Rogers v. Hester

• Decision Date: 01 December 2010
• Docket Number: SD 30167.,Nos. SD 30144,s. SD 30144
• Citation: 334 S.W.3d 528
• Parties: Arthur ROGERS and Norma Rogers, Husband and Wife, Plaintiffs–Respondents,v.Angela M. HESTER, Deceased by Ann MILLS, Defendant Ad Litem, Defendant–Appellant.
• Court: Missouri Court of Appeals

334 S.W.3d 528

Arthur ROGERS and Norma Rogers, Husband and Wife, Plaintiffs–Respondents,

v.Angela M. HESTER, Deceased by Ann MILLS, Defendant Ad Litem, Defendant–Appellant.

Nos. SD 30144

SD 30167.

Missouri Court of Appeals, Southern District, Division One.

Dec. 1, 2010.Rehearing Denied Dec. 23, 2010.Application for Transfer Denied

April 26, 2011.

Steven J. Hughes, St. Louis, MO, for Appellant.Cynthia O. MacPherson, Mountain Grove, MO, for Respondents.DON E. BURRELL, Judge.

Although this consolidated appeal ostensibly stems from an automobile collision that occurred in Springfield on November 7, 2002, in which Angela Hester (“Hester”) was killed and Arthur Rogers (“Plaintiff”) was injured, it has instead become a contest about the importance of everyone in court “playing by the rules” and what consequences should flow from a failure to do so. Ann Mills (“Defendant”) brought two separate appeals as Hester's Defendant ad Litem. The first (SD30144) purports to challenge a “judgment” entered after a “bench trial.” That “judgment” found that Plaintiff, by signing a document entitled “Release and Settlement Agreement” ¹ after first adding to it an additional term, had not agreed to settle all of his claims arising out of the collision for $50,000.

After the trial court found that no settlement had been reached, Plaintiff's claim against Defendant for injuries he allegedly suffered in the collision was tried to a jury.² At the conclusion of that trial, the jury found Defendant negligent and returned a $1,451,112 verdict in favor of Plaintiff. The trial court thereafter entered a judgment consistent with that verdict. Defendant's second appeal (SD30167) purports to challenge the trial court's denial of Defendant's subsequent post-trial motion requesting a new trial.³

Defendant presents six points that claim the trial court erroneously: 1) relied on inadmissible parol evidence in ruling that the “Release and Settlement Agreement,” as modified by Plaintiff, constituted a counter-offer, not an acceptance; 2) allowed Plaintiff to present seven different types of inadmissible evidence and make improper arguments to the jury; 3) allowed Plaintiff's counsel to misstate the law by asserting “that Defendant had the burden of proof of having Plaintiff examined by a medical doctor and/or valuing plaintiff's case[;]” 4) permitted Plaintiff to submit a claim for future damages unsupported by any evidence, admitted hearsay evidence regarding future damages, and then submitted a jury instruction regarding future damages; 5) admitted improper testimony from lay and expert witnesses; and 6) deprived Defendant of a fair and impartial jury due to the cumulative affect of the errors asserted in points two through five.

Because Defendant disregarded the rules governing how appeals are to be presented and decided, many of her claims of error were not properly preserved for our review and must be dismissed. Finding no merit in those that remain, we affirm the judgment of the trial court.

Background Facts

We here present the facts favorable to the jury's verdict.⁴ See Reiss & Goodness Eng'rs, Inc. v. City of Goodman, 303 S.W.3d 605, 610 (Mo.App. S.D.2010). On November 7, 2002, Plaintiff was operating a tractor-trailer unit on Division Street when Hester, traveling in the opposite direction in a pick-up truck she was driving, crossed the center line. Plaintiff moved his rig over to try and avoid Hester's oncoming vehicle but was unsuccessful in preventing a collision. Hester died of the injuries she received when the vehicles collided. Plaintiff declined medical attention at the scene but began feeling pain in his neck and back as he was riding from the scene with a co-worker. He “immediately” went to see his doctor, then saw another doctor approximately three-to-five days later, who ordered additional “follow-up.”

Eventually, Plaintiff received injections in his neck, spine and shoulder, had surgery on both shoulders, and engaged in physical therapy. He continued to experience neck pain and was no longer able to perform many of his previous activities. When Plaintiff tried to engage in those activities, he subsequently spent several hours at a time lying on the floor with his legs propped up to help relieve his resulting pain.

At the jury trial, in addition to his own testimony, Plaintiff presented the live testimony of a vocational rehabilitation counselor, a physical therapist, a medical evaluation expert, an economist, witnesses to the accident scene, witnesses familiar with Plaintiff and his activities, and the videotaped depositions of two treating doctors.

