558 S.W.3d 564
Mo. Ct. App.2018Background
- In 2007 Overbey purchased a car from Chad Franklin/CFNAS and later obtained a judgment against them for misrepresentations; punitive damages were reduced on remand and attorney fees awarded.
- The Franklin parties sued their insurer for bad-faith; that confidential $900,000 settlement allocated funds to a bank, attorneys, and $266,370.41 to Tiffany Franklin (Chad’s wife), who was not involved in the business.
- Overbey sued under Missouri’s Uniform Fraudulent Transfer Act (MUFTA), alleging the payment to Tiffany was a fraudulent transfer intended to defeat collection of Overbey’s judgment.
- The trial court sanctioned defendants for discovery abuses by striking their pleadings and entered interlocutory judgment establishing liability (including that the transfer to Tiffany was fraudulent); only damages remained for trial.
- Defendants repeatedly attempted to litigate liability at trial (opening, evidence offers, and closing), contrary to in limine rulings and the interlocutory judgment; the court repeatedly sustained objections but did not stop all improper argument.
- The court gave a damages instruction deviating from the mandatory MAI 31.07(A) language; jury returned $0 compensatory damages; the trial court granted Overbey a new trial, finding instructional error and cumulative prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in granting new trial | Overbey: repeated improper defense injection of liability issues plus erroneous jury instruction prejudiced outcome | Defendants: no prejudicial instructional or closing argument error; verdict should stand | Affirmed: no abuse of discretion; new trial proper due to instructional error and cumulative prejudice |
| Whether MAI 31.07(A) was required where liability was admitted | Overbey: MAI 31.07(A) is the applicable, mandatory instruction limiting jury to damages | Defendants: deviation was harmless because they argued lack of damages | Held: MAI 31.07(A) was applicable and the court erred by deviating; deviation created prejudice permitting new trial |
| Whether defendants could argue lack of damages based on non-finality/absence of liability | Overbey: such arguments were effectively relitigating liability already decided against defendants | Defendants: contested that transfer was not fraudulent, so no damages | Held: court found defendants’ "no damage" arguments were masked liability arguments and thus improper after interlocutory judgment; contributed to prejudice |
| Whether closing argument and misstatements of law warranted new trial | Overbey: defense misstated MUFTA and law on finality of judgments, repeatedly injected liability issues | Defendants: plaintiffs failed to timely object to some remarks; statements harmless | Held: trial court properly considered repeated misstatements and, together with instructional error, found prejudice; new trial within discretion |
Key Cases Cited
- Wagner v. Mortgage Information Services, Inc., 261 S.W.3d 625 (Mo. App. 2008) (trial court has broad discretion to grant new trial)
- Damon Pursell Construction Co. v. Missouri Highway & Transportation Commission, 192 S.W.3d 461 (Mo. App. 2006) (greater liberality on review of new-trial grants)
- Larsen v. Union Pacific R.R. Co., 503 S.W.3d 213 (Mo. App. 2016) (appellate review does not reweigh evidence when upholding new trial)
- March v. Midwest St. Louis, L.L.C., 417 S.W.3d 248 (Mo. banc 2014) (view evidence in light most favorable to trial court when reviewing new-trial rulings)
- MFA Oil Co. v. Robertson-Williams Transport, Inc., 18 S.W.3d 437 (Mo. App. 2000) (proponent of deviating instruction must show no substantial potential for prejudice)
- Abbott v. Missouri Gas Energy, 375 S.W.3d 104 (Mo. App. 2012) (use of applicable MAI instruction is mandatory)
- Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo. 1967) (deviation from MAI presumed prejudicial unless shown otherwise)
- Brizendine v. Bartlett Grain Co., LP, 477 S.W.3d 710 (Mo. App. 2015) (closing argument must not go beyond evidence or instructions)
- Peters v. ContiGroup, 292 S.W.3d 380 (Mo. App. 2009) (trial judge must restrain misstatements of law in closing argument)
- Cooper v. Ketcherside, 907 S.W.2d 259 (Mo. App. 1995) (trial court may grant new trial for erroneous rulings even if objections not timely made)