Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Cole County, Missouri The Honorable
Daniel R. Green, Judge.
Mark D. Pfeiffer, Chief Judge, and James Edward Welsh and
Gary D. Witt, Judges.
D. Pfeiffer, Chief Judge.
Stacy S. Minze ("Minze") appeals from the judgment
entered by the Circuit Court of Cole County, Missouri
("trial court"), after a jury verdict on retrial
after remand, in favor of the Missouri Department of Public
Safety ("Department") on Minze's petition for
retaliation under the Missouri Human Rights Act
("MHRA"). Minze asserts that the trial court: (1)
erred in admitting evidence and permitting the Department to
use that evidence to impeach her; (2) erred in overruling her
objections to the Department's closing argument; and (3)
lacked jurisdiction to hear retrial of the case. We affirm.
and Procedural History
22, 2009, Minze filed a petition against the Department, the
Missouri Capitol Police Department, and Todd Hurt,
individually and in his official capacity as Chief of the
Missouri Capitol Police, alleging that while employed as a
Capitol Police Officer, she was subjected to unlawful
discrimination based on sex (Count I) and retaliation in
violation of the MHRA (Count II). A jury trial was conducted
on August 21, 2012. The jury returned a verdict for the
Department, the Missouri Capitol Police, and Todd Hurt on
Minze's sex discrimination claim (Count I) and for Minze
against the Department on Minze's unlawful retaliation
claim (Count II). The jury awarded her $70, 000 in actual
damages and $70, 000 in punitive damages. The trial court
entered judgment for Minze and against the Department in the
total amount of $500, 113.42, which included $360, 113.42 for
attorney's fees and costs. The Department appealed. On
April 8, 2014, this court issued its opinion, reversing the
trial court's judgment due to instructional error and
remanding the case for a new trial. Minze v. Mo.
Dep't of Pub. Safety, 437 S.W.3d 271 (Mo. App. W.D.
2014) ("Minze I").
remand, Minze amended her pleadings as to the retaliation
claim against the Department and the case was again tried to
a jury, which returned a unanimous verdict for the
Department. The trial court entered judgment on the
jury's verdict in favor of the Department. Minze's
motion for new trial was overruled by operation of Rule
I - Admission of Evidence and Cross-Examination
Minze's first point, she asserts that the trial court
erred in admitting into evidence "superseded pleadings,
" including the Charge of Discrimination
("Charge") that was attached as an exhibit
to her original petition, and in permitting the Charge to be
used during her cross-examination to impeach her.
admissibility of evidence lies within the sound discretion of
the trial court, including the introduction of evidence for
the purposes of impeachment." Litton v.
Kornbrust, 85 S.W.3d 110, 113 (Mo. App. W.D. 2002)
(internal citation omitted) (internal quotation omitted).
Furthermore, "the extent and scope of cross-examination
in a civil action is within the discretion of the trial court
and will not be disturbed unless an abuse of discretion is
clearly shown." Id. (internal quotation
omitted). A trial court abuses its discretion if its ruling
is clearly against the logic of the circumstances and is so
unreasonable and arbitrary that it shocks the sense of
justice and indicates a lack of careful, deliberate
put, this is not a "superseded pleading" case but
is, instead, use of evidence demonstrating that Minze had
previously made statements that were inconsistent in a
material way with Minze's trial testimony. Minze's
claim on appeal fails.
pleading has been defined as "any complaint, answer,
reply, application, protest, petition for review, or
motion." Moxness v. Hart, 131 S.W.3d 441, 446
(Mo. App. W.D. 2004). See also Rule
55.01. Suggestions in support of motions have
also been denominated pleadings. Id. at 447.
Pleadings have similarly been described as the
"'formal allegations by the parties to a lawsuit of
their respective claims and defenses, with the intended
purpose being to provide notice of what is to be expected at
trial.'" Gerlach v. Mo. Comm'n on Human
Rights, 980 S.W.2d 589, 591 (Mo. App. E.D. 1998)
(quoting Black's Law Dictionary 1152 (6th ed. 1990)).
the Charge that was attached as an exhibit to a
pleading, while forming part of the statutory prerequisite to
Minze's MHRA action, see Daffron v. McDonnell Douglas
Corp., 874 S.W.2d 482, 484 (Mo. App. E.D. 1994),
not itself a pleading in the present discrimination
lawsuit. Hence, Minze's claim that the trial
court committed error by permitting the introduction of
"superseded pleadings" is without merit.
the trial court properly permitted the Charge to be used by
the Department as impeachment evidence. Cross-examination of
a witness on the stand for the purpose of impeaching that
witness has long been permitted in Missouri, "subject to
the trial court's discretion in limiting or, in rare
instances, precluding such evidence entirely so as to avoid
undue prejudice." Mitchell v. Kardesch, 313
S.W.3d 667, 676 (Mo. banc 2010). "Missouri similarly
permits cross-examination where the witness's testimony
at trial is inconsistent with a prior statement, but here the
cases generally require the prior statement to be about a
material issue." Id. Materiality is broadly
defined to include statements affecting credibility.
Id. Furthermore, a party may impeach or contradict a
witness on matters brought out on direct examination.
Maugh v. Chrysler Corp., 818 S.W.2d 658, 661 (Mo.
App. W.D. 1991). "Broadly speaking, any statement of a
witness inconsistent with his testimony should be admitted to
discredit or impeach him, whether made in or out of
court." Neavill v. Klemp, 427 S.W.2d 446, 448
(Mo. 1968) (internal quotation omitted).
direct examination, Minze testified that she received a
letter from the Department, Missouri Capitol Police, dated
March 4, 2008, signed by Chief Hurt, which informed her that
upon expiration of her FMLA entitlement, the approval of her
claim for long-term disability benefits, and in the interest
of having her position filled, she was considered to have
resigned in good standing from her position as Capitol Police
lieutenant. Within a day or two after receiving the letter,
Minze went to the Capitol Police office to clean out her
office. She testified that she met with Chief Hurt and asked
him if she could have her leave extended until she could come
back to work full duty, but he refused to keep Minze's
position open. Minze testified that Chief Hurt's denial
of her request to remain on unpaid leave in lieu of
termination was one of four acts of retaliation in response
to her sex discrimination claim against the Department.
cross-examination, counsel for the Department asked Minze
whether Chief Hurt's statement to her that he was not
going to grant her any additional unpaid leave was
significant with regard to her retaliation claim; Minze
replied that it was. Counsel for the Department then
questioned Minze about the Charge she filed. In the Charge,
Minze alleged that the Department and the Missouri Capitol
Police discriminated against her based on her sex and
disability and in retaliation for her having filed a formal
grievance with the Director of the Department. By way of
example, she described in detail eleven "specific acts
of discrimination." Not included in the Charge was her
allegation that Chief Hurt denied Minze's request that
her leave be extended until she could come back to work full
duty. Counsel for the Department cross-examined Minze about
the Charge she filed:
Q: . . . And it's pretty detailed. It talks a lot about
your issues with Chief Hurt. Correct?
. . . .
Q: Now, this document doesn't contain anything about
asking Chief Hurt for additional leave when you . . . went in
to clean out your office. Right?
Q: But that's one of your four major acts of retaliation
that you're ...