No: WD78675 IN THE APPELLATE COURT OF MISSOURI WESTERN DISTRICT ALAN ROETTGEN. TIMBERLINE DAIRY FARMS, INC. Respondent.

Transcription

1 No: WD78675 IN THE APPELLATE COURT OF MISSOURI WESTERN DISTRICT ALAN ROETTGEN v. Appellant, TIMBERLINE DAIRY FARMS, INC. Respondent. Appeal from the Circuit Court of Cooper County, Missouri The Honorable Robert L. Koffman 13CO-CC00008 RESPONDENT S BRIEF Respectfully Submitted, SCHREIMANN, RACKERS, FRANCKA AND BLUNT, L.L.C. /s/ Chris Rackers Christopher P. Rackers, #41894 Neil R. Jackson, # Wildwood Drive, Suite 201 Jefferson City, MO / / (facsimile) cpr@srfblaw.com Attorneys for Defendant/Respondent Timberline Dairy Farms, Inc.

2 TABLE OF CONTENTS Table of Authorities... ii Statement of Facts... 1 Standard of Review... 6 Point Relied On... 7 Argument... 8 Conclusion Certificate of Compliance Certificate of Service i

3 TABLE OF AUTHORITIES Dobbs v. Dobbs Tire and Auto Centers, 969 S.W.2d 894 (Mo. App. E.D. 1998)... 6 Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245 (Mo. banc. 1981) Hammons v. Eisert, 745 S.W.2d 253 (Mo. App. S.D. 1988) 12 In re Estate of Looney, 975 S.W.2d 508 (Mo. App. S.D. 1998)...15 Johnson v. Creative Restaurant Management, 904 S.W.2d 455 (Mo. App. W.D. 1995) , 10, 13, 14 Letz v. Turbomeca Engine Corp., 975 S.W.2d 155 (Mo. App. W.D. 1997) McMillin v. Union Elec. Co., 820 S.W.2d 352 (Mo. App. W.D. 1991)... 12, 13 Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc. 2012)... 9 Secrist v. Treadstone, LLC, 356 S.W.3d 276 (Mo. App. W.D. 2011) State v. Barnett, 980 S.W.2d 297 (Mo. banc. 1998)... 9 State v. Borden, 605 S.W.2d 88 (Mo. banc. 1980)... 7, 9 State v. McFadden, 369 S.W.3d 727 (Mo. banc. 2012) State ex rel. McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc. 1995)... 9, 11 Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc. 2007)... 7, 15 White v. State, 939 S.W.2d 887 (Mo. banc. 1997) Woods v. Friendly Ford, Inc., 248 S.W.3d 699 (Mo. App. S.D. 2008)... 6 Statutes 1. RSMo Mo. Sup. Ct. R ii

4 STATEMENT OF FACTS Plaintiff Alan Roettgen sued Defendants Timberline Dairy Farms, Inc., and Kevin Lenz, alleging that he was injured while working at Timberline Dairy Farms on November 3, 2009, while pushing a bale of straw which rolled back against him (L.F. 13). Mr. Roettgen claimed injuries to his neck (Tr. 12). The Court granted Summary Judgment for Defendant Kevin Lenz, leaving Timberline Dairy Farms as the only Defendant (L.F. 4). The parties tried their case to a jury on January 29 and 30, 2015 (L.F. 7-9). Before trial started, Mr. Roettgen and Timberline Dairy Farms, Inc. took up Motions in Limine, including discussion of Mr. Roettgen s prior complaints of neck pain and treatment of that neck pain (Tr. 12). The Court ruled that since Mr. Roettgen was only complaining about injury to his neck, any evidence of prior complaints or treatment of the neck would be admissible, but complaints or treatment related to other parts of the body were inadmissible (Tr. 19:15-20:9). Contrary to Mr. Roettgen s Brief and the Statement of Facts contained therein, there was no discussion on the record in this pre-trial conference about a 1997 x- ray report (Tr. 8-42). Mr. Roettgen s attorney called Kevin Lenz as his first witness (Tr. 177). Kevin Lenz and Randy Lenz are the owners of Timberline Dairy Farms (Tr. 197:17-23). Kevin Lenz testified that before November, 2009, Mr. Roettgen mentioned having issues with his neck (Tr. 211:10-212:2). Kevin Lenz testified that Mr. Roettgen reported seeing a chiropractor for these problems (Tr. 212:3-14). 1

