Woods v. Friendly Ford, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: Gary W. Lynch
• Citation: Woods v. Friendly Ford, Inc., 248 S.W.3d 699 (Mo. App. 2008)
• Decision Date: 03 April 2008
• Docket Number: No. 28110.,No. 28187.,No. 28189.,28110.,28187.,28189.
• Parties: Zacqrey L. WOODS, Gregory L. Hanson, Chris Ames, Matthew Hayes, Matthew McDaniel, James Williams, Randy Fleming, Michael Lowry, and Tony Garner, Plaintiffs, Gregory L. Hanson, Appellant/Respondent, v. FRIENDLY FORD, INC., and Jay Wise, Defendants/Respondents/Cross-Appellants.

248 S.W.3d 699

Zacqrey L. WOODS, Gregory L. Hanson, Chris Ames, Matthew Hayes, Matthew McDaniel, James Williams, Randy Fleming, Michael Lowry, and Tony Garner, Plaintiffs Gregory L. Hanson, Appellant/Respondent, v. FRIENDLY FORD, INC., and Jay Wise, Defendants/Respondents/Cross-Appellants.

No. 28110.

No. 28187.

No. 28189.

Missouri Court of Appeals, Southern District, Division Two.

April 3, 2008.

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

David J. Roberts, Case & Roberts, P.C., Kansas City, MO, for Respondent Friendly Ford, Inc.

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

GARY W. LYNCH, Chief Judge.

Following a jury trial, Plaintiff-Appellant Gregory L. Hanson ("Hanson") appeals a verdict in favor of Defendants-Respondents Friendly Ford, Inc. ("Friendly Ford") and Jay Wise on his claim for assault and battery. Defendants appeal the trial court's denial of their motion to amend the judgment to award costs and attorney fees. These appeals were consolidated.

Factual and Procedural Background

Initially, this action was filed August 28, 2001, by Hanson and nine other employees of Friendly Ford, Inc., a franchise dealer for the Ford Motor Company, located in Springfield, Missouri. Plaintiffs¹ named Ford Motor Company,² Friendly Ford, Inc. ("Friendly Ford"), and Jay Wise as defendants. Jay Wise is co-owner of the franchise.

Plaintiffs' second amended petition was filed May 4, 2004, alleging that Jay Wise assaulted and battered plaintiffs, in that he "throws elbows, arms, and shoulders into the plaintiffs" and "physically struck plaintiffs and other employees by snapping their ears with combs, snapping their arms with combs, slapping the back of their heads, and poking his finger into their chests." Plaintiffs alleged that Wise's actions "were within the course and scope of his employment and were done in the further interest of the business pursuits of defendant friendly Ford, Inc., and naturally arose from the performance of defendant Wise's work for defendant Friendly Ford." Plaintiffs requested punitive damages and further alleged that Friendly Ford was "vicariously liable for the acts of defendant Wise[,] as they have been performed in the course and scope of his employment with Friendly Ford, Inc." On the same date, the trial court sustained defendants' motion to sever and ordered separate trials for all plaintiffs.

Trial on Hanson's claims was the first such trial. Between May 11 and May 13, 2004, the jury heard evidence on Hanson's claims. Hanson testified that Jay Wise would typically sneak up from behind and snap him and other employees in the ear with a flexible plastic comb which Wise named "Mr. Snappy." Hanson stated that in doing so, Wise would laugh and smile and asked if he liked earrings. Hanson claimed that "it hurt like hell." There was also testimony from Hanson that Wise struck at, hit, and grabbed his genitals, poked him in the chest, lunged at and shoved him in a hallway, and caused him to strike himself on the side of his head with a telephone receiver. Hanson stated that the effect of Wise's behaviors was demeaning, belittling, humiliating, upsetting, disgusting, and that he was offended when these actions were directed at him. He described the strikes to the genitals as being uncomfortable and painful, although he stated he never sought medical attention.

Jay Wise admitted that he struck Hanson in the ear with his comb and caused Hanson to strike himself on the side of his head with the telephone receiver. He further testified that he feigned attempts to strike Hanson, as well as other employees, in the genitals, but he did not remember grabbing his genitals. Wise stated that he did so in horseplay, that it was done "in good fun" and that certain of these actions were directed at him in return. Wise testified that he did not intend to harm or offend anyone and that he wanted to be thought of as "one of the guys." Wise called witnesses who testified that there was a lot of "down time" at the dealership and that during these times, employees engaged in horseplay and played practical jokes on each other.

At the close of all of the evidence, the jury returned a verdict against Hanson and in favor of Friendly Ford and Wise. These appeals followed.

Discussion

Hanson Appeal — No. 28110

Hanson presents five points relied on, and we address them in the order presented.

