Glasgow v. Cole

• Decision Date: 30 August 2005
• Docket Number: No. ED 84285.,ED 84285.
• Citation: 168 S.W.3d 511
• Parties: William GLASGOW, Plaintiff/Respondent/Cross-Appellant, v. Margaret A. COLE, Defendant/Appellant/Cross-Respondent.
• Court: Missouri Supreme Court

168 S.W.3d 511

William GLASGOW, Plaintiff/Respondent/Cross-Appellant, v. Margaret A. COLE, Defendant/Appellant/Cross-Respondent.

No. ED 84285.

Missouri Court of Appeals, Eastern District, Division Four.

April 12, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.

Application for Transfer Denied August 30, 2005.

Goffstein, Raskas, Pomerantz, Kraus & Sherman, LLC, Robert E. Tucker; Lori R. Koch, St. Louis, MO, for appellant.

Thomas A. Connelly, St. Louis, MO, for respondent.

Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.

PER CURIAM.

Margaret A. Cole (Cole) appeals from the judgment of the trial court granting a new trial on the issue of damages only in favor of William Glasgow (Glasgow) in Glasgow's breach-of-contract action.¹ Glasgow cross-appeals, claiming the trial court erroneously instructed the jury on the measure of damages. We reverse the trial court's judgment and dismiss Glasgow's cross-appeal.

The facts, as pertinent to the issues on appeal are as follows. Glasgow filed this action for breach of contract against his insurance broker, Cole, claiming that: 1) Glasgow was a named insured on a proof of insurance issued by Cole covering a residence located at 2415 Wheaton, St. Louis, Missouri (residence); 2) the residence was extensively damaged in a fire while the proof of insurance remained in effect; and 3) Cole refused payment to Glasgow for the damages after Glasgow reported the loss.

The partial fire loss to the property occurred on June 29, 1998. Prior to the loss, Glasgow applied to insure the property for $60,000. During trial, Glasgow testified that he paid only $8,500 for the property when he purchased it in April 1998, but had spent $32,788 on repairs to the property between March and June of 1998. However, Glasgow's employee testified that he inspected the property between the time Glasgow purchased it and the fire occurred, was familiar with the property's condition, and recollected that it had only been painted during this time period. When Glasgow reported the fire damage to Cole, he estimated the probable amount of the loss as $22,000. Additionally, Cole's expert, a real estate appraiser, testified during trial that the entire property before loss would have been worth approximately $50,000, and he attributed $12,000 of this value to the lot. Glasgow testified that the property's market value after the fire would be approximately $5,000.

Following trial, the jury rendered a verdict for Glasgow, awarding him $22,458 plus pre-judgment interest in the amount of $11,053, for a total award of $33,511. Glasgow filed a motion to amend the judgment, for judgment notwithstanding the verdict, for a new trial on damages only, or for additur, arguing: 1) the judgment was against the weight of the evidence; 2) the judgment was against the overwhelming weight of the evidence; 3) misconduct by Cole during cross-examination influenced the jury and resulted in an inadequate damages award; 4) the trial court erred in submitting Cole's instruction on damages; 5) the trial court erred in submitting the instruction on damages because it provided the wrong basis for determination of loss, i.e., the difference in the residence's fair market value before and after the loss; and 6) the trial court erred in allowing testimony that the fair market value of the residence was less than the amount insured.

Cole also filed a motion for judgment notwithstanding the verdict, or, in the alternative, to amend the judgment, arguing that she was entitled to judgment because: 1) the evidence clearly showed that there was no human habitation of the residence for more than 60 days prior to the fire loss, which precluded coverage or payment to Glasgow regardless of any breach of contract by Cole; and 2) Glasgow was not the real party in interest to claim damages for the loss as the evidence showed that all expenses for repair of the residence were incurred by a corporate entity that was not a party to the action. Cole's alternative motion to amend the judgment claimed the court's award of pre-judgment interest contradicted the court's previous judgment on the issue and was contrary to applicable law.

The trial court denied Cole's motion, but granted Glasgow's motion for new trial as to damages only, stating that it had "grave doubts as to the fairness to [Glasgow] of the damages awarded due to a comment made by [Cole] as to the origin of the fire during her testimony." The trial court subsequently denied Cole's motion to reconsider.