5 As part of Mr. Roettgen s evidence, Mr. Roettgen testified (Tr. 229). On crossexamination, Timberline Dairy Farms attorney asked Mr. Roettgen if he had an x-ray in 1997 that showed degenerative changes at C5 and C6 (Tr. 271:10-16). Mr. Roettgen s attorney objected on the grounds that the x-ray was twelve years before and [t]here s no doctor that linked this up. (Tr. 271:23-25). The Court explained that it did not believe it was proper to ask Mr. Roettgen what the medical record said, but it was proper to ask about any admissions in the records (Tr. 272:25-273:5). Timberline Dairy Farms attorney asked if it was permissible to ask Mr. Roettgen if he had an x-ray on his neck and the Court said that was fine (Tr. 273:8-10). Mr. Roettgen then said he did not remember whether there was an x-ray in 1997 on his neck (Tr. 273:16-19). Mr. Roettgen admitted that he had a fall in 1997, but said that he hurt his back, not his neck, as a result of that fall (Tr. 273:20-24). On the second day of trial, before the Jury was in the Courtroom, the attorneys discussed with the Court the admissibility of a 1997 x-ray report from Cooper County Memorial Hospital (Tr. 321). The Court ruled that the x-ray report was inadmissible, explaining, I have a hard time just putting a record in and letting them decide what the medical meaning of all that is. (Tr. 325:20-22). The Court ultimately ruled that Timberline Dairy Farms attorney could read any admissions from Mr. Roettgen contained in medical records, but could not read other portions of the x-ray report (Tr. 349:14-350:17). Timberline Dairy Farms attorney made an offer of proof, outside of the Jury s presence, by reading the following portion of the x-ray report: History, cervical strain with radiculitis of right arm. Conclusion, mild degenerative changes at C5-6 interspace 2

6 with minimal spur formation and encroachment of right neural foramen at this level. (Tr. 351:17-352:22). During Timberline Dairy Farms case, Mr. Roettgen s attorneys again raised the issue of reading portions of medical records into evidence, and the Court reiterated its ruling that he [Timberline Dairy Farms attorney] be allowed to put in admissions, he could not put in medical opinions, but he can put in admissions of your client (Tr. 412:19-22). Timberline Dairy Farms attorney read the following from a medical record from September 3, 1998: Mr. Roettgen presents with neck pain that he indicates began -- (Tr. 414:12-14). The Court interrupted, Hang on a second, hang on a second, you are going beyond what we talked about admissions. (Tr ). Timberline Dairy Farms counsel explained that he believed that this portion of the record was an admission, because it was what Mr. Roettgen told the doctor, but the Court disagreed, stating that it was the doctor s statement, not Mr. Roettgen s statement (Tr. 415:2-19). Timberline Dairy Farms attorney then read to the Jury from a September 3, 1998 Columbia Orthopedic Group record: He indicates that his pain is aching and stabbing in nature. His pain is worsening with coughing, bending, lifting, sitting, driving, and standing. (Tr. 417:14-18). Timberline Dairy Farms attorney then read from a Thompson Chiropractic record dated June 19, 2007: Pain into N-K since S-U-N, woke up with it. Worsening S-O into neck. (Tr. 418:6-9). Timberline Dairy Farms attorney read from another Fayette Clinic medical record dated November 11, 2009: He was repairing a door in a camper outside when he suddenly felt very dizzy, became short of breath, and 3

