In the Missouri Court of Appeals Eastern District DIVISION ONE
CANDACE LOVE, as personal ) No. ED111905 representative of the Estate of ) CASEY REDMOND, ) ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 2122-CC08981 ) OSAGE MARINE SERVICES, INC., ) Honorable Madeline O. Connolly ) Defendant/Appellant. ) Filed: April 16, 2024
Introduction Osage Marine Services, Inc. (“Appellant”) appeals the trial court’s judgment in favor of
Candace Love (“Love” or “Plaintiff”) for the death of her son, Casey Redmond (“Redmond”). In
its first two points on appeal, Appellant argues the trial court improperly submitted claims for
damages for pain and suffering and loss of support to the jury. Third, Appellant argues the trial
court erred in denying remittitur because the jury verdict was excessive. Fourth, Appellant argues
the trial court erred in admitting evidence of liability and certain damages following Appellant’s
admission of liability. Fifth, Appellant argues the trial court erred in submitting a jury instruction
that contained an incorrect statement of law. Finally, Appellant argues the trial court’s entry of judgment violated an injunction issued by a federal district court in a companion federal case. We
affirm the judgment of the trial court.
Factual and Procedural Background
Factual History
On December 14, 2019, Casey Redmond and D.M., his supervisor, were working as deck
crew members on a tugboat, the M/V Rain Man. 1 Redmond, who was 22 years old, appeared to be
feeling well and was not having any health or medical problems.
Around 1:30 a.m. on the morning of December 15, Redmond and D.M. got an assignment
to help put a barge into a fleet. As the Rain Man pulled up to the barge, D.M. and Redmond both
had their life vests on and buckled. When he stepped onto the barge, D.M. noticed cornmeal on
the barge deck. According to D.M., the cornmeal was a slipping hazard and a workplace safety
hazard and should have been removed as soon as possible. D.M. avoided the cornmeal and boarded
the barge.
After D.M. stepped onto the deck, he heard the tools that Redmond was carrying bounce
and hit the deck. Then D.M. heard the water splash as Redmond fell into the river. D.M. and a
deckhand from another boat saw Redmond floating in the river towards the Rain Man. D.M. ran
down the barge deck to keep a visual on Redmond. Redmond continued towards the front of the
Rain Man and went underwater. He was never seen again. Numerous vessels spent hours searching
for Redmond hoping to find him alive.
After unsuccessfully searching for Redmond’s body, recovery crews found Redmond’s life
jacket. The back plate of the life jacket was cut in half. The boat or its propeller likely cut the life
1 The personal identifying information of witnesses has been omitted pursuant to RSMo § 509.520 (Supp. 2023). 2 jacket in half, and there was nothing else identified in the river that could have caused the cut.
Appellant’s vice president of operations conceded Redmond likely hit the propeller while wearing
his life vest, which likely killed or maimed him. He also expressed, based on his experience, that
Redmond could have survived for two and a half to three hours after falling into the river without
injury. Redmond’s body was never found.
At the time of his death, Redmond lived with his mother, Plaintiff Candace Love, in her
home. When Redmond was not working, he used most of his free time to keep the house clean,
cut the grass, shovel snow, and fix things that stopped working. He generally helped Love with
anything she needed done around the house. Occasionally, Redmond would contribute $100 or so
to help Love with bills.
In addition, Redmond provided crucial medical care for his mother, who has had Type I
diabetes since she was a child. As Love has aged, the diabetes has taken a toll on her body, causing
neuropathy and erratic blood sugar levels. When her blood levels get low, she gets shaky and
confused and cannot take care of herself. Redmond would check Love’s blood sugar levels and
make her something to eat or drink to increase her blood sugar levels. This was important because
if she did not get her blood sugar levels up she would go into a coma and possibly die. Love’s
diabetes also has caused a stomach condition called gastroparesis, making her prone to bouts of
nausea and vomiting. Redmond took care of her while she was vomiting and cleaned up after her.
