Veal v. Kelam
| Decision Date | 23 June 2020 |
| Docket Number | No. ED 108179,ED 108179 |
| Court | Missouri Court of Appeals |
| Parties | Gary VEAL, Respondent, v. Stacey KELAM, Appellant. |
FOR APPELLANT: Richard C. Wuestling, M. Adina Johnson, Roberts Perryman, P.C., 1034 South Brentwood, Suite 2100, St. Louis, MO 63117.
FOR RESPONDENT: Christopher J. Finney, Alexander L. Ledbetter, Finney Injury Law, 1600 South Brentwood Blvd., Suite 220, St. Louis, MO 63114, Craig A. Schlapprizzi, Donald L. Schlapprizzi, P.C., 211 North Broadway, Suite 2430, St. Louis, MO 63102.
Stacey Kelam ("Appellant") appeals from the trial court's judgment, entered after a jury trial, awarding Gary Veal ("Respondent") $2.5 million for personal injuries sustained in a motor vehicle accident. Appellant brings four points on appeal. In her first point, Appellant argues the trial court erred in denying her motion for new trial because the trial court showed bias toward Respondent and his counsel during voir dire , which prejudiced the jury against her. In her second point, Appellant argues the trial court erred in denying her motions for new trial and remittitur because the jury's $2.5 million verdict was excessive. In her third point, Appellant argues the trial court erred in denying her motions for new trial and remittitur because, during closing argument, the trial court prohibited Appellant's counsel from arguing damages could not be awarded for Respondent's past or future medical treatment. Appellant's fourth point argues the cumulative effects of these errors entitle her to a new trial. We affirm.
On October 25, 2016, Appellant was in her vehicle attempting to turn left across Jeffco Boulevard heading southbound when she pulled in front of Respondent's vehicle headed northbound on Jeffco Boulevard and caused a collision. Respondent filed a petition ("Petition") seeking damages for Appellant's negligence related to the accident. Respondent alleged Appellant was operating her vehicle at an excessive speed when she failed to yield to the traffic on Jeffco Boulevard. Respondent alleged he sustained injuries to his cervical spine
, shoulder, and wrist due to the accident. Respondent also alleged he experienced inconvenience; loss of enjoyment of life; restricted mobility; isolation; anxiety regarding the injury; pain and suffering; numerous doctor appointments, invasive tests, and procedures; and emotional distress due to the accident. Respondent's Petition alleged he "suffered and [will] continue[ ] to suffer damages in excess of $25,000 ... on account of future medical costs, pain and suffering." On May 21, 2019, Respondent dismissed his claims for future medical costs.
A jury trial was held from June 12-14, 2019. The jury returned a $2.5 million verdict for Respondent, and the trial court entered judgment on the verdict. Appellant moved for a new trial, arguing she was entitled to one because: (1) the trial court precluded her counsel from discussing medical expenses during closing argument; (2) the jury's verdict was excessive and against the weight of the evidence; (3) the trial court's conduct during voir dire prejudiced the jury against her; and (4) the cumulative effects of these errors prejudiced her.1
This appeal followed. Additional facts will be included below as we address Appellant's points of error.
In her first point on appeal, Appellant urges the trial court erred in denying her motion for new trial because the trial court demonstrated improper bias for Respondent and his trial counsel during voir dire , which prejudiced the jury against her. Specifically, Appellant argues the trial court: (1) made statements suggesting the trial court "was working ... with Respondent in choosing the jury"; (2) "engaged with Respondent's counsel to discuss questions of law with the venirepersons"; and (3) "interacted with Respondent's counsel in a personal and familiar manner in sharp contrast to its interactions with Appellant's counsel." Appellant argues the trial court's conduct and statements deprived her of a fair trial.
Respondent maintains Appellant's first point on appeal is not properly preserved for review. We agree. To preserve a claim of error in a jury-tried case, an appellant must: "(1) timely object to the challenged [error] at trial; (2) restate the basis of objection in a motion for new trial per Rule 29.11(d) ;2 and (3) file a brief with this Court that complies with the rules of appellate procedure on the claim of error." See State v. Davis , 533 S.W.3d 781, 785-86 (Mo. App. S.D. 2017) (footnote in original). "A reviewing court will not consider objections ... raised for the first time on appeal and will not convict the trial court of an error it was given no opportunity to correct." State v. McClanahan , 202 S.W.3d 64, 70 (Mo. App. S.D. 2006) (citing Brown v. Jones Store , 493 S.W.2d 39, 41 (Mo. App. 1973) ).