7 developed some chest pressure. No real overt chest pain. This came later in the form of left side reproducible chest/rib pain. He states he remains very active on his job, which is at a dairy farm. He works as a hired hand on a dairy farm and is very active at work, constantly doing heavy lifting and running. (Tr. 418:11-21). Recognizing his prior confusion about the Court s ruling distinguishing history of the patient versus the doctor s conclusions, Timberline Dairy Farms attorney then approached the bench to go over a record with the Court, and the Court determined that it was Mr. Roettgen s own statement, not the doctor s conclusions (Tr. 419:1-9). Timberline Dairy Farms attorney then read from a Fayette Clinic record dated November 20, 2009: Patient presents with neck pain and headache, location is left side of the back. Onset was gradual. Patient does not remember any inciting event or trauma. He works as a hired hand on a dairy farm. He is very active at work, constantly doing heavy lifting and running. Rates pain as 4 or 5/10 at worst and 2/10 at best. (Tr. 419:15-22). Finally, Timberline Dairy Farms attorney read from a Columbia Regional Hospital record dated December 15, 2009: Patient also reports history of fall on his neck and shoulder in 1997 in which he was out of work for nearly two years. (Tr. 419:25-420:2). Randy Lenz also testified as part of Timberline Dairy Farms case (Tr. 420). Randy Lenz testified that before November 3, 2009, Mr. Roettgen said he has having trouble with his neck (Tr. 426:13-20). Randy Lenz testified that he referred Mr. Roettgen to Thompson Chiropractic (Tr. 426:21-427:2). Randy Lenz also testified that Mr. Roettgen told him about radiating pain from his neck as a result of a 1997 fall (Tr. 427:3-20). 4

8 During deliberations, the Jury sent a note containing the following question to the Court: Was statement made about back/neck issue in 1997 stated as degenerative? (Tr. 498:11-13). The Court responded: You are bound by the evidence as you recall it. (Tr. 498:13-15). After deliberation, the Jury entered a verdict for Defendant Timberline Dairy Farms, Inc. and against Plaintiff Allen Roettgen, assessing zero percent fault to Mr. Roettgen and zero percent fault to Timberline Dairy Farms (L.F. 159). The Court entered Judgment pursuant to the Jury s verdict (L.F ). Mr. Roettgen filed a Motion for New Trial (L.F. 163). The Court overruled his Motion for New Trial (L.F ). Mr. Roettgen now appeals to this Court (L.F. 199). 5

9 STANDARD OF REVIEW The standard of review for denial of a Motion for New Trial is that this Court of Appeals reviews the trial court s ruling for an abuse of discretion. Dobbs v. Dobbs Tire and Auto Centers, 969 S.W.2d 894, 899 (Mo. App. E.D. 1998); Woods v. Friendly Ford, Inc., 248 S.W.3d 699, 705 (Mo. App. S.D. 2008). 6

10 POINT RELIED ON I. The Trial Court did not err in denying Appellant Alan Roettgen s Motion for New Trial because Appellant waived any claim for appellate review and the evidence did not prejudice Appellant, in that Appellant did not object to the references to the evidence on two occasions and did not ask for a mistrial on the third occasion, the evidence was in fact admissible, the evidence complained of was cumulative to evidence the Court ruled to be admissible, and the Jury returned a verdict that Respondent Timberline Dairy Farms was not at fault. Johnson v. Creative Restaurant Management, 904 S.W.2d 455 (Mo. App. W.D. 1995). State v. Borden, 605 S.W.2d 88 (Mo. banc. 1980). McMillin v. Union Elec. Co., 820 S.W.2d 352 (Mo. App. W.D. 1991). Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc. 2007). 1. RSMo Mo. Sup. Ct. R

11 ARGUMENT Response to Appellant s Point Relied on I. I. The Trial Court did not err in denying Appellant Alan Roettgen s Motion for New Trial because Appellant waived any claim for appellate review and the evidence did not prejudice Appellant, in that Appellant did not object to the references to the evidence on two occasions and did not ask for a mistrial on the third occasion, the evidence was in fact admissible, the evidence complained of was cumulative to evidence the Court ruled to be admissible, and the Jury returned a verdict that Respondent Timberline Dairy Farms was not at fault. The key issue for Appellant Alan Roettgen s Appeal is reference to a 1997 x-ray report from Cooper County Memorial Hospital (Tr. 321). However, for several reasons, the Trial Court did not abuse its discretion in denying Appellant Alan Roettgen s Motion for New Trial. A. Mr. Roettgen Waived any Claims of Alleged Error Appellant Alan Roettgen claims the Trial Court abused its discretion in not granting his Motion for New Trial because of three references to a 1997 x-ray report. 1. Reference to the 1997 x-ray report in opening statement. Mr. Roettgen claims the Trial Court abused its discretion in overruling his Motion for New Trial because Timberline Dairy Farms attorney, in opening statement, first made reference to an x-ray of the Plaintiff s cervical spine, taken in 1997 prior to the injury giving rise to the case - that showed degenerative changes at the C5-6 level. 8