Love testified to these contributions by Redmond. Redmond’s grandfather and coworkers
also attested to the pecuniary contributions he made to his mother. Love expected these
contributions to continue in the future. She now lives alone in the same home in which she lived
with Redmond.
Procedural History
3 Love filed a two-count petition alleging Appellant’s negligence under the Jones Act, 46
U.S.C. § 30104, and unseaworthiness of the Rain Man, resulting in Redmond’s death. On each
count, Love requested damages in excess of $51 million for Redmond’s conscious pain and
suffering prior to his death and Love’s loss of Redmond’s economic support and pecuniary
services, among other damages.
Appellant initially denied any negligence and all liability. Approximately one week before
trial, Appellant moved to file an amended answer no longer contesting liability for Redmond’s
death. The trial court granted Appellant’s motion, and Appellant filed an amended answer
admitting that Appellant failed to provide Redmond with a safe workplace, admitting liability for
Redmond’s death, and reserving the right to contest only damages at trial. As to each count,
Appellant admitted “plaintiff has adduced evidence sufficient to support a finding of liability” and
stated its intention to “not contest Plaintiff’s right to an award for those elements of damages that
are available and proven under the applicable law.” The case proceeded to trial.
Motions for Directed Verdict and Judgment Notwithstanding the Verdict
At the close of Plaintiff’s case-in-chief, Appellant moved for a directed verdict on
Plaintiff’s claim for loss of financial support, arguing Plaintiff failed to demonstrate she was
financially dependent on Redmond. Additionally, Appellant moved for a directed verdict on
Plaintiff’s claim for conscious pain and suffering, arguing Plaintiff presented insufficient evidence
that Redmond was conscious immediately prior to his death. The trial court denied both motions.
Following the jury’s verdict on damages, Appellant filed a motion for judgment
notwithstanding the verdict. Appellant renewed his previous arguments regarding damages for loss
of financial support and conscious pain and suffering. The trial court denied Appellant’s motion
for judgment notwithstanding the verdict.
4 Jury Instruction 6
Prior to closing arguments, the trial court held a jury instruction conference. Appellant
submitted Instruction 6, stating, among other things, the only issue for the jury to decide was
damages since Appellant admitted liability and that the jury must not consider damages for
Plaintiff’s grief or bereavement from Redmond’s death. Appellant patterned this instruction on
MAI 31.07(A), as modified by MAI 24.06. Plaintiff did not object to Instruction 6, and the
instruction was submitted to the jury.
Appellant also proposed a second instruction modeled on a jury instruction of the U.S.
Court of Appeals for the Seventh Circuit in Federal Employer’s Liability Act (“FELA”) cases
involving death. Appellant stated it submitted this instruction because it believed the MAI
instruction did not properly instruct the jury on the law, but did not object to Instruction 6, which
it already had submitted. Plaintiff objected to the Seventh Circuit instruction. The trial court
sustained the objection and did not give the proposed instruction.
Appellant proposed a third instruction, which tracked the modern federal jury instruction.
Again, Plaintiff objected, and the trial court rejected the instruction.
Finally, Appellant proposed a fourth instruction, a non-MAI instruction which would
provide the jury with guidance on what damages were available. Plaintiff objected. The trial court
sustained the objection and did not give the fourth proposed instruction.
After closing arguments and deliberations, the jury returned a verdict assessing $15 million
in total damages against Appellant. Appellant now appeals.
Discussion
Appellant raises six points on appeal. In its first point, Appellant argues the trial court erred
in denying its motion for directed verdict on Plaintiff’s claim for conscious pain and suffering
5 because Plaintiff failed to adduce sufficient evidence to submit those damages to the jury. In its
second point, Appellant similarly argues the trial court erred in denying its motion for directed
verdict on Plaintiff’s claim for loss of financial support because Plaintiff failed to adduce sufficient
evidence to submit those damages to the jury. In its third point, Appellant argues the trial court
erred in denying its motion for remittitur because the jury’s award exceeded the damages
demonstrated by the evidence. In its fourth point, Appellant argues the trial court erred in allowing
Plaintiff to adduce evidence of liability and certain damages. In its fifth point, Appellant argues
the trial court erred in submitting Instruction 6 to the jury because the instruction contained an
incorrect statement of law. In its sixth and final point, Appellant argues the trial court erred in
entering judgment because a federal district court issued an injunction prohibiting the entry of
judgment.
