Woods v. Friendly Ford, Inc.

• Decision Date: 28 March 2008
• Docket Number: No. 28190.,No. 28191.,28190.,28191.
• Parties: Zacqrey WOODS, et al., Respondents, v. FRIENDLY FORD, INC. and Jay Wise, Appellants.
• Court: Missouri Court of Appeals

248 S.W.3d 665

Zacqrey WOODS, et al., Respondents, v. FRIENDLY FORD, INC. and Jay Wise, Appellants.

No. 28190.

No. 28191.

Missouri Court of Appeals, Southern District, Division Two.

March 28, 2008.

David J. Roberts, Kansas City, Appellant, Friendly Ford, Inc.

Kevin D. Case, Case & Roberts, P.C., Kansas City, for Appellant, Jay Wise.

Mark V. Bodine, Bennett, Bodine & Waters, P.A., Shawnee, KS, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellants Jay Wise ("Mr.Wise") and Friendly Ford, Inc. ("FFI") appeal the judgment of the Circuit Court of Greene County ("the circuit court") in favor of Respondent Chris Ames ("Mr.Ames") following a jury trial.¹ Mr. Wise brings seven points of circuit court error and FFI alleges one point of circuit court error. We affirm.

The record reveals Mr. Ames was employed by FFI, a car dealership, as a salesman in the truck department. Mr. Wise is part-owner of FFI.² On August 28, 2001, Plaintiffs, ten male employees of FFI, filed their Petition in the Circuit Court of St. Louis City, Missouri. In their eight-count petition they alleged the following causes of action: hostile work environment; assault and battery; sexual battery; sexual harassment; verbal harassment; tortious interference with business opportunity; punitive damages; and breach of the covenant of good faith and fair dealing.

In October of 2001, FFI, Ford, and Mr. Wise removed the case to the U.S. District Court for the Eastern District of Missouri ("the district court") maintaining Plaintiffs were asserting issues arising under Title VII of the Civil Rights Act of 1964. After reviewing the matter, the district court ruled on November 7, 2001, that "[P]laintiffs do not allege violations of Title VII.... [but they make] claims for harassment and hostile work environment [which] are cognizable under the Missouri Human Rights Act [(`MHRA')³]...." The district court also opined that "Plaintiffs are masters of their own complaint and they [chose] to bring only state-law claims in state court." The district court then remanded the matter to the Circuit Court of St. Louis City.

On November 30, 2001, FFI, Ford, and Mr. Wise filed a motion to transfer venue of the case from the Circuit Court of St. Louis City to the circuit court, where FFI is located and the claims set out in the petition purportedly occurred. Plaintiffs did not object to the motion and the matter was transferred. Thereafter, FFI, Ford, and Mr. Wise filed their Motion to Dismiss the various claims set out in the Petition pertaining to claims for hostile work environment; sexual harassment; verbal harassment; tortious business interference; and breach of the covenant of good faith and fair dealing as against Ford and Mr. Wise. This motion was granted. Thereafter, Plaintiffs filed their First Amended Petition, essentially reiterating their original petition and adding an additional claim for retaliatory discharge.⁴

Mr. Wise and FFI again filed their respective motions to dismiss Plaintiffs' claims for hostile work environment; sexual harassment; verbal harassment; and tortious interference with a business opportunity. This motion was granted together with a summary judgment in favor of Mr. Wise and FFI on Plaintiffs' claims for sexual battery; punitive damages; breach of covenant of good faith and fair dealing; and retaliatory discharge. Additionally, Mr. Wise and FFI were granted a bifurcated trial per section 510.263, as well as severance of the claims of the individual Plaintiffs.

Plaintiffs, including Mr. Ames, then filed a Second Amended Petition on May 4, 2004, in which they alleged assault and battery against Mr. Wise for acts occurring "while in the course and scope of his employment with [FFI]." They again requested punitive damages.

The Second Amended Petition set out that Mr. Wise intentionally struck Plaintiffs "by snapping their ears with combs, snapping their arms with combs, slapping the back of their heads ..." such that he "caused bodily harm to [Plaintiffs] as a result of being struck...."

