PATRICIA L. COHEN, Judge.
Alyssa Kley (Defendant) appeals the judgment in favor of Joseph Potter (Plaintiff) in his wrongful death action for the death of the couple's infant son. Defendant claims the trial court plainly erred in denying her motions for directed verdict and judgment notwithstanding the verdict because, during closing arguments, Plaintiff's counsel improperly: (1) commented on the collectability of the judgment; (2) personalized the facts of the case to the jury; and (3) led the jury to consider grief and bereavement. We affirm.
On November 19, 2009, Plaintiff's and Defendant's infant son Wyatt Potter suffocated and died while in Defendant's care. Plaintiff filed a wrongful death action against Defendant pursuant to Section 537.080, et seq., alleging that, while Plaintiff was at work and Defendant was caring for Wyatt, she became intoxicated, placed Wyatt face down on her bed, and fell asleep and/or passed out in the bed with him. Plaintiff further alleged that Defendant's negligence and recklessness caused Wyatt's death. In addition to actual damages, Plaintiff requested "an additional amount as damages for aggravating circumstances, in such sum as the jury believes will serve to punish [Defendant] and deter [Defendant], and others, from like conduct in the future."
The trial court conducted a jury trial. During closing arguments, Plaintiff's counsel highlighted Defendant's testimony that she felt neither guilt nor responsibility for Wyatt's death. Plaintiff's counsel argued:
In defense counsel's closing argument, he asserted that Plaintiff's motivation for filing the wrongful death action against Defendant was monetary gain, stating:
Plaintiff's counsel rebutted this allegation in his final summation, reminding the jury that Defendant "told you under oath she doesn't feel guilt and doesn't feel responsible." Plaintiff's counsel explained that Plaintiff "doesn't want a pay day," he wanted Defendant "to feel some remorse.... He came to you for justice. Justice for Wyatt." Plaintiff's counsel further argued:
In regard to damages for aggravating circumstances, Plaintiff's counsel urged the jury, "the more you put in there for aggravating circumstances, the louder your message will be. Don't worry about when we can collect it. I don't care. [Plaintiff] doesn't care. She makes thirteen thousand dollars a year, that isn't the point. This is the principle of the thing."
After deliberations, the jury found Defendant liable for Wyatt's wrongful death and awarded Plaintiff $100,000 in compensatory damages and $200,000 in additional, punitive damages for aggravating circumstances. Defendant filed a motion for judgment not withstanding the verdict (JNOV), which she later amended, requesting the trial court grant either JNOV or a new trial on the grounds that Plaintiff's counsel's allegedly improper comments in closing argument prejudiced the jury. The trial court heard arguments and denied Defendant's post-trial motion. Defendant appeals.
Defendant did not object to Plaintiff's counsel's closing argument at trial. Accordingly, she failed to preserve her claims for appellate review.
In her three related points on appeal, Defendant claims that the trial court plainly erred in denying her motions for directed verdict and JNOV
Attorneys are allowed substantial latitude in closing argument. Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 376 (Mo.App. W.D. 2010). "The permissible field of argument is broad and as long as counsel does not go beyond the evidence and issues drawn by the instructions or urge prejudicial matters or claim or defense which the evidence and issues do not justify, counsel is permitted wide latitude in his comments." Hammer v. Waterhouse, 895 S.W.2d 95, 106 (Mo.App. W.D.1995). Indeed, "plain error occurs in closing argument only if the closing argument contains reckless assertions, unwarranted by proof and intended to arouse prejudice, which, therefore, may be found to have caused a miscarriage of justice." Morgan Publ'ns, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164, 170 (Mo.App. W.D.2000) (quotation omitted).
In her first point on appeal, Defendant claims the trial court plainly erred in denying her motion for JNOV because Plaintiff's counsel's closing comments relating to collectability of the judgment severely prejudiced her case. Defendant asserts that remarks about collectability of the judgment were improper because they "clearly fell outside any issue conveyed in the pleadings." However, to determine whether counsel's closing arguments were plainly unwarranted and injurious to Defendant, this court must consider the argument in light of the entire record, not solely the pleadings. Hemann v. Camolaur, Inc., 127 S.W.3d 706, 712 (Mo.App. W.D.2004). Defendant failed to include the full transcript in the record on appeal, choosing to include only the portion containing the parties' closing arguments. "It is the duty of an appellant to provide an appellate court with a record containing everything necessary to the determination of the questions presented to it." Coulter v. Michelin Tire Corp., 622 S.W.2d 421, 437 (Mo.App. S.D.1981); see also Rule 81.12. Because Defendant
In support of the proposition that "any reference to the collectability of a judgment that is not within the scope of the pleadings of the case is prejudicial error," Defendant relies on Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330 (Mo.App.1976). There, the trial court granted the defendants' motion for a new trial because the trial court erred in overruling the defendants' objection to plaintiff's counsel's closing remarks that a judgment against the defendants would not be collectible. Laclede Inv., 541 S.W.2d at 338. The court held that the trial court did not clearly abuse its discretion in granting defendants a new trial on this ground because "[w]hether a judgment is collectible is not a consideration for the jury," collectability was not "an issue framed by the pleadings," and "a jury should not be guided by the collectability of a judgment in arriving at their verdict." Id. at 338-39.
The substance and procedural posture of Laclede Inv. are distinguishable from the case at bar. In Laclede Inv., the plaintiff, in contrast to Defendant here, appealed the trial court's grant of a motion for a new trial. Id. at 333. "The general rule is that on appeal from the trial court's grant of a new trial the Court of Appeals must indulge every reasonable inference favorable to the trial court's ruling and may not reverse unless there has been a clear abuse of discretion." Id. Significantly, unlike the defendants in Laclede Inv., Defendant did not object to Plaintiff's counsel's remarks at trial and thus did not preserve her claim of error. Moreover, the facts in Laclede Inv. are very dissimilar and in reaching its decision, the court relied on cases in which prejudicial error was found on the basis that the plaintiff suggested the defendant would not have to pay a judgment because "an insurance company was actually the one who would have to pay or satisfy the judgment." Id. The record does not support that Plaintiff intended to suggest an insurance company would pay the judgment. Accordingly, we find no abuse of discretion. Point denied.
In her second point on appeal, Defendant claims the trial court plainly erred in denying her motion for JNOV because Plaintiff's counsel personalized the facts of the case to the jury and severely prejudiced Defendant's right to a fair trial. More specifically, Defendant claims Plaintiff's counsel improperly personalized the facts of the case by "urg[ing] jurors to assign a value to the life of their child."
Defendant cites State v. Long, 684 S.W.2d 361 (Mo.App. E.D.1984) in support of her claim that counsel's closing comments constituted improper personalization. Long is inapposite. In Long, the prosecutor in a forcible rape case repeatedly urged the jurors during closing arguments to place themselves in the position of the victim. 684 S.W.2d at 364. On appeal, this court held that the prosecutor's
In her third point on appeal, Defendant contends that the trial court plainly erred in denying her motion for JNOV because Plaintiff's counsel violated Section 537.090
The judgment of the trial court is affirmed.
LISA S. VAN AMBURG, P.J., and GARY M. GAERTNER, JR., J., concur.