Appellants Jay Wise (“Mr. Wise”) and Friendly Ford, Inc. (“FFI”) appeal the judgment of the Circuit Court of Greene County (“the circuit court”) in favor of Respondent Chris Ames (“Mr. Ames”) following a jury trial. 1 Mr. Wise brings seven points of circuit court error and FFI alleges one point of circuit court error. We affirm.
The record reveals Mr. Ames was employed by FFI, a car dealership, as a salesman in the truck department. Mr. Wise is part-owner of FFI. 2 On August 28, 2001, Plaintiffs, ten male employees of FFI, filed their Petition in the Circuit Court of St. Louis City, Missouri. In their eight-count petition they alleged the following causes of action: hostile work environment; assault and battery; sexual battery; sexual harassment; verbаl harassment; tortious interference with business opportunity; punitive damages; and breach of the covenant of good faith and fair dealing.
In October of 2001, FFI, Ford, and Mr. Wise removed the case to the U.S. District Court for the Eastern District of Missouri (“the district court”) maintaining Plaintiffs were asserting issues arising under Title VII of the Civil Rights Act of 1964. After reviewing the matter, the district court ruled on November 7, 2001, that “[Pjlain-tiffs do not allege violations of Title VII .... [but they make] claims for harassment and hostile work environment [which] are cognizable under the Missouri Human Rights Act [ (‘MHRA’) 3 ].... ” The district court also opined that “Plaintiffs are masters of their own complaint and they [chose] to bring only state-law claims in state court.” The district court then remanded the matter to the Circuit Court of St. Louis City.
On November 30, 2001, FFI, Ford, and Mr. Wise filed a motion to transfer venue of the case from the Circuit Court of St. Louis City to the circuit court, where FFI is located and the claims set out in the petition purportedly occurred. Plaintiffs did not object to the motion and the matter was transferred. Thereafter, FFI, Ford, and Mr. Wise filed their Motion to Dismiss the various claims set out in the Petition pertaining to claims for hostile work environment; sexual harassment; verbal harassment; tortious business interference; and breach of the covenant of good faith and fair dealing as against Ford and Mr. Wise. This motion was granted. Thereafter, Plaintiffs filed their First Amended Petition, essentially reiterating their original petition and adding an additional claim for retaliatory discharge. 4
Plaintiffs, including Mr. Ames, then filed a Second Amended Petition on May 4, 2004, in which they alleged assault and battery against Mr. Wise for acts occurring “while in the course and scope of his employment with [FFI].” They again requested punitive damages.
The Second Amended Petition set out that Mr. Wise intentionally struck Plaintiffs “by snapping their ears with combs, snapping their arms with combs, slapping the back of their heads ...” such that he “caused bodily harm to [Plaintiffs] as a result of being struck....”
On December 19, 2005, to December 21, 2005, a trial was held only as to Mr. Ames’s claims against Mr. Wise and FFI. 5 The evidence at trial showed that while in a supervisory capacity over certain FFI employеes, Mr. Wise often engaged in “horseplay” with employees, including Mr. Ames, and would strike them on the ear with a plastic comb, referred to as “Mr. Snappy,” which caused a “sharp stinging pain.” Further, the evidence showed Mr. Wise also pretended to strike Mr. Ames and other employees in the genitals, oftentimes actually making contact with the person’s body. Mr. Ames testified he had been hit in the ear by Mr. Wise; that Mr. Wise had attempted to hit him in the genitals numerous times; and that Mr. Wise had actually made contact with his genitals on at least one occasion. Mr. Ames stated that when he was hit in the genitals it “sometimes” hurt. Mr. Ames also testified that on one occasion Mr. Wise snuck up behind him and “spit a little bit of water and ice down the back of ...” his shirt. He related that Mr. Wise said something to him that “involved cold and cum and how did [he] like it or something like that.” He likewise set out that Mr. Wise’s actions made him feel embarrassed, humiliated, and intimidated. He testified that when he would see Mr. Wise approach him he would often try to leave the room or otherwise remove himself from Mr. Wise’s presence. He stated he did not tell his girlfriend about being hit in the genitals because he “didn’t want her to think any less of [him]” or think “that [he] couldn’t handle [him]self.” Mr. Wise did not deny at trial that he engaged in such “horseplay,” but testified he never intended to hurt or injure anyone.
