Lindsey Masonry Co., Inc. v. Jenkins & Associates, Inc., WD
Decision Date | 07 February 1995 |
Docket Number | No. WD,WD |
Citation | 897 S.W.2d 6 |
Court | Missouri Court of Appeals |
Parties | 100 Ed. Law Rep. 385 LINDSEY MASONRY COMPANY, INC., Appellant, v. JENKINS & ASSOCIATES, INC. and St. Paul Insurance Company, Respondents. 48212. |
Charles D. Lawhorn, Lawhorn, Simpson & Polsley, Shawnee Mission, KS, and Shawn E. DeGraff, Shawnee Mission, KS.
Kevin E. Glynn, Julie J. Gibson, Niewald, Waldeck & Brown, Kansas City.
Before ULRICH, P.J., and LOWENSTEIN and BRECKENRIDGE, JJ.
This appeal arises out of a breach of contract action between Lindsey Masonry Company, Inc. (Appellant) and Jenkins & Associates, Inc. and St. Paul Insurance Company (Respondents). A counterclaim for breach of contract against Lindsey Masonry Company, Inc. filed by Jenkins was also tried.
Respondent Jenkins entered into a contract (prime contract) with the North Kansas City School District for the construction of an elementary school. Respondent St. Paul issued a payment bond to Jenkins for the construction project. Jenkins, as is customary in contract projects, entered into a masonry subcontract with Appellant Lindsey.
After work commenced, Lindsey allegedly encountered difficulties with the water supply and access to the construction project. In addition, Jenkins claimed dissatisfaction with Lindsey's work, culminating in the periodic payments under the construction project being slowed and then entirely stopped. This suit evolved from that conflict to determine what amounts, if any, under this subcontract were due from Jenkins or St. Paul to Lindsey for the work done on the project.
At trial, the jury returned the verdict in favor of Jenkins on both the contract claim and the counterclaim. The jury also entered a verdict in favor of Respondent St. Paul Insurance Company. Lindsey appeals, claiming eight points on appeal. The facts in this case are lengthy, and as such, will be included separately with the discussion of each of the points on appeal.
Lindsey claims the trial court erred: 1) by submitting to the jury a duplicate verdict form with the names of the plaintiff and defendant in reverse order, making the returned verdict presumptively prejudicial; 2) by submitting a "substantial performance" jury instruction where neither side advanced that legal theory in its case; 3) by refusing to submit Lindsey's three separate "breach of contract" theories in the verdict directors submitted to the jury; 4) by failing to submit a verdict director for Lindsey on its breach of contract claim; 5) by submitting Respondent St. Paul's "breach of contract" verdict director in Lindsey's claim against St. Paul; 6) by submitting St. Paul's "vexatious refusal to pay" verdict director; 7) by admitting evidence relating to involvement of the parties on other construction projects; and 8) by admitting evidence of Jenkins' offers of compromise and settlement which it claims are inadmissible in Missouri.
Each point is taken in order of submission.
Lindsey first claims the court committed presumptively prejudicial error in submitting duplicate verdict forms to the jury because those forms did not allow the jury the opportunity to find for Lindsey but, instead, only allowed a verdict for Jenkins.
The pertinent facts relating to this claim are as follows: At trial, following the submission of all evidence and a lengthy instruction conference, the Court read Instructions 2 through 16 to the jury. The Court did not read the three accompanying verdict forms: A (Lindsey v. Jenkins), B (Lindsey v. St. Paul) and C (Jenkins v. Lindsey). During closing argument, counsel for both Lindsey and Jenkins argued that Verdict Form A applied to Lindsey's claims against Jenkins. After deliberating for several hours the jury came back with a verdict, but had only filled out Verdict Form C, indicating in favor of Jenkins on Jenkins' counterclaim against Lindsey. The court sent the jury back into deliberation and told it not to return until it had filled out all three verdict forms. No objections by either side's counsel were made to the judge at this time.
When the jury returned, it was discovered by the trial judge that the prefatory language in Verdict Form A read "On the claim of defendant Jenkins and Associates Inc., against Plaintiff Lindsey Masonry Company, Inc.", instead of "On the claim of plaintiff Lindsey Masonry Inc. against defendant Jenkins & Associates, Inc." The court had counsel approach and the issue was discussed, and it was decided that Verdict Form A and Verdict Form C were duplicates. However, no objections were made by Lindsey's counsel. The court returned the proceedings to open court and the verdict was accepted. However, the court asked both attorneys if there was anything else it needed to do with the jury regarding this issue before discharging it. Counsel for Jenkins/St. Paul asked for clarification of the parties and claims addressed by Verdict Forms A and C. With regard to Verdict Form A, the court stated:
There is a typographical error in that someone in preparing Verdict A has inverted the parties. "On the claim of defendant Jenkins and Associates against plaintiff Lindsey Masonry Company, Inc., we the undersigned jurors find in favor of defendant Jenkins and Associates." Someone has provided me with an inverted A and I've used it by mistake.
