3d 614

Randall E. BURNS, et al., Appellants,

v.Jason TAYLOR, et al., Respondents.

WD 81828

Missouri Court of Appeals, Western District.

OPINION FILED: October 29, 2019 Motion for Rehearing and/or Transfer to Supreme Court Denied November 26, 2019

R. Gregory Harrison, North Kansas City, MO, for appellants.

Brandon F. Greer, Chillicothe, MO, for respondents.

Before Special Division: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and Kelly L. Lovekamp, Special Judge

Gary D. Witt, Judge

Randall Burns, Amanda Burns, and the Estate of Nicole Burns (collectively "Burnses"), appeal the judgment of the Circuit Court of Linn County against Randall¹ for $50,000 in actual damages and $50,000 in punitive damages to Jason Taylor, and the Burnses also appeal the trial court's denial of their Motion for New Trial. The Burnses raise five allegations of error and request this court order a new trial or in the alternative remit the damages award.² We affirm.

Factual Background³

This case centers around three fights that occurred in Brookfield, Missouri in the early morning hours of September 10, 2011. The first fight took place shortly after the Pigskin bar closed. Levi Swanson ("Swanson") and Derrik Wills ("Wills") got into a fight in the parking lot of the bar. Amanda and Nicole entered the fray and punched and kicked Swanson. The fight broke up when the police arrived.

After the police left the scene, another altercation occurred between Amanda and Nicole against Jason Taylor ("Taylor"). Swanson joined the fight in Taylor's defense. It is unclear from the evidence exactly when, but at some point during these first two altercations, Amanda broke her wrist and Nicole sustained a back injury. After the second fight, Amanda called Randall and asked him to pick up her and her sister. Nicole called Randall separately and asked Randall to "kick [Taylor's] a* *."

After Randall arrived, Nicole requested to go to Swanson's house, and after driving two blocks, Amanda got out of the vehicle and walked home. Randall drove to his son, Robert's home, to pick up Robert for "backup," and then Randall, Nicole, and Robert drove to Swanson's house. Once the three arrived at Swanson's home, both Taylor and Swanson (collectively "Respondents") arrived. Randall was carrying an axe handle and swung it at Taylor. Randall hit Taylor over the head, and Taylor fell to the ground suffering a shoulder injury. Randall then began to punch Taylor repeatedly. Taylor begged Randall to stop hitting him. The third fight ended when police arrived. Taylor suffered a broken right arm, torn right shoulder capsule, and a torn right shoulder labrum. Taylor missed several months of work and continues to have limitations of the use of his right arm.

The Burnses filed a petition for damages on September 4, 2014, which was later amended. The amended petition alleged negligence against Respondents, battery against Swanson, and battery against Taylor. Taylor brought a counterclaim against Nicole and Amanda for battery, and Respondents brought a counterclaim against Randall for battery. A jury trial was held on March 15 and 16, 2018.

The jury returned a verdict on March 16, 2018, in favor of Respondents on all claims submitted by the Burnses and in favor of Taylor against Randall on the counterclaim for battery in the amount of $50,000 in actual damages and $50,000 in punitive damages. On April 9, 2018, the Burnses filed a Motion for New Trial and in the alternative a Motion for Remittitur. On May 29, 2018, following a hearing, the trial court denied both motions and entered judgment against Randall in accordance with the jury's verdict. This appeal followed.

Analysis

The Burnses raise five points on appeal. First, the Burnses argue that the trial court erred in not granting a new trial based on juror nondisclosure. Second, the Burnses allege that the trial court abused its discretion by refusing to allow a witness to testify as a discovery sanction. Third, the Burnses assert that Respondents violated the witness exclusion rule and that the trial court erred in denying its motion for a new trial on these grounds. Fourth, the Burnses argue the court erred by admitting a redacted document into evidence, informing the jury of the redaction, and not admitting the complete document into evidence. Fifth, the Burnses allege the trial court erred in denying remittitur because the damage awards exceeded fair and reasonable compensation for the injury sustained.

Point One

In their first point, the Burnses argue that the trial court erred in not granting a new trial based on juror nondisclosure. Burnses argue that some jurors were Facebook friends with the Respondents and failed to disclose this relationship during voir dire.

