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September 28, 1993



Before Ulrich, P.j.; Berrey and Smart, JJ.

The opinion of the court was delivered by: Ulrich

Forest J. Philmon appeals the judgment entered, following jury verdict, in favor of defendants Martin Baum d/b/a Lin-Rub Co. Inc., ("Lin-Rub Co.") and Squaw Creek Truck Plaza, Inc. ("Squaw Creek"). Mr. Philmon also appeals the dismissal of defendant Elmhurst Rubber Co., Inc. for lack of personal and subject matter jurisdiction. The judgment is affirmed.

This strict products liability case arose from events occurring on January 26, 1982, when Mr. Philmon, an over-the-road truck driver, while seated in the driver's seat of his truck, attempted to hook a tarp strap *fn1 over his suitcase on the "doghouse." *fn2 Mr. Philmon hooked the strap to the right side of the doghouse, then used two hands to stretch the strap to the left side. As he was pulling the strap, it came loose, and a part of it struck him in the left eye. As a result, Mr. Philmon lost the vision in his left eye. Mr. Philmon claimed to have purchased that tarp strap in 1980 or 1981 from Defendant Squaw Creek. The strap was imprinted with the words "Lincoln Rubber Company." *fn3

Forest Philmon alleges several points on appeal. He contends that the trial court erred by: (1) not granting a new trial because one or more of defendants' peremptory strikes were racially based; (2) permitting defendants to make reference to manufacturers which were not parties to the suit; (3) permitting references implying that Mr. Philmon was contributorily negligent where defendants did not plead contributory negligence as an affirmative defense and were denied leave to amend their pleadings to include it; (4) limiting each party to two opportunities to question each witness; (5) failing to grant mistrial motions for comments defendants made during voir dire and opening statements regarding plaintiff's negligence and manufacturers; (6) dismissing the alleged manufacturer for lack of personal and subject matter jurisdiction; and (7) that the cumulative effect of all the above-mentioned occurrences were so prejudicial as to merit a new trial on all issues.

The judgment of the trial court is affirmed.


Appellant Forest Philmon contends for his first point on appeal that the trial court erred in refusing a new trial because the defense exercised peremptory strikes that were allegedly racially motivated. Mr. Philmon did not raise a Batso n *fn4 challenge at voir dire or during the course of the trial. On the morning after the jury was impaneled, Mr. Philmon's counsel was informed that certain comments attributed to counsel for Defendants Martin Baum and Lin-Rub Co. demonstrate that at least one of his peremptory strikes was exercised for racially impermissible reasons. *fn5 Mr. Philmon, however, did not raise this issue with the court. He instead allowed the trial to proceed for two weeks and only after the verdict was not in his favor did he allege racially discriminatory use of peremptory challenges. Mr. Philmon presents two arguments as to why he has not waived his right to make a Batson challenge.

Mr. Philmon's first argument is that because Edmonson v. Leesville Concrete Company, Inc., 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991), was handed down the same day that the verdict in this case was rendered, counsel believed that the trial court was bound by this court's decision in McDaniel v. Mutchnick, 1990 WL 165952 (W.D. Mo 1990) (transferred June 11, 1991). Batson found that the prosecuting attorney in the criminal case against a racial minority defendant represented the state and that the Fourteenth Amendment proscribed the prosecutor from exercising racially discriminatory peremptory strikes to prevent venirepersons who were members of the same racial minority as the defendant from serving on the jury. This court decided in Mutchnick, over strong Dissent, that Batson was inapplicable to civil cases since private parties in a civil suit were not state actors for purposes of the Fourteenth Amendment. The Court in Edmonson found sufficient state nexus in civil cases and held that racially discriminatory peremptory strikes in civil cases were constitutionally impermissible. Mr. Philmon argues that Mutchnick was "the law" in the Western District of Missouri until Edmonson "became generally known," and that in this case "it would have been difficult, if not impossible, for to in good faith either challenge the peremptory strikes at the time they were made, or to attempt to have a mistrial declared upon learning [of the alleged comments]."

Mr. Philmon relies on Missouri Rule of Civil Procedure 55.03 for this "good faith" reason not to challenge the peremptory challenges. Rule 55.03 states that pleadings and motions are to be signed by counsel and the signature certifies that ". . . it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law ; . . . Rule 55.03 (emphasis added).

Mutchnick was not a unanimous decision. Judge Shangler, in Dissent, stated that the very same issue which this court addressed was then pending before the United States Supreme Court. Judge Wasserstrom's Dissent listed many decisions throughout the United States that had applied Batson to civil cases.

