GARY D. WITT, Judge.
Kathleen Kline appeals the judgment of the trial court, which denied both her motion for new trial and motion for judgment notwithstanding the verdict after a jury rejected her claims against the City of Kansas City, Missouri. Kline filed suit against the City for sex discrimination and retaliation pursuant to the Missouri Human Rights Act, section 213.010
From 1977 to 2006, Kline was employed as a firefighter with the Kansas City Fire Department ("Department"). At the time she resigned in 2006, Kline had been promoted several times to reach the position of battalion chief (only the fire chief and deputy chiefs are higher in the chain of command pursuant to the Department's organization).
Kline and the City have a history of employment related lawsuits, which will only be summarized as necessary for the purposes of the instant dispute on appeal. In 1994, Kline filed a Title VII lawsuit in the United States District Court, Western District of Missouri. After prevailing on her sex discrimination and retaliation claims against the City in a jury trial in 1997, Kline was awarded damages and the equitable relief of the trial court ordering the City to retroactively promote Kline to the position of battalion chief.
In 1999, Kline filed a second Title VII lawsuit against the City in the United States District Court, Western District of Missouri, which also alleged claims of sex discrimination and retaliation. This lawsuit alleged, inter alia, that the City discriminated
In 2007, Kline filed the instant lawsuit against the City in the Circuit Court of Jackson County, which, as amended, alleged two claims pursuant to the Missouri Human Rights Act ("MHRA"), section 213.010 et seq. MHRA was enacted by the Missouri General Assembly, inter alia, "[t]o . . . eliminate and prevent discrimination because of race, color, religion, national origin, ancestry, sex, age as it relates to employment, [or] disability." Section 213.030.1(1).
In Count One, Kline alleged that the City discriminated against her based upon her sex in violation of Section 213.055. The basis of Kline's sex discrimination claim was grounded in two distinct theories. To begin, Kline outlined her previous successful litigation against the City, and alleged that "[d]espite a jury verdict against Defendant . . . during the period of January, 2001, through cessation of her employment, no efforts were made by Defendant to eliminate the discriminatory working conditions as to Plaintiff's facilities." Specifically, Kline alleged that the "fire stations to which Kline was assigned to and sent to for business reasons did not have equal and/or comparable facilities as Defendant provided to its male Fire Department employees" and contended that the City was required by law to provide separate facilities "for women to wash and dress."
Kline further alleged that the City discriminated against her based on her sex as it pertained to her July 2006 request "of Chief Dyer to trade posts with Battalion Chief Randy Mullens whose station had female facilities." Although Kline acknowledged in her Petition that "Chief Dyer denied the trade request for the reason the battalion chief who agreed to trade with Kline had not been in his position for [the required] three years," Kline alleged that this failure to grant the trade was based on discrimination because others had previously been allowed to transfer notwithstanding the fact that they "had not been in their positions for three years."
In Count Two, Kline alleged that the City unlawfully retaliated against her pursuant to Section 213.070 because Kline initiated previous litigation against the City, as outlined above. Because she engaged in these protected activities, Kline alleged that she was "subjected to adverse actions by Defendant to wit: (a) Defendant never remedied Kline's unequal facilities and she was subjected to discriminating working conditions, (b) Plaintiff made a request for a trade which was denied by Chief Dyer, and (c) Defendant engaged in retaliatory discipline of Kline."
From December 16, 2009, to December 22, 2009, these claims were tried before a jury, with counsel for each party presenting copious evidence to support their respective theories of the case.
The City presented the following (summarized) evidence to defend against Kline's claims of discrimination and retaliation. In October 2000, the City Manager hired Richard Dyer ("Dyer") as the Fire Chief. One of the main goals the City had in hiring Dyer was to remedy the situation(s) that had resulted in Kline's prior successful litigation. To accomplish this goal, the City implemented a plan to convert fire stations into "gender plus facilities" that were "unisex" and allowed each firefighter privacy in that they were to sleep in a cubicle and use a restroom that
At trial, Kline admitted that during the relevant time period no one ever walked in on her while using a restroom or shower, nor did she ever walk in on anyone else.
Prior to Dyer being hired as the Chief of the Department, battalion chiefs had free rein to decide how to handle trade assignments themselves because the Department had no rules pertaining to these trades. Dyer believed that this system was inefficient and limited his ability to manage the Department. Accordingly, in 2002, Dyer set up a policy for the Department wherein trades would not be granted for battalion chiefs unless both participants had served at least three years in their current capacity, or there was a showing of extraordinary circumstances.
