Flood ex rel. Oakley v. Holzwarth

• Decision Date: 28 December 2005
• Docket Number: No. 26307.,26307.
• Citation: Flood ex rel. Oakley v. Holzwarth, 182 S.W.3d 673 (Mo. App. 2005)
• Parties: Toni R. FLOOD, by and through her Next Friend Jeanine Oakley, and Jeanine Oakley, Individually, Plaintiffs-Respondents, v. Richard N. HOLZWARTH and Shepherd, Inc., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 673

182 S.W.3d 673

Toni R. FLOOD, by and through her Next Friend Jeanine Oakley, and Jeanine Oakley, Individually, Plaintiffs-Respondents, v.Richard N. HOLZWARTH and Shepherd, Inc., Defendants-Appellants.

No. 26307.

Missouri Court of Appeals, Southern District, Division One.

December 28, 2005.

Application for Transfer Denied January 19, 2006.

Application for Transfer Denied February 28, 2006.

COPYRIGHT MATERIAL OMITTED

Gary R. Cunningham, Tamara F. De Wild, Kristoffer R. Barefield, Mark A. Fletcher, Lathrop & Gage, L.C., Springfield, for Appellant.

Michelle Boehm O'Neal, Larry Nichols, The Hershewe Law Firm, P.C., Joplin, for Respondent.

PHILLIP R. GARRISON, Presiding Judge.

Richard N. Holzwarth("Holzwarth") and Shepherd, Inc.("Shepherd, Inc.")(collectively referred to as "Defendants") appeal from a judgment entered on a jury verdict against them for compensatory and punitive damages in favor of Toni R. Flood("Flood"), by and through her next friend Jeanine Oakley("Oakley")(collectively referred to as "Plaintiff") stemming from a collision between a tractor trailer and a van.¹We affirm.

On January 18, 2002, at approximately 8:20 a.m., fourteen-year-old Flood was a passenger in a van driven by Chad Murphy("Murphy") that was traveling eastbound on U.S. Highway 60 in Newton County, Missouri.Holzwarth was operating a tractor trailer unit which he owned, but had leased to Shepherd, Inc., easterly on Highway 60 behind the van.At some point Holzwarth pulled into the westbound lane of Highway 60 in an attempt to pass the van.As Holzworth's tractor trailer began to overtake the van, the van started to make a left-hand turn onto a side road.A collision occurred between the tractor trailer and the van, and Flood sustained disabling injuries.

A petition was filed on behalf of Flood seeking actual and punitive damages against Defendants.Plaintiff contended in an amended petition that Flood sustained a traumatic brain injury and had severe and permanent injuries to her mind and body including but not limited to orophryngeal dysphagia, vocal cord dysfunction, cognitive-linguistic deficit, aspiration without aspiration pneumonitis, and ambulation and balance difficulties, and that her injuries were permanent and disabling in nature.It was also alleged that Holzwarth believed he was being pursued by people attempting to repossess his truck, he was operating the tractor trailer while under the influence of drugs, and that he was distracted by a pet ferret playing in and around his lap area.

In a bifurcated trial to a jury, a verdict was returned finding for Plaintiff on the claim for compensatory damages against Defendants in the amount of one million, six hundred thousand dollars ($1.6 million), and also finding that Plaintiff was entitled to punitive damages.In phase two of the trial, the jury returned a verdict for punitive damages against Defendants in the sum of three million, four hundred thousand dollars ($3.4 million).This appeal followed.

Defendants raise seven points of error in this appeal.Except for one issue in Point I, none of the other claims of error have been preserved for appellate review.As such the only level of review available to Defendants on their remaining contentions is plain error under Rule 84.13(c),² which provides:

Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

We should only exercise review under this rule if "we discern a substantial ground for believing that manifest injustice or miscarriage of justice has resulted from plain error."Collins v. Hertenstein,90 S.W.3d 87, 98(Mo.App. W.D.2002).Plain error will rarely provide the basis for overturning the judgment of the trial court in civil cases.Davolt v. Highland,119 S.W.3d 118, 135-36(Mo.App. W.D.2003).Plain error review places a greater burden on appellants because plain error is more than prejudicial error.Id.