Point I
In its first point, Appellant argues the trial court erred in denying its motion for directed
verdict on Plaintiff’s claim for conscious pain and suffering because Plaintiff failed to adduce
sufficient evidence to submit those damages to the jury.
Standard of Review
Our review of the trial court’s denial of a motion for directed verdict requires us to
determine whether the plaintiff made a submissible case, which is a question of law we review de
novo. Eisenmann v. Podhorn, 528 S.W.3d 22, 29 (Mo. App. E.D. 2017). “In determining whether
the plaintiff made a submissible case, we view the evidence and all reasonable inferences
therefrom in the light most favorable to the plaintiff, and all contrary evidence and inferences are
disregarded.” Id. at 29–30. “However, this Court will not supply missing evidence or make
6 unreasonable, speculative, or forced inferences from the evidence presented.” Harner v. Mercy
Hosp., 679 S.W.3d 480, 484 (Mo. banc 2023).
“The plaintiff may prove essential facts by circumstantial evidence as long as the facts
proved and the conclusions to be drawn are of such a nature and are so related to each other that
the conclusions may be fairly inferred.” Penzel Constr. Co., Inc. v. Jackson R-2 Sch. Dist., 635
S.W.3d 109, 132 (Mo. App. E.D. 2021) (quoting Moore v. Ford Motor Co., 332 S.W.3d 749, 756
(Mo. banc 2011)). We will reverse only if “there is a complete absence of probative fact to support
the jury’s conclusion.” Eisenmann, 528 S.W.3d at 30 (quoting Delacroix v. Doncasters, Inc., 407
S.W.3d 13, 26 (Mo. App. E.D. 2013) (en banc)).
Analysis
A plaintiff can recover damages for pre-death pain and suffering under the Jones Act. 2
Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); McBride v. Estis Well Service, LLC, 853 F.3d
777, 781 (5th Cir. 2017); see also Spiller v. Thomas M. Lowe, Jr., & Assocs., Inc., 466 F.2d 903,
909 (8th Cir. 1972). This includes damages for a seaman who drowns. Deal v. A.P. Bell Fish Co.,
728 F.2d 717, 718 (5th Cir. 1984).
“Although eyewitness evidence is not necessary, there must be evidence supporting a
finding that the decedent was conscious when [he] drowned.” Id. A plaintiff must show “by a
preponderance of the evidence, that the decedent was conscious after realizing his danger.”
McBride, 853 F.3d at 781 (quoting Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir. 1988);
see also Deal, 728 F.2d at 718 (“[T]here must be evidence to support a reasonable inference of
2 The Jones Act is a federal statute allowing for the recovery of damages for the personal injuries of seamen. See Duncan v. Am. Com. Barge Line, LLC, 166 S.W.3d 78, 83 (Mo. App. E.D. 2004). The Jones Act incorporates FELA by reference, and thus federal caselaw interpreting FELA and the Jones Act are instructive to this Court. Id. 7 consciousness.”); McAleer v. Smith, 791 F. Supp. 923, 929 (D. R.I. 1992) (“To recover for their
decedents’ conscious pain and suffering, plaintiffs must establish that the decedents did not die
instantaneously but were momentarily conscious before drowning.”). “A permissible inference
may be made drawn from the circumstances as a whole that a person was not rendered unconscious
by the experience.” Kline v. Maritrans CP, Inc., 791 F. Supp. 455, 464 (D. De. 1992). Allegations
of pain and suffering are insufficient when the record supports a finding of almost instantaneous
death. F/V Carolyn Jean, Inc., v. Schmitt, 73 F.3d 884, 885 (9th Cir. 1995).