The only evidence presented by Defendant—other than testimony elicited through the cross-examination of Plaintiff's witnesses—consisted of playing for the jury a portion of Plaintiff's videotaped deposition. Additional relevant facts will be set forth below in the context of our discussion of the particular point to which they relate.

The Deficiencies in Defendant's Brief Substantially Impede Appellate Review

In both a separate motion to dismiss and in his brief, Plaintiff asks us to dismiss Defendant's appeal based on briefing deficiencies regarding Defendant's statement of facts, points relied on, and argument. See Rule 84.04(a), (c), (d), (i), and Rule 81.12(e).⁵ “A brief that fails to comply with Rule 84.04 preserves nothing for appellate review. Compliance with the requirements of Rule 84.04 is mandatory.” State ex rel Koster v. Allen, 298 S.W.3d 139, 144 (Mo.App. S.D.2009) (internal citation omitted). An appellant who files a brief that violates the requirements of Rule 84.04 risks having his appeal dismissed. Id. at 145. But a dismissal based on briefing deficiencies is not the preferred result, and appellate courts have the discretion to consider a defective point if the deficiencies involved are not so serious as to impede review. See Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo.App. E.D.2010). “A brief impedes disposition on the merits if it fails to give notice to the other parties and to the appellate court of the basis for the claimed error.” Bolz v. Hatfield, 41 S.W.3d 566, 571 (Mo.App. S.D.2001). When review is impeded, “a point must be disregarded, reviewed only for plain error, or the appeal with respect to that point dismissed.” Id.

Although none of Defendant's points fully comply with the requirements of Rule 84.04, we find that the nature and degree of the deficiencies involved allow us to place them into two separate categories. Points II, IV, and V are hopelessly deficient and are dismissed.⁶ Points I, III, and VI are not so deficient as to impede appellate review and will be addressed on the merits. ⁷ Before we address Defendant's points, we begin our review with some examples of problems with the statement of facts and argument sections of her brief.

Defendant's Statement of Facts Violates Rule 84.04(c)

Plaintiff asserts Defendant's statement of facts is deficient because:

(1) it is not a fair recitation of the facts relevant to this Court's review; (2) it omits the facts relied on by [Plaintiff] which support the trial court's rulings; (3) it contains argument and improper commentary on the evidence; (4) it is inaccurate, incomplete and misstates the evidence; and (5) it fails to include proper page references to the transcript.

Defendant responds that she is not disputing the facts of the accident and is instead focused on the “unfairly prejudicial impact of Plaintiff's counsel's actions and the trial court's ineffective or non-existent attempts to cure Plaintiff's counsel's improprieties before the jury and Plaintiff's improper submission of certain evidence.”

Rule 84.04(c) provides that “[t]he statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Interspersing argument throughout the statement of facts violates Rule 84.04. Allen, 298 S.W.3d at 143. Defendant's statement of facts improperly contains argument. The following is a representative sample with identification of the nature of the offense contained in parenthetical statements.

• “Plaintiff[ ] accepted [Hester's] offer by signing the ‘General Release’ on February 29, 2008 before a notary public.” (Whether Plaintiff's signing of the release constituted the acceptance of an offer was the ultimate issue in dispute at the parties' “bench trial”)

• “At the time of the execution of the ‘General Release,’ Plaintiff [ ] purportedly stamped a modification to the original General Release that states:....” (Suggesting that Plaintiff may not have added a modification to the release is argumentative)

• “In closing, [Plaintiff's counsel] repeatedly made ‘Golden Rule’ type argument [sic] to the jury.” (Defendant's classification of opposing counsel's arguments is argumentative)

• “Plaintiff['s] counsel misstated the law to the jury during closing argument by arguing that Defendant had the burden of the proof [.]” (Defendant's conclusion that counsel misstated the law is argumentative)

• “Plaintiff's counsel continued to suggest that Defendant had a burden of proof[.]” (Defendant's statement that counsel continued to suggest a legal burden is argumentative)

• “During opening statement, Plaintiff's counsel, without first raising the issue with the trial court or defense counsel, injected hearsay into the trial [.]” (Defendant's assertion that certain evidence was hearsay is argumentative)

• “Plaintiff's counsel suggested, in referencing hearsay reports of various doctors, as if they were going to testify, although they did not, that [Plaintiff] was going to need neck surgery.” (Defendant's conclusions that counsel was suggesting a particular matter and that it was done with the use of hearsay are argumentative)

• “[Plaintiff's counsel] ignored the Court's instruction[.]” (Defendant's conclusion that counsel disregarded the trial court's directive is argumentative)

• “Plaintiff's counsel also exceeded the...