Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R
W. SHEFFIELD, P.J.
case comes before the Court on cross appeals by Mercy Clinic
Springfield Communities ("Clinic") and Dr. Hyewon
Kim ("Dr. Kim"). Clinic brings three points that
each challenge the trial court's denial of Clinic's
motions for directed verdict and motions for judgment
notwithstanding the verdict ("JNOV") as to Dr.
Kim's claim for constructive discharge in violation of
public policy. Dr. Kim brings two points asserting
Clinic's counterclaim for unjust enrichment should have
failed. Finding that Clinic's points on appeal are waived
because Clinic did not present a motion for directed verdict
at the close of the evidence, and Dr. Kim's points have
no merit, we affirm.
forth only those facts necessary to decide the issues
presented. Dr. Kim was employed by Clinic as a radiation
oncologist. Dr. Kim's compensation was provided in the
form of an advance on her salary, paid in the form of a
"semi-monthly draw." The payment terms of Dr.
Kim's employment agreement specified that, with the
exception of newly recruited physicians, "[t]he Draw is
an advance only and is not a guarantee." Following Dr.
Kim's resignation, Clinic sent four letters requesting
that Dr. Kim repay the unearned portion of her salary
advance. Dr. Kim refused.
sued Clinic and Mercy Hospital of Springfield (collectively,
"Defendants"). Dr. Kim claimed that Clinic
retaliated against her and constructively discharged her
after she reported instances of substandard medical treatment
and Medicare fraud. Clinic filed a counterclaim against Dr.
Kim for breach of contract and unjust enrichment.
Clinic's unjust enrichment claim was based on allegations
that Dr. Kim had retained payment for services she failed to
provide for Clinic. Dr. Kim filed her answer to Clinic's
counterclaim in which she pled that Clinic's claim for
unjust enrichment was barred under the equitable doctrine of
unclean hands because Clinic's own improper conduct led
to Dr. Kim's resignation.
trial, Dr. Kim and Clinic each dismissed their
breach-of-contract claims against each other, and Dr. Kim
dismissed Mercy Hospital of Springfield, leaving only Dr.
Kim's claim for wrongful termination against Clinic and
Clinic's claim for unjust enrichment against Dr. Kim.
Before closing arguments, the parties agreed to present the
claim for unjust enrichment "as an equitable claim to
the Court" for determination after the jury returned a
jury found in favor of Dr. Kim and against Clinic on Dr.
Kim's claim for constructive discharge in violation of
public policy and awarded Dr. Kim compensatory and punitive
damages. After further briefing and argument, the trial court
entered a judgment finding in Clinic's favor and against
Dr. Kim on Clinic's counterclaim for unjust enrichment.
Clinic and Dr. Kim appealed.
raises three points that each challenge only the trial
court's denial of its "motion for directed verdict
and motion for JNOV[.]" Dr. Kim responds that each of
Clinic's arguments on appeal are waived because Clinic
did not make a motion for directed verdict at the close of
determine whether a directed verdict or judgment
notwithstanding the verdict should have been granted this
Court applies essentially the same standard."
Ellison v. Fry, 437 S.W.3d 762, 768 (Mo. banc 2014).
"A case may not be submitted unless each and every fact
essential to liability is predicated upon legal and
substantial evidence." Giddens v. Kansas City S. Ry.
Co., 29 S.W.3d 813, 818 (Mo. banc 2000). "Evidence
is viewed in the light most favorable to the jury's
verdict, giving the plaintiff all reasonable inferences and
disregarding all conflicting evidence and inferences."
Neivsome v. Kansas City, Missouri Sch. Dist., 520
S.W.3d 769, 775 (Mo. banc 2017) (quoting Fleshner v.
Pepose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo. banc
2010)). "When the grant or denial of a directed verdict
or a JNOV is based upon a matter of law... we review the
trial court's decision de novo." Trinity
Lutheran Church v. Lipps, 68 S.W.3d 552, 557 (Mo.
App. E.D. 2001).
Rule 72.01 permits a party to move for a directed verdict at
the close of the opponent's evidence or at the close of
all evidence. Sanders v. Ahmed, 364 S.W.3d 195,
206-07 (Mo. banc 2012). The framework delineated in Rule
72.01 effectively describes "the procedure for
challenging the submissibility of plaintiff s case." IcL
at 207. Indeed, the "purpose of motions for directed
verdict and JNOV is to 'challenge the submissibility of
the plaintiffs case.'" Bailey v. Hawthorn
Bank, 382 S.W.3d 84, 99 (Mo. App. W.D. 2012) (quoting
Marquis Fin. Servs. of Indiana, Inc., 365 S.W.3d at
"To preserve the question of submissibility for
appellate review in a jury-tried case, a motion for directed
verdict must be filed at the close of all the
evidence and, in the event of an adverse verdict, an
after-trial motion ... must assign as error the trial
court's failure to have directed such a verdict."
Pope v. Pope, 179 S.W.3d 442, 451 (Mo. App. W.D.
2005) (quoting Letz v. Turbomeca Engine Corp., 975
S.W.2d 155, 163 (Mo. App. W.D. 1997), overruled on other
grounds in Badahman, 395 S.W.3d at 40).
Wilkins v. Bd. of Regents of Harris-Stowe State U.,
519 S.W.3d 526, 544-45 (Mo. App. E.D. 2017) (emphasis added).
Clinic submitted motions for directed verdict at the close of
Dr. Kim's evidence, which included the arguments Clinic
raises on appeal. The trial court denied those motions, and
Clinic presented evidence. "By doing so, [Clinic] waived
any error in the denial of the motion[s]" for directed
verdict at the close of plaintiff s evidence. Senu-Oke v.