Kim v. Mercy Clinic Springfield Cmtys.

• Decision Date: 22 January 2018
• Docket Number: Nos. SD 34547 & SD 34561 Consolidated,s. SD 34547 & SD 34561 Consolidated
• Citation: 556 S.W.3d 613
• Parties: Hyewon KIM, M.D., Plaintiff-Appellant/Respondent, v. MERCY CLINIC SPRINGFIELD COMMUNITIES, Defendant-Respondent/Cross Appellant, Mercy Hospital of Springfield, Defendant-Defendant.
• Court: Missouri Court of Appeals

556 S.W.3d 613

Hyewon KIM, M.D., Plaintiff-Appellant/Respondent,

v.MERCY CLINIC SPRINGFIELD COMMUNITIES, Defendant-Respondent/Cross Appellant,Mercy Hospital of Springfield, Defendant-Defendant.

Nos. SD 34547 & SD 34561 Consolidated

Missouri Court of Appeals, Southern District, Division One.

Filed: January 22, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied February 14, 2018

Application for Transfer Denied May 1, 2018

Attorney for Appellant/Respondent—NICHOLAS W. SMART, Springfield, MO.

Attorney for Respondent/Cross Appellant—JOSHUA B. CHRISTENSEN, Springfield, MO.

MARY W. SHEFFIELD, P.J.

This case comes before the Court on cross appeals by Mercy Clinic Springfield Communities ("Clinic") and Dr. Hyewon Kim ("Dr. Kim"). Clinic brings three points that each challenge the trial court's denial of Clinic's motions for directed verdict and motions for judgment notwithstanding the verdict ("JNOV") as to Dr. Kim's claim for constructive discharge in violation of public policy. Dr. Kim brings two points asserting Clinic's counterclaim for unjust enrichment should have failed. Finding that Clinic's points on appeal are waived because Clinic did not present a motion for directed verdict at the close of the evidence, and Dr. Kim's points have no merit, we affirm.

Background

We set forth only those facts necessary to decide the issues presented. Dr. Kim was employed by Clinic as a radiation oncologist. Dr. Kim's compensation was provided in the form of an advance on her salary, paid in the form of a "semi-monthly draw." The payment terms of Dr. Kim's employment agreement specified that, with the exception of newly recruited physicians, "[t]he Draw is an advance only and is not a guarantee." Following Dr. Kim's resignation, Clinic sent four letters requesting that Dr. Kim repay the unearned portion of her salary advance. Dr. Kim refused.

Dr. Kim sued Clinic and Mercy Hospital of Springfield (collectively, "Defendants").

Dr. Kim claimed that Clinic retaliated against her and constructively discharged her after she reported instances of substandard medical treatment and Medicare fraud. Clinic filed a counterclaim against Dr. Kim for breach of contract and unjust enrichment. Clinic's unjust enrichment claim was based on allegations that Dr. Kim had retained payment for services she failed to provide for Clinic. Dr. Kim filed her answer to Clinic's counterclaim in which she pled that Clinic's claim for unjust enrichment was barred under the equitable doctrine of unclean hands because Clinic's own improper conduct led to Dr. Kim's resignation.

At trial, Dr. Kim and Clinic each dismissed their breach-of-contract claims against each other, and Dr. Kim dismissed Mercy Hospital of Springfield, leaving only Dr. Kim's claim for wrongful termination against Clinic and Clinic's claim for unjust enrichment against Dr. Kim. Before closing arguments, the parties agreed to present the claim for unjust enrichment "as an equitable claim to the Court" for determination after the jury returned a verdict.

The jury found in favor of Dr. Kim and against Clinic on Dr. Kim's claim for constructive discharge in violation of public policy and awarded Dr. Kim compensatory and punitive damages. After further briefing and argument, the trial court entered a judgment finding in Clinic's favor and against Dr. Kim on Clinic's counterclaim for unjust enrichment. Clinic and Dr. Kim appealed.

Clinic's Appeal

Clinic raises three points that each challenge only the trial court's denial of its "motion for directed verdict and motion for JNOV[.]"¹ Dr. Kim responds that each of Clinic's arguments on appeal are waived because Clinic did not make a motion for directed verdict at the close of the evidence.

"To determine whether a directed verdict or judgment notwithstanding the verdict should have been granted this Court applies essentially the same standard." Ellison v. Fry , 437 S.W.3d 762, 768 (Mo. banc 2014). "A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence." Giddens v. Kansas City S. Ry. Co. , 29 S.W.3d 813, 818 (Mo. banc 2000). "Evidence is viewed in the light most favorable to the jury's verdict, giving the plaintiff all reasonable inferences and disregarding all conflicting evidence and inferences." Newsome v. Kansas City, Missouri Sch. Dist. , 520 S.W.3d 769, 775 (Mo. banc 2017) (quoting Fleshner v. Pepose Vision Inst., P.C. , 304 S.W.3d 81, 95 (Mo. banc 2010) ). "When the grant or denial of a directed verdict or a JNOV is based upon a matter of law ... we review the trial court's decision de novo ." Trinity Lutheran Church v. Lipps , 68 S.W.3d 552, 557 (Mo. App. E.D. 2001).

