Joe Frazier v. City of Kansas City, Missouri

In the
Missouri Court of Appeals
Western District
JOE FRAZIER, )
)
Appellant, ) WD77294
)
v. ) OPINION FILED: April 14, 2015
)
CITY OF KANSAS CITY, MISSOURI, )
ET AL., )
)
Respondents. )

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Sandra Midkiff, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and
Zel M. Fischer, Special Judge

Joe Frazier ("Frazier") was injured when the car in which he was riding was struck

by a vehicle that was fleeing the police in a high speed pursuit. Frazier sued the city of

Kansas City ("City"), the Kansas City Missouri Board of Police Commissioners

("Board") through its individual board members, and Officer Ryan Swope ("Officer

Swope") (collectively, the "Defendants"). Frazier's cause of action against the

Defendants consisted of three counts in which he alleged negligence, negligence per se,

and recklessness. Before trial, the trial court granted the Defendants' motion for partial

summary judgment as to some counts, leaving only the count of recklessness. A trial
took place on the allegations of recklessness in the Circuit Court of Jackson County after

which the Defendants were found not liable for Frazier's injuries. The trial court entered

judgment for the Defendants and denied Frazier's motion for a new trial. This appeal

follows.

For reasons fully explained below, we affirm.

FACTS AND PROCEDURAL HISTORY1

On July 6, 2010, officers with the KCPD Metro Property Crimes Task Unit were

conducting surveillance on a stolen truck parked at a house in Kansas City, Missouri.

KCPD Squad #280 was on stand-by to assist. A man later identified as Brian Rimmer

("Rimmer") left the house, got into the stolen truck, and drove to a Wal-Mart in Raytown.

The KCPD followed Rimmer to the Wal-Mart parking lot. While Rimmer sat in the

stolen truck in the parking lot, officers approached him. Before they reached Rimmer, he

sped out of the parking lot, striking an occupied parked car, and then proceeded

westbound in the eastbound lanes of 350 Highway.

Sgt. Jason Rusley ("Sgt. Rusley") was the controlling supervisor at the scene. As

Rimmer continued driving into oncoming traffic on 350 Highway at a high rate of speed

with no police officers behind him, Sgt. Rusley made the decision to allow pursuit by the

use of the police helicopter, stop sticks,2 and any patrol car with lights and siren that

could safely get behind the stolen truck. Over the police radio, he gave permission for

officers to pursue the stolen truck, stating he needed cars with stop sticks to get in front of

1
"In reviewing a circuit court's ruling resulting in either the grant or denial of a new trial, appellate courts
view the evidence in the light most favorable to the circuit court's order." March v. Midwest St. Louis, L.L.C., 417
S.W.3d 248, 253 (Mo. banc 2014) (citation omitted).
2
Stop sticks are tire deflation devices used to disable a vehicle that is being pursued by the police.

2
Rimmer. Sgt. Rusley testified that he gave permission for the pursuit because Rimmer

presented a clear and immediate danger to the safety of others. The police helicopter was

able to locate and follow Rimmer's vehicle.

Officer Swope first observed Rimmer as Rimmer drove westbound in the same

direction as the flow of traffic on 63rd Street. With his lights and siren activated, Officer

Swope turned west from Jackson onto 63rd Street, in pursuit of Rimmer. Officer Swope

observed Rimmer turn north into the southbound lanes of Highway 71. With his lights

and siren still activated, Officer Swope followed Rimmer onto Highway 71. Officer

Swope drove his patrol car on the shoulder of the highway, remaining several hundred

feet behind Rimmer. Rimmer continued northbound in the southbound lanes of Highway

71. At the intersection of Highway 71 and 55th Street, Rimmer crashed into a vehicle in

which Frazier was riding as that vehicle crossed through the intersection. Officer

Swope's vehicle did not come into contact with the vehicle in which Frazier was a

passenger. Rimmer was arrested and later pled guilty to multiple felonies arising out of

the events occurring that day, including four counts of the class C felony of assault in the

second degree (one count for each person who was injured as a result of the accidents that

occurred during the chase, including Frazier), one count of the class C felony of

tampering with a motor vehicle, one count of the class D felony of resisting arrest, one

count of the class D felony of leaving the scene of an accident and one count of the class

D felony of operating a vehicle with a suspended or revoked license.

Frazier filed a three-count petition for civil damages against Officer Swope, the

City and the individual members of the Board in which he alleged negligence, negligence

3
per se and recklessness. Before trial, the court granted Defendants' motion for partial

summary judgment, leaving only the count of recklessness to be submitted to the jury.

At trial, Frazier presented evidence that Officer Swope caused the accident by

recklessly pursuing Rimmer. Chuck Drago, a thirty-two year veteran police officer and

former Chief of Police of Oviedo, Florida, testified as an expert on police pursuit tactics

on behalf of Frazier. After serving as police chief for three years, Drago was appointed

to a state agency overseeing business licensing for the state of Florida. He then went on

to serve as Senior Law Enforcement Advisor to the governor. When the governor left

office, Drago started his own consulting firm.

Drago based his opinions on his review of the "dash-cam" footage from Officer

Swope's vehicle and the radio transmissions between the officers. He testified that he

assumed Rimmer saw Officer Swope when he commenced the pursuit and that Rimmer's

reckless driving was a result of the pursuit. Drago, however, did not know for certain

whether Rimmer was aware that he was being pursued at various points, or whether he

was aware of the helicopter overhead. Defendants presented evidence that Officer Swope

did not violate any KCPD protocols in pursuing Rimmer and alleged that Officer Swope

was not the proximate cause of the collision.

The jury returned a verdict for Defendants and the trial court entered judgment

accordingly. Frazier filed a motion for a new trial arguing that various evidentiary

rulings were erroneous and that the verdict was against the weight of the evidence. The

trial court denied the motion. This appeal follows.

4
 ANALYSIS

In his eight points raised on appeal, Frazier alleges error by the trial court in (1)

granting Defendants' motions for partial summary judgment regarding his claims for

negligence, (2) excluding portions of the "dash-cam" video evidence, (3) excluding

testimony regarding Officer Swope's prior violations of KCPD protocols, (4) admitting

evidence of the fleeing suspect's plea of guilty to assault in the second degree by use of a

vehicle, (5) admitting evidence of the amount of Frazier's medical bill "write-offs," (6)

overruling Frazier's Batson3 challenges, (7) denying Frazier's motion for a new trial

because the verdict was against the weight of the evidence, and (8) denying his motion

for a new trial based on cumulative error.