In 2006, Kline requested a mutual trade with Randy Mullens, allegedly so that she could work at a station with separate female facilities. Dyer denied the trade request on multiple grounds: (1) Mullens had only been at District 108 for approximately six months; (2) if the trade had been allowed there would have been three battalion chiefs at District 108 in a seven month period; (3) Dyer had heard from another employee of the Department that Kline had intended to retire during August 2006; and (4) neither Kline nor Mullens presented to Dyer any extraordinary circumstances that necessitated the trade.
The jury returned a verdict in favor of the City on both counts.
Kline subsequently filed a motion for new trial, and a motion for judgment notwithstanding the verdict. On March 2, 2010, the trial court entered its judgment denying both of Kline's motions.
Kline now appeals, bringing seven Points. Further facts will be outlined as relevant in the analysis section below.
On appeal, Kline brings six Points that allege the trial court erred in denying her motion for new trial. Gallagher v. DaimlerChrysler Corp., 238 S.W.3d 157, 162 (Mo.App. E.D.2007), outlined the appropriate standard of review for these claims:
Id. (citations omitted).
In Point One, Kline argues that the trial court erred in denying her motion for new trial because the trial court should have prevented the City's witnesses from testifying "to facts which [the City] did not disclose prior to trial" in violation of applicable discovery rules. "A trial judge has wide latitude in ruling on whether to admit or exclude evidence." Giles v. Riverside Transp., Inc., 266 S.W.3d 290, 295 (Mo. App. W.D.2008) (internal quotation marks omitted). "Under Rule 61.01, a trial court may admit or exclude testimony where a party provides incomplete or evasive answers
On appeal, Kline focuses on two specific examples wherein she alleges the City presented "new evidence" at trial that should have been previously disclosed during discovery. Both of these instances involve the trial testimony of Dyer.
In regard to Kline's claim that she was discriminated against by the City because it refused her trade request, the question to be decided at trial was whether the City had a non-discriminatory basis to refuse Kline's trade request. Kline served the following interrogatory, and the City's response, as relevant, is outlined below:
(Emphasis added.)
Kline complains that at trial Dyer testified, for the first time, that trades would only be allowed upon a showing of "extraordinary circumstances," when the City had previously indicated via discovery that trades would be allowed under "exceptional circumstances." "Courts in Missouri have long recognized that the rules relating to discovery were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits and to provide a party with access to anything that is `relevant' to the proceedings and subject matter of the case not protected by privilege." State ex rel. Plank v. Koehr, 831 S.W.2d 926, 927 (Mo. banc 1992).
We fail to ascertain how this discrepancy in Dyer's testimony (using the term "extraordinary" as opposed to "exceptional" in this context) rose to the level of a discovery violation, let alone a discovery violation that would warrant the granting of a new trial. Kline fails to cite to any authority that would support the conclusion that such a change in vernacular by a witness constitutes a discovery violation pursuant to Missouri law. While Kline contends on appeal that swapping these two terms constituted a "glaring injustice" because these terms have "completely different" meanings, even Kline concedes that this distinction "may seem like semantics." It goes without saying that Dyer was a live witness, and accordingly, he could not be expected to testify identically to the responses given by the City via written discovery. Moreover, Kline has failed to demonstrate beyond conclusory
Kline further argues that a "second incident" of the City's "non-disclosure of evidence" occurred during Dyer's testimony when he gave inconsistent testimony as to whether he had spoken to the City Manager about "the goal of remedying discrimination." Specifically, Kline argues that because Dyer testified at his deposition that he had not had such a conversation with the City Manager, Dyer's inconsistent trial testimony that he did in fact have such a conversation with the City Manager constituted a discovery violation that required the trial court to grant her motion for new trial. We disagree.
Inconsistent trial testimony by witnesses occurs routinely at trial, and Kline cites no authority to support the proposition that such an inconsistency somehow rises to the level of a discovery violation. And for good reason; because if we were to hold that every time a witness testified inconsistently at trial that a discovery violation occurred, thereby warranting a new trial, most cases would have to be tried ad infinitum. Opposing counsel is empowered to illustrate such inconsistent testimony on cross-examination to the jury, and such an opportunity to impeach a witness is potent material to undermine the credibility of a key witness at trial. Here, Kline's trial counsel admittedly did in fact impeach Dyer as it pertained to this very subject, and thus we find no error and no prejudice that stemmed to Kline in this regard.