12 (Appellant s Brief, Page 2). In fact, Timberline Dairy Farms attorney did make reference to a 1997 x-ray report in opening statement, and Plaintiff made no objection to this reference. (Tr. 172:14-173:10). A party who fails to object to testimony at trial fails to preserve the issue for review. State ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 830 (Mo. banc. 1995). Failure to object at the earliest opportunity to the admission of evidence or argument of counsel constitutes a waiver of the claim. State v. Borden, 605 S.W.2d 88, 90 (Mo. banc. 1980); see also State v. Barnett, 980 S.W.2d 297, 304 (Mo. banc. 1998). The requirement that an objection be preserved is based on ideas of efficiency and fair play. Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo. banc. 2012). A party should make any objection to the trial process at the earliest opportunity to allow the other party to correct the problem without undue expense or prejudice. Id. If a party fails to make an objection when the concern can be corrected at the earliest and easiest opportunity, he or she will not be heard to complain later when the cost of correction may be far more onerous. Id. By failing to object to the reference to the 1997 x-ray report in Timberline Dairy Farms opening statement, Mr. Roettgen has waived this issue on appeal. Mr. Roettgen s brief alleges that Timberline Dairy Farms attorney knew, when referencing the 1997 x-ray report, that it was inadmissible. 1 However, the record of the 1 Mr. Roettgen s Brief states that Timberline Dairy Farms conceded in its Suggestions in Opposition to Plaintiff s Motion for New Trial that they were aware of 9

13 discussion of the parties Motion in Limine contains no discussion about whether the x- ray was admissible (Tr. 8-42). Following Johnson v. Creative Restaurant Management, 904 S.W.2d 455, 459 (Mo. App. W.D. 1995) and other cases (referenced in Section B (below)), Timberline Dairy Farms attorney believed he would be able to read the record into evidence and there was no intention to disregard any ruling from the Court. As a result, Timberline Dairy Farms attorney had a good faith belief that the Court would allow him to read the contents of the x-ray report. Admissible evidence may be referred the fact that the x-ray was inadmissible (See Appellant s Brief, p. 13). In fact, Timberline Dairy Farms Suggestions in Opposition to the Motion for New Trial in addressing Mr. Roettgen s argument that the jury must have seen a blow up of the 1997 x-ray report stated even if it was found that Plaintiff had not waived his objections to the alleged evidence or conduct, there is still no evidence in the record that Defendant presented or mentioned inadmissible evidence to the Jury (L.F. 174). This is not an admission that the 1997 x-ray report was inadmissible or that Timberline Dairy Farms attorney knew that it was inadmissible and knowingly disregarded the Trial Court s ruling in referencing it, but merely that Timberline Dairy Farms attorney understood the Court s ruling (made well after opening statements) that the 1997 x-ray report was inadmissible and as a result did not display it to the Jury during Timberline Dairy Farms case in chief. 10

