Hawthorne v. Hills

• Decision Date: 14 September 1993
• Docket Number: No. WD,WD
• Citation: 861 S.W.2d 337
• Parties: Leslie Ann HAWTHORNE, Respondent, v. Catherine Christine HILLS, Defendant, Thomas Lysinger, Appellant. 45878.
• Court: Missouri Court of Appeals

Page 337

861 S.W.2d 337

Leslie Ann HAWTHORNE, Respondent, v. Catherine Christine HILLS, Defendant, Thomas Lysinger, Appellant.

No. WD 45878.

Missouri Court of Appeals,

Western District.

Sept. 14, 1993.

Charles E. Weedman, Jr., Christopher J. Molzen, Crouch, Spangler & Douglas, Harrisonville, for appellant.

J. Kirk Rahm, Rahm, Rahm, Koenig & McVay, P.C., Warrensburg, for respondent.

Before BERREY, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

Thomas Lysinger appealed the judgment, pursuant to jury verdict, in favor of Leslie Ann Hawthorne. The jury awarded Ms. Hawthorne $150,000 for damages she sustained as a result of an automobile accident on August 9, 1988, in Henry County. Ms. Hawthorne was riding as a passenger in a vehicle driven by co-defendant Catherine Hills when the vehicular accident occurred. The vehicle driven by Mr. Lysinger was struck in the rear by the vehicle driven by Ms. Hills. Both vehicles were traveling westbound on Missouri Highway 7.

On January 19, 1993, this court dismissed Mr. Lysinger's appeal as untimely. The trial court's judgment was final on January 22, 1992. Pursuant to Rule 84.04(a), Mr. Lysinger was compelled to file his notice of appeal not later than ten days after the judgment appealed from became final. State ex rel. Charter Bank of Jennings v. O'Toole, 638 S.W.2d 321, 322 (Mo.App.1982). Notice of appeal was filed February 3, 1992, and was ruled not to have been timely filed.

Mr. Lysinger filed his motion for rehearing pursuant to Rule 84.17 and asked the court to reconsider its decision of January 19, 1993, noting that February 1, 1992, was a Saturday. Therefore, pursuant to Rule 44.01(a), the last day for filing his notice of appeal was Monday, February 3, 1992. Mr. Lysinger's analysis and conclusion that he complied with Rule 44.01(a) and that his notice of appeal was timely filed is correct, and his motion for rehearing is granted without reargument. This court's opinion of January 19, 1993, is vacated and withdrawn, and this opinion is entered.

Mr. Lysinger contends that no evidence was presented to support submission of the verdict finding instruction drafted pursuant to MAI 17.11 and 17.12 and, specifically, that no evidence was presented at trial demonstrating a causal connection between the allegation that Mr. Lysinger failed to signal his intention to stop or slow and Ms. Hawthorne's injuries. Mr. Lysinger claims submission of the instruction and failure to grant a directed verdict was error. Ms. Hawthorne claims that Mr. Lysinger failed to timely file his motion for a new trial and that he also failed to timely file his notice of appeal. ¹

Leslie Hawthorne and Susan Anderson were riding as passengers in the front seat of the vehicle driven by Catherine Hills on August 9, 1988. The vehicle was being driven westbound on Missouri Highway 7 near Clinton, Henry County. Thomas Lysinger was driving a blue pickup truck, also westbound on Highway 7, in front of the vehicle driven by Ms. Hills. Mr. Lysinger was the single occupant of the vehicle he was driving. The pavement was wet due to rain which had fallen earlier.

Approximately a quarter of a mile west of Mr. Lysinger on Highway 7, a black Mercury vehicle driven by Beverly Burton had stopped in the westbound lane of traffic. Ms. Burton was awaiting eastbound Highway 7 traffic to pass her location in order that she could turn left across the eastbound lane into a private driveway. The first vehicle to the rear of Ms. Burton's stopped vehicle was the vehicle driven by Scott Shoemaker, also traveling westbound on Highway 7. Mr. Shoemaker observed Mr. Lysinger's pickup truck approaching in the westbound lane approximately forty yards to the rear of his vehicle. Mr. Shoemaker, fearing that Mr. Lysinger's vehicle would collide with his vehicle, passed the Burton vehicle on the right side. Mr. Shoemaker testified that he observed the front tire of the Lysinger truck slip on the wet surface of the highway, and he heard the Lysinger truck tires squeal. Mr. Shoemaker saw the Hills vehicle strike the rear of the Lysinger pickup truck. The Lysinger vehicle struck the stopped Burton vehicle either immediately before or after the vehicle driven by Catherine Hills struck the Lysinger pickup truck.