On December 19, 2005, to December 21, 2005, a trial was held only as to Mr. Ames's claims against Mr. Wise and FFI.⁵ The evidence at trial showed that while in a supervisory capacity over certain FFI employees, Mr. Wise often engaged in "horseplay" with employees, including Mr. Ames, and would strike them on the ear with a plastic comb, referred to as "Mr. Snappy," which caused a "sharp stinging pain." Further, the evidence showed Mr. Wise also pretended to strike Mr. Ames and other employees in the genitals, oftentimes actually making contact with the person's body. Mr. Ames testified he had been hit in the ear by Mr. Wise; that Mr. Wise had attempted to hit him in the genitals numerous times; and that Mr. Wise had actually made contact with his genitals on at least one occasion. Mr. Ames stated that when he was hit in the genitals it "sometimes" hurt. Mr. Ames also testified that on one occasion Mr. Wise snuck up behind him and "spit a little bit of water and ice down the back of ..." his shirt. He related that Mr. Wise said something to him that "involved cold and cum and how did [he] like it or something like that." He likewise set out that Mr. Wise's actions made him feel embarrassed, humiliated, and intimidated. He testified that when he would see Mr. Wise approach him he would often try to leave the room or otherwise remove himself from Mr. Wise's presence. He stated he did not tell his girlfriend about being hit in the genitals because he "didn't want her to think any less of [him]" or think "that [he] couldn't handle [him]self." Mr. Wise did not deny at trial that he engaged in such "horseplay," but testified he never intended to hurt or injure anyone.

At the close of the evidence, the jury returned a verdict in favor of Mr. Ames as against Mr. Wise and set actual damages at $65,000.00. The jury taxed "[o]ne-eighth (1/8) of all costs ..." against Mr. Wise. This appeal by Mr. Wise and FFI⁶ followed.

In his first point of circuit court error, Mr. Wise maintains the circuit court erred in admitting evidence of "prior bad acts" by Mr. Wise such as the fact that in the past he had lied to his wife, his brothers, and a game warden. Mr. Wise asserts such evidence "was completely irrelevant and unrelated to any of [Mr. Ames's] claims, lacked any probative value as there was no showing that [Mr.] Wise was under oath on those occasions, and resulted in unfair prejudice to [Mr.] Wise."

Appellate courts give substantial deference to the decisions of trial courts as to the admissibility or exclusion of evidence, which will not be disturbed absent a showing of an abuse of discretion. Jerry Bennett Masonry, Inc. v. Crossland Const. Co., 171 S.W.3d 81, 88 (Mo.App.2005).

Prior to trial, Mr. Wise filed a motion in limine to exclude from trial certain portions of his videotaped deposition which purportedly set out certain bad acts he had committed. Specifically, the motion sought to exclude the presentation of certain lines from the videotaped deposition where he was asked "if he had ever lied to various persons, including police, a game warden, his wife, employees of [Ford], his brothers ... and employees of FFI...." At the hearing on the motion, Mr. Ames's counsel argued Mr. Wise's "propensity to tell the truth is a relevant issue. Whether he lied to a game warden necessarily doesn't mean it's a bad act.... [T]here's no prejudicial effect to the questioning." The circuit court overruled Mr. Wise's request to exclude that portion of his videotaped deposition and it was subsequently presented to the jury.

We note Mr. Wise has failed to provide this Court with a copy of the videotaped deposition at issue, and there is little in the record which reveals the exact nature of the evidence he finds so prejudicial other than the conclusory remarks in his brief. Rule 81.12(a)⁷ mandates "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ... to the appellate court for decision," and Rule 81.12(d) obligates the appellant to file the record on appeal with this Court. As a general rule, the failure to substantially comply with Rule 81.12 preserves nothing for our review. In re Marriage of Weinshenker, 177 S.W.3d 859, 864 (Mo.App.2005). Here, Mr. Wise's failure to deposit a copy of the videotaped deposition with this Court has prevented meaningful review of his point relied on. Accordingly, Point One is denied.

In his second point, Mr. Wise asserts the circuit court erred in excluding relevant evidence of Mr. Ames's "daily marijuana use...." Mr. Wise asserts Mr. Ames "stated that using marijuana adversely affected his memory, causing him to forget things...." Additionally, he posits that this excluded "evidence proved that [Mr.] Ames had misrepresented that he had not engaged in drug abuse on an insurance application." Mr. Wise also maintains the circuit court "inconsistently and unfairly permitted [Mr.] Ames to introduce evidence of [Mr.] Wise's use of prescription medications while he was undergoing cancer treatment."⁸

The record shows that prior to trial, Mr. Ames filed a motion in limine to prevent Mr. Wise from introducing evidence of "specific instances" of drug use by Mr. Ames which he testified about in a videotaped deposition. The circuit court granted Mr. Ames's motion, but stated it "may reconsider at trial."

At trial, Mr. Wise attempted to make an offer of proof on the issue of Mr. Ames's drug use and counsel for Mr. Wise asked the circuit court to reconsider its ruling on the motion in limine because, as he argued, "the jury has already heard of [Mr. Ames's] criminal conviction for manufacturing marijuana, there can be absolutely no additional prejudice from talking about the obvious fact that he was also a user of marijuana." He asserted the evidence was relevant because it helped explain why Mr. Ames could not remember the specific dates on...