Palmer v. Colle

• Decision Date: 04 December 2018
• Docket Number: No. ED 106440,ED 106440
• Citation: 569 S.W.3d 482
• Court: Missouri Court of Appeals
• Parties: Phyllis PALMER, Plaintiff/Appellant, v. Kyle O. COLLE, D.O., and Regional Brain & Spine, LLC, Defendants/Respondents.

569 S.W.3d 482

Phyllis PALMER, Plaintiff/Appellant,
v.
Kyle O. COLLE, D.O., and Regional Brain & Spine, LLC, Defendants/Respondents.

No. ED 106440

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

Filed: December 4, 2018
Application for Transfer to Supreme Court Denied January 14, 2019
Application for Transfer Denied April 2, 2019

Shawn D. Young, 64 East State Highway 162, Portageville, MO 63873, For Plaintiff/Appellant.

Ted R. Osburn, Mark R. Dunn, 3071 Lexington Avenue, Cape Girardeau, MO 63701, For Defendants/Respondents.

SHERRI B. SULLIVAN, J.

Introduction

Phyllis Palmer (Appellant) appeals from the trial court’s denial of her Motion to Vacate and Set Aside Judgment on Jury Verdict and Motion for New Trial (motion for new trial) following judgment entered upon a jury verdict in favor of Kyle O. Colle, D.O. (Respondent Colle) and Regional Brain & Spine, LLC (Respondent RBS) (collectively Respondents). We affirm.

Facts and Background

The underlying cause arises from medical treatment received by Appellant. On October 13, 2013, Respondent Colle performed surgery on Appellant, during which Appellant’s small bowel was perforated. Appellant filed a medical malpractice suit against Respondents on October 15, 2015, seeking damages for the injury. The trial began January 29, 2018, in front of Judge Benjamin F. Lewis (Judge Lewis), one of the two trial judges for Cape Girardeau County.

After a three-day trial, the jury found in favor of Respondents. On February 12, 2018, Appellant filed her motion for new trial. The motion is based on Appellant’s alleged discovery after the trial that Judge Lewis sits on the board of directors of SoutheastHealth, a regional system of hospitals in Cape Girardeau and the surrounding area. On its website, SoutheastHealth

569 S.W.3d 484

holds itself out to be affiliated with Respondent RBS, a group of doctors of which Respondent Colle is a member. In Appellant’s view, Judge Lewis’s position as a board member of an organization that is a party to litigation in his court violates Missouri Supreme Court Rule 2-2.11,¹ requiring a judge to recuse himself in certain situations. In support of the factual allegations in the motion, Appellant attached three exhibits, which were screen captures taken from SoutheastHealth’s website: one listing the members of its board of directors, the two others involving their association with Respondent RBS.

On February 21, 2018, Respondents filed a memorandum in opposition to the motion. Attached to this memorandum were three affidavits, two from the attorneys representing Respondents, and one from Kevin W. Holtzhouser, administrator for Respondent RBS. The affidavit from Ted R. Osburn, attorney for Respondents, states his recollection of the case’s proceedings. He recalls Judge Lewis ruling in Respondents' favor on a motion in limine, overruling all but one of Respondents' objections during the trial, ruling once each for Appellant and Respondents on pretrial issues not agreed to in advance, and accepting a jury instruction from Appellant over Respondents' objection. This affidavit also noted Judge Lewis’s conduct throughout the trial was professional and respectful to both parties.

Holtzhouser’s affidavit stated Respondent RBS and SoutheastHealth have no ownership interest in one another and exert no control over one another’s decisions or policies in any way. They are not affiliates, subsidiaries, or sister corporations. Respondent RBS does, however, lease office space from SoutheastHealth, and Respondent RBS medical staff have medical staff privileges at SoutheastHealth hospitals.

Judge Lewis denied Appellant’s motion for new trial. This appeal follows.

Points Relied On

In her first point on appeal, Appellant claims Judge Lewis erred by not sua sponte recusing himself due to his position on the board of directors of Southeast-Health. In her second point, Appellant claims because Judge Lewis was subject to recusal under Rule 2-2.11, it was error for him not to disclose his position to the parties so they may have chosen whether to waive recusal.

Standard of Review

As stated above, Appellant attached three exhibits to her motion requesting a new trial. She did not, however, accompany her motion with affidavits or any verification of the website’s veracity. Rule 78.05² governs after-trial motions based upon facts not appearing in the record. It reads, in relevant part: "When any after-trial motion, including a motion for new trial, is based on facts not appearing of record, affidavits may be filed which affidavits shall be served with the motion."

Appellant suggests because Rule 78.05 says litigants "may" attach affidavits to after-trial motions, this means such affidavits are optional and thus she was under no requirement to do so. This would mean Appellant, and other litigants, are free to base motions for a new trial on facts outside the record offered via unauthenticated exhibits attached to such motions. Appellant’s assertion is incorrect.

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"Exhibits attached to motions filed with the trial court are not evidence and are not self-proving." Regions Bank v. Alverne Associates, LLC, 456 S.W.3d 52, 58 (Mo. App. E.D. 2014) (quoting Powell v. State Farm Mut. Auto. Ins. Co., 173 S.W.3d 685, 689 (Mo. App. W.D. 2005) ). While affidavits are one method of authenticating evidence attached to a motion, they are not the sole method; litigants also may utilize other means of authentication, including depositions and oral testimony. Powell, 173 S.W.3d at 689. Evidence properly in the record, and authenticated by sufficient means, is required not only for the trial court’s review for an after-trial motion, but the appellate court’s review as well; failure to provide a comprehensive...