This case presents a close question regarding whether the evidence presented a submissible
claim for pain and suffering. The question is whether Plaintiff proved by a preponderance of the
evidence, that is, whether it is more likely than not, from the circumstantial evidence and
reasonable inferences drawn therefrom, that Redmond was conscious after he fell into the river
and therefore endured conscious pain and suffering. Viewing the evidence and all reasonable
inferences therefrom in the light most favorable to the plaintiff and disregarding all contrary
evidence and inferences, Eisenmann, 528 S.W.3d at 29-30, the evidence established that, more
likely than not, Redmond was conscious after falling into the river. We therefore affirm the trial
court’s denial of Appellant’s motion for directed verdict on the claim for conscious pain and
suffering.
The evidence was that Redmond, a young man in good health, and D.M. approached the
barge with their life vests on and buckled. D.M. first stepped from the Rain Man onto the deck of
the barge. D.M. noticed a pile of cornmeal on the barge deck and stepped around it. Then D.M.
heard Redmond’s tools bounce on the barge deck and Redmond fall into the river. Critically,
Appellant admitted its failure to provide Redmond with a safe workplace and conceded liability
for his death, and there was no indication from the evidence that Redmond was rendered
8 unconscious or died instantaneously upon falling. After Redmond fell into the river, D.M. and
another deckhand from a different boat saw Redmond floating in the river towards the Rain Man.
Then Redmond went underwater and disappeared.
Love notes that Redmond was conscious and ambulatory while performing his work
immediately before he fell into the river. Love points to a complete lack of evidence that Redmond
was rendered unconscious or died instantaneously upon falling, or that he had any visible injury
after he fell into the river. Instead, as Appellant’s vice president of operations conceded, Redmond
likely hit the Rain Man’s propeller while wearing his life vest, which killed or maimed him. The
vice president stated Redmond could have survived for two and a half to three hours after falling
into the river without injury. From these facts, Love argues Redmond either was swept under the
Rain Man and killed by its propeller or drowned after spending up to three hours in the river, and
the jury reasonably could have found considerable conscious pain and suffering.
Appellant points out that Plaintiff, who bore the burden of proof, failed to adduce evidence
tending to prove anything other than the equally reasonable inference that Redmond “simply
collapsed” and fell into the river unconscious, which would defeat a claim for conscious pain and
suffering. See Lutgen v. Standard Oil Co., 287 S.W. 885, 887 (Mo. App. K.C. 1926) (“If the state
of facts upon which [the plaintiff] must rely for a recovery itself would support either of two
contradictory inferences respecting the ultimate fact, he fails in his proof, since it leaves the subject
of liability in the field of conjecture and speculation.”); United Rentals N.A., Inc. v. Evans, 668
S.W.3d 627, 641-42 (Tex. 2023) (“A jury may not infer conscious pain and suffering from
circumstantial evidence when the evidence gives rise to any number of inferences, none more
probable than the other.”) (internal citations and alterations omitted). Appellant may have a point
9 but for its pre-trial admission that its negligence and failure to provide a safe workplace, as opposed
to a sudden collapse, caused Redmond’s death.
We hold only that, considering Appellant’s admission of liability and our standard of
review requiring us to view the evidence and all reasonable inferences in the light most favorable
to the jury’s verdict and to disregard all evidence to the contrary, see Eisenmann, 528 S.W.3d at
29–30, Redmond more likely than not was conscious when he fell into the river and therefore
endured pain and suffering from either a grisly death by the propeller of the Rain Man or extended
exposure and drowning. Either way, we cannot conclude “there is a complete absence of probative
fact to support the jury’s conclusion.” Id. at 30.
Accordingly, the trial court did not err in denying Appellant’s motion for directed verdict
and submitting Plaintiff’s claim for conscious pain and suffering to the jury for consideration.
Point I is denied.
Point II
In its second point, Appellant argues the trial court erred in denying its motion for directed
verdict on Plaintiff’s claim for loss of financial support because Plaintiff failed to adduce sufficient
evidence to submit those damages to the jury.