Rule 72.01 permits a party to move for a directed verdict at the close of the opponent's evidence or at the close of all evidence. Sanders v. Ahmed, 364 S.W.3d 195, 206-07 (Mo. banc 2012). The framework delineated in Rule 72.01 effectively describes "the procedure for challenging the submissibility of plaintiff's case." Id. at 207. Indeed, the "purpose of motions for directed verdict and JNOV is to ‘challenge the submissibility of the plaintiff's case.’ "

Bailey v. Hawthorn Bank, 382 S.W.3d 84, 99 (Mo. App. W.D. 2012) (quoting Marquis Fin. Servs. of Indiana, Inc. [v. Peet], 365 S.W.3d [256] at 259 [ (Mo. App. E.D.) ] ).

"To preserve the question of submissibility for appellate review in a jury-tried case, a motion for directed verdict must be filed at the close of all the evidence and, in the event of an adverse verdict, an after-trial motion ... must assign as error the trial court's failure to have directed such a verdict." Pope v. Pope, 179 S.W.3d 442, 451 (Mo. App. W.D. 2005) (quoting Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 163 (Mo. App. W.D. 1997), overruled on other grounds in Badahman [v. Catering St. Louis], 395 S.W.3d [29] at 40 [ (Mo. banc 2013) ] ).

Wilkins v. Bd. of Regents of Harris-Stowe State U. , 519 S.W.3d 526, 544-45 (Mo. App. E.D. 2017) (emphasis added).

Here, Clinic submitted motions for directed verdict at the close of Dr. Kim's evidence, which included the arguments Clinic raises on appeal. The trial court denied those motions, and Clinic presented evidence. "By doing so, [Clinic] waived any error in the denial of the motion[s]" for directed verdict at the close of plaintiff's evidence. Senu-Oke v. Modern Moving Sys., Inc. , 978 S.W.2d 426, 432 (Mo. App. E.D. 1998) ; see Sanders , 364 S.W.3d at 207.

Defendants presented evidence and rested; Dr. Kim offered no rebuttal. Immediately thereafter, the court announced, "at this time the [c]ourt will take up motions at the close of all the evidence." Dr. Kim argued three motions for directed verdict to the court, none of which are relevant to Clinic's points on appeal. The court turned to Defendants and asked if they had "any motions at this time." Defendants renewed one motion for directed verdict on behalf of Mercy Hospital on an issue irrelevant to this appeal. The court denied the "motion for directed verdict at the close of all evidence on that issue." The court then asked if Defendants had any other motions to bring at that time, to which Defendants' counsel responded "no."

After Defendants told the trial court they had no other motions for directed verdict, the court went off the record for the instruction conference and had "extensive[ ]" discussions regarding proposed jury instructions. Then, during the "on the record" instructions conference, Clinic objected to the submission of proposed Instruction No. 6 (defining "constructive discharge") and Instruction No. 7 (the verdict director for Dr. Kim's whistleblower claim).

In response to Dr. Kim's claim that Clinic made no motion for directed verdict at the close of the evidence, Clinic claims that it did raise such a motion during the instructions conference. This Court has reviewed those portions of the transcript cited by Clinic and finds no such motion. There is no indication anywhere that Clinic offered a belated motion for directed verdict; nor that Dr. Kim or the trial court were aware that Clinic was attempting to raise a belated motion for directed verdict at the close of the evidence; nor that the trial court was aware that it was ruling on a belated motion for directed verdict when Clinic objected to the submission of Instructions No. 6 and 7. Clinic raises no claims of instructional error on appeal, and each of its three points claims that the trial court erred in denying a motion for directed verdict at the close of the evidence. The trial court did not err because no such motion was made. The trial court could not rule on a motion that it did not have before it. Absent some constitutional imperative not shown here, it is not an appellate court's role to grant relief on an argument that was not presented to or decided by the trial court. See, e.g. , Barkley , 456 S.W.3d at 839.

Clinic cites Sanders , 364 S.W.3d at 208, for the argument that its oral motion was specific enough to preserve its claim. In Sanders , the Court found that a defendant's motion for directed verdict at the close of the evidence was made with requisite specificity to challenge the causation element of the plaintiff's wrongful death claim where the oral motion for directed verdict at the close of all the evidence stated, "We think plaintiff failed to make a submissible case on issues of negligent causation...." Id.

Clinic's argument misses the mark. The issue here is not whether Clinic's motion for directed verdict at the close of the evidence was made with requisite specificity to challenge a particular element of Dr. Kim's case; it is whether Clinic made such a motion at all . It did not.

Clinic makes a final, eleventh-hour argument that its points should be reviewed on the merits based on principles of "efficiency and fair play." We disagree. It is neither efficient nor fair to now claim that argument during an instruction conference substitutes for a motion for directed verdict—especially when...