POINT I

In Point I, Frazier claims the trial court erred in granting Defendants' motions for

partial summary judgment regarding the counts of negligence because the rulings were

based on the court's finding that there was no evidence that Officer Swope's actions were

the proximate cause of the accident.

Standard of Review

Our review of the trial court's grant of summary judgment is de novo. ITT

Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.

banc 1993). The record is reviewed in the light most favorable to the party against whom

judgment was entered, according that party all reasonable inferences that may be drawn

from the record. Id.

3
Batson v. Kentucky, 476 U.S. 79 (1986).

5
 Summary judgment will be upheld on appeal if the movant is entitled to judgment

as a matter of law and no genuine issues of material fact exist. ITT Commercial Fin.

Corp., 854 S.W.2d at 377. Facts contained in affidavits or otherwise in support of a

party's motion are accepted as true unless contradicted by the non-moving party's

response to the summary judgment motion. Id. at 376. A defending party may establish

a right to judgment as a matter of law by showing any one of the following: (1) facts that

negate any one of the elements of the claimant's cause of action; (2) the non-movant, after

an adequate period of discovery, has not and will not be able to produce evidence

sufficient to allow the trier of fact to find the existence of any one of the claimant's

elements; or (3) there is no genuine dispute as to the existence of each of the facts

necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.

Discussion

Frazier argues that the court erred when determining that the material facts of the

case were not in dispute and that there was no evidence that Officer Swope was the

proximate cause of the accident that injured Frazier. He contends that whether Swope's

pursuit of the fleeing suspect caused the accident was a factual dispute and should have

been submitted to the jury. Defendants, however, maintain that the trial court was correct

in following the controlling precedent established by our Supreme Court in Stanley v.

City of Independence, 995 S.W.2d 485 (Mo. banc 1999) and granting summary judgment.

After reviewing the evidence submitted on summary judgment, the trial court

found our Supreme Court’s holding in Stanley to be controlling and, therefore, granted

summary judgment in favor of Defendants on Frazier's claims of negligence and

6
negligence per se. The court concluded that it was "constitutionally bound to follow the

Stanley decision as the last controlling and on-point decision of the Missouri Supreme

Court."

A. Missouri Supreme Court Precedent Set in Stanley v. City of Independence

In Stanley, the court reviewed a case involving facts very similar to those in the

case at bar. There, the fleeing suspect was driving a van that matched the description of a

vehicle involved in a robbery thirty minutes earlier. Id. at 486. When the van was

spotted by Officer Hill, he attempted to initiate a traffic stop by turning on the emergency

lights of his marked patrol car and giving a "quick yelp" of the siren. Id. The van did not

yield; instead, it fled and Officer Hill pursued activating the siren. Id. The officer

followed the van through a residential neighborhood and on various surface streets at

speeds of approximately 55 miles per hour. Id. As the fleeing van approached an

intersection, the traffic in its lane was stopped at a stoplight. Id. The van veered into the

oncoming lane of traffic at nearly 70 miles an hour. Id. Michael and David Stanley were

traveling in their vehicle, approaching the same intersection from the opposite direction.

Id. They were in the proper lane of traffic and attempted to get out of the way of the

fleeing van. Id. Their vehicle was struck by the van, and both men were killed. Id. At

the moment of impact, Officer Hill was 191 feet behind the van. Id. The entire duration

of the pursuit lasted 45 seconds. Id.

The plaintiffs alleged that the pursuing officer was negligent in following the

suspect and that his pursuit proximately caused the accident. In order to establish

proximate cause, the plaintiff must show that the injury was the "natural and probable

7
consequence of the defendant's negligence." Id. at 488 (citation omitted). The Missouri

Supreme Court concluded that the pursuing officer's conduct was not a proximate cause

of the collision, and explained:

The suspects in the van made the initial decision to flee, sped through red
lights and in the wrong lane of traffic, and collided with the decedents.
Any negligence by [O]fficer Hill is connected to the plaintiffs' injury solely
through the conduct of the fleeing van. Thus, the only conceivable causal
link between the officer's alleged negligence and the collision is the
conjectural effect of his pursuit on the pursued vehicle. Shortly after
initiating the pursuit, the officer observed, "this guy is going nuts on us."
There is nothing other than speculation to reach a conclusion that the
officer's conduct was a "cause of the collision." Put another way, there is
no way to tell whether the collision would have been avoided if the officer
had abandoned the pursuit after initiating it. Thus, there is no factual basis
to support a finding of proximate cause.

Id.

It further reasoned that because "there is no way to tell whether the collision

would have been avoided if the officer had abandoned the pursuit after initiating it . . .

there is no factual basis to support a finding of proximate cause." Id. It then affirmed the

grant of summary judgment in favor of the defendants and concluded that without a

causal link between the pursuing officer and the collision, there were no facts to support a

finding of proximate cause. Id.

B. Trial Court’s Application of Stanley v. City of Independence to Frazier's Facts

After applying the holding of Stanley to the nearly identical undisputed facts in the

case at bar, the trial court held that, just as in Stanley, the evidence did not support a

causal link between the conduct of Officer Swope and the collision. Indeed, the trial

court concluded that "the only conceivable causal link between Officer Swope's alleged

8
negligence and the collision is the conjectural effect of his pursuit on the pursued

vehicle." The trial court reasoned that the absence of a causal link made summary

judgment proper, stating that "Plaintiff cannot, as a matter of law, show that Officer

Swope, as a pursuing officer that did not collide with Plaintiff, was the proximate cause

of Plaintiff's injuries."

C. This Court's Application of Stanley to Facts in Dilley v. Valentine

In Dilley, a fleeing suspect drove erratically while being briefly pursued before

crashing into a vehicle driven by the plaintiffs. Dilley v. Valentine, 401 S.W.3d 544, 547

(Mo. App. W.D. 2013). This court found that the facts were very similar to those in

Stanley: the officer was pursuing a fleeing suspect with lights and siren activated, the

officer’s patrol car was not involved in the accident, the patrol car was 120 feet behind

the suspect’s car at the time of the accident, the duration of the pursuit was 120 seconds,

and speeds of 50-55 miles an hour were reached. Id. at 549. We determined that Stanley

was controlling on Dilley's negligence claims and held that whether "the collision would

have been avoided had Officer Valentine abandoned the pursuit is based only on

speculation." Id.

