Marquis Fin. Servs. of Ind. Inc. v. Peet

• Decision Date: 27 March 2012
• Docket Number: No. ED 96678.,ED 96678.
• Citation: 365 S.W.3d 256
• Parties: MARQUIS FINANCIAL SERVICES OF INDIANA INC., d/b/a Marquis Financial Services, Inc., Plaintiff/Respondent, v. Frederick J. PEET, Jr., Defendant/Appellant, and Steven W. Koslovsky, and Steve Koslovsky, LLC, Defendants.
• Court: Missouri Court of Appeals

365 S.W.3d 256

MARQUIS FINANCIAL SERVICES OF INDIANA INC., d/b/a Marquis Financial Services, Inc., Plaintiff/Respondent,

v. Frederick J. PEET, Jr., Defendant/Appellant,andSteven W. Koslovsky, and Steve Koslovsky, LLC, Defendants.

No. ED 96678.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 27, 2012.

Robert P. Berry, Jessica W. Kennedy, Ravi K. Nangia, Berry & Maxson, LLC, St. Louis, MO, for appellant.

Michael B. Katz, MBK and Associates, LLC, St. Louis, MO, for respondent.

Brent W. Baldwin, The Baldwin Law Group, St. Louis, MO, for defendants Steven W. Koslovsky and Steve Koslovsky.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff, Marquis Financial Services (Marquis), filed a lawsuit against defendant Frederick J. Peet, Jr., M.D., and his attorney. After the claims against Dr. Peet's attorney were disposed of by dismissal and summary judgment, the case was submitted against Dr. Peet alone on theories of fraud (Count VII) and unjust enrichment (Count VI). The jury returned verdicts in Marquis's favor. The jury assessed $0 in actual damages and $500,000 in punitive damages on the fraud count. The jury assessed $431,034.14 in actual damages and $38,793.07 in interest on the unjust enrichment count. The trial court entered judgment for Marquis in the amounts of $431,034.14 in actual damages, $38,793.07 in interest, and $500,000 in punitive damages. We reverse the award of punitive damages and remand for entry of judgment notwithstanding the verdict on the fraud count. In all other respects, we affirm.

DISCUSSION

I. Preservation of Error

Dr. Peet's first five points on appeal each claim error in the denial of his Motion for Directed Verdict and Motion for JNOV ¹ or, in the alternative, a New Trial. His sixth point asserts error in the denial of his Motion in Limine and Motion for JNOV or, in the alternative, a New Trial. We first consider whether all of these points are preserved for review.

A. Error in Denial of Motions for Directed Verdict and JNOV/New Trial

“The purpose of motions for directed verdict and JNOV is to ‘challenge the submissibility of the plaintiffs case.’ ” Newell Rubbermaid v. Efficient Solutions, 252 S.W.3d 164, 170 (Mo.App.2007) (quoting Coon v. Dryden, 46 S.W.3d 81, 88 (Mo.App.2001)). “ ‘A case is not to be submitted to the jury unless each fact essential to liability is predicated upon legal and substantial evidence.’ ” Newell Rubbermaid, 252 S.W.3d at 170 (quoting Coon, 46 S.W.3d at 88).Rule 72.01(a) requires a motion for a directed verdict to “state the specific grounds therefore.” If a motion for directed verdict fails to comply with the requirements of Rule 72.01(a), then it “neither presents a basis for relief in the trial court nor preserves the issue in the appellate court.” Howard v. City of Kansas City, 332 S.W.3d 772, 790 (Mo. banc 2011); see also Pope v. Pope, 179 S.W.3d 442, 451 (Mo.App.2005) (en banc); Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 163–64 (Mo.App.1997) (en banc). Mere conclusions and “bare generalities” are insufficient to preserve an error for our review. Pope, 179 S.W.3d at 452–54, 459.

If a defendant presents evidence after the denial of its motion for a directed verdict at the close of plaintiff's evidence, the defendant waives any error in the trial court's denial of the motion at the close of plaintiff's evidence. Polovich v. Sayers, 412 S.W.2d 436, 438 (Mo.1967); Senu–Oke v. Modern Moving Sys., Inc., 978 S.W.2d 426, 431–32 (Mo.App.1998). In order to preserve a ground for directed verdict that is contained in a motion for directed verdict at the close of plaintiff's evidence, the defendant must reassert it in the motion for directed verdict at the close of all the evidence. Goede v. Aerojet General Corp., 143 S.W.3d 14, 18 (Mo.App.2004).

A sufficient motion for directed verdict at the close of all the evidence is required to preserve an issue for a motion for JNOV. Id. If the motion for directed verdict is insufficient, a “subsequent post-verdict motion is without basis and preserves nothing for review.” Howard, 332 S.W.3d at 790;Pope, 179 S.W.3d at 451.

Accordingly, a defendant's failure to file a motion for directed verdict which states the specific grounds therefor not only precludes the defendant ‘from obtaining a judgment notwithstanding the verdict in its favor,’ but also ‘further precludes it from obtaining appellate review of the trial court's failure to enter judgment notwithstanding the verdict[.]’

