Litton v. Kornbrust

• Decision Date: 24 September 2002
• Docket Number: No. WD 60536.,WD 60536.
• Citation: Litton v. Kornbrust, 85 S.W.3d 110 (Mo. App. 2002)
• Parties: Thomas C. LITTON, Appellant, v. Joseph L. KORNBRUST, Respondent.
• Court: Missouri Court of Appeals

85 S.W.3d 110

Thomas C. LITTON, Appellant, v. Joseph L. KORNBRUST, Respondent.

No. WD 60536.

Missouri Court of Appeals, Western District.

September 24, 2002.

COPYRIGHT MATERIAL OMITTED

Mark E. Parrish, Independence, MO, for appellant.

William S. Lewis, Trenton, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, THOMAS H. NEWTON, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Chief Judge.

On September 2, 1995, Appellant Thomas Litton was involved in a motor vehicle accident with Respondent Joseph Kornbrust near the driveway to Mr. Kornbrust's home at 123 Hauser Street in Marceline, Missouri. On September 21, 1999, Appellant filed a Petition for Damages against Mr. Kornbrust in the Circuit Court of Linn County alleging that Mr. Kornbrust had been negligent in the operation of his vehicle. Because Mr. Kornbrust was deceased, the trial court appointed a defendant ad litem pursuant to § 537.021.¹

Jury trial on the matter commenced on August 14, 2001. On August 15, 2001, the jury returned its verdict finding Appellant one hundred percent at fault for the accident. On August 24, 2001, the trial court entered its judgment consistent with the jury's verdict and ordered Appellant to pay the costs of the proceeding, including $1,993.60 in deposition costs. Appellant brings two points on appeal from that judgment.

In his first point, Appellant claims:

THE TRIAL COURT ERRED IN ALLOWING COUNSEL FOR RESPONDENT TO CROSS EXAMINE APPELLANT WITH TESTIMONY FROM PRIOR UNRELATED LITIGATION BECAUSE IMPEACHMENT ON A COLLATERAL MATTER BY THE USE OF EXTRINSIC EVIDENCE IS REVERSIBLE ERROR, IN THAT THE CROSS EXAMINATION OF APPELLANT WITH PRIOR TESTIMONY FROM A CASE REGARDING THE SALE OF A BUSINESS, WHERE APPELLANT WAS NOT A PARTY, WAS IMPEACHMENT WITH EXTRINSIC EVIDENCE OF A COLLATERAL MATTER IN APPELLANT'S PERSONAL INJURY CASE, WHERE NO LOST INCOME WAS CLAIMED, AND APPELLANT WAS THEREBY PREJUDICED.

Appellant then contends that "[b]ecause the appellate review of the admission of extrinsic evidence for the impeachment of a collateral matter is an issue of law, the standard of review is de novo." Appellant relies on ITT Commercial Finance Corporation v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), as support for this contention. Respondent concurs with this assessment of the standard of review in his own brief, adopting it word for word.

In so doing, both parties misstate our standard of review. Moreover, nothing in ITT Commercial Finance Corporation provides any support for the parties' purported standard of review. At the cited page, ITT Commercial Finance Corporation sets forth the standard of review on appeal where summary judgment has been granted. Id. at 376. There are no comments whatsoever in the opinion related to the scope of cross-examination or the admission of extrinsic evidence for the purposes of impeachment.

The proper standard of review is clearly set forth in the case law. "`It is well established that the extent and scope of cross-examination in a civil action is within the discretion of the trial court and will not be disturbed unless an abuse of discretion is clearly shown.'" Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000) (quoting Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 868-69 (Mo. banc 1993)). Likewise, "[t]he admissibility of evidence lies within the sound discretion of the trial court," Id., including the introduction of evidence for the purposes of impeachment. State v. Futo, 932 S.W.2d 808, 819 (Mo.App. E.D.1996). The trial court will not be found to have abused its discretion unless its "ruling was clearly against the logic of the circumstances, and so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration." Brantley v. Sears Roebuck & Co., 959 S.W.2d 927, 929 (Mo.App. E.D.1998).

During cross-examination by Respondent's counsel, Appellant offered the following testimony:

Q: Your business, Precision Performance Products, I think, it's my understanding that you sold that; correct?

A: Yes.

Q: Why did you sell it?

A: My inability to work in that and some other factors involved, it was better for the client, the manufacturer and all parties involved to transfer that ownership.

Q: So you were stating that you weren't physically able to perform your duties related to that company because of this motor vehicle accident?

* * *

A: That's correct.