"A trial court has great discretion in determining whether to grant a new trial." Duckett v. Troester, 996 S.W.2d 641, 646 (Mo. App. W.D. 1999) (citation omitted) (overruled on other grounds by Spiece v. Garland, 197 S.W.3d 594 (Mo. banc 2006) ). "Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion." Id. "An abuse of discretion occurs where the trial court's ruling is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." Id. "It cannot be said that the trial court abused its discretion where reasonable persons could differ over the propriety of its ruling." Id.

"The parties have a right to a fair and impartial jury" composed of twelve unbiased individuals whose experiences will not prejudice the case. Fielder v. Gittings , 311 S.W.3d 280, 283 (Mo. App. W.D. 2010). Prospective jurors have a duty to "fully, fairly and truthfully answer each question asked" during voir dire examination. Id. When a juror withholds material information resulting in bias and prejudice to the moving party, a new trial is warranted. Id. "In determining whether to grant a new trial for juror nondisclosure, the court first must determine whether a nondisclosure occurred at all." Id. If a juror intentionally conceals material information, then the appropriate remedy is to grant a new trial. Brines by Harlan v. Cibis , 882 S.W.2d 138, 140 (Mo. banc 1994).

"This Court will not disturb the circuit court's ruling on motion for a new trial based on juror nondisclosure unless the trial court abused its discretion." Spence v. BNSF Ry. Co., 547 S.W.3d 769, 774 (Mo. banc 2018) (citation omitted). The threshold determination is the clarity of the question asked during voir dire. Sapp v. Morrison Bros. Co. , 295 S.W.3d 470, 474 (Mo. App. W.D. 2009). A question is considered clear if "a lay person would reasonably conclude that the undisclosed information was solicited by the question." Payne v. Cornhusker Motor Lines, Inc. , 177 S.W.3d 820, 841 (Mo. App. E.D. 2005).

The Burnses assert that jurors K.Z. and H.L.⁴ failed to disclose they were Facebook friends with Respondents indicating bias and prejudice against the Burnses. During voir dire , Burnses' counsel asked "Does anyone know either Mr. Swanson or Mr. Taylor?" This question is clear; and therefore, we must next determine if the jurors failed to disclose information that was solicited by the question.

K.Z. answered, "I know both of their parents, and I know the boys. I know both boys." Then Burnses' counsel asked this follow-up question, "Is there anything about that knowledge that would prevent you today from being fair and impartial in your case?" K.Z. answered, "No." Burnses' counsel did not ask K.Z. any additional questions regarding K.Z.'s relationship with Respondents and asked no questions about social media relationships.

In response to the question, H.L. answered, "I don't know them personally. It's just, like, I said, a small town. I didn't recognize them either, either one of them, but I know the name." Burnses' counsel did not ask H.L. any additional questions regarding H.L.'s relationship with Respondents and asked no questions about social media relationships.

Both jurors answered the questions posed by Burnses' counsel as a reasonable juror would have. No reasonable juror would have inferred that counsel's questions required them to inform the parties if they were Facebook friends with Respondents. Furthermore, Burnses' counsel could have asked follow-up questions about the nature of these two jurors' relationships with Respondents including if they were Facebook friends with Respondents, but counsel failed to do so.

The Burnses next argue that Juror L.F., an elementary school teacher, failed to disclose that Respondents were in her class.⁵ This assertion is directly refuted by the record. L.F. told Burnses' counsel, "I was the teacher to [Respondents] Jason and Levi, and I do know both of the parents." Burnses' counsel, followed up and asked the juror, "Anything about that which would cause you to be unable to be fair and impartial to both sides if you were selected as a juror in this case?" Juror L.F. responded in the negative.

In this case, the questions asked of the jury were clear, and each juror disclosed exactly the information that the questions sought. Because all three jurors properly and fully disclosed the information sought by counsel's questions, the trial court did not err in denying the motion for a new trial on this bases. Point one is denied.

Point Two

In their second point on appeal, the Burnses argue that the trial court abused its discretion in refusing to allow Robert to testify as a witness during the trial as a discovery sanction. Robert failed to appear at his deposition when properly subpoenaed by Respondents. The trial court ruled that because he failed to appear for his deposition he would not be allowed to testify at trial.

Respondents assert that this issue was not preserved for our review. To preserve a claim of evidentiary error on appeal, the proponent of the evidence "must offer the evidence at trial and make a detailed offer of proof concerning that evidence when the trial court orders...