For all of the aforementioned reasons, Point One is denied.
In Point Two, Kline argues that the trial court erred in denying her motion for new trial because the "trial court's decision
One of Kline's central claims at trial was that the City discriminated against her by failing to provide comparable facilities for women at stations and that the City failed to address this situation by constructing newer and better facilities solely for women. While Kline complains that the trial court erred in allowing evidence pertaining to "station construction occurring after 8/31/06," Kline fails to identify any specific "trial court ruling or action that the appellant challenges" in this regard. Rule 84.04(d). Regardless, we need not be detained by this argument because it is not disputed that the jury heard evidence, without objection, pertaining to the construction of new facilities for women which occurred after Kline retired from the Fire Department. "A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted without objection." Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007) (internal quotation marks omitted). "Cumulative evidence is additional evidence that reiterates the same point." Saint Louis Univ. v. Geary, 321 S.W.3d 282, 292 (Mo. banc 2009).
In her reply brief, Kline contends for this first time that "Appellant objected twice to evidence pertaining to facility construction which occurred after Appellant retired."
Even when assuming arguendo that Kline had lodged a proper objection to this evidence, we would be hard pressed to reach a conclusion that the trial court somehow erred in admitting this information into evidence. We outlined the following applicable standards in Ziolkowski v. Heartland Regional Medical Center, 317 S.W.3d 212, 216 (Mo.App. W.D.2010):
Id. (citations and quotation marks omitted).
Here, one of the City's arguments at trial in defense to Kline's lawsuit was "that it had been working to provide gender-plus facilities since 2001" and to "see the City's progress the jury had to understand the process" where the City had a fifteen year plan. Specifically, the City presented "evidence of fire station completion dates showed that despite Appellant's complaint, the City's program was achieving results regarding gender-plus facilities" and "most of these fire stations that were completed after Appellant's retirement had been approved by Council for construction prior to her retirement." (Emphasis added.) As such, Kline has failed to demonstrate that the trial court abused its discretion, under the facts of this case, in allowing the City to present evidence that the City's behavior was in fact non-discriminatory.
For all of these reasons, we deny Kline's second Point.
In Point Three, Kline argues that the trial court erred in denying her motion for new trial "because the trial court's decision to exclude Appellant's evidence of three incidents of retaliation by [the City] against [Kline] was an abuse of discretion in that the evidence was relevant, material and probative" to prove that the City had "retaliatory animus towards" Kline. As previously outlined in detail in Point Two, "[a] trial court has considerable discretion
At trial, Kline sought to prove that the City's challenged conduct (refusing Kline's trade request and the City's failure to update female facilities in the stations) was based on discrimination. Kline made three offers of proof of the evidence that the trial court refused to admit into evidence in order to prove her claims. Kline does not dispute that this evidence was not direct evidence of the City's intent to discriminate against Kline but, instead, was circumstantial evidence that "prove[d] a pattern of retaliatory conduct taken against Appellant initiated by [the City] and Dyer all with the intent of attempting to remove her from the fire department." Thus, Kline contends, the trial court abused its discretion in refusing to allow this evidence before the jury.
"In order to be admissible, evidence must be both logically and legally relevant." Rader Family Ltd. P'ship, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 250 (Mo.App. W.D.2010). "Logically relevant evidence establishes or negates a fact in issue or corroborates other relevant evidence." Id. "To be legally relevant, the probative value of the evidence must outweigh the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence." Id. (internal quotation marks omitted).
"Direct evidence is that which shows a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding that an illegitimate criterion actually motivated the employment decision." Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 n. 4 (Mo. banc 2007). "Direct evidence includes evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude, if it sufficiently supports an inference that the discriminatory attitude was more likely than not a motivating factor." Id. "Statements by decision-makers, however, are not considered direct evidence if they are unrelated to the decisional process." Id. "Direct evidence is not common in discrimination cases because employers are shrewd enough to not leave a trail of direct evidence." Id.