14 to in an opening statement if a good faith basis exists. State v. McFadden, 369 S.W.3d 727, 742 (Mo. banc. 2012), quoting White v. State, 939 S.W.2d 887, 902 (Mo. banc. 1997). 2. Questioning Kevin Lenz about the 1997 x-ray report. Next, Mr. Roettgen claims the Trial Court abused its discretion in overruling the Motion for New Trial because Timberline Dairy Farms attorney asked Kevin Lenz whether Mr. Roettgen ever mentioned the 1997 x-ray report (Tr. 220:6-12). Mr. Roettgen s attorney did not object to this question (Tr. 228). Again, Mr. Roettgen s failure to object to the testimony failed to preserve the issue for appellate review. State ex rel. McHaffie v. Bunch, 891 S.W. 2d 822, 830 (Mo. banc. 1995). 3. Questioning Mr. Roettgen about the 1997 x-ray report. Finally, Mr. Roettgen alleges reversible error occurred because during cross examination of Mr. Roettgen, Timberline Dairy Farms attorney asked Mr. Roettgen about the 1997 x-ray report (Tr. 271:14-16). Mr. Roettgen s attorney objected on the grounds that the x-ray report was twelve years before and [t]here s no doctor that linked this up (Tr. 271:17-25). The Trial Court sustained the objection (Tr. 272:16-273:15). Mr. Roettgen s attorney did not ask for any additional relief (Tr. 271:14-273:15). A court cannot be convicted of error it if sustains an objection and the objecting party makes no request for any further relief. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 168 (Mo. App. W.D. 1997). Simply making an objection or asking the court 11

15 to instruct the jury to disregard the objectionable argument will not later entitle the party to a new trial, because the party received all the relief requested. McMillin v. Union Elec. Co., 820 S.W.2d 352, 355 (Mo. App. W.D. 1991). A request for a mistrial based on improper [evidence] comes too late where it is not requested at the time the objection is made. Id citing Hammons v. Eisert, 745 S.W.2d 253, 259 (Mo. App. S.D. 1988) (holding that a request for a mistrial not made until a motion for new trial is too late). In McMillin, the defense attorney injected insurance into the case by asking a question regarding worker s compensation during voir dire. McMillin, 820 S.W.2d at 354. Plaintiff objected, and an agreement was reached on this issue. Id. Following the trial, the plaintiff argued that the defendant injected the insurance issue purposefully and in bad faith, and thus reversible error was committed. Id. The plaintiff argued the only corrective measure to remedy the problem was a mistrial. Id. at 355. The Court of Appeals disagreed: A request for a mistrial based on improper [evidence] comes too late where it is not requested at the time the objection is made. The request is waived if it is not made at the time of the improper statements. Id. (internal citations omitted). The Court reasoned: The rationale here is the same as where a party fails to make a timely objection to statements made by counsel or witnesses. A party cannot object to the admission of certain evidence or argument, purposely delay making a request for further relief and then use the evidence to its advantage. Nor can a party wait to evaluate the impact of the evidence on the jury or delay for any other strategic reason, without giving a clear intention to waive or abandon the request. If the objection is not made at 12

16 the time of the incident giving rise to the objection, the objection may be deemed to be waived or abandoned. Similarly, failure to make a timely request for further relief when an objection has sustained may be deemed a waiver or abandonment of further remedial relief. Id. (emphasis added) (internal citations omitted). Here, as in McMillin, Mr. Roettgen s attorney did not request a mistrial. Mr. Roettgen s attorney simply objected and the Court sustained the objection. The Court provided Mr. Roettgen all of the relief Mr. Roettgen s attorney requested. As a result, Mr. Roettgen has waived this issue for Appellate review. B. The 1997 x-ray report was admissible Even if Mr. Roettgen preserved any alleged error for review, the Trial Court did not abuse its discretion in overruling the Motion for New Trial because the 1997 x-ray report was in fact admissible. The Trial Court ruled that the 1997 x-ray report was inadmissible, explaining I have a hard time just putting a record in and letting them decide what the medical meaning of all that is. (Tr. 325: 20-22). Timberline Dairy Farms attorney made an offer of proof by reading the following portion of the 1997 x- ray report: History: cervical strain with radiculitis of right arm. Conclusion: mild degenerative changes at C5-6 interspace with minimal spur formation and encroachment of right neural foramen at this level. (Tr. 351:17-352:22). Mr. Roettgen was not harmed by any reference to this x-ray report, because the Trial Court erred in ruling that it was inadmissible. Johnson v. Creative Restaurant Management, 904 S.W. 2d 455, 459 (Mo. App. W.D. 1995) ( Hospital records, when 13