Appellant concedes she did not object to the trial court's statements during voir dire she now challenges. However, she complains "there was no trial court ruling or singular statement to which counsel could practically object"; thus, an objection was unnecessary to preserve her claim of error. Appellant cites no case law, and we can find no case law, supporting her argument. Objections must be timely and specific. Connour v. Burlington N. R. Co. , 889 S.W.2d 138, 141 (Mo. App. W.D. 1994) (citing Appelhans v. Goldman , 349 S.W.2d 204, 207 (Mo. 1961) ). Appellant's failure to make a timely and specific objection renders her first point on appeal unpreserved.
Appellant's claim may be reviewed, if at all, for plain error. See Rule 84.13(c) ; see also State v. Gray , 887 S.W.2d 369, 378-80 (Mo. banc 1994) ( that, where no objection is made to a trial court's statements during voir dire, any claim challenging those statements on appeal may be reviewed only for plain error). But "[p]lain error review ... rarely is granted in civil cases." Mayes v. St. Luke's Hosp. of Kan. City , 430 S.W.3d 260, 269 (Mo. banc 2014) (citing St. Louis Cty. v. River Bend Estates Homeowners' Ass'n , 408 S.W.3d 116, 125 n.6 (Mo. banc 2013) ). Appellate courts "will review an unpreserved point for plain error only if there are substantial grounds for believing that the trial court committed error that is evident, obvious and clear and when the error resulted in manifest injustice or miscarriage of justice." Williams v. Mercy Clinic Springfield Cmtys. , 568 S.W.3d 396, 412 (Mo. banc 2019) (quoting Mayes , 430 S.W.3d at 269 ). Reversal for plain error in a civil case further requires the injustice to be "so egregious as to weaken the very foundation of the process and seriously undermine confidence in the outcome of the case." McGuire v. Kenoma, LLC , 375 S.W.3d 157, 176 (Mo. App. W.D. 2012) (quoting Atkinson v. Corson , 289 S.W.3d 269, 276-77 (Mo. App. W.D. 2009) ).
There is no basis for reviewing Appellant's claim for plain error. The record reveals the trial court did not show impartiality or bias for Respondent or his counsel during voir dire. Appellant complains the trial court made several statements suggesting it "was working ... with Respondent in choosing the jury." For example, Appellant complains the trial court made statements like "[t]hat's what our questions are about" and "[w]e just want to make sure that everything we get you to talk about ..." during Respondent's counsel's questioning. (emphasis added). However, the record reveals the trial court made several statements throughout voir dire suggesting the trial court and both parties were selecting the jury. For example, when addressing the venirepersons at the outset of voir dire before either Respondent's or Appellant's counsel began their questioning, the trial court stated, "[P]lease don't be offended if we don't choose you as a juror." (emphasis added). And at the conclusion of voir dire , the trial court stated, "[W]hen you are here, it shows us how important you take this." The trial court also told the venirepersons, "[W]e appreciate" the way questions were answered with honesty. (emphasis added).
Appellant also complains the trial court struck a venireperson for cause "on [Respondent's counsel]’s behalf during voir dire." (alteration omitted). However, the record shows the trial court did not strike the venireperson on Respondent's counsel's behalf. Instead, after one venireperson indicated she disagreed with the law allowing plaintiffs to recover damages for pain and suffering, the trial court stated, "We already know that you're going to object to her being on [the jury], and I'm going to take her off to cause." It is well within the trial court's "authority to act on [its] own initiative in excusing a juror" during voir dire. Presley v. State , 750 S.W.2d 602, 608 (Mo. App. S.D. 1988) (footnote omitted) (citations omitted). The trial court's decision to do so here did not indicate a bias or preference for Respondent or his counsel.
Appellant's complaint that the trial court "interacted with Respondent's counsel in a personal and familiar manner in sharp contrast to its interactions with Appellant's counsel" is similarly meritless. Appellant argues the trial court joked with Respondent's counsel about the pants he was wearing but did not extend Appellant's counsel the same familiarity, prejudicing the jury against her during voir dire. But the record shows trial court joked with Appellant's counsel by calling him "Clark Kent" rather than "Kevin Clark." The trial court's interactions with Appellant's counsel were just as friendly and personal as the trial court's interactions with Respondent's counsel.
Appellant urges us these facts and circumstances warrant reversal under plain error review despite the fact she did not object to the trial court's conduct during trial, just as the Springfield...
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...testimony from his treating physician regarding the continuing treatment required, the jury could have reasonably reached its verdict. See id. at 182 (jury's verdict of $2.5 million was based on evidence that as a result of injury plaintiff had difficulty performing his work). Moreover, as ......