Preservation
Love argues Appellant failed to preserve this point for appellate review. Love reasons that
Appellant’s motion for directed verdict was solely focused on the issue of financial dependency,
and not on the issue of submissibility of pecuniary damages.
To preserve a submissibility issue in a jury-tried case, a party must file a motion for directed
verdict at the close of plaintiff’s evidence and a motion for judgment notwithstanding the verdict
following an adverse verdict. Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d 469, 476 (Mo. banc
10 2021). Both motions must contain specific challenges to the submissibility issue. Id. So long as
the trial court is fully apprised of the specific basis for challenging submissibility in both motions,
the issue will be preserved for appeal. Id. at 477.
In its motion for directed verdict at the close of Love’s evidence, Appellant argued Plaintiff
failed to make a submissible case for financial support in that under the existing law, financial
dependency of the beneficiary is required to submit the case to the jury and there was no evidence
of financial dependency. Following the jury’s adverse verdict, Appellant renewed its motion for
directed verdict on the claim for loss of financial support in its motion for judgment
notwithstanding the verdict. Appellant again argued that damages for financial loss should not
have been submitted to the jury because there was no evidence proving that Love was financially
dependent on Redmond, and Appellant was entitled to judgment as a matter of law.
Appellant has maintained the same legal theory throughout its motion for directed verdict,
its motion for judgment notwithstanding the verdict, and now on appeal. Appellant preserved this
issue for appeal. See Rhoden, 621 S.W.3d at 477.
As explained, our review of the trial court’s denial of a motion for directed verdict requires
us to determine whether the plaintiff made a submissible case, which is a question of law we review
de novo. Eisenmann 528 S.W.3d at 29. We must “view the evidence and all reasonable inferences
therefrom in the light most favorable to the plaintiff, and all contrary evidence and inferences are
disregarded.” Id. at 29–30. We will reverse only if “there is a complete absence of probative fact
to support the jury’s conclusion.” Id. at 30.
11 The Jones Act allows for the recovery of pecuniary damages. Miles, 498 U.S. at 32; see
also Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 70 (1913). Pecuniary damages include loss
of support. Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584–85 (1974) superseded by statute
on other grounds, Longshore and Harbor Workers’ Compensation Act Amendments of 1972, Pub.
L. No. 92–576, 86 Stat. 1263, as recognized in Miles v. Apex Marine Corp., 498 U.S. 19 (1990);
Furka v. Great Lakes Dredge & Dock Co., Inc., 755 F.2d 1085, 1090 n. 7 (4th Cir. 1985). Loss of
support includes any financial contributions, as well as “services the decedent performed at home.”
Gaudet, 414 U.S. at 585; see also Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1093
(2d Cir. 1993). Such services include “hauling out the garbage, mowing the lawn, making repairs,
and other household tasks.” Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 633 (6th Cir.
1978); Vreeland, 227 U.S. at 71 (explaining “pecuniary damages” is “not so narrow as to exclude
damages for the loss of services of the husband, wife, or child, . . . which can only be supplied by
the service of another for compensation”).
Appellant maintains that Love was required to show that she was financially dependent on
Redmond. But financial dependency is not required for damages for loss of support. Kline, 791 F.
Supp. at 469. According to the U.S. Supreme Court, what is required is “some reasonable
expectation of pecuniary assistance or support of which [plaintiffs] have been deprived.” Vreeland,
227 U.S. at 70.
There was sufficient evidence to support the trial court’s submission of Love’s claim for
pecuniary loss of support to the jury. First, Redmond provided support to Love through at least
nominal monetary contributions and by contributing to household expenses. In addition, Redmond
spent most of his time away from work cleaning the house, cutting the grass, shoveling snow, and
fixing things that stopped working. He also provided crucial medical care for his mother when she
12 could not take care of herself. Redmond checked her blood sugar levels and made sure she ate to
avoid slipping into a coma and possibly dying. During her bouts of nausea and vomiting, Redmond
took care of her and cleaned up after her. Love expected these contributions to continue in the
future.
These facts amount to a submissible case of Love’s loss of Redmond’s pecuniary support
upon his death. See Eisenmann, 528 S.W.3d at 29–30. The trial court did not err in denying
Appellant’s motion for directed verdict.