On appeal, Cole claims the trial court erred in granting Glasgow's motion for new trial on the issue of damages only because the jury was instructed to disregard Cole's comment, the comment did not prejudice Glasgow, and the verdict was supported by substantial evidence. Cole further argues the trial court erred in granting Glasgow's motion because if the verdict was the result of passion or prejudice on behalf of the jury, a new trial as to all issues should have been granted.

The trial court has broad discretion in granting on new trial on the issue of damages. Steele v. Evenflo Co., Inc., 147 S.W.3d 781, 786 (Mo.App. E.D.2004); Tomlin v. Guempel, 54 S.W.3d 658, 660 (Mo.App. E.D.2001). However, the trial court's power to grant a new trial is discretionary only as to questions of fact, not as to questions of law. Steele, 147 S.W.3d at 786.

The record reveals that the comment by Cole concerning the fire's origin took place during the following cross-examination and subsequent discussion:

[Plaintiff's Counsel]: . . . When did you get the written authority from Universal Fire and Casualty to issue that binder?

[Cole]: Written authority was not — I did not get written authority. But I've always issued that same piece of paper for every piece of property that I have ever written.

[Plaintiff's Counsel]: And you did sign this agreement?

[Cole]: That's correct.

[Plaintiff's Counsel]: And you did agree to be bound by it?

[Cole]: And it has never been a problem.

[Plaintiff's Counsel]: First time for everything, I guess?

[Cole]: I'm not the one who poured gasoline and set the fire.

[Plaintiff's counsel]: Judge —

The Court: Jury is instructed to disregard the last comment by the witness.

[Plaintiff's counsel]: Judge, can we have a sidebar?

(The following proceedings were had at sidebar out of the hearing of the jury:)

[Plaintiff's counsel]: Make a Motion for Mistrial. That was highly prejudicial and flies in the face of the motion in limine, which was sustained as to anything dealing with arson.

From the reaction of [Defense counsel] when [Cole] said that I believe he had no knowledge that was coming nor did he have anything to do with it. But, Judge, the prejudicial effect is overwhelming. The look of surprise on the jurors' faces was unbelievable.

I don't think I have any choice but to ask that the jury be directed to disregard the evidence, that the evidence be stricken, and that you order a mistrial. I think we've poisoned this process to the point that we can't do anything else.

Plaintiff's counsel then requested a lunch recess while he discussed this incident with Glasgow. Thereafter the following discussion occurred:

The Court: We're outside the hearing and presence of the jury. I believe at least one of the paragraphs in the motion in limine by the Plaintiff in this case was basically not to discuss arson in this case.

[Plaintiff's counsel]: That's correct.

The Court: And I know that mistrial is a drastic measure.

[Plaintiff's counsel]: Judge, I have to say on the record [Glasgow] does not require a mistrial. And I understand that this is expensive for him. It's been incredibly expensive. So this far in and to drop that little bomb right in the middle of everything — I would however, say that I would suggest appropriate sanctions to strike their pleadings and enter judgment for liability and we'll go forward with damages.

Because this was calculated for the effect it had. She's sittin' there with a smirk on her face after she did it. So it was calmly and coolly calculated by her to do it.

And I again want to say on the record I don't think [Defense Counsel] had anything to do with this. From the look reaction and shock on his face I'm convinced he didn't.

But this was calculated, done by, [Cole] to have the effect that it had and it has poisoned the entire case now and will open up whole new areas that we now have to cover I'm afraid.

The trial court denied the motion for mistrial and warned Cole that similar behavior would result in her pleadings being stricken and the cause proceeding with damages only.

When a trial court is faced with situations such as occurred here, what action the court should take depends upon matters such as the nature of the argument made before it, the form and character of the objection, the action requested by the offended party, and the issues and general atmosphere of the case. McNear v. Rhoades, 992 S.W.2d 877, 883 (Mo.App. S.D.1999) (where trial court granted all relief sought by plaintiffs by sustaining objection and instructing accordingly, plaintiffs who failed to request additional relief waived any possible prejudicial effect). In this instance, the trial court granted nearly all the relief sought by Glasgow: it immediately instructed the jury to disregard the comment and later admonished Cole about her improper remarks. Further, the only relief that Glasgow requested that was not granted — a directed verdict as to liability — would have done nothing to ameliorate prejudice to Glasgow in the assessment of his damages which he still wanted submitted to the jury. Glasgow expressly stated on the record that he did not require a mistrial. Glasgow is not entitled to "gamble on the verdict of the jury, and if he loses then assert in a motion for new trial or on appeal that prejudicial error resulted from the incident." Id. By declining a...