D. Frazier's Attempt to Distinguish Stanley and Dilley Based on Duration of the Car
Chases Involved

At oral argument, Frazier argued that Stanley is not controlling in this case as it is

distinguishable based on the duration of the car chase involved. Frazier contends that the

longer the chase, the greater the negligence on the part of the officer becomes because the

chances of a collision increase the longer the chase continues. Frazier thus contends that

9
where police pursuits last longer than the 45 second chase in Stanley, proximate cause

turns into a jury issue. In the case at bar, the chase lasted approximately 120 seconds

from when Officer Swope made visual contact with Rimmer's vehicle to when Rimmer

crashed into Frazier's vehicle.4

In support of his duration argument, Frazier cites Moyer v. St. Francois Cnty.

Sheriff Dep't, 449 S.W.3d 415 (Mo. App. E.D.) which he contends should preclude the

application of Stanley to the facts at hand. In Moyer, a Francois County Sheriff's deputy

stopped a vehicle displaying stolen license plates. Id. at 416. After the deputy asked the

driver to step out of the vehicle, the driver fled the scene, sparking a ten-mile pursuit

reaching speeds of up to 120 miles per hour. Id. The chase ended when the suspect's

vehicle collided with the plaintiffs' vehicle. The deputy's vehicle was not involved in the

collision. Id. After the plaintiffs filed a negligence action against the county, the county

filed a motion for summary judgment arguing that it was entitled to judgment as a matter

of law because the deputy was not the proximate cause of the accident or of Plaintiffs'

injuries. Id. at 417. The trial court granted summary judgment, finding no factual basis

to support proximate causation. Id.

On appeal, the Eastern District of this court, over dissent, noted that "proximate

cause" referred to the "reasonable and probable consequence of the act or omission of

defendant" citing Sanders v. Ahmed, 364 S.W.3d 195, 210 (Mo. banc 2012) but reiterated

that "the defendant's conduct must simply be a contributing cause of the plaintiff's injury

4
Although Frazier argued that there was a factual dispute between the parties as to whether the car chase
lasted seven minutes or whether it lasted two minutes, Drago testified that Officer Swope's vehicle did not begin to
pursue Rimmer until Officer Swope reached 63rd and Jackson. Frazier conceded at oral argument that the duration
of the chase from that location to the point of impact was approximately two minutes.

10
rather than the sole cause . . ." Id. (citing Coggins v. Laclede Gas Co., 37 S.W.3d 335,

339 (Mo. App. E.D. 2000) (referring to what is required to make a prima facie showing

of causation; i.e., that the defendant’s negligent conduct more probably than not was the

cause of the injury)). It then went on to distinguish its facts from Stanley and Dilley.

The only distinguishing facts are the differing durations of the pursuits in each

case. In Stanley, the pursuit lasted 45 seconds; in Dilley, the pursuit lasted approximately

120 seconds; in Moyer, where the distance traveled was as long as ten miles at speeds up

to 120 miles per hour, the pursuit lasted approximately 300 seconds; and here, as in

Dilley, Officer Swope's pursuit of Frazier lasted 120 seconds.5 The Moyer court reasoned

that, unlike cases that involve a shorter pursuit such as Stanley and Dilley, "common

sense supports an inference that, as the time and distance between an officer and a fleeing

suspect grows, the more likely it becomes that the suspect will cease fleeing in a reckless

manner." Moyer, 449 S.W.3d at 418. The Moyer court found Dilley to be "factually

indistinguishable" from Stanley but distinguished both from its facts based solely on the

length of the pursuit. We, however, find Dilley to be on point and not distinguishable

from the facts at hand. 401 S.W.3d 544. In sum, we find no distinction in the duration of

pursuit, nor in any other significant fact that would make the application of Dilley and

Stanley inappropriate to the facts in the case at bar.6

5
Frazier has not alleged or established that Rimmer was aware that he was being pursued by the police
helicopter, nor does he allege that the helicopter played a role in causing the accident.
6
In the case at bar, Rimmer fled in his vehicle upon seeing officers on foot approaching him in a parking
lot. He struck an occupied vehicle and proceeded to drive at a high rate of speed, going the wrong way on a divided
highway for approximately five minutes before Officer Swope even began his pursuit of the vehicle. These facts
support a finding that the cessation of the pursuit by Officer Swope would have had little impact on Rimmer's
driving.

11
E. Frazier's Attempt to Distinguish Stanley Based on Admission of Expert
Testimony

In addition to the differing chase durations, Frazier argues that his expert's

testimony distinguishes this case from Dilley and Stanley in that his expert established

genuine issues of material fact thus making proximate cause a factual jury issue.

Frazier's expert, Drago, opined that Officer Swope negligently violated KCPD

procedures when he initiated the chase and that his "failure to follow policy and national

standards, his reckless disregard for the safety of the public, eventually caused the

accident." (Emphasis added). Drago concluded that "the police caused Mr. Rimmer to

drive in the manner in which he drove for the entirety of the pursuit until the crash."

(Emphases added).

The procedures and protocol governing the initiation of a vehicle pursuit are

outlined in the KCPD Procedures and Protocol manual, Annex B, titled "Police Vehicle

Pursuit Procedure." Drago opined that the following section was violated by Officer

Swope and that the violation made his actions negligent and reckless:

C. Initiating or Continuing Pursuit

1. Officers will not initiate a vehicle pursuit unless they
determine that there is reasonable belief that the suspect presents a clear
and immediate danger to the safety of others. Factors involved in this
decision may include the commission of a dangerous felony. This
determination should be continually evaluated during the pursuit. If the
officer decides to initiate a pursuit, Code One Operation will be utilized
throughout the entire duration of the pursuit.

NOTE: Officers will not initiate a vehicle pursuit if the suspect
vehicle is a stolen auto unless it has been involved in a dangerous
felony. This prohibition includes situations such as a serious traffic

12
 violation and DUI's, except where the suspect vehicle presents a
clear and immediate danger to the safety of others.

Frazier argues that there was no dangerous felony to justify the pursuit of Rimmer

in the stolen vehicle. He also maintains that the situation was not one of a "clear and

immediate danger to the safety of others" but one that the police created by pursuing

Rimmer. He concludes that Officer Swope violated KCPD protocols because Frazier did

not present a clear and immediate danger to others.

The uncontroverted facts, however, as stated in both motions for summary

judgment and admitted by Frazier, do not support this conclusion. The evidence here

establishes that Rimmer was driving erratically before being pursued and was creating a

clear and present danger to the public prior to the pursuit being initiated. Rimmer

crashed into an occupied vehicle before he left the Wal-Mart parking lot, and began

driving the wrong way on a divided highway. It was after these events that the pursuit

was initiated.