When Susan Anderson realized that a collision between the Hills vehicle and the rear end of the Lysinger vehicle was imminent, she and Ms. Hills looked at each other, each made a statement, and each returned her attention to the vehicle in front of them. Ms. Hawthorne, although not observing the traffic, looked in front of the Hill vehicle immediately prior to the collision and closed her eyes. Ms. Hills was operating her vehicle four car lengths behind the Lysinger vehicle when she first realized a collision was imminent.

Corporal Ron Walker, Missouri Highway Patrol, arrived at the scene to investigate the accident soon after the collision. Corporal Walker testified that he tested the brake lights of the Lysinger vehicle at the scene of the accident and they worked properly. None of the three witnesses riding in the Hills vehicle could testify whether they observed the brake lights on the Lysinger vehicle radiate immediately prior to the accident.

I.

Ms. Hawthorne claims that Mr. Lysinger failed to preserve any issue for appellate review, contending that he failed to timely file his motion for a new trial within the fifteen days after the jury's verdict. The jury verdict was rendered October 9, 1991. The judgment was entered October 12, 1991. The motion for a new trial was mailed by Mr. Lysinger's attorney to the clerk of the circuit court on October 23, 1991. Although the clerk received the motion for filing on October 24, 1991, the motion for a new trial was officially filed by the clerk's office on October 25, 1991. Rule 78.04 states:

A motion for a new trial shall be filed not later than fifteen days after the entry of the judgment on a jury verdict, which judgment shall be entered as of the date of the verdict, except as provided by Rule 74.01. If a timely motion for a new trial or for judgment notwithstanding the verdict is filed, the judgment is not final until disposition of all such motions.

The final jury verdict, not the mere ministerial act of recording the judgment entry, triggers the running of the fifteen-day time limitation for filing a new trial motion. Mosher v. Levering Inv., Inc., 806 S.W.2d 675, 676 (Mo. banc 1991); Ryan v. Parker, 812 S.W.2d 190, 192 (Mo.App.1991). To preserve error for appellate review, with limited exception, allegations of error must be included in a motion for a new trial. Rule 78.07. Failure to timely file a motion for a new trial preserves nothing for appellate review. Esry v. Esry, 628 S.W.2d 700, 703 (Mo.App.1982). Thus, the filing of the motion for a new trial on October 25, 1991, one day in excess of the time permitted for filing the motion pursuant to Rule 78.04 would ordinarily render the motion untimely. However, the motion was received for filing in the clerk's office on October 24, 1991, the last day the motion could be timely filed.

The Supreme Court of Missouri in Stephan v. World Wide Sports, Inc., 502 S.W.2d 264 (Mo.1973), considered a similar situation. In Stephan, the plaintiff had filed a motion for a new trial in the circuit clerk's office within the time limit for filing the motion. The original motion was misplaced in the clerk's office and the circuit court did not have the original before it the day the motion was argued. The court did have a copy of the motion. The Court said that "the day the motion was received in the clerk's office, the court obtained jurisdiction. Rule 43.01(j), now Rule 43.01(h), V.A.M.R. This jurisdiction continued until the motion for a new trial was ruled on no matter what happened to the original motion." Id. at 269.

In this case, although the motion for a new trial was received for filing by the circuit clerk on October 24, 1991, the last day the motion could be filed, the clerk did not file the motion until the next day, October 25. Applying the rationale of Stephan, the circuit court obtained jurisdiction to consider the motion for a new trial when the motion was delivered to the circuit clerk's office and received by the clerk for filing, and the court's jurisdiction continued until January 22, 1992, ninety days following October 24, 1991, the date considered the filing date. Rule 78.04. Ms. Hawthorne's claim that Mr. Lysinger failed to timely file his motion for a new trial is denied.

II.

As his first point on appeal, Mr. Lysinger contends the trial court erred in giving Instruction No. 7, patterned after MAI 17.11 and 17.12, claiming plaintiff failed to present substantial and credible evidence that Mr. Lysinger had suddenly stopped his vehicle or suddenly slowed his vehicle without first giving adequate and timely warning. Instruction No. 7 was as follows:

Your verdict must be for plaintiff on her claim against defendant Thomas Lysinger if you believe:

First, defendant Thomas Lysinger's suddenly slowed or suddenly stopped his vehicle on the highway without first giving an adequate and timely warning of his intention to slow or stop, and

Second, defendant Thomas Lysinger was thereby negligent, and

Third, such negligence either directly caused damage to plaintiff or combined with the acts of defendant Catherine Christine Hills to directly cause damage to plaintiff.

Instruction No. 7 submits in the disjunctive two assignments of negligence. Paragraph first submits that Mr. Lysinger suddenly slowed or suddenly stopped his vehicle on the highway without first giving an adequate and timely warning of his intention to slow or stop. When an instruction submits in the disjunctive two or more assignments of negligence, the instruction is erroneous unless the evidence is sufficient to support all of the assignments. Ensor v. Hodgeson, 615 S.W.2d 519, 523 (Mo.App.1981). Thus, for the judgment to be affirmed, substantial...