Subsequently, Respondent sought to impeach this testimony by asking Appellant about prior statements Appellant had made under oath during the trial of a lawsuit filed by his wife. During that trial, Appellant testified that the reason the business had been sold was because of his wife's inability to work and did not mention any problems of his own.

Appellant objected to Respondent's questions about the prior testimony as "improper impeachment of a collateral matter by extrinsic evidence." The trial court overruled Appellant's objection and allowed Respondent to ask Appellant about his comments during the previous litigation. In this regard, Respondent elicited the following testimony:

Q: Mr. Litton, earlier we were talking about the business you were operating near the time or one of the businesses you were involved in at the time of the accident. Precision Performance Products, Incorporated. You recall that?

A: Yes.

Q: Do you recall or did you sell that business because sales dwindled?

A: Yes.

Q: And did you testify why sales dwindled in a previous matter?

A: Yes.

Q: And did you give your headaches or your physical condition as a reason why sales dwindled with respect to Precision Performance Products?

A: No.

This was the extent of the evidence that Appellant now complains of on appeal. Respondent did not present any further evidence in this regard. Appellant contends that, through this questioning, Respondent was improperly allowed to introduce "extrinsic evidence" of a collateral matter. In response, Respondent argues that this "extrinsic evidence" was properly admitted because was relevant to the case and did not relate to a collateral matter.

In our view, the parties misperceive the concept of "extrinsic evidence." "Extrinsic" means "from outside sources." Black's Law Dictionary, 6^th Ed. at 588 (1990). In the context of impeaching a witness with extrinsic evidence of a prior inconsistent statement, "extrinsic evidence" means evidence of the prior inconsistent statement "offered other than through the witness himself" (i.e. another witness that heard the inconsistent comment, a transcript of prior proceedings, an audio tape of the comment, etc.). State v. Foster, 854 S.W.2d 1, 8 (Mo.App. W.D. 1993) (quoting J.W. Strong, Editor, McCormick on Evidence § 49 (4^th ed.1992)); See also State v. Boyd, 871 S.W.2d 23, 26 (Mo.App. E.D.1993).

"It is elementary that prior inconsistent statements of a witness, whether made in or out of court, are admissible for impeachment as affecting the witness' credibility." State v. R.D.G., 733 S.W.2d 824, 828 (Mo.App. S.D.1987). Before extrinsic evidence may be used to impeach a witness with regard to a prior inconsistent statement, "`[t]he witness must be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it.'" Nichols v. Preferred Risk Group, 44 S.W.3d 886, 892 (Mo.App. S.D. 2001) (quoting Johnson v. National Super Mkts., Inc., 752 S.W.2d 809, 812 (Mo.App. E.D.1988)). Such testimony provides the necessary foundation for the admission of extrinsic evidence of the prior inconsistent statement. Id. However, "if a witness unequivocally admits he has made a prior inconsistent or contradictory statement, further proof thereof is unnecessary and inadmissible because the witness, by his admission, has thereby impeached himself." State ex rel. City of Warrensburg v. Stroh, 690 S.W.2d 215, 217 (Mo.App. W.D. 1985).

In the case at bar, Appellant was asked about his prior sworn testimony during cross-examination and admitted having offered that testimony in the previous litigation. Thereafter, Respondent did not seek to admit any extrinsic evidence of that prior testimony. Obviously, the trial court cannot be deemed to have erred in admitting extrinsic evidence of a prior inconsistent statement where no extrinsic evidence of the statement was ever even offered. Point denied.

In his second point, Appellant claims the trial court erred in assessing deposition expenses as taxable costs against Appellant under § 492.590. In its judgment, the trial court ordered Appellant to pay the costs of the proceedings. Included in the costs taxed to Appellant were $1,993.60 in deposition expenses incurred by the defense in the case. Appellant notes that under § 492.590 a party must have been "liable" for the deposition expenses and that the insurance company that paid those costs was not a party to the action. Appellant claims that no "party" can be deemed to have "incurred" those deposition expenses because Mr. Kornbrust was deceased, no estate had been opened on behalf of Mr. Kornbrust, and the defendant ad litem was not personally liable for the costs.²

Section 514.060 "clearly states that `[i]n all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.'" Moore v. Cordes, 19 S.W.3d 168, 169 (Mo.App. W.D.2000); See also Rule 77.01. Section 492.590.1 specifically provides that deposition expenses are to be considered taxable as costs.³ In Interest of J.P., 947 S.W.2d 442, 444 (Mo. App. W.D.1997). That section states, in relevant part:

The costs and expenses of depositions ... shall be awarded as a judgment in favor of the party or parties requesting the same ... Any party incurring such costs or expenses may request the taxing of such costs or expenses actually incurred by that party whether or not such depositions were taken at the...