As Rimmer drove at a high rate of speed on Highway 350, traveling the wrong

direction on a divided highway, the controlling commander, Captain Wood, and Sgt.

Rusley determined that, because the vehicle was traveling the wrong way and then

"continued going the wrong way even once the divided highway was no longer divided,"

officers should attempt to use stop sticks to disable the vehicle. They called for any

officer that could safely get behind the vehicle to begin pursuit.

A police helicopter joined the pursuit by following Rimmer as he sped through

city streets and reporting his location to officers on the ground. There was no evidence

13
that Rimmer was ever aware of the helicopter's presence. Officer Swope remained

several hundred feet behind Rimmer as Rimmer drove the wrong direction on Highway

71 (another divided highway) and eventually collided with Frazier's vehicle at an

intersection.

The determination of whether proximate cause exists is a judicial function. Kilmer

v. Mun, 17 S.W.3d 545, 552 n.19 (Mo. banc 2000). The trial court concluded that

Drago's opinion was based on conjecture and speculation. Drago testified that he

assumed Rimmer saw Officer Swope when he commenced the pursuit and that Rimmer's

reckless driving was a result of the pursuit. Drago, however, did not know for certain

whether Rimmer was even aware that he was being pursued at various points, or whether

he was aware of the helicopter overhead. The court further found that Officer Swope

was not the proximate cause of the accident; rather, the actions of Rimmer were the

proximate cause of the accident. It concluded that, with the causation element negated,

Frazier could not prevail on his negligence counts. Indeed, a defendant may establish a

right to judgment as a matter of law by showing facts that negate any one of the elements

of the claimant's cause of action. ITT Commercial Fin. Corp., 854 S.W.2d at 381.

Our Supreme Court’s holding in Stanley is controlling on this point. We find no

error in the trial court's grant of partial summary judgment as to the negligence and

negligence per se claims. Point I is denied.

POINT II

In Point II, Frazier argues that the trial court erred when it excluded the first

portion of Officer Swope's dashboard camera ("dash-cam") video from evidence in the

14
trial on the remaining count of recklessness. He argues that, although the first portion of

the video is prior to Officer Swope encountering Rimmer's vehicle, it should have been

admitted as evidence of Officer Swope's state of mind leading to the pursuit. The dash-

cam video in question begins when Officer Swope received the call for a pursuit of

Rimmer's vehicle and continues until the end of the pursuit. The trial court excluded the

portion of the video of Officer Swope driving from the time he received the call until he

first encountered Rimmer's vehicle. The trial court allowed the jury to view the portion

of the video beginning from Officer Swope's first visual of Rimmer's vehicle to the

accident which ended the pursuit.

Standard of Review

We review the trial court's admission and exclusion of evidence for an abuse of

discretion. "The admission or exclusion of evidence rests in the sound discretion of the

trial court, and the court's decision will be reversed only if it constitutes an abuse of

discretion." Secrist v. Treadstone, LLC, 356 S.W.3d 276, 280 (Mo. App. W.D. 2011)

(citation omitted). "The trial court abuses its discretion when its ruling is clearly against

the logic of the circumstances then before the trial court and is so unreasonable and

arbitrary that the ruling shocks the sense of justice and indicates a lack of careful

deliberate consideration." Id. (citation omitted). "The trial court is accorded considerable

discretion in ruling on the admissibility of evidence, particularly where a subjective

determination of relevancy must be made." Id. (citation omitted).

We employ this same standard of review for Points II, III, IV and V and it will not

be repeated therein.

15
 Discussion

Frazier contends that because Officer Swope's state of mind was relevant to

whether he was acting recklessly in his pursuit of Rimmer, the dash-cam video should

have been admitted in its entirety. The trial court disagreed and admitted only the portion

starting from the point in time when Officer Swope first encountered Rimmer's vehicle.

"To be admissible, evidence must be both logically relevant and legally relevant."

Mansfield v. Horner, 443 S.W.3d 627, 651 (Mo. App. W.D. 2014) (citation omitted).

"Evidence is logically relevant if it make[s] the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence." Id. (citation and internal quotation marks omitted).

"Legal relevance, on the other hand, concerns the balance between the probative value

and the prejudicial effect of the evidence." Id. (citation omitted). "That balancing

requires the trial court to 'weigh the probative value, or usefulness, of the evidence

against its costs, specifically the dangers of unfair prejudice, confusion of the issues,

undue delay, misleading the jury, waste of time, or needless presentation of cumulative

evidence.'" Id. (citation omitted). "If the cost of the evidence outweighs its usefulness,

the evidence is not legally relevant and should be excluded." Id. (citation omitted).

Here, the court reasoned that the video footage from before Officer Swope first

saw the vehicle driven by Rimmer was irrelevant as to whether Officer Swope's pursuit

of Rimmer recklessly caused Rimmer to collide with the vehicle in which Frazier was

riding. The court stated that since Frazier was claiming that the police pursuit caused

Rimmer's erratic driving, "any action of Officer Swope unbeknownst to Mr. Rimmer

16
could not have caused or directly contributed to cause Mr. Rimmer's erratic driving and,

thus, the ultimate collision between Mr. Rimmer and Plaintiff." It concluded that any

evidence of Officer Swope's driving prior to being in direct pursuit of Rimmer was "not

legally or logically relevant to any claim."

Frazier argues that the court erred in this determination because Officer Swope's

driving prior to encountering Rimmer was probative as to his claim of Officer Swope's

recklessness. In support, Frazier cites two criminal cases where evidence of erratic

driving before a collision was admitted into evidence. In State v. Feger, 340 S.W.2d 716

(Mo. 1960), the defendant was charged with manslaughter for causing an accident while

intoxicated and driving erratically. The court allowed the evidence of defendant's erratic

driving from before the collision because when one of the parties is charged with being

intoxicated before the accident, "the court may admit testimony as to the manner in which

such party was driving his motor vehicle a substantial distance from the place of the

accident for the purpose of substantiating the charge." Id. at 725 (citations omitted). The

erratic driving was admissible to establish that the defendant's ability to operate a vehicle

was impaired by the consumption of intoxicants.

Frazier also relies on State v. Coates, 862 S.W.2d 418 (Mo. App. S.D. 1993). In

Coates, the conduct of a driver accused of drinking and driving, that included swerving,

speeding and running stop signs before a collision, was likewise admitted into evidence.

The facts of these cases are not analogous to those here and we fail to discern anything

useful from them applicable to the civil matter currently before us.