However, "evidence of other acts of defendant are admissible if those acts are sufficiently connected with the wrongful acts that they may tend to show defendant's disposition, intention, or motive in the commission of the acts for which . . . damages are claimed." Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 51 (Mo.App. W.D.2004) (emphasis added, internal quotation marks omitted). In determining whether evidence is admissible in a discrimination case, the trial court must ascertain whether the proffered evidence would allow "a rational finder of fact to infer a discriminatory motive or . . . [to] conclude that the employer intended to discriminate in reaching the decision at issue." West v. Conopco Corp., 974 S.W.2d 554, 556 (Mo.App. W.D.1998) (citations omitted) (internal quotation marks omitted).
Based on the above governing standards, we conclude that the trial court did not abuse its discretion in excluding the evidence in question. Kline argues that the trial court erred in refusing to admit evidence pertaining to two instances in 2001 wherein the City considered reprimanding Kline for work related conduct but, ultimately, did not sanction Kline. The first such instance took place in June 2001 after Kline allegedly authorized firefighters
Finally, Kline made an offer of proof as it pertained to an incident in 2002 where she was given a "written reprimand" for "refusing to attend mandatory training." We cannot conclude that this "ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Ziolkowski, 317 S.W.3d at 216 (internal quotation marks omitted). Kline does not contend that in receiving a written reprimand for failing to attend mandatory training that she was treated any differently than any other member of the Fire Department and that, therefore, the City's conduct was probative of bias. Furthermore, we fail to understand how Kline's reprimand in this regard was even tangentially related to her discrimination claims asserted at trial that had to do not with her abilities to perform on the job but, rather, whether the City was providing her with adequate, gender-appropriate facilities.
While Kline contends that "there is no requirement that the evidence of other conduct be directly related to the claim for it to be admissible evidence," Kline fails to cite any applicable authority that the trial court is required to admit evidence unrelated to a matter in dispute at trial. Kline cites our prior holding in Rinehart v. Shelter General Insurance Co., 261 S.W.3d 583, 591 (Mo.App. W.D.2008), for the proposition that "[w]hen such intent is a focus of the inquiry, evidence should be allowed to take a wide range, and a party's actions toward others which tend to demonstrate intent in the present case is relevant." Id. (internal quotation marks omitted). But Rinehart does not control the instant issue. That case dealt with whether an insurance company refused to settle in bad faith over a personal injury claim that stemmed from an automobile accident. Id. After losing this claim at trial, insurance company appealed, asserting that "the circuit court erred in admitting evidence regarding Anthony Fields, another Shelter insured who was involved in a car accident unrelated" to the car accident in question. Id. at 590. At trial, plaintiff used this evidence to demonstrate "that Shelter's handling of the Fields' file was similar to problems that arose in the management of his file." Id. at 590-91.
Here, the evidence in question did not relate to how the City had previously treated similarly situated firefighters as Kline, and thus we fail to comprehend how Rinehart governs the resolution of the instant issue. We cannot conclude that the trial court abused its considerable discretion in determining that the evidence in
Point Three is denied.
In Point Four, Kline argues that the trial court erred in denying Kline's motion for new trial "because the trial court's decision to exclude Appellant's evidence of Section 292.150 and Section 292.160 was an abuse of discretion in that the evidence was relevant, material and probative (1) to prove appellant's claim of sex discrimination and (2) to disprove appellee's witnesses' testimony that unisex facilities are in compliance with the law, when the law clearly prohibits unisex facilities."
Kline sought to present "the content of [two] statutes to the jury," Section 292.150 and Section 292.160, which Kline argues "requires employers in places of employment where persons of both sexes are employed, to provide separate water closets and washrooms for women to wash or dress." These statutes provide the following:
Specifically, during her cross-examination of Dyer, Kline's counsel desired to read the above statutes for impeachment purposes. Kline fails to cite any authority for the proposition that counsel had a right to read state statutes to the jury, and for good reason because such is not the law in Missouri. "The courts of this state have held reading a statute to the jury is improper, and if, in reading the statute, counsel misstates the law or misleads the jury, it is reversible error." Lasky v. Union Elec. Co., 936 S.W.2d 797, 802 (Mo. banc 1997). "In Missouri, the jury is to obtain the law only from approved jury instructions." Eckelkamp v. Burlington N. Santa Fe Ry. Co., 298 S.W.3d 546, 552 (Mo.App. E.D.2009). "The purpose of instructions is to guide the jury in reaching a just verdict by informing the jurors of the law as it is to be applied to the evidence they have heard." Id.