17 properly qualified, are admissible under the Business Records Act. Section , RSMo Missouri Courts deemed the following types of data contained within hospital records admissible: the physical examination findings, the patient s symptoms and complaints, treatment, and progress records, diagnosis by those qualified to make them, the results of analyses and laboratory tests, x-rays, behavior of the patient, and those parts of the patient s history inherently necessary or helpful to the observation, diagnosis, and treatment of the patient. (emphasis added)). Following Johnson, since Timberline Dairy Farms had satisfied the Business Records Act, Timberline Dairy Farms was entitled to read the contents of the 1997 x-ray report to the jury. As a result, Mr. Roettgen cannot claim any prejudice from the mention of this record. C. There is No Evidence that any Alleged Inadmissible Evidence Prejudiced Mr. Roettgen. Even if it is found that Mr. Roettgen did not waive his objections, there is still no showing that this evidence prejudiced the Jury, and as a result the Trial Court did not abuse its discretion in overruling the Motion for New Trial. Mo. Sup. Ct. R provides that the Court may grant a new trial upon good cause shown. Mr. Roettgen argues that the jury s written question about the 1997 neck issue alone is sufficient good cause, arguing the question is proof that the Jury was prejudiced by the reference to this evidence. However, there is no abuse of discretion here because the 1997 x-ray report was cumulative to other evidence admitted. 14

18 "A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted." Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc. 2007), citing In re Estate of Looney, 975 S.W.2d 508, (Mo. App. S.D. 1998) and Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245, 252 (Mo. banc. 1981) ( The complaining party cannot be prejudiced by the allegedly inadmissible evidence if... the challenged evidence is merely cumulative to other admitted evidence of like tenor"). Timberline Dairy Farms offered evidence deemed admissible by the Trial Court that showed Mr. Roettgen had a prior neck injury from a 1997 fall. First, Timberline Dairy Farms attorney read into evidence an admission by Mr. Roettgen. In one medical record, Mr. Roettgen reported a history of fall on his neck and shoulder in 1997 in which he was out of work for nearly two years (Tr. 419:25-420:2). Second, Kevin Lenz testified that before November, 2009, Mr. Roettgen had mentioned issues with his neck and that he had seen a chiropractor for these problems (Tr. 211:10-212:14). Third, Randy Lenz testified that Mr. Roettgen said he had trouble with his neck as a result of a 1997 fall (Tr. 426:13-427:20). Thus the Jury heard numerous pieces of deemed admissible evidence about Mr. Roettgen s 1997 neck pain. There is no evidence that the deemed inadmissible evidence was more significant to the Jury than the more numerous, deemed admissible evidence. Further, the Jury s question was about a back/neck issue in 1997, not solely a neck issue. The references subject to this appeal deal solely with a neck issue. Mr. 15

19 Roettgen testified the 1997 fall resulted in a back issue, and there was substantial evidence about a neck issue from the 1997 fall. Thus, it was clear the Jury was asking about the other evidence, not the three references that are the subject of this appeal. D. Mr. Roettgen s argument is moot, as the Jury found Timberline Dairy Farms was not liable for Mr. Roettgen s alleged fall. After a short deliberation, the Jury returned a verdict form that showed Timberline Dairy Farms had 0% fault for Mr. Roettgen s alleged fall. Thus Mr. Roettgen s entire argument regarding the alleged prejudice caused by offering Mr. Roettgen s prior medical history into evidence is moot, as the Jury found no negligence on the part of Timberline Dairy Farms. Mr. Roettgen may attempt to argue that his prior medical history was offered for the purpose of negating the causation element of a negligence claim. However, as the Trial Court explained: [Timberline Dairy Farms attorney] is not arguing causation. His proposition is this man did this a lot and here s why he did it.he is being impeached. He s being impeached with admission of why he went to the doctor. Whether or not he s telling us the truth about what happened to him as a result of the injury at the farm is clearly being impeached by the defendant when he brings this evidence in. Doesn t have any other purpose. 16