17
 In further support of his contention that the dash-cam video was relevant, Frazier

relies on a statement originating in a torts hornbook that "recklessness looks to the

tortfeasor's state of mind." Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139

(Mo. App. E.D. 1999) (citing WILLIAM L. PROSSER & W. PAGE KEETON, PROSSER AND

KEETON ON TORTS 211 (5th ed. 1984)). He then cites a third case for the proposition that

the "state of mind is a continuing condition that may be proved by statements evidencing

state of mind either before or following a relevant time period." Haynam v. Laclede Elec.

Coop., Inc., 827 S.W.2d 200, 204-05 (Mo. banc 1992) (emphasis added). However,

Frazier makes no argument as to what "statements" were made by Officer Swope in the

excluded portion of the video. Further, Frazier fails to establish how the actions of

Officer Swope prior to Rimmer even being aware of his presence could have caused

Rimmer to take any actions. Without more, we fail to find Haynam persuasive. The lack

of legal support for Frazier's position, combined with Drago's opinion that Officer Swope

caused Rimmer to drive erratically only after he became involved in the pursuit at 63rd

Street and Jackson, supports the trial court's decision to exclude the first portion of the

dash-cam video.

As a subpart of this argument, Frazier argues that he was prejudiced by the trial

court's ruling that only part of the video could be presented because the court's ruling

came on the morning of trial and involved his first witness. The court had previously

ruled that the entire video would be admissible, yet reversed itself after the Defendants

filed a renewed motion in limine a week before trial. Frazier, however, did not include an

allegation of prejudice in his Point Relied On. We do not consider an argument not

18
preserved in the Point Relied On. Bellemere v. Cable-Dahmer Chevrolet, Inc., 423

S.W.3d 267, 273 (Mo. App. W.D. 2013) (citation omitted).

Finally, a trial court has the right to confine testimony to the time periods it deems

relevant. Dunham v. Estate of Hamilton, 718 S.W.2d 152, 156 (Mo. App. W.D. 1986)

(citation omitted). "Where evidence is excluded, the issue is not whether the evidence

was 'admissible,' it is whether the trial court abused its discretion in excluding it."

Govreau v. Nu-Way Concrete Forms, Inc., 73 S.W.3d 737, 743 (Mo. App. E.D. 2002)

(citation and quotation marks omitted). While we would affirm the trial court's

admission of this entire video to give the jury a full picture of all events leading up to the

accident, we do not find that the exclusion of the first portion of the video constitutes an

abuse of discretion.

Because the court's reasoning was not against the "logic of the circumstances," it

was not an abuse of discretion. See Secrist, 356 S.W.3d at 280 (citation omitted). Point

II is denied.

POINT III

In Point III, Frazier contends that the trial court erred in excluding testimony

regarding Officer Swope's prior violations of KCPD protocols. He contends that the

excluded testimony was "relevant and probative" to his claim of recklessness.

Discussion

Frazier attempted to admit evidence of a disciplinary report involving Officer

Swope concerning five prior violations of KCPD protocol. The violations did not involve

the collision of July 6, 2010 between Rimmer and Frazier; rather, they concerned a

19
December 7, 2008 traffic stop conducted by Officer Swope. The violations at issue

included: (1) putting his hands in his pockets while at the car, (2) approaching the car

without waiting for back-up, (3) turning off his microphone while speaking to the

occupants of the vehicle, (4) driving too fast without using his emergency equipment, and

(5) allowing one of the occupants to drive the vehicle away even though he/she was

unlicensed.

Prior to trial, the Defendants filed a motion in limine to exclude evidence, inter

alia, of KCPD protocol violations involving Officer Swope that were unrelated to the

accident at hand. The Defendants, citing Maugh v. Chrysler Corp., 818 S.W.2d 658, 661

(Mo. App. W.D. 1991), argued that previous violations were collateral matters and

impeachment and contradiction are not allowed on collateral matters. They maintained

that a previous violation of policies unrelated to the accident and not involving police

pursuits, was a collateral matter. "The test as to whether a matter is collateral . . . is

whether the party seeking to introduce it for purposes of contradiction would be entitled

to prove it as a part of his case." Benedict v. N. Pipeline Constr., 44 S.W.3d 410, 427

(Mo. App. W.D. 2001) (citations omitted). "It is not error to exclude offers to impeach

on immaterial or collateral matters." Peters v. ContiGroup, 292 S.W.3d 380, 392 (Mo.

App. W.D. 2009) (citation omitted).

The court granted Defendants' motion in limine and excluded Officer Swope's

previous unrelated violations of protocol. Its order did not set forth its reasoning. At

trial, Frazier made an offer of proof and conducted a voir dire examination of Officer

Swope outside the presence of the jury. The court did not alter its previous ruling.

20
 Frazier argues that the court's ruling was erroneous because the evidence went to

(1) Officer Swope's "credibility and bias" concerning whether he violated protocol or any

procedures on July 6, 2010, and (2) Officer Swope's state of mind on July 6, 2010. As to

the first contention of error, when questioned about the prior protocol violations, Officer

Swope admitted to each of the alleged violations. Although Frazier now argues that

evidence of Officer Swope's previous violations was relevant to cast doubt on his

truthfulness, such evidence would cast doubt on Officer Swope's truthfulness or veracity

only if he were to have been found to lie, deny, hide, or attempt to cover-up the

violations. "'Contradiction' is not the same as 'impeachment.'" Feiteira v. Clark Equip.

Co., 236 S.W.3d 54, 63 (Mo. App. E.D. 2007). "'Impeachment' is directed to the

credibility of a witness for the purpose of discrediting the witness and ordinarily

furnishes no factual evidence, whereas 'contradiction' is directed to the accuracy of a

witness' testimony and supplies additional evidence." Id. (citation omitted). Nothing in

the proffered evidence contradicted anything that Officer Swope testified to at trial, and

Frazier fails to explain how this evidence would impeach any actions or testimony by

Officer Swope.

In addition to this argument, Frazier maintains that Officer Swope's violation of

procedures in 2008 was relevant as to whether he did, in fact, violate procedures in the

2010 pursuit of Rimmer.7 Notably, the court had evidence from several officers, as well

as from Officer Swope, that no procedures were violated in the pursuit of Rimmer's

7
Evidence of a past violation is not conclusive that a subsequent violation occurred. Although Frazier
argues that past violations support his allegation of Officer Swope's reckless state of mind, the past violations do not
resemble those at issue. Frazier fails to establish how these previous violations are relevant other than his blanket
assertion that they somehow establish that he violated different procedures several years later.

21
vehicle. Frazier's expert, however, did testify that some procedures were violated during

the pursuit based on his review of the dash-cam video from Officer Swope's vehicle.