The trial court would have erred if it allowed Kline's counsel to read these statutes to the jury, especially because we fail to comprehend how these statutes were relevant to the instant proceedings. Specifically, it is not disputed that neither statute falls within MHRA under Section 213. Rather, both of these statutes were placed by the Missouri legislature under the "Health and Safety of Employees" chapter of the Missouri Labor and Industrial Relations statutes, and both statutes were last amended in 1939.
Kline insinuates that she has standing to sue the City for violating both Section 292.150 and Section 292.160 because the City failed to provide separate facilities for her in the workplace. But it is not disputed that Kline did not allege such claims as a basis for recovery as part of her lawsuit against the City, and therefore it goes without saying that whether the City violated these other statutes is not directly relevant to her MHRA lawsuit. Had she wanted to, Kline could have alleged such claims as a separate basis for recovery in her lawsuit and sought equitable or monetary
Rather, the question is whether the City's alleged violation of these Health and Safety statutes is probative of whether the City had discriminatory intent under MHRA as alleged by Kline. "MHRA was enacted by the Missouri General Assembly, inter alia, `[t]o . . . eliminate and prevent discrimination because of race, color, religion, national origin, ancestry, sex, age as it relates to employment, [or] disability.'" Smith v. Aquila, Inc., 229 S.W.3d 106, 112 (Mo.App. W.D.2007) (quoting Section 213.030.1(1)).
Kline failed to demonstrate that these statutes constituted evidence that demonstrated "a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding that an illegitimate criterion actually motivated the employment decision." Daugherty, 231 S.W.3d at 818 n. 4. Contrary to Kline's argument, the fact that the City may have been in violation of Section 292.150 or 292.160 is not probative to prove her claim of sex discrimination any more than had the City violated any other employee health and safety law, such as those regulating fire escapes (Section 292.060), scaffolding (Section 292.090), or ventilation (Section 292.110). The City's alleged violation of these statutes would have no bearing on whether the City discriminated against Kline as it pertained to her employment, thereby violating MHRA.
For all of these reasons, Point Four is denied.
In Point Five, Kline claims that the trial court erred in denying her motion for new trial "because the trial court's decision to submit jury instruction nos. 8 and 13 was erroneous in that these instructions were improper affirmative converse instructions." Specifically, Kline sets out six different grounds from which she asserts the trial court so erred in submitting these two instructions:
"Whether a jury was properly instructed is a question of law that this Court reviews de novo." Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). "Review is conducted in the light most favorable to the submission of the instruction, and if the instruction is supportable by any theory, then its submission is proper." Id. "Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action." Id.
At the outset, we must first determine whether Kline properly preserved these issues for appeal. Rule 70.03
It is not disputed that the only objection made by Kline to both instructions was that they included "unnecessary evidentiary detail." After making this objection, the trial court expressly inquired to Kline's trial counsel as to whether she wanted "to say anything else" to which counsel replied, "Nope." A "point on appeal must be based upon the theory voiced in the objection at trial and an appellant cannot expand or change on appeal the objection as made." Carroll v. Kelsey, 234 S.W.3d 559, 563 (Mo.App. W.D.2007) (internal quotation marks omitted). "A point on appeal may not enlarge or change the objection made at trial." Berra v. Danter, 299 S.W.3d 690, 703 (Mo.App. E.D.2009) (internal quotation marks omitted). "When the point on appeal contends that an instruction is erroneous on a different ground than was asserted in the objection made at trial, we may not review that error on appeal." Id.
Rule 84.13(c) states that "[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "However, while an unpreserved claim may be reviewed for plain error in this Court's discretion, plain error review is rarely applied in civil cases, and may not be invoked to cure the mere failure to make proper and timely objections." Atkinson v. Corson, 289 S.W.3d 269, 276 (Mo.App. W.D.2009) (internal quotation marks omitted).
Kline concedes that five of her six objections to the instructions were not raised before the trial court prior to the instructions being submitted to the jury. While she further concedes that "a majority of courts" hold that "specific objections must be made at trial," Kline contends that this Court's prior holding in Porta-Fab Corp. v. Young Sales Corp., 943 S.W.2d 686 (Mo. App.W.D.1997), provides an exception to this rule in that a "general objection to an instruction made at trial may be later specified in a motion for new trial." But Kline's argument ignores the fact that our holding in Porta-Fab Corp. does not assist litigants that later raise different and distinct objections to a jury instruction:
Carroll v. Kelsey, 234 S.W.3d 559, 563 (Mo.App. W.D.2007) (citations omitted).