Counsel for Lindsey had no requests or objections to the Verdict Forms. More importantly, Lindsey's counsel did not ask the court for any curative measures such as curative instructions or sending the jury to back to redeliberate with a corrected verdict form.
Only after the court discharged the jury and after any curative measure were possible, did Lindsey's counsel complain about the Verdict Form. At the very end of the trial (after verdict was accepted and jury excused), Lindsey's counsel admitted that perhaps he wasn't as involved as he should have been with this issue, but nevertheless, asked for a mistrial which the court denied.
On appeal, Lindsey claims the trial court erred in submitting the duplicate form of Verdict A. Lindsey claims such error is presumptively prejudicial, which shifts the burden to Jenkins to prove the jury was not prejudiced by the use of the duplicate form.
Lindsey's sub-points are, more specifically, as follows: 1) prejudice should be presumed from the submission of the wrong verdict form by the trial court; 2) such error harmed Lindsey because the trial court failed to correct the error before dismissing the jury; 3) because the trial judge admitted responsibility for the duplication, automatic harm should be presumed because Lindsey did nothing wrong; 4) the trial court erred in assuming the utilization of the wrong verdict form did not mislead the jury in its deliberation; and 5) since prejudicial error should be presumed by the court's acts, the burden shifts to Jenkins to prove that no actual prejudice resulted from the wrong jury form.
Although the forms in Lindsey's case did not allow a favorable result, under the peculiar facts here, Lindsey's arguments must fail. There is no dispute by either party that Verdict A was incorrect. Obviously, the prefatory language of Verdict A should have read "On the claim of plaintiff Lindsey Masonry Company, Inc., against defendant Jenkins & Associates, Inc. ...", unfortunately it did not. What appears to have happened was that Verdict C was duplicated and mistakenly submitted as Verdict A, so in actuality there were two Verdict C's. Lindsey argues that Verdict A was not only "presumptively prejudicial" but did, in fact, cause prejudicial error requiring reversal of the judgment entered by the trial court in favor of Jenkins on that claim.
The main problem with this claim is that a review of the record shows that no objections to the verdict form, nor requests for curative measures, were made to the judge prior to acceptance of the verdict and discharge of the jury. The error was picked up by Jenkins' counsel and the trial judge, who conversed in detail about the error before the judge discharged the jury. After it was discovered that the jury had returned its verdict on the incorrect verdict form, two bench conferences and additional discussion on the record concerning the effect of the submission. Lindsey's trial counsel had ample opportunity to complain or ask for a remedy at that time, yet failed to do so. Lindsey's counsel only commented that "A and C are duplicates" during the bench discussion. The discussion continued in open court, and Lindsey's counsel had every opportunity to speak up and, even if the trial judge overruled the objection, to preserve the issue for appeal. Only after the trial judge discharged the jury and after there was no longer anything the Court could do to solve the problem did Lindsey's counsel ask for a mistrial.
A party who has an objection to the verdict form must make the objection known prior to the time the court submits the verdict form to the jury. Turley Martin Co. v. American Can Co., 661 S.W.2d 79 (Mo.App.1983); Stacy v. Truman Medical Center, 836 S.W.2d 911, 924 (Mo. banc 1992); Davis v. Stewart Title Guar. Co., 726 S.W.2d 839, 857 (Mo.App.1987); Johnston v. Lerwick, 738 S.W.2d 868, 869 (Mo.App.1986). A party cannot stand idly by not making an objection and not bringing to the attention of the trial court it's errors; gamble on a favorable verdict; and then, when the result is adverse, complain. Reed v. Sale Memorial Hospital and Clinic, 741 S.W.2d 819 (Mo.App.1987). The purpose for this requirement is to ensure that the trial court is adequately informed and is given an opportunity to correct its errors. Id. Under these standards, it is apparent that Lindsey's counsel, knowingly or not, engaged in conduct similar to sandbagging. This is because the error was discovered after the jury had returned with a verdict adverse to Lindsey,...
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