However, none of the violations testified to by Drago were similar, or in any way, related

to the violations alleged in the 2008 report.

Evidence of previous violations that occurred two years earlier is collateral as they

involved neither the same parties nor the same policy violations. There is no error in

excluding collateral matters. Peters, 292 S.W.3d at 392. Moreover, Frazier did not need

to prove previous violations in order to prove any element of his claims against the

Defendants. See Benedict, 44 S.W.3d at 427. Point III is denied.

POINT IV

In Point IV, Frazier argues that the trial court erred in admitting evidence that

Rimmer pled guilty to assault in the second degree as a result of the collision "because

such evidence invaded the province of the jury on causation" in that it "created the

impression that Rimmer had already been adjudicated to be the cause of the accident at

issue."

Discussion

In response to Frazier's argument, Defendants maintain that Frazier was the first to

introduce evidence on this issue to the jury. They further contend that the evidence was

cumulative when Frazier later objected to Defendants presenting similar evidence to the

jury. While Rimmer pled guilty to multiple felonies, the only conviction which was

admitted into evidence was the charge based on the vehicular assault on Frazier.

22
 Although we disagree with Defendants' characterization that Frazier "introduced"

this evidence, it did come into evidence, without objection, during Defendants' cross-

examination of Frazier when he stated that he had testified at Rimmer's sentencing

hearing on the criminal charges. Frazier also testified that Rimmer had apologized to

him. There was no objection to these questions. Thus, Frazier cannot now complain

about the admission of Rimmer's criminal prosecution at a later point since he failed to

object when the evidence was first presented. Precision Elec., Inc. v. Ex-Amish

Specialties, Inc., 400 S.W. 3d 802, 810 (Mo. App. W.D. 2013) (citation omitted).

Moreover, it was only after Frazier's testimony regarding Rimmer's sentencing

hearing that the Defendants, later and over objection, were allowed to read to the jury the

charge against Rimmer of assault in the second degree. At that point, the evidence was

cumulative. "A party cannot be prejudiced by the admission of allegedly inadmissible

evidence if the challenged evidence is merely cumulative to other evidence admitted

without objection." Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 46 n.23 (Mo. App.

E.D. 2013) (citing Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc

2007)).

In so holding, we are not persuaded by Frazier’s reliance on Nelson v. Holley, 623

S.W.2d 604 (Mo. App. W.D. 1981), which held that a non-party's guilty plea to careless

and reckless driving and of speeding in connection with the accident was inadmissible

and properly excluded upon objection. This is because, in Nelson, the statement was

excluded as inadmissible hearsay, which is not the basis of the objection in the instant

case. Id. at 607. Thus, Nelson is inapposite. Point IV is denied.

23
 POINT V

In Point V, Frazier contends that "the trial court erred in allowing the defendants

to introduce evidence [of] the amount of write-offs on plaintiff's medical bills and in

failing to grant plaintiff a new trial on the issue, because, under Missouri law, a credit or

offset is, pursuant to RSMo. § 490.715.5, an affirmative defense which must be plead and

in that defendants failed to plead an offset or credit as an affirmative defense."8

Discussion

Frazier argues that because the Defendants did not plead the affirmative defense of

credit and off-set, it was error for the trial court to admit evidence of the amount of write-

offs that his various medical providers undertook. Defendants argue that it was not

necessary to plead the write-offs as an affirmative defense. Because the jury found for

the defense on the issue of liability we do not have to reach this issue regarding damages.

"When a jury finds against the plaintiff on the issue of the defendant's liability,

rulings on matters relating only to the amount of damages to which the plaintiff might be

entitled to receive, if the defendant was liable, cannot be considered so prejudicial as to

constitute reversible error." Miller v. Riss & Co., 259 S.W.2d 366, 372 (Mo. 1953); see

also Lush v. Woods, 978 S.W.2d 521, 525 (Mo. App. W.D. 1998); Turner v. Norfolk &

W. Ry. Co., 785 S.W.2d 569, 573 (Mo. App. W.D. 1990). "This authority is binding on

this court as we are obligated to follow Supreme Court precedent." Precision Elec., 400

8
Although Frazier contends that the court erroneously denied his motion for a new trial, he neglects to
offer support for or otherwise include this in the argument section of his brief. "When a party fails to develop a
point relied on in the argument section, it is deemed abandoned." Lack v. Payne, 151 S.W.3d 862, 867 (Mo. App.
S.D. 2004). Additionally, the inclusion of an additional allegation that the court erred in denying a motion for a new
trial makes this point multifarious. State v. Brightman, 388 S.W.3d 192, 196 (Mo. App. W.D. 2012).

24
S.W.3d at 813 (where party affirmatively injects insurance coverage into evidence, a

complaint by that party over the admission of insurance coverage after jury finds against

it cannot later be basis for new trial).

Accordingly, because the issue of write-offs and credits affects only the amount of

medical damages available to Frazier had the jury found that Defendants were liable for

his injuries, and the jury made no such finding of liability, its admittance cannot be

considered reversible error. Point V is denied.

POINT VI

In Point VI, Frazier argues that the trial court erred in "overruling plaintiff's

Batson challenges and in not granting plaintiff a new trial on the issue, because plaintiff,

an African-American, timely raised his Batson challenges and, in that Defendants'

proffered reasons for striking African-Americans from the jury were clearly pre-textual

and the trial court's ruling resulted in no African-Americans sitting on the jury."

Standard of Review

We review the trial court's ruling on a Batson challenge for clear error. State v.

McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006). A finding is clearly erroneous when

the reviewing court is left with the definite and firm conviction that a mistake has been

made. Id.

Discussion

Frazier alleges that the trial court erred when it overruled his Batson challenges to

the Defendants’ use of preemptory strikes to eliminate three African-American venire

members. He contends that although Defendants stated that they struck these venire

25
members because each had been arrested, the strikes were pretextual since Defendants

did not strike other venire members who had also been arrested but were not African-

American. Frazier further argues that as a result of the court's rulings on his Batson

challenges, there were no African-Americans on the jury.