A motion to transfer Mutchnick to the Supreme Court of Missouri was timely filed before this court's mandate was entered. While transfer to the Supreme Court is pending, the mandate of the court of appeals is not entered. If transfer is accepted, the Supreme Court may determine the case the same as on original appeal. Rule 83.09; Buchweiser v. Estate of Laberer, 695 S.W.2d 125, 127 (Mo. banc 1985). The decision of the court of appeals in a case subsequently transferred is of no precedential effect. Carroll v. Loy-Lange Box Co., 829 S.W.2d 86, 90 (Mo. App. 1992). If transfer is denied, the intermediate appellate court's mandate is then entered and the decision becomes final. During the time transfer is pending, and until transfer is denied and the mandate subsequently entered, a decision by this court is not final. At the time of the Philmon trial, the final mandate in Mutchnick had not been entered by this court since transfer to the Missouri Supreme Court was pending. *fn6 The Mutchnick decision, therefore, was not final.

A good faith argument existed at trial that racially discriminatory peremptory challenges were unconstitutional. Since a good faith argument was evident, Mr. Philmon was not precluded from raising the issue at jury selection or when his counsel became aware of alleged racial-based peremptory challenges.

The question of when a party must bring a Batson challenge has been answered by the Missouri Supreme Court. In State v. Parker, 836 S.W.2d 930 (Mo. banc 1992), the Court held that a Batson challenge, to be timely raised, must be raised before the venire is excused. Id. at 937. A trial court can correct an improper peremptory strike if the venire has not yet been excused. Id. at 936. Opposing counsel, with the memory of the stricken venirepersons and the reasons for striking them still fresh in his mind, can recall and elucidate the reasons for his peremptory challenges. Waiting until after the trial to raise a Batson challenge is prejudicial to the opposing side and does not provide an opportunity for the improperly stricken venireperson to serve. See Dias v. Sky Chefs , 948 F.2d 532, 535 (9th Cir. 1991). Appellant did not contest peremptory challenges until after the verdict. A Batson challenge is waived unless timely raised. State v. Cortez-Figueroa, 855 S.W.2d 431, 437 (Mo. App. 1993) . Mr. Philmon waived his right to raise a Batson challenge by not raising it timely and thus did not preserve it for appeal.

Mr. Philmon's second argument on this point is that the trial court committed plain error by not raising a Batson challenge sua sponte. Mr. Philmon presented no authority for the proposition that the trial court must raise a constitutional issue if the litigants fail to do so. A trial Judge is not required to raise potential constitutional issues if the litigants do not raise them. This is especially so when no clear constitutional issues are present. The court was not aware of any racially impermissible motives. This argument is without merit.

Mr. Philmon requests that this issue be considered as plain error. Rule 84.13(c) of the Missouri Rules of Civil Procedure provides:

Plain 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.

Mr. Philmon cites a case from the Eastern District that states if a motion for mistrial was made without mentioning the constitutional grounds, the Court of Appeals could still consider the potential violation of constitutional rights as plain error on appeal. State v. Williams, 730 S.W.2d 299, 301 (Mo. App. 1987). The distinguishing difference is that in Williams, which was a criminal case, a challenge was made at trial, albeit cursory, but the challenge was not mentioned in the motion for a new trial. Id. at 300. In this case no challenge was made until after the verdict was handed down.

Neither manifest inJustice nor miscarriage of Justice resulted from the peremptory challenges in this case. A party cannot "sandbag" a constitutional claim, gamble on a jury result, and, then if the verdict is adverse, claim plain error. Associated Underwriters, Inc. v. Mercantile Trust Co. Nat'l Ass'n , 576 S.W.2d 343, 346 (Mo. App. 1978) ; see also Sherpy v. Bilyeu, 608 S.W.2d 521, 523 (Mo. App. 1980) (plain error is not a doctrine available to revive issues already abandoned by selection of trial strategy or by oversight). Mr. Philmon's point one is denied. *fn7


Mr. Philmon asserts as his second point on appeal that the trial court erred by allowing respondents to interject references to "manufacturers" where the alleged manufacturer of the tarp strap in this case (Elmhurst Rubber Company) had been dismissed for lack of subject matter and personal jurisdiction, and the court had sustained a Motion in Limine to prevent the mention of the manufacturer before the jury. Specifically, Mr. Philmon complains of comments that made reference to "manufacturers." Mr. Philmon ...

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