20 (Tr. 87, 88) (emphasis added). Since Timberline Dairy Farms was not found to be negligent, the issue of the admissibility of Mr. Roettgen s prior medical history is moot. See Secrist v. Treadstone, LLC, 356 S.W.3d 276, (Mo. App. W.D. 2011) (concluding that in the event a Jury finds defendant to be 0% at fault, improper evidence used for impeachment purposes has no effect on Defendant s fault and the admission of such evidence bearing on the weight of fault is harmless error). E. Conclusion. For the foregoing reasons, Respondent Timberline Dairy Farms, Inc., respectfully requests that this Court affirm the Trial Court s Order overruling Appellant Alan Roettgen s Motion for New Trial. Respectfully Submitted, SCHREIMANN, RACKERS, FRANCKA AND BLUNT, L.L.C. /s/ Chris Rackers Christopher P. Rackers, #41894 Neil R. Jackson, # Wildwood Drive, Suite 201 Jefferson City, MO / / (facsimile) cpr@srfblaw.com Attorneys for Respondent 17

21 CERTIFICATE OF COMPLIANCE WITH RULE 84.06(c) and Local Rule XXXIII I do hereby certify that Respondent s brief contains 4,194 words as calculated by the Microsoft Word word count tool. This word count does not include the cover, certificate of service, certificate required by Rule 84.06(c), or signature block. SCHREIMANN, RACKERS, FRANCKA AND BLUNT, L.L.C. /s/ Chris Rackers Christopher P. Rackers, #41894 Neil R. Jackson, # Wildwood Drive, Suite 201 Jefferson City, MO / / (facsimile) cpr@srfblaw.com Attorneys for Respondent 18

22 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing was served via the Court s electronic filing system upon Shaun M. Falvey, 211 N. Broadway, Suite 1600, St. Louis, MO 63102, attorney for the Plaintiff, on December 18, /s/ Chris Rackers Christopher P. Rackers 19

23 APPENDIX Mo. Sup. Ct. R A2 RSMo A5 A1

24 Mo. Sup. Ct. R Misdemeanors or Felonies--After-Trial Motions--Preservation of Error (a) Granting a New Trial. The court may grant a new trial upon good cause shown. A new trial may be granted to all or any of the defendants. (b) Time for Filing Motion. A motion for a new trial or a motion authorized by Rule 27.07(c) shall be filed within fifteen days after the return of the verdict. On application of the defendant made within fifteen days after the return of the verdict and for good cause shown the court may extend the time for filing of such motions for one additional period not to exceed ten days. (c) When Judgment Rendered. No judgment shall be rendered until the time for filing a motion for new trial has expired and if such motion is filed, until it has been determined. If a motion for new trial is not filed or if one is filed and overruled, judgment shall be rendered without unreasonable delay. (d) Motion for New Trial in Jury-Tried Cases--Allegation of Error Required. In jury-tried cases, allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: (1) Jurisdiction of the court over the offense charged; (2) Whether the indictment or information states an offense; (3) The sufficiency of the evidence to sustain the conviction. (e) Motions for New Trial in Cases Tried Without a Jury. A2

25 (1) Within the time prescribed in Rule 29.11(b), a defendant may, but need not, file a motion for a new trial in cases tried without a jury. (2) For appellate review of cases tried without a jury a motion for new trial is not necessary to preserve any matter for appellate review. If a motion for new trial is filed, allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: (A) Jurisdiction of the court over the offense charged; (B) Whether the indictment or information states an offense; (C) The sufficiency of the evidence to sustain the conviction. (f) After Trial Motions, Including a Motion for New Trial Based Upon Affidavits. When any after-trial motion, including a motion for new trial, is based on facts not appearing of record, affidavits may be filed, which affidavits shall be served with the motion. The opposing party has ten days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. Depositions and oral testimony may be presented in connection with after-trial motions. (g) When Motion for New Trial Denied. If the motion for new trial is not passed on within ninety days after the motion is filed, it is denied for all purposes. In computing the ninety days no day shall be counted during which the court lacks power to act. A3

26 R.S.MO Records, Competent Evidence, when A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. A4