At the closе of the evidence, the jury returned a verdict in favor of Mr. Ames as against Mr. Wise and set actual damages at $65,000.00. The jury taxed “[o]ne-eighth (1/8) of all costs ...” against Mr. Wise. This appeal by Mr. Wise and FFI 6 followed.
Appellаte courts give substantial deference to the decisions of trial courts as to the admissibility or exclusion of evidence, which will not be disturbed absent a showing of an abuse of discretion.
Jerry Bennett Masonry, Inc. v. Crossland Const. Co.,
Prior to trial, Mr. Wise filed a motion in limine to exclude from trial certain portions of his videotaped deposition which purportedly set out certain bad acts he had committed. Specifically, the motion sought to exclude the presentation of certain lines from the videotaped deposition where he was asked “if he had ever lied to various persons, including police, a game warden, his wife, employees of [Ford], his brothers ... and employees of FFI.... ” At the hearing on the motion, Mr. Ames’s counsel argued Mr. Wise’s “propensity to tell the truth is a relevant issue. Whether he lied to a game warden necessarily doesn’t mean it’s a bad act_ [T]here’s no prejudicial effect to the questioning.” The circuit court overruled Mr. Wise’s request to exclude that portion of his videotaped deposition and it was subsequently presented to the jury.
We note Mr. Wise has failed to provide this Court with a copy of the videotaped deposition at issue, and there is little in the record which reveals the exact nature of the evidence he finds.so prejudicial other than the conclusory remarks in his brief. Rule 81.12(a)
7
mandates “[t]he rеcord on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ... to the appellate court for decision,” and Rule 81.12(d) obligates the appellant to file the record on appeal with this Court. As a general rule, the failure to substantially comply with Rule 81.12 preserves nothing for our review.
In re Marriage of Weinshenker,
In his second point, Mr. Wise asserts the circuit cоurt erred in excluding relevant evidence of Mr. Ames’s “daily marijuana use.... ” Mr. Wise asserts Mr. Ames “stated that using marijuana adversely affected his memory, causing him to forget things.... ” Additionally, he posits that this excluded “evidence proved that [Mr.] Ames had misrepresented that he had not engaged in drug abuse on an insurance application.”' Mr. Wise also maintains the circuit court “inconsistently and unfairly permitted [Mr.] Ames to introduce evidence of [Mr.] Wise’s use of prescription medications while he was undergoing cancer treatment.” 8
At trial, Mr. Wise attempted to make an offer of proof on the issue of Mr. Ames’s drug use and counsel for Mr. Wise asked the circuit court to reconsider its ruling on the motion in limine because, as he argued, “the jury has already heard of [Mr. Ames’s] criminal conviction for manufacturing marijuana, there can be absolutely no additional prejudice from talking about the obvious fact that he was also a user of marijuana.” He asserted the evidence was relevant because it helped explain why Mr. Ames сould not remember the specific dates on which he was allegedly assaulted by Mr. Wise or specific conversations between the parties. The circuit court denied Mr. Wise’s offer of proof and opined it had not heard any evidence that Mr. Ames “was using drugs the day that all this happened or any of the dates that happened.” 9
As previously related, this Court gives substantial deference to the trial court’s decision regarding the admissibility or exclusion of evidence, and the trial court’s decision will not be disturbed absent a showing of abuse of discretion.
Jerry Bennett Masonry, Inc.,
We agree with the circuit court’s ruling on this matter. Mr. Ames’s videotaped deposition testimony relating to his recreational use of marijuana is irrelevant to the issue of whether Mr. Wise assaulted him. There is nothing in the record to suggest Mr. Wise’s actions against Mr. Ames were related to Mr. Ames’s marijuana use or that Mr. Ames was under the influence of marijuana at the time the incidents occurred. In his videotaped deposition testimony, Mr. Ames discussed his general use of marijuana and did not testify that he used marijuana every day while at work at FFI or even that he did so during the time frame at issue.
On a related matter, Mr. Wise also asserts that in Mr. Ames’s videotaped deposition testimony he admitted he had reported on an insurance form that he had not engaged in drug activity in five years. Mr. Wise maintains this testimony was relevant to show Mr. Ames had lied and
In his third point relied on, Mr. Wise maintains the circuit court erred in excluding the testimony of Barry Ryan (“Mr. Ryan”) in which he stated “that he was solicited by [Mr. Ames’s] attorney to join the other Plaintiffs in the lawsuit to obtain large financial rewards and that [Mr. Ryan] declined as he felt the claims lacked merit as [Mr.] Wise’s actions were nothing more than horseplay....” Mr. Wise asserts this excluded evidence was tantamount to fraud and relevant to his defense because “Plaintiffs banded together to fabricate and exaggerate claims ... solely in an attempt to gain money and not because they were offended or harmed by [Mr.] Wises’s conduct.”
