Rogers v. Hester Ex Rel. Mills
334 S.W.3d 528
Mo. Ct. App.2010Background
- Accident occurred November 7, 2002 in Springfield; Hester died and Rogers was injured in a cross-over collision involving a tractor-trailer; Rogers sought damages for injuries; trial involved multiple expert and lay witnesses and videotaped depositions; a bench trial addressed whether a modified Release and Settlement Agreement created a settlement of all claims; after bench trial, the court treated the release as a counter-offer rather than acceptance; a subsequent jury verdict awarded Rogers $1,451,112 against Mills (Hester’s ad litem) and the court entered judgment consistent with that verdict; Mills appealed challenging multiple trial rulings and the bench-trial disposition, but the appellate court dismissed several points for briefing deficiencies and addressed merits of chosen issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of altered release on settlement | Rogers contends the modified release was not an acceptance and thus not a settlement. | Mills argued the release, as modified, effectively settled all claims. | Release modified by a new term constituted a counter-offer; not preserved as final appealable judgment; Point I denied on merits. |
| Burden of proof misstatement | Plaintiff argues Mills misled the jury by implying Mills could demand/examine Rogers; the burden of proof remained with Rogers. | Mills argues there was no improper burden-shifting. | Trial court’s curative instruction preserved burden; no abuse of discretion; Point III denied. |
| Cumulative error claim | Mills claims the aggregate impact of Points II–V violated due process and fairness. | No preserved, discrete errors to aggregate; briefing defects impede review. | Cumulative error claim denied; no preserved errors to aggregate; Point VI denied. |
Key Cases Cited
- Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978) (requirements for concise, pointed appellate briefing; aids clarity and review)
- Hoffman v. Illinois Terminal R.R. Co., 274 S.W.2d 591 (Mo.App.St.L.D.1955) (burden of proof and right to examination; improper argument noted in certain contexts)
- Chailland v. Smiley, 363 S.W.2d 619 (Mo. banc 1963) (limits on arguments that shift burden or misstate law; context for allowed remarks)
- Hermann v. Camolaur, Inc., 127 S.W.3d 706 (Mo.App.W.D.2004) (distinguishes Hoffman; permissible reference to uncontroverted medical evidence if properly framed)
- Eaves v. Wampler, 390 S.W.2d 922 (Mo.App.1965) (context for allowable medical evidence arguments; burden guidance)