Point I — Denial of Hanson's Motion for New Trial

Hanson's first point relied on reads:

The trial court erred in overruling Plaintiff's Motion for New Trial because the jury's verdict is not supported by the evidence, is contrary to the undisputed facts from the trial and was the product of prejudicial misconduct by the defendants, in that, a new trial was the only appropriate remedy when:

a. Defendant admitted striking Plaintiff Gregory L. Hanson, and the undisputed slapping and grabbing Plaintiff's genitals would be presumed an offensive touching, and no reasonable juror could conclude that the Plaintiff was not a victim of a battery, and

b. Defense counsel continually violated an Order in limine and continued to make improper references to criminal convictions and drug use of witnesses, while questioning witness, and

c. Defense counsel made prejudicial statements during voir dire including telling the veniremen that eight of nine of plaintiff's claims had been dismissed, that plaintiff operated an "adult entertainment establishment" and implied plaintiff had been sued for assault and battery.

All of which caused undue and unlawful prejudice to Plaintiff.

Thus, Hanson claims that the trial court erred in denying his motion for new trial for three reasons: first, the jury's verdict "is not supported by the evidence," second, the jury's verdict "is contrary to the undisputed facts from the trial," and, third, the jury's verdict "was the product of prejudicial misconduct by the defendants."³

We quickly dispose of Hanson's first claim — the verdict is not supported by the evidence — because Hanson did not present this claim to the trial court in his motion for new trial. There, Hanson claimed that "the verdict was against the weight of the evidence." No where in his motion did Hanson contend that "the jury's verdict is not supported by the evidence." Thus, Hanson never presented this claim to the trial court. "Appellate courts are merely courts of review for trial court errors, and there can be no review of a matter which has not been presented to or expressly decided by the trial court." Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo.1959).

Moreover, even if this claim had been presented to the trial court in Hanson's motion for new trial, it would not have afforded Hanson any relief. "Because the plaintiff has the burden of proof, a verdict in defendant's favor need not be supported by any evidence." Warren v. Thompson, 862 S.W.2d 513, 514 (Mo.App. 1993) (quoting Bakelite Co. v. Miller, 372 S.W.2d 867, 871-72 (Mo.1963)). "[T]he sufficiency of the evidence to support a defendant's verdict is not a question amenable to appellate review." Id.

Hanson's second claim under Point I challenges the trial court's denial of his motion for new trial on the basis that the verdict is contrary to the undisputed facts from the trial, in that defendant Wise admitted striking Hanson, "and the undisputed slapping and grabbing [Hanson's] genitals would be presumed an offensive touching, and no reasonable juror could conclude that [Hanson] was not a victim of a battery[.]" Hanson, in the argument portion of his brief, characterizes this claim as an assertion that the verdict is against the weight of the evidence. We agree with that characterization and observe that as such it preserves nothing for appellate review. Weighing evidence remains a trial court function. Warren, 862 S.W.2d at 514 (citing Castle v. Modern Farm Equip. Co., 729 S.W.2d 650, 653 (Mo.App.1987)). "An appellate court cannot rule on the weight of the evidence in a jury-tried case." Warren, 862 S.W.2d at 514 (quoting George v. Eaton, 789 S.W.2d 56, 61 (Mo.App.1990)). The trial court's denial of a motion for new trial challenging the verdict as against the weight of the evidence is a conclusive determination that cannot be overturned on appeal. Warren, 862 S.W.2d at 514.

Hanson's third claim of error in the trial court's denial of his motion for a new trial asserts that a new trial was warranted for the reason that the jury's verdict was the product of prejudicial misconduct by the Defendants. The first prong of this claim is that "defense counsel continually violated an Order in limine and continued to make improper references to criminal convictions and drug use of witnesses, while questioning witnesses[.]"⁴ Hanson contends that "numerous attempts to interject this highly prejudicial information ultimately resulted in the jury having the belief that at least one witness if not multiple witnesses were drug users and guilty of prior bad acts."

"The trial court has broad discretion in deciding whether to grant a new trial." Blue v. Harrah's North Kansas City, L.L.C., 170 S.W.3d 466, 474 (Mo.App. 2005). "We review the trial court's denial of a motion for new trial for abuse of discretion." Warren Davis Properties V, L.L.C. v. United Fire & Cas. Co., 111 S.W.3d 515, 520 (Mo.App.2003).

Apparently before trial, Hanson sought an order in limine "to prohibit the defendants from introducing any evidence . . . which attempts to use specific instances of conduct of bad or wrongful acts to impeach any witness[,]" specifically "evidence of cursing, prior sex acts, and drug use[.]" By docket entry, the trial court sustained his motion, except for the use of cursing during and near the occurrences in the pleadings. The trial court indicated in its entry that it may reconsider its ruling at trial. On the second day of trial, the trial court reminded the parties that the defense could not inquire about "people...