The circuit court disagreed. It found fraud was not an issue in the presеnt case in that it was not pled as a defense by Mr. Wise. The circuit court stated “[t]his ... unwritten defense of greed is what this ... testimony is solicited for. And ... that’s not a legal defense. That’s something you can argue in closing.” The circuit court opined that Mr. Ryan could testify “concerning ... being smacked” by Mr. Wise and he could be questioned “if he was asked to join the group [of Plaintiffs].... And that’s it.”
In our review, we observe that Rule 55.08 sets out that: “In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to ... fraud, illegality ... and any other matter constituting an avoidance or affirmative defense.” “As а matter of procedural law, if an affirmative defense is not pled, it results in a waiver of that defense.”
Century Fire Sprinklers, Inc. v. CNA/Transportation Ins. Co.,
In his fourth point, Mr. Wise asserts the circuit court erred in denying his motion for mistrial “on the ground that Plaintiffs injected the issue of insurance into the matter in violation of an order in limine .... ‘He maintains this information was injected purposely and in bad faith under the guise of impeaching a witness with deposition testimony where the deposition testimony was nearly identical to the witness’s testimony at trial.’ ”
Prior to trial, Mr. Wise filed a motion in limine in which he sought to exclude “[a]ny reference to insurance coverage beyond that necessary to determine a conflict for purposes of jury selection.” This motion was granted by the circuit court.
At trial, Thelma Haley (“Ms. Haley”), who is employed as “controller” at FFI, testified she did not believe she personally told Mr. Wise he could not hit people in the genitals; however, she testified that she “did talk to him that in today’s time where everybody wants to sue everybody, we can’t touch people. It’s just not a thing that we can do.” Counsel for Mr. Ames then inquired of Ms. Haley whether Mr. Wise had acknowledged to her that he should not hit people in the genitals. Ms. Haley denied that Mr. Wise had made such an acknowledgement, to-wit:
Counsel for Mr. Ames: And [Mr. Wise] told you that he knew he shouldn’t hit people in the genitals, right?
Ms. Haley: No. He just told me that it was a shame that we couldn’t joke around anymore, that it had come to a day and time when we couldn’t do that.
Counsel for Mr. Ames then read a portion of Ms. Haley’s prior deposition testimony. It read as follows:
Page 36, line 17, question was asked ‘And what did you tell [Mr. Wise]?’ And you answered: ‘That he need not be touching anyone. I used, you know, I was talking to him about our insurance carriers’ discrimination stuff is that— that, you know, in today’s time you cannot touch anyone, you can’t say anything, you can’t do anything, and that he needs to stop that. ’
(Emphasis added).
Counsel for Mr. Wise objected because Mr. Ames’s attorney “interjected into this matter the issue of insurance coverage and insurance carrier. And did so unnecessarily.” He then requested a mistrial and the circuit court ruled it would take the matter under advisement until the fоllowing morning.
When the matter was addressed the following day, counsel for Mr. Wise again argued bad faith by counsel for Mr. Ames in the introduction of the insurance coverage issue because the issue was specifically excluded by the motion in limine and the impeachment was unnecessary in that Ms. Haley’s trial testimony and deposition testimony were the same. Counsel for Mr. Ames responded that “the mere mention of insurance is not grounds for a mistrial” and in the present matter “there is no insurance.” The circuit court ultimately overruled Mr. Wise’s motion for mistrial on the basis that it did not “think it was done in bad faith....” 10
“Generally, ‘it is improper to inject the issue of the existence оf liability insurance into an action for damages.’ ”
Here, while there are similarities in testimony, Ms. Haley’s prior deposition testimony tended to rebut her trial testimony in that she was more emphatic regarding her previous assertions to Mr. Wise that he “need not be touching anyone” and “that he needs to stop that.” Additionally, we note that Mr. Wise fails to demonstrate prejudice and merely relies upon his own conclusory statement that “the size of the jury verdict ... demonstrates that [Mr.] Wise was prejudiced, especially since there was no insurance coverage for the claims being tried.... Thus, the jury was overly generous in their award because they thought there was insurance.... ”
It is our view that there is little or nothing in the record to suggest the jury’s award had anything to do with this single reference to the possibility of there being insurance coverage. We cannot say the single reference by Mr. Ames’s counsel reflects bad faith on its face. Furthermore, while there was reference to insurance coverage made during the course of Ms. Haley’s impeachment, her testimony did not expressly set out that Mr. Wise
had
insurance coverage available in case he assaulted an employee. A trial court is afforded great deference in determining whether the reference to insurance was injected into the trial in good faith.
