Court of Appeals of Missouri, Western District, Special Division
RANDALL E. BURNS, ET AL., Appellants,
JASON TAYLOR, ET AL., Respondents.
from the Circuit Court of Linn County, Missouri The Honorable
Thomas P. Redington, Judge
Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge
and Kelly L. Lovekamp, Special Judge
D. Witt, Judge
Burns, Amanda Burns, and the Estate of Nicole Burns
(collectively "Burnses"), appeal the judgment of
the Circuit Court of Linn County against
Randall for $50, 000 in actual damages and $50,
000 in punitive damages to Jason Taylor, and the Burnses also
appeal the trial court's denial of their Motion for New
Trial. The Burnses raise five allegations of error and
request this court order a new trial or in the alternative
remit the damages award. We affirm.
case centers around three fights that occurred in Brookfield,
Missouri in the early morning hours of September 10, 2011.
The first fight took place shortly after the Pigskin bar
closed. Levi Swanson ("Swanson") and Derrik Wills
("Wills") got into a fight in the parking lot of
the bar. Amanda and Nicole entered the fray and punched and
kicked Swanson. The fight broke up when the police arrived.
the police left the scene, another altercation occurred
between Amanda and Nicole against Jason Taylor
("Taylor"). Swanson joined the fight in
Taylor's defense. It is unclear from the evidence exactly
when, but at some point during these first two altercations,
Amanda broke her wrist and Nicole sustained a back injury.
After the second fight, Amanda called Randall and asked him
to pick up her and her sister. Nicole called Randall
separately and asked Randall to "kick [Taylor's]
Randall arrived, Nicole requested to go to Swanson's
house, and after driving two blocks, Amanda got out of the
vehicle and walked home. Randall drove to his son,
Robert's home, to pick up Robert for "backup,"
and then Randall, Nicole, and Robert drove to Swanson's
house. Once the three arrived at Swanson's home, both
Taylor and Swanson (collectively "Respondents")
arrived. Randall was carrying an axe handle and swung it at
Taylor. Randall hit Taylor over the head, and Taylor fell to
the ground suffering a shoulder injury. Randall then began to
punch Taylor repeatedly. Taylor begged Randall to stop
hitting him. The third fight ended when police arrived.
Taylor suffered a broken right arm, torn right shoulder
capsule, and a torn right shoulder labrum. Taylor missed
several months of work and continues to have limitations of
the use of his right arm.
Burnses filed a petition for damages on September 4, 2014,
which was later amended. The amended petition alleged
negligence against Respondents, battery against Swanson, and
battery against Taylor. Taylor brought a counterclaim against
Nicole and Amanda for battery, and Respondents brought a
counterclaim against Randall for battery. A jury trial was
held on March 15 and 16, 2018.
jury returned a verdict on March 16, 2018, in favor of
Respondents on all claims submitted by the Burnses and in
favor of Taylor against Randall on the counterclaim for
battery in the amount of $50, 000 in actual damages and $50,
000 in punitive damages. On April 9, 2018, the Burnses filed
a Motion for New Trial and in the alternative a Motion for
Remittitur. On May 29, 2018, following a hearing, the trial
court denied both motions and entered judgment against
Randall in accordance with the jury's verdict. This
Burnses raise five points on appeal. First, the Burnses argue
that the trial court erred in not granting a new trial based
on juror nondisclosure. Second, the Burnses allege that the
trial court abused its discretion by refusing to allow a
witness to testify as a discovery sanction. Third, the
Burnses assert that Respondents violated the witness
exclusion rule and that the trial court erred in denying its
motion for a new trial on these grounds. Fourth, the Burnses
argue the court erred by admitting a redacted document into
evidence, informing the jury of the redaction, and not
admitting the complete document into evidence. Fifth, the
Burnses allege the trial court erred in denying remittitur
because the damage awards exceeded fair and reasonable
compensation for the injury sustained.
their first point, the Burnses argue that the trial court
erred in not granting a new trial based on juror
nondisclosure. Burnses argue that some jurors were Facebook
friends with the Respondents and failed to disclose this
relationship during voir dire.
trial court has great discretion in determining whether to
grant a new trial." Duckett v. Troester, 996
S.W.2d 641, 646 (Mo. App. W.D. 1999) (citation omitted)
(overruled on other grounds by Spiece v. Garland,
197 S.W.3d 594 (Mo. banc 2006)). "Its decision is
presumed to be correct and will be reversed on appeal only
for an abuse of discretion." Id. "An abuse
of discretion occurs where the trial court's ruling is so
arbitrary and unreasonable as to shock one's sense of
justice and indicate a lack of careful consideration."
Id. "It cannot be said that the trial court
abused its discretion where reasonable persons could differ
over the propriety of its ruling." Id.
parties have a right to a fair and impartial jury"
composed of twelve unbiased individuals whose experiences
will not prejudice the case. Fielder v. Gittings,
311 S.W.3d 280, 283 (Mo. App. W.D. 2010). Prospective jurors
have a duty to "fully, fairly and truthfully answer each
question asked" during voir dire examination.
Id. When a juror withholds material information
resulting in bias and prejudice to the moving party, a new
trial is warranted. Id. "In determining whether
to grant a new trial for juror nondisclosure, the court first
must determine whether a nondisclosure occurred at all."
Id. If a juror intentionally conceals material
information, then the appropriate remedy is to grant a new
trial. Brines by Harlan v. Cibis, 882 S.W.2d 138,
140 (Mo. banc 1994).
Court will not disturb the circuit court's ruling on
motion for a new trial based on juror nondisclosure unless
the trial court abused its discretion." Spence v.
BNSF Ry. Co., 547 S.W.3d 769, 774 (Mo. banc 2018)
(citation omitted). The threshold determination is the
clarity of the question asked during voir dire.
Sapp v. Morrison Bros. Co., 295 S.W.3d 470, 474 (Mo.
App. W.D. 2009). A question is considered clear if "a
lay person would reasonably conclude that the undisclosed
information was solicited by the question." Payne v.
Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 841 (Mo.
App. E.D. 2005).
Burnses assert that jurors K.Z. and H.L. failed to
disclose they were Facebook friends with Respondents
indicating bias and prejudice against the Burnses. During
voir dire, Burnses' counsel asked "Does
anyone know either Mr. Swanson or Mr. Taylor?" This
question is clear; and therefore, we must next determine if
the jurors failed to disclose information that was solicited
by the question.
answered, "I know both of their parents, and I know the
boys. I know both boys." Then Burnses' counsel asked
this follow-up question, "Is there anything about that
knowledge that would prevent you today from being fair and
impartial in your case?" K.Z. answered, "No."
Burnses' counsel did not ask K.Z. any additional
questions regarding K.Z.'s relationship with Respondents
and asked no questions about social media relationships.
response to the question, H.L. answered, "I don't
know them personally. It's just, like, I said, a small
town. I didn't recognize them either, either one of them,
but I know the name." Burnses' counsel did not ask
H.L. any additional questions regarding H.L.'s
relationship with Respondents and asked no questions about
social media relationships.
jurors answered the questions posed by Burnses' counsel
as a reasonable juror would have. No reasonable juror would
have inferred that counsel's questions required them to
inform the parties if they were Facebook friends with
Respondents. Furthermore, Burnses' counsel could have
asked follow-up questions about the nature of these two
jurors' relationships ...