In Kesler-Ferguson v. Hy-Vee, Inc., our Supreme Court reiterated the three-step

procedure to be followed, as set forth in State v. Parker, 836 S.W.2d 930, 934 (Mo. banc

1992), when a party makes a Batson challenge in either a civil or criminal case.9 271

S.W.3d 556, 558-59 (Mo. banc 2008). First, an opponent of a preemptory challenge must

identify the venire member struck by the proponent and identify the cognizable racial

group to which the venire member belongs. Id. at 559 (citation omitted). In the second

step, the burden shifts to the proponent of the strike to come forward with a race-neutral

reason that is more than simply a denial of a discriminatory purpose. Id. (citation

omitted); see also State v. Collins, 290 S.W.3d 736, 741 (Mo. App. E.D. 2009). "To be

sufficient, the explanation need only be race-neutral, reasonably specific and clear, and

related to the particular case to be tried." Parker, 836 S.W.2d at 934 (citation omitted).

A 'race-neutral explanation' in the context of a Batson challenge simply means "an

explanation based on something other than the race of the juror." Hernandez v. New

York, 500 U.S. 352, 360 (1991). "This second step of the Batson challenge process does

not require an explanation that is persuasive, or even plausible." Collins, 290 S.W.3d at

9
In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the United States Supreme Court extended
its holding in Batson to apply to civil litigants. Bowls v. Scarborough, 950 S.W.2d 691, 700 n.4 (Mo. App. W.D.
1997) (citation omitted). "Parker remains the definitive statement of Missouri procedure in Batson cases." Bowls,
950 S.W.2d at 700 (Mo. App. W.D. 1997) (citing House v. Mo. Pac. R.R., 927 S.W.2d 538, 541 (Mo. App. E.D.
1996)). The procedures set forth in Parker are applicable to both civil and criminal cases. Id.

26
741 (citation omitted). Unless a discriminatory intent is inherent in the proponent's

explanation, the reason offered will be deemed race-neutral. Id. at 741-42 (citation

omitted).

Third, "assuming the striking party is able to articulate an acceptable explanation

for the strike, the party asserting the Batson challenge then needs to show that the striking

party's proffered reasons for the strikes are pretextual and that the strikes were racially

motivated." Benedict, 44 S.W.3d at 419 (citation omitted). "In the third step, the circuit

court may consider the credibility and demeanor of reasons proffered to support striking a

member of the venire." Kesler-Ferguson, 271 S.W.3d at 559 (citation omitted). The

court "must primarily consider the plausibility of the striking party's explanations in light

of the totality of the facts and circumstances surrounding the case." Benedict, 44 S.W.3d

at 420 (citations omitted).

In reviewing the three-step Batson process employed in this case, step one was

met when Frazier timely raised Batson challenges to the Defendants' strikes of venire

members 35, 46 and 50. In step two, Defendants had the burden to provide race-neutral

reasons for each strike. As to member 35, Defendants stated that she had questioned

whether being arrested meant just being in handcuffs or actually going to jail. She then

confirmed that she had been arrested. Defendants had also determined from other records

that she was unemployed. The court overruled the Batson challenge, finding that

Defendants had stated a race-neutral reason to strike member 35. At that point, the

burden shifted back to Frazier, and he failed to offer any information to support his

27
contention that the Defendants' reasons were pretextual. Frazier thus failed to meet his

burden with regard to panel member 35.

As to panel members 46 and 50, both of these panel members were potential

alternate jurors.10 Regarding member 46, Defendants stated that she, as well as various

members of her family, had been arrested in the past. Defendants knew that the next

available panel member had no arrests so they chose to strike member 46. The court

found that this was a race-neutral reason. Frazier did not offer any argument or

information that this reason was merely pretextual and thus did not meet his burden to

prove the reason was pretextual and the strike in fact discriminatory. With regard to

panel member 50, Defendants stated that the member's son had been fired by the City's

Water Department. Frazier likewise offered no argument as to how this reason was

merely pretext and again failed to meet his burden.

"When reviewing the trial court's decision regarding a Batson challenge, because

of the extensive role of the trial court and because the findings of fact turn largely on an

evaluation of credibility, a reviewing court must give great deference to those findings."

Benedict, 44 S.W.3d at 420 (internal quotation marks and citation omitted). "The trial

court's determination of the propriety of the strike will not be reversed unless it was

10
Both of the alternate jurors selected were dismissed from service prior to deliberation. In State v. Carter,
889 S.W.2d 106, 109 (Mo. App. E.D. 1994), habeas relief denied by Carter v. Kemna, 255 F.3d 589(8th Cir. 2001),
the court stated that "Batson does not stand for the proposition there is a Constitutional right to be an alternate
juror." The court ruled that, when no alternate jurors deliberate, the alternate venireperson's exclusion does not
violate the constitutional rights of either the defendant or the excluded alternate venireperson. Id. We need not
address this issue because we have determined that the court properly overruled Frazier's Batson challenges. Accord
State v. Jackson, 385 S.W.3d 437, 441 (Mo. App. W.D. 2012); State v. Dow, 375 S.W.3d 845, 850 n.4 (Mo. App.
W.D. 2012); Goodman v. Holly Angle, LMT, 342 S.W.3d 458, 464 (Mo. App. W.D. 2011).

28
clearly erroneous, that is, we are left with a firm conviction that a mistake was made." Id.

(citation omitted).

Finally, although Frazier argues that because there were no African-Americans on

the jury, the trial court erred in overruling his Batson challenges, our Supreme Court has

already held that "disparate impact alone will not convert a facially race-neutral

explanation into a per se violation of equal protection." Parker, 836 S.W.2d at 934

(citing Hernandez, 500 U.S. at 361). This contention has no legal support.

In applying the three-step process, we find that the trial court did not clearly err in

denying Frazier's Batson challenges because he failed to overcome his burden of showing

that the Defendants' proffered reasons for the strikes of any of the venire members were

merely a pretext for discrimination. This point is denied.

POINT VII

In Point VII, Frazier contends that "the trial court erred in denying plaintiff's

motion for new trial, because the jury's verdict was against the weight of evidence in that

the evidence demonstrated that plaintiff suffered serious injuries as a result of Officer

Swope's recklessness."

Standard of Review

We review the decision whether to grant a new trial for an abuse of discretion.

Hall v. Utley, 443 S.W.3d 696, 701 (Mo. App. W.D. 2014) (citation omitted). The trial

court abuses its discretion when its ruling is clearly against the logic of the circumstances

then before the court and is so unreasonable and arbitrary that it shocks one's sense of

justice and indicates a lack of careful consideration. Id.

29
 The trial court is vested with broad discretion when ruling on a motion for a new

trial. Koppe v. Campbell, 318 S.W.3d 233, 240 (Mo. App. W.D. 2010) (citation omitted).

To the extent our analysis requires us to weigh the evidence, we do so in the light most

favorable to the trial court's decision, pursuant to our Supreme Court's recent holding in

Badahman v. Catering St. Louis.11

When considering a challenge that a judgment is against the weight of the

evidence and the evidence would support two different but reasonable conclusions,

appellate courts must defer to the circuit court's assessment of that evidence. Ivie v.

