MFA Inc. v. Dettler
| Decision Date | 25 October 1991 |
| Docket Number | No. 17177,17177 |
| Citation | 817 S.W.2d 658 |
| Parties | MFA INCORPORATED, Plaintiff-Appellant, v. Greg DETTLER, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
James A. Broshot, Mazzei and Broshot, Charles R. Leick, of counsel, Steelville, for plaintiff-appellant.
Tom McGinn, Cuba, for defendant-respondent.
In this suit on a promissory note, the holder of the note, MFA Incorporated, appeals from a judgment in favor of the defendant maker, Greg Dettler, entered in accordance with a unanimous jury verdict.
On appeal, MFA claims the trial court erred in (a) allowing prejudicial closing argument by the defendant's counsel, (b) submitting the defendant's converse instruction, and (c) refusing to sustain MFA's post-trial motions which challenged the sufficiency of the evidence to support the verdict.
Finding no prejudicial error by the trial court, we affirm.
In 1983, the defendant bought agricultural chemicals from Cooperative Association No. 204 for use as weed control on 40 acres of soybeans. Following the practice at the cooperative, the defendant intended to sell his soybeans to the cooperative and his chemical bill would be deducted from the crop sale proceeds. However, his 1983 crop failed because of lack of weed control. He returned his unused chemicals to the cooperative for credit in late 1983. After credits, the unpaid balance on the defendant's bill was $1,770.42. The defendant complained to the cooperative's manager that the chemicals were "bad." The manager told the defendant that he would "look into it and try to adjust the bill or take care of the matter."
The defendant continued to receive statements requesting payment on his account, and he continued to discuss the status of his account with the cooperative's manager until the manager retired in 1985. The manager repeatedly told the defendant "he would take care of it." However, because of an 18% annual finance charge levied on unpaid accounts, the defendant's account balance had grown to $3,026.79 by February 1988.
In March 1988, the defendant received a statement from the cooperative which listed "Ticket No. 37201" and described the transaction as follows:
DESCRIPTION AMOUNT CHARGE BALANCE
CREDIT
INTEREST PATRON 80.00"
ALLOW DOUBT ACCT 2,946.79" 3,026.79" .00
NEW BALANCE DUE 0.00
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In July 1988, Cooperative Association No. 204 and MFA signed a consolidation agreement. The agreement was not offered into evidence, and the record concerning the terms of the agreement is contradictory. At trial, Evelyn Carstons, area credit manager for MFA, testified there was an agreement under which MFA would purchase the assets of Cooperative Association No. 204. Yet, when asked if MFA purchased the assets of the cooperative, she replied, "I can't answer that." Further, when asked if any document existed which listed the defendant's account with Cooperative Association No. 204 as one of the assets which was "given to MFA Incorporated ... by Cooperative Association No. 204," Carstons again replied, When asked the balance on the defendant's account as of July 1, 1988, the consolidation date, the credit manager answered, "$3,026.79." However, when asked to identify the statement showing that balance, she identified Exhibit A-1 (the statement showing the defendant's balance with Cooperative Association No. 204 to be zero).
The defendant's evidence concerning the account balance was that his original account with Cooperative Association No. 204 showed a zero balance before MFA became involved, and he believed the zero balance resulted from an adjustment to his account because of "bad chemicals."
On April 7, 1989, in response to a series of telephone calls by Carstons to his home, the defendant went to the MFA office. He testified he went because MFA was threatening to sue him if he did not sign a promissory note. On that date he signed the promissory note for $2,826.79 which is the subject of this action.
At trial the defendant gave multiple reasons why he signed the note. He said that, at the time he signed, he had forgotten about receiving the statement showing a zero balance. He testified he was "scared of being sued" and he thought he could "buy some time" by signing the note. He also said that Carstons told him he could get credit with Ag-Mo Incorporated, an affiliate of MFA, which makes loans to farmers, if he signed the note. The defendant testified that he did not receive "anything at all of value" or "any benefit" in exchange for signing the note. MFA's evidence was that the defendant gave the note as payment on his unpaid account with Cooperative Association No. 204 which had been acquired by MFA.
Among the defenses pled by the defendant was failure of consideration. Additional facts concerning the defendant's closing argument and the challenged jury instruction will be set forth as those matters are discussed.
In Point I, MFA argues that the trial court erred in not granting it a new trial because of "gross misconduct" of the defendant's counsel which "inflamed the passion and prejudice of the jury and denied [MFA] a fair trial." Specifically, MFA complains that the defendant's counsel argued an unpled and unproven statute of limitation defense after repeated admonition by the court to not refer to that defense. Additionally, MFA complains that the defendant's counsel compared it and its employees to "a thief." Finally, in the argument portion (but not in the point relied on), MFA complains of other "improper argument" by the defendant's counsel.
In developing its argument, MFA first complains of a cross-examination question to Carstons, as follows:
MR. McGINN: I'll withdraw that question.
THE COURT: Your--your objection will be sustained, and your request will be granted. Mr. McGinn, we've been over that several times.
MFA made no request that the jury be admonished to disregard the question and no request for a mistrial.
MFA next points to the following closing arguments by the defendant:
MR. McGINN: [T]hen to get sued in a court of law eight years later and have all these papers and your life at unrest ... that's what this case is about.
No objection was lodged by MFA to this argument. Later, in the closing argument, the following occurred:
MR. McGINN: They didn't sue on the account. Why they couldn't sue. Six years had gone by.
MR. McGINN: Why was this note signed? Is the plaintiff corporation clever?
Thereupon, MFA's counsel asked to approach the bench and the following transpired:
Admonished, the defendant's counsel made no further reference to a time delay in bringing the suit and no further argument about the statute of limitations. However, MFA now complains, "Stymied in this approach, counsel then elected to close his argument by comparing MFA to a thief, and then informing the jury that, contrary to well-established practice, he would be entitled to surrebuttal after MFA's rebuttal argument." Additionally, MFA contends, it was denied a fair trial because of the defendant's argument that "they [MFA] ought to be sent back to Columbia with an important message." We reject Point I for the following reasons.
First, at the time the defendant's counsel made his argument, MFA's counsel made no objection to the "thief" statement, the "surrebuttal" comment, or the "send a message" argument. In the "rough and tumble" tactics of trial, counsel might overstep the bounds of propriety in argument, but not every indiscretion should automatically result in a mistrial. Gilmore v. Union Const. Co., 439 S.W.2d 763, 766 (Mo.1969). For this reason, the rule has always been that a timely and sufficient objection must be made so that the trial court can take corrective measures to remove the prejudice. Id. By failing to make timely objection during trial, the plaintiff waived the objections. Blevins v. Cushman Motors, 551 S.W.2d 602, 616 (Mo.banc 1977); Sherpy v. Bilyeu, 608 S.W.2d 521, 523 (Mo.App.1980).
MFA did object, at least in part, to the "statute of limitations" argument and the trial court sustained the objection. The trial court also granted the relief sought by MFA, namely, an admonition to the defendant's counsel that a future "statute of limitations" argument would result in a mistrial. MFA sought no other relief. However, MFA now argues that the trial court erred because it had a duty to "restrain and purge" the argument because it was an impermissible misstatement of the law. See, e.g., Fahy v. Dresser Industries, Inc., 740 S.W.2d 635, 641 (Mo. banc 1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988). We reject that argument for the following reasons.
When a trial court is confronted with a particular situation, what it should do depends on the nature of the argument, the form and character of the objection, the action requested of the court, the subsequent conduct of the offending counsel, and the issues and general atmosphere of the case. Gilmore, 439 S.W.2d at 766. Here, the trial court gave...
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