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Gravatt v. Sims

Court of Appeals of Missouri, Southern District, Second Division

September 12, 2016

RITA F. GRAVATT, Plaintiff-Appellant,
v.
DARYL L. SIMS and JAMES S. BARKER, d/b/a Barker Tree Service, and CYNTHIA A. BARKER, d/b/a Barker Tree Service, Defendants-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson, Circuit Judge.

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Rita F. Gravatt ("Gravatt") filed suit against Daryl L. Sims ("Sims"), and James S. Barker, d/b/a Barker Tree Service and Cynthia A. Barker, d/b/a Barker Tree Service (collectively the "Barkers") following an automobile accident.[1] The jury returned a verdict in favor of Sims and the Barkers, and against Gravatt. This appeal followed. Gravatt raises two points of error. Finding no merit to any of Gravatt's points, we affirm the judgment of the trial court.

         Facts and Procedural History

         On July 24, 2009, Gravatt and Sims were involved in a head-on collision on East Highway 76 in Branson. Gravatt sustained serious personal injuries in the accident.

         On June 29, 2011, Gravatt filed a petition for damages in Taney County against Sims and Sims' employer, the Barkers, under whose authority Gravatt claimed Sims was acting at the time of the crash.[2]

         Trial commenced on July 20, 2015, and the central contested issue was whether it was Gravatt or Sims that crossed the centerline, thereby causing the head-on collision.

         After the close of the evidence, a jury instructions conference was held. The instructions conference proceeded with most of the discussion being between the trial court and Sims' attorney. The instructions conference, comprising nine pages of transcript, indicates that Gravatt's attorney spoke four times: twice in non-substantive contributions, once to consent to an instruction, and once to indicate that he had no other objections or additions to the instructions at the close of the conference. Gravatt's attorney made no objection on the record to any of the jury instructions, either during the jury instructions conference or at any other time during proceedings.

         On July 24, 2015, the trial court entered its judgment consistent with the jury's verdict. On August 10, 2015, Gravatt filed her "Amended Motion for New Trial" asserting, in relevant part, that the trial court gave "erroneous or incomplete jury instructions" to the jury. The trial court denied the motion. This appeal followed.

         In two points on appeal, Gravatt asserts the trial court erred in failing to include a verdict director from MAI 17.04, and in failing to hold a proper instructions conference pursuant to Rule 70.02(e).[3]

         The issues for our determination are whether the trial court erred in failing to: (1) sua sponte include verdict director MAI 17.04 in the jury instructions, or (2) hold a proper instruction conference pursuant to Rule 70.02(e).

         Standard of Review

         "Whether a jury was instructed properly is a question of law this Court reviews de novo." Hervey v. Mo. Dept. of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012). "Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of ...


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