Othman v. Wal-Mart Stores, Inc.

• Citation: 91 S.W.3d 684
• Decision Date: 03 December 2002
• Docket Number: No. ED 80597.,ED 80597.
• Parties: Jewel OTHMAN, Plaintiff/Respondent, v. WAL-MART STORES, INC., Defendant/Appellant.
• Court: Court of Appeal of Missouri (US)

Page 684

91 S.W.3d 684

Jewel OTHMAN, Plaintiff/Respondent, v. WAL-MART STORES, INC., Defendant/Appellant.

No. ED 80597.

Missouri Court of Appeals, Eastern District, Division Four.

December 3, 2002.

COPYRIGHT MATERIAL OMITTED

Stefan Glynias, Dean Stark, St. Louis, for appellant.

Brian Harvell, Clayton, for respondent.

WILLIAM H. CRANDALL, JR., P.J.

Defendant, Wal-Mart, Inc., appeals from the judgment of the trial court, entered pursuant to a jury verdict, in favor of plaintiff ad litem, Jewell Othman, in an action for personal injuries sustained by her husband, John Othman, in a fall on Wal-Mart's premises. We affirm.

Viewed in the light most favorable to the verdict, the evidence established that Jewell and John Othman went to a Wal-Mart store on January 1, 1997. At that time, John was 89 years of age and Jewell was 86. They followed some people through a set of outside doors that were strapped open. As they attempted to enter the interior doors into the store, the doors, which were automatic, began to close. At that point, John stopped, started to turn, fell against the railing, and landed on the ground. He broke his femur and required surgery to insert a metal rod and pins into his leg. He was in the hospital until January 10, 1997. After that date, he went to a nursing home until his death in March 1997.

Wife brought the present action against Wal-Mart as plaintiff ad litem for the personal injuries to John and as an individual plaintiff for loss of consortium. The jury returned a verdict in favor of John in the amount of $250,000.00, but found that John was 50 percent at fault; and against Jewell on her loss of consortium claim. The trial court entered judgment against Wal-Mart and in favor of the plaintiff ad litem in the amount of $125,000.00. Wal-Mart appeals.

Wal-Mart's first point is that the "trial court erred in failing to grant [Wal-Mart] a new trial due to the prejudicial error committed ... when Jewell Othman testified, contrary to a stipulation of the parties and order of the Court entered in this matter, concerning the death of her husband, said failure which resulted in a verdict which was clearly excessive and based upon facts that were not to be considered but produced passion and prejudice in the jury." The point on appeal relates to the following testimony by Jewell regarding John's death:

[Plaintiff's Counsel]: Did you stay at the hospital next to Mr. Othman through January 10, 1997?

[Jewell]: I stayed there until March 3rd, the day he died. Except that they let him out, or took him to the nursing home called the Manor, and I don't recall how many days we were there. And I spent night and day with him there. Then he had to return to the hospital.

At this point, Wal-Mart requested a mistrial, which the trial court denied. The court, however, did strike the answer as non-responsive and instructed the jury to disregard it.

Here, Wal-Mart's point relied on states that the trial court erred in failing to grant a new trial. It does not allege that the court committed error in the admission of the evidence, because there was none. The error, if any, was in the trial court's refusing to grant a mistrial when Jewell made the non-responsive statement.

Rule 84.04 requires that where an appellant files a brief with the appellate court, each point relied on must: (1) identify the trial court ruling or action that the appellant challenges; (2) state concisely the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. Rule 84.04(d)(1). A point relied on which "does not state `wherein and why' the trial court erred does not comply with Rule 84.04(d) and preserves nothing for appellate review." Smith v. Independence Tax Increment Finance Comm'n., 919 S.W.2d 292, 294 (Mo. App. W.D.1996); In re Marriage of Kempf, 825 S.W.2d 667, 668 (Mo.App. S.D. 1992). The requirement that "the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts. It is rooted in sound policy." Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). The function of this rule is to give notice to the opposing party of the precise matters that must be contended with and to inform the court of the issues presented for review. Nichols v. Mama Stuffeati's, 965 S.W.2d 171, 177 n. 1 (Mo.App. W.D.1997). Here, Wal-Mart's point relied on was defective because it did not comply with Rule 84.04 and thus did not preserve any claim of error for our review.

Even addressing the claim of error as if it related to the trial court's failure to declare a mistrial, we find no error. The decision to grant a mistrial lies within the sound discretion of the trial court and an appellate court will not disturb the trial court's decision absent abuse of discretion. Howe v. ALD Services, Inc., 941 S.W.2d 645, 653 (Mo.App. E.D.1997). Here, there was no prejudice to Wal-Mart. The jury already knew about John's death because plaintiff's counsel mentioned it during voir dire. Further, Jewell's statement that John died was simply non-responsive. The court took corrective action by striking her statement and admonishing the jury to disregard it. Wal-Mart's first point is denied.

In its second...