See Hudson,
In his fifth point relied on, Mr. Wise maintains the circuit court erred in permitting Mr. Ames “to amend his Second Amended Petition after the close of the evidence to allege battery by offensive contact” where Mr. Wise “had defended the matter solely on the basis [pled] which was that [Mr. Wise] committed battery by causing bodily harm to [Mr. Ames].” 11
“Whether a party will be allowed to amend its pleadings is primarily a matter within the sound discretion of the trial court and is reviewed only for an abuse of discretion.”
Sheehan v. Northwestern Mut. Life Ins. Co.,
At the close of all the evidence, counsel for Mr. Ames orally requested the trial court permit him to “amend the [Second Amended] [P]etition to conform [with] the evidence.”
12
He stated that Mr. Ames
Rule 55.38 sets out in pertinent part:
(a) Amendments. A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.... (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
“The right to amend a pleading, however, is not absolute.”
Dueker v. Gill,
‘Factors that should be considered in deciding whether to allow leave to amend a petition are: (1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier plеadings; (3) timeliness of the application; (4) whether an amendment could cure the inadequacy of the moving party’s pleading; and (5) injustice resulting to the party opposing the motion, should it be granted.’
Id.
(quoting
Moore v. Firstar Bank,
Here, the Second Amended Petition alleged Mr. Wise “threatened physical harm to [Mr. Ames] with the intent to cause ... offensive contact ...” and that Mr. Wise caused Mr. Ames “to be in apprehension of ... offensive contact.” The Second Amended Petition also stated Mr. Wise “did in fact cause bodily harm ...” to Mr. Ames and “inappropriately and intentionally grabbed or slapped [his] geni-
In his sixth point relied on, Mr. Wise asserts the circuit court erred in failing to “order remittitur or a new trial because the verdict of $65,000.00 in actual damages was excessive and not supported by the evidence and a result of other trial error.”
This Court affords a trial court broad discretion in reviewing the denial of a motion for remittitur as the trial court is in the best position to weigh the evidence with regard to the motion.
Magnuson by Mabe v. Kelsey-Hayes Co.,
“Excessive verdicts generally arise in two situations: (1) when thе jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awarding disproportionate damages; and (2) when the jury is biased by trial misconduct to award grossly excessive damages.”
McCormack v. Capital Elec. Constr. Co.,
Here, Mr. Wise does not argue the jury made an “honest mistake in weighing the evidence as to the nature and extent of the injury and awarding disproportionate damages .... ” Id. at 394-95. Rather, he argues that “misconduct by [Mr.] Ames in violating the order
in RJimine
by improp
In order to be granted a new trial when the jury has been biased by trial misconduct such that it awards grossly excessive damages, “actual trial error must be shown.”
Knifong,
As previously set out, to be entitled to a new trial or remittitur Mr. Wise must show “actual trial error.... ”
Knifong,
In Mr. Wise’s seventh point relied on and FFI’s sole point relied on, they each assert the circuit court erred in denying their Motion to Amend Judgment to require Mr. Ames to pay their costs and attorney’s fees because they are
entitled to [their] costs and reasonable attorney’s fees as ... prevailing party under ... the [MHRA], on the grounds that: [Mr. Ames] (1) filed frivolous claims against [them] under the [MHRA], knowing that such claims were without foundation because [Mr. Ames] had not exhausted administrative remedies as required ...; (2) refiled such MHRA claims after [FFI and Mr. Wise] obtained dismissal of such frivolous claims, requiring [FFI and Mr. Wise] to file another motion to dismiss; and (3) filed the matter in the Circuit Court of the City of St. Louis without a legal or factual basis in an attempt to obtain a favorable venue for a claim against a wealthy white businessman in Springfield with a minority jury; undertaking all such actions in an attempt to coerce a multi-million dollar settlement.