In Carroll, this Court concluded that in objecting to an instruction, the plaintiffs "put forth a theory other than that raised at trial." Id. Because of this, we concluded that the plaintiffs raised an objection to the instructions on appeal that "was not raised at trial" and, therefore, was "not properly preserved for appellate review." Id. Accordingly, we ultimately found that the proper course of action was for this Court to "limit[] its review of the Carrolls' claim of instructional error to" only that specific claim raised in a timely fashion before the trial court. Id.
Accordingly, we too will review only the specific claim that was properly preserved for appeal—namely, whether these instructions included "unnecessary evidentiary detail." Instruction Number 8 stated the following:
Furthermore, Instruction Number 13 stated the following:
Kline argues that "the instructions are erroneous because they included unnecessary evidentiary details instead of ultimate issues, which favored [the City]." "A proper instruction submits, not evidentiary details, but only the ultimate facts, to avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another." Alhalabai v. Mo. Dep't of Natural Res., 300 S.W.3d 518, 527 (Mo.App. E.D.2009). "The test is whether the instruction follows the substantive law and can be readily understood by the jury." Id.
Kline's argument need not detain this Court. In arguing that the instructions contained "unnecessary evidentiary detail," Kline did not at trial, and has not before this Court, suggest any "facts" that should have been struck by the trial court prior to the instructions being submitted to the jury. Kline does not highlight any specific verbiage from either instruction that was somehow prejudicial because it was too detailed or misleading in this regard. Without further elaboration by counsel, we are at a total loss as to what Kline's argument is as it pertains to "unnecessary evidentiary detail" in these instructions. It goes without saying that this Court cannot develop arguments for a party that were not made before the trial court and that are still not developed after a full opportunity to brief them on appeal. "For us to hold otherwise would require this court to assume the role of advocate for a party by attempting to develop an appellate argument the party has failed to set forth itself, which, in turn, would run the risk of creating poor precedent and manipulating the adversarial process." Rodieck v. Rodieck, 265 S.W.3d 377, 385 (Mo.App. W.D. 2008) (citations and internal quotation marks omitted).
For all of these reasons, Point Five is denied.
Because Kline "has failed to persuasively identify any error during the trial, the point must fail." Giles v. Riverside Transp., Inc., 266 S.W.3d 290, 300 (Mo. App. W.D.2008).
Point Six is denied.
Kline's seventh and last Point alleges that the "trial court erred in denying appellant's motion for judgment notwithstanding the verdict because appellant presented substantial uncontroverted evidence to prove appellant's claims as to unequal facilities and denial of the appellant's trade request."
"The standard of review for the denial of a judgment notwithstanding the verdict (JNOV) is essentially the same as review of the denial of a motion for directed verdict." All Am. Painting, LLC v. Fin. Solutions & Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010). "Parties bearing the burden of proof generally are not entitled to a directed verdict." Id. "However, the plaintiff is entitled to a directed verdict in the unusual situation where the defendant has admitted in its pleadings, by counsel, or through the defendant's individual testimony the basic facts of the plaintiff's case." Id. "In such instances, the plaintiff is entitled to a directed verdict because there is no question of fact remaining for the jury to decide." Id.
"[A] directed verdict is not given in favor of the party having the burden of proof no matter how overwhelming that party's evidence may be or how minuscule the other party's evidence may be; a directed verdict in favor of the party having the burden of proof (usually the plaintiff) is never based upon the plaintiff's evidence." Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993). "This is in recognition of the fact that the defendant, who has the benefit of the burden of proof, is entitled to try the case with no evidence at all and to rely solely upon the jury disbelieving the plaintiff's evidence." Id. at 664-65. "This strategy may result in a loss for the defendant, but it will not be on a directed verdict; the defendant is entitled to have the case go to the jury." Id. at 665.
Kline argues that the "jury disregarded Appellant's uncontroverted evidence" and that therefore it "is clear there was no careful deliberation by the jury."
For these reasons we cannot conclude that the trial court somehow erred in denying her motion for judgment notwithstanding the verdict. Point seven is denied.
The judgment of the trial court is hereby affirmed.
All concur.
We take issue with the notion that because Kline could not be bothered to set forth the requisite analysis to demonstrate that any one of these alternative instances was grounds for reversal, that this Court should wade through this list on its own to do the analysis for Kline. Indeed, our rules prohibit us from doing so, and this is another reason, beyond those already explored at length, to deny Point One.