Smith, 439 S.W.3d 189, 206 (Mo. banc 2014) (citations omitted). Appellate courts defer

on credibility determinations because the circuit court is in a better position to weigh the

contested and conflicting evidence in the context of the whole case. Id. "The circuit

court is able to judge directly not only the demeanor of witnesses, but also their sincerity

and character and other trial intangibles that the record may not completely reveal." Id.

Our standard of review "takes into consideration which party has the burden of proof and

that the [fact finder] is free to believe all, some, or none of the evidence offered to prove

a contested fact, and the appellate court will not re-find facts based on credibility

determinations through its own perspective." Id. "This includes facts expressly found in

11
The Supreme Court clarified the standard of our review regarding evidentiary issues in cases where a
trial court has granted a new trial based on the jury's verdict as being against the weight of the evidence. Badahman
v. Catering St. Louis, 395 S.W.3d 29, 40-41 (Mo. banc 2013). The Court noted that the previous opinions setting
forth the standards of review (reviewing the evidence in the light most favorable to the verdict in a denial of a new
trial and most favorable to the moving party in the grant of a new trial) should be clarified to avoid confusion. The
Court concluded that "the best way to articulate the proper standard of review in the grant or denial of a motion for
new trial is that the evidence is reviewed in 'the light most favorable to the circuit court's order.'" Id. at 40-41.

30
the written judgment or necessarily deemed found in accordance with the result reached."

Id. (citations omitted).

Additionally, "[i]n order for the trial court to grant a motion for new trial, the error

complained of as a basis for the motion must be prejudicial to the party seeking the new

trial." Balke v. Cent. Mo. Elec. Coop., 966 S.W.2d 15, 25 (Mo. App. W.D. 1997).

Discussion

This point violates Rule 84.04(d)-(e)12 in multiple aspects such that its deficiencies

are dispositive. Frazier's entire argument section under this point is as follows:

Based on all the arguments fully briefed in sub-parts I through VI above,
incorporated by reference, a new trial should have been granted. The errors
fully briefed in sub-parts I through VI above, prejudiced Plaintiff in that he
was denied a fair and equitable trial. Based on the above, the trial court’s
discretion was abused when it denied a new trial to the Plaintiff.

First, the argument section does not contain support for the point presented, which was

that "the jury's verdict was against the weight of evidence in that the evidence

demonstrated that plaintiff suffered serious injuries as a result of Officer Swope's

recklessness." A weight-of-the-evidence argument is not developed in the argument

section. In fact, there is no reference to "weight of the evidence" anywhere in the brief

other than a footnote stating that Frazier moved for a new trial based on the argument that

the verdict was against the weight of the evidence. "An appellant must develop the

contention raised in the point relied on in the argument section of the brief." Horwitz v.

Horwitz, 16 S.W.3d 599, 605 (Mo. App. E.D. 2000) (citations omitted).

12
All rule references are to Missouri Supreme Court Rules (2014).

31
 Second, Frazier's argument contains "bare conclusions without linking those

conclusions to specific evidence and without providing any rationale supporting the

conclusions." Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 586 (Mo. App.

E.D. 2009) (citation omitted). "Mere conclusions and the failure to develop an argument

with support from legal authority preserve nothing for review.” Id. (citation omitted). "If

a party does not support contentions with relevant authority or argument beyond

conclusory statements, the point is deemed abandoned." Id. at 585 (citation omitted).

Moreover, the use of incorporation by reference is not sufficient in the argument section

of a Point Relied On. Von Ruecker v. Holiday Inns, Inc., 775 S.W.2d 295, 299 (Mo. App.

E.D. 1989) (point is deemed abandoned where argument is a half page in length, cites no

authority and incorporates by reference another part of the record).

But even setting aside all of the Rule 84.04 violations, Frazier's point is entirely

without legal support as none of his previous Points Relied On actually contain argument

as to how each alleged error resulted in prejudice; rather, each previous point argues why

a particular ruling was erroneous. As stated above, evidence of prejudice is required in

order to grant a new trial. Balke, 966 S.W.2d at 25. "When a party fails to develop a

point relied on in the argument section, it is deemed abandoned." Lack, 151 S.W.3d at

867 (citation omitted).

Further, Frazier bore the burden of proof to establish his cause of action. The fact

finder was free to disbelieve the evidence which he brought forth to support his cause of

action. White v. Dir. of Revenue, 321 S.W.3d 298, 312 (Mo. banc 2010). We defer to the

32
factual findings of the trial court. Frazier fails to address how the cause must be reversed

under this standard of review. This point is denied.

POINT VIII

In his last point, Frazier contends that the trial court erred in denying his motion

for a new trial, which alleged that the verdict was against the weight of the evidence,

"because cumulative error resulted" from all of the allegedly erroneous rulings contained

in the prior points above.

Standard of Review

As stated above, a trial court has great discretion in determining whether to grant a

new trial. Hall, 443 S.W.3d at 701. Its decision is presumed to be correct and will be

reversed on appeal only for an abuse of discretion. Mason v. Wal-Mart Stores, Inc., 91

S.W.3d 738, 741 (Mo. App. W.D. 2002) (citations omitted).

Discussion

"An appellate court may grant a new trial based on the cumulative effects of

errors, even without a specific finding that any single error would constitute grounds for a

new trial." Koontz v. Ferber, 870 S.W.2d 885, 894 (Mo. App. W.D. 1993) (citation

omitted). "However, relief will not be granted for cumulative error when there is no

showing that prejudice resulted from any rulings of the trial court." Id. (citation omitted).

Frazier's last point suffers from the same fatal flaw as Point VII in that he again

violates Rule 84.04 and does not provide support for his point. His Point Relied On

33
identifies the ruling at issue as the court's denial of his motion for a new trial because the

verdict was against the weight of the evidence. However, he does not develop this

argument. His argument section consists of only two sentences, without citations to legal

authority and again cross-references previous arguments made as to how the court's

rulings were erroneous. He concludes by asserting that the errors "prejudiced Plaintiff in

that he was denied a fair and equitable trial."

Because we did not find error in Frazier's first seven points and because he

neglected to present any argument that prejudice resulted from any of the trial court's

rulings, we refuse to grant relief for cumulative error.

Point VIII is denied.

CONCLUSION

The judgment of the trial court is affirmed.

__________________________________
Gary D. Witt, Judge

All concur

34