Under Rule 75.01 trial courts are granted the inherent power to amend judgments during the thirty-day period after entry of judgment. “The standard of review for denial of a motion to amend judgment is abuse of discretion.”
Gill Const., Inc. v. 18th & Vine Authority,
In his Second Amended Petition Mr. Ames alleged “assault and battery” as the sole cause of action. There is no mention in the Sеcond Amended Petition of discriminatory employment practices, sexual harassment in the workplace or hostile work environment which are causes of action which specifically arise under the MHRA.
See
§§ 213.010, 213.055, 213.065, and 213.070. Mr. Ames may have brought MHRA allegations in his prior petitions, but he did not do so in the Second Amended Petition which was the operative pleading in this case. “[I]t is axiomatic one cannot recover for a cause of action not pleaded.... ”
Memco, Inc. v. Chronister,
The judgment of the circuit court is affirmed.
Notes
.The original Petition in this matter listed the following people as plaintiffs: Zacqrey L. Woods; Gregory L. Hanson; Mr. Ames; Matthew Hayes; Matthew McDonald; Anthony J. Frohock; James Williams; Randy Fleming; Michael Lowry; and Tony Garner (collectively "Plaintiffs”). As explained later in this opinion, the claims of the individual plaintiffs were severed and the trial at issue was held only in relation to Mr. Ames’s claims against FFI and Mr. Wise; thus, only Mr. Ames appears in this appeal. Additionally, Ford Motor Company ("Ford”) was also named as a dеfendant in the original petition in this matter, but was later dismissed from the lawsuit when the circuit court granted its motion for summary judgment.
.' Mr. Ames was employed at FFI from February of 1999 to November of 1999 and then again from September of 2000 to August of 2001.
. The MHRA is codified as sections 213.010 to 213.137. All statutory references are to RSMo 2000.
. Zacqrey Woods and Anthony Frohock voluntarily dismissed their causes of action prior to the filing of the First Amended Petition.
. This was the second such trial held with regard to this matter.
.As explained in Point Seven, FFI brings its appeal from the denial by the circuit court of its Motion to Amend the Judgment in which it requested an order requiring Mr. Ames to pay its costs and attorney's fees pursuant to certain provisions of the MHRA.
. All Rule references are to Missouri Court Rules (2007).
. In this connection, Mr. Wise argues the circuit court treated the parties in this matter "inconsistently with regard to admitting evidence of drug use” in that it permitted the jury to hear evidence relating to Mr. Wise's use of prescription drugs when he was being treated for colon cancer. Accordingly, Mr. Wise maintains "the inconsistent and unfair treatment of [Mr.] Ames and [Mr.] Wise demonstrates prejudice” and requires a new trial.
. Prior to the close of evidence, Mr. Wise asked the circuit court to again reconsider its ruling and the circuit court again denied the request.
. The jury was instructed to disregard the prior question and answer.
. We also observe that in his argument under this point relied on, Mr. Wise attempts to raise an issue relating to his objection at trial to Jury Instruction 7. This issue is not raised in his point relied on as required by Rule 84.04 and will not be reviewed. " ‘Errors raised for the first time in the argument portion of the brief and that are not raised in the point relied on need not be considered by this [C]ourt.‘ "
Pearman v. Dep’t of Social Srvs.,
. In the Second Amended Petition, Mr. Ames asserted, among other things, that Mr. Wise "has on numerous occasions threatened physical harm to [him] with the intent to cause ... bodily harm, apprehension of bodily harm,
offensive contact,
and apprehension of physical contact;” that Mr. Wise "caused [him] to be in apprehension of bodily harm and
offensive contact; "
that Mr. Wise “inten
. We are partly hampered in our review of this point by the fact that Mr. Wise has failed to include a copy of the jury instructions in the record on appeal.
. " ‘[W]here the jury errs by awarding a verdict which is simply too bounteous under the evidence, injustice may be prevented by ordering a remittitur.’ "
Lindquist v. Scott Radiological Group, Inc.,
. Mr. Wise argues in his appellate brief that in addition to the "misconduct” relating to the issue of insurance, “the above-discussed trial errors” were also "responsible for inciting the passion and prejudice of the jury....” There are no other “trial errors” discussed under this point relied on and this Court is unsure as to what Mr. Wise is referring. Accordingly, we address this issue only as it relates to the asserted alleged error regarding the insurance issue.