We review Points I, III and IV together.In Point I, Defendants argue that Plaintiff elicited testimony from Holzwarth, Eddie Shepherd("Shepherd") and Phillip Hayes' ("Hayes")³ concerning methamphetamine use and drug-related offenses that were not related to the January 18, 2002, accident.They argue that this testimony constituted improper impeachment, was irrelevant and prejudicial.In Point III, Defendants argue that it was plain error to allow the Lawrence County Prosecuting Attorney("the Prosecutor")⁴ to testify as to criminal charges against employees of Shepard, Inc. and the general methamphetamine use in Southwest Missouri, in that it was irrelevant to the January 18, 2002, accident and that its prejudicial impact outweighed any probative value it may have had.In Point IV, Defendants argue that testimony from Kevin Hackathorn("Hackathorn") regarding his methamphetamine use and drug-related offenses was not relevant to the January 18, 2002, accident, constituted improper impeachment and its prejudicial impact outweighed any probative value it may have had.In all the above points, Defendants argue that this evidence allowed the jury to consider acts unrelated to the January 18, 2002, accident.⁵Defendants' primary complaint in these points, is that Holzwarth, Shepherd, Hayes and Hackathorn were compelled to testify to their past criminal acts involving methamphetamines, some of which were in connection with their employment with Shepherd, Inc.Defendants also argue that the trial court erred by admitting the criminal records pertaining to those acts into evidence.Those records are important to our decision on these points.

Defendants argue that their objection to Hayes' testimony at trial preserved this portion of Point I for appeal, thus we should review that claim of error for abuse of discretion.Assuming without deciding that Defendants are correct; their point is without merit.Hayes' criminal records were admitted into evidence after the trial court asked Defendants if they had any objection, and Defendants said no.The admission of Hayes' criminal records makes his testimony cumulative and therefore not prejudicial.SeePorter v. Erickson Trans. Corp.,851 S.W.2d 725, 740-741(Mo.App. S.D.1993).Therefore, regardless of the standard of review used, the fate of Hayes' testimony is the same as that of Holzwarth's, Shepherd's, and Hackathorn's.

Plaintiff reminds us that, just as with Hayes' criminal records, not only did Defendants fail to object to the criminal records of Shepard, Holzwarth and Hackathorn, they affirmatively consented to their admission into evidence.Plaintiff correctly argues that an announcement of "no objection" when evidence is sought to be admitted, leaves no room for even plain error appellate review.McCormack v. Capital Elec. Constr. Co., Inc.,159 S.W.3d 387, 398(Mo.App. W.D.2004).Given this rule, it is clear that Holzwarth, Shepard and Hackathorn's drug use, in the form of their criminal records, would have been before the jury regardless of whatever live testimony was given by them.Defendants are "not entitled to assert prejudice by admission of evidence if such evidence is merely cumulative to other related admitted evidence."Porter,851 S.W.2d at 740-741.As such, we cannot say that it was plain error to allow testimony regarding this information from Holzwarth, Shepherd and Hackathorn.

The Prosecutor was allowed to testify, during the punitive damages phase of the trial, about the general methamphetamine problem plaguing Southwest Missouri, and Defendants argue in Point III, that this was irrelevant and allowed the jury to consider the criminal actions of others in determining the punitive damages to be awarded against Defendants.⁶On its face, there are substantial questions about the relevance of this testimony and as such we will review for plain error.

Assuming without deciding that the trial court erred in allowing the Prosecutor's testimony, a close inspection of the record reveals that such an error is not plain error.Based upon all the evidence, we can not say that the statements made by the Prosecutor rose to the level of a manifest injustice or a miscarriage injustice because evidence of methamphetamine use by Holzwarth and other drivers at Shepherd, Inc., was clearly before the jury.We also note that the trial transcript in this case is nearly 1500 pages in length and of that only about four pages is taken up by the Prosecutor's testimony.Plain error places a greater burden on an appellant than does a review for prejudicial error.Davolt,119 S.W.3d at 135-36.Plain error and prejudicial error are not synonymous terms.Id.(quotingState v. Reed,21 S.W.3d 44, 47(Mo.App. S.D.2000)).Because of the foregoing reasons, Points I, III and IV are denied.

In Point II, Defendants claim that the trial court erred in denying their Motion for Judgment Notwithstanding the Verdict("JNOV").They essentially argue that Plaintiff did not make a prima facie case to submit the issue of punitive damages to the jury.They assert that there was no evidence of erratic driving on the part of Holzwarth and there was no clear and convincing evidence that his methamphetamine use had a causal connection to the accident.We disagree.

The standard of review for a motion for JNOV is the same as that for denial of a motion for directed verdict; its denial will be affirmed unless the plaintiff failed to make a submissible case.Balke v. Central Mo. Elec. Coop.,966 S.W.2d 15, 20(Mo. App. W.D.1997).In determining whether a plaintiff has made a submissible case, we"accept all evidence and reasonable inferences favorable to the verdict, disregarding contrary evidence."Id.

Plaintiff points out that Defendants have also not preserved this issue for review.Rule 72.01 governs a motion for a directed verdict as well as a motion for JNOV.In order to move for a JNOV,...