Id. at 457 (quoting Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 137–38 (Mo.App.1999)). A party cannot save a defective motion for directed verdict by making specific allegations in the motion for JNOV. Pope, 179 S.W.3d at 457–58.

Finally, a motion for a new trial is not an appropriate motion for challenging the denial of a directed verdict at the close of all the evidence and does not present any ground for appellate review. Buttram v. Auto–Owners Mut. Ins. Co., 779 S.W.2d 1, 2–3 (Mo.App.1989). If a plaintiff did not make a submissible case, the defendant is only entitled to judgment notwithstanding the verdict, not a new trial. Id.

In light of these principles, we address points one and three. For the reasons that follow, these points were not preserved.

1. Res Judicata/Collateral Estoppel (Point I)

Dr. Peet's first point asserts that the trial court erred in denying his Motion for Directed Verdict and Motion for JNOV or, in the alternative, a New Trial because collateral estoppel and res judicata barred Marquis's claim, or the claim was an improper attack on the original default judgment.Dr. Peet's written motion for a directed verdict at the close of all the evidence did not assert a right to a directed verdict on his affirmative defenses of res judicata and collateral estoppel, or because the petition was an improper attack on the original default judgment. Likewise, in his oral motion for directed verdict at the close of all the evidence, Dr. Peet did not seek a directed verdict on any of these defenses. Because these issues were not raised in either the oral or written motions for directed verdict at the close of all the evidence, they were not preserved and could not be preserved by the motion for JNOV or alternate motion for a new trial. See Howard, 332 S.W.3d at 790–91;Pope, 179 S.W.3d at 452–53, 457–58. Point one is denied.

2. Unjust Enrichment (Point III)

For his third point, Dr. Peet asserts that the trial court erred in denying his Motion for Directed Verdict and Motion for JNOV or, in the alternative, a New Trial because there was no evidence to establish unjust enrichment. In his written motion for directed verdict at the close of all the evidence, Dr. Peet did not assert any claim for a directed verdict on the unjust enrichment count. In his oral motion for directed verdict at the close of all the evidence, Dr. Peet's counsel discussed the insufficiency of the evidence of fraud, but did not discuss the insufficiency of the evidence of unjust enrichment. Rather, with respect to unjust enrichment, counsel merely stated, “This Court should enter a judgment for Dr. Peet and against Marquis on Count VI of [Marquis's] petition, Marquis' count for unjust enrichment.” Dr. Peet's bare assertion that the trial court should enter judgment in his favor on the unjust enrichment count without specifying the grounds therefore is insufficient to comply with Rule 72.01 and preserves nothing for our review. Howard, 332 S.W.3d at 790–91;Pope, 179 S.W.3d at 452–53, 459;seeRule 72.01(a). Since Dr. Peet did not specify the grounds on which he sought a directed verdict on the unjust enrichment count, this claim is not preserved and cannot be preserved by his motion for JNOV or new trial. See Howard, 332 S.W.3d at 790–91;Pope, 179 S.W.3d at 452–53, 457–58. Point two is denied.

B. Error in Denial of Motion in Limine

Dr. Peet's sixth point contends that the trial court erred in denying his Motion In Limine and Motion for JNOV or, in the alternative, a New Trial. To preserve an issue that evidence was improperly admitted, it is not enough for a party to rely solely on the ruling denying a motion in limine. “Rulings on motions in limine are interlocutory and subject to change during the course of the trial.” Hancock v. Shook, 100 S.W.3d 786, 802 (Mo. banc 2003) (quoted in Peters v. General Motors Corp., 200 S.W.3d 1, 15 (Mo.App.2006)). “A motion in limine, by itself, preserves nothing for appeal.” Hancock, 100 S.W.3d at 802;Peters, 200 S.W.3d at 15.See also Wilkerson v. Prelutsky, 943 S.W.2d 643, 646 (Mo. banc 1997).

To preserve an evidentiary issue for appeal after the denial of its motion in limine, a party is required to object at trial to the introduction of the evidence and to reassert the objection in post-trial motions. Peters, 200 S.W.3d at 15. Further, the point relied on should identify the court's ruling on the objection as the error. See Andersen v. Boggs, 219 S.W.3d 818, 819–820 (Mo.App.2007); Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210, 221 (Mo.App.1990). A point relied on that refers only to a ruling on a motion in limine is deficient. Wilkerson, 943 S.W.2d at 647.If the point does not impede disposition on the merits, we may review the point. Id.

Here, Dr. Peet does not identify an objection to evidence and a ruling thereon in his point relied on. Moreover, in his argument under this point, Dr. Peet never indicates when the evidence of which he complains was offered at trial, that he objected to it at trial, or that the trial court ruled on any objection. His argument only discusses the denial of his motion in limine. As a result, he has not identified any erroneous ruling of the trial court that has been preserved for appeal. Review on the merits in this situation is not available. See Andersen, 219 S.W.3d at 819–20;Henderson v. Fields, 68 S.W.3d 455, 469 (Mo.App.2001). Point six is denied.

II. Punitive Damages (Points IV and V)

In his fourth and fifth points, Dr. Peet asserts that the trial court...