Point II is denied.
Point III
In its third point, Appellant argues the trial court erred in denying its motion for remittitur
because the verdict exceeded fair and reasonable compensation for Redmond’s death and Love’s
resulting damages.
We review a trial court’s decision on remittitur for an abuse of discretion. Delacroix, 407
S.W.3d at 36. “A trial court has great discretion in approving a verdict or setting it aside as
excessive.” Crowder v. Ingram Barge Co., LLC, 681 S.W.3d 641, 649 (Mo. App. E.D. 2023).
“Broad discretion is given to the jury in determining a party’s injury.” Delacroix, 407 S.W.3d at
36. “Our review is limited to evidence supporting the verdict, and we will exclude any contrary
evidence.” Id.; see also Badahman v. Catering St. Louis, 395 S.W.3d 29, 39 (Mo. banc 2013). An
appellate court will interfere with the trial court’s decision to deny a motion for remittitur “only if
the verdict is so excessive as to shock the conscience and convince the court that both the jury and
the trial court abused their discretion.” Crowder, 681 S.W.3d at 649.
13 “Section 537.068 permits a court to enter a remittitur order reducing the jury’s verdict if
the court finds that the jury’s verdict exceeds the fair and reasonable compensation for plaintiff’s
injuries and damages.” Wilkins v. Bd. of Regents of Harris-Stowe State Univ., 519 S.W.3d 526,
542 (Mo. App. E.D. 2017). “The purpose of the remittitur procedure is to correct a jury’s honest
mistake in fixing damages, rather than to correct juror bias and prejudice.” Id. (quoting Stewart v.
Partamian, 465 S.W.3d 51, 59 (Mo. banc 2015)). “A prerequisite to remittitur is that the moving
party demonstrates that good cause warrants a new trial on damages or the verdict is against the
weight of the evidence.” Id. (quoting Badahman, 395 S.W.3d at 35). “[T]o warrant remittitur or
new trial due to excess, the size of the verdict must be so grossly excessive as to shock the
conscience because it is glaringly unwarranted.” Id. (quoting Soto v. Costco Wholesale Corp., 502
S.W.3d 38, 54 (Mo. App. W.D. 2016)).
The trial court found that Appellant did not demonstrate good cause warranting a new trial
on damages or that the verdict was against the great weight of the evidence. Additionally, the trial
court found that the verdict was not so grossly excessive as to shock the conscience. The trial court
did not abuse its discretion in denying Appellant’s motion for remittitur.
We already have concluded that Plaintiff made a submissible case that Redmond endured
conscious pain and suffering and that, as a result of Redmond’s death, Plaintiff was damaged from
the loss of her son’s support. In her petition, Plaintiff demanded damages in excess of $51 million
on each count. In closing argument, Plaintiff requested $36 million in damages.
For its part, Appellant admitted liability and opted not to contest Plaintiff’s right to an
award of available and proved damages. In closing argument, Appellant conceded Plaintiff was
entitled to up to $600,000 to $1 million in damages. Specifically, Appellant argued the lost value
of Redmond’s financial services and support was approximately $500,000 to $600,000 and the
14 damages for pain and suffering were no more than the value of the loss of support. From the
evidence and the parties’ arguments, the jury assessed total damages of $15 million.
The jury had broad discretion in awarding damages, and substantial evidence supported the
jury’s award. See Delacroix, 407 S.W.3d at 36. The verdict is not so excessive as to shock the
conscience, and the trial court thus did not abuse its discretion in denying the motion for remittitur.
See Wilkins, 519 S.W.3d at 544; Delacroix, 407 S.W.3d at 37.
Point III is denied.
Point IV
In its fourth point, Appellant argues the trial court erred in allowing Plaintiff to adduce
liability evidence and evidence of other damages.
Before considering the merits of Appellant’s point, we first address Love’s argument that
Point IV is multifarious and insufficiently specific. Love argues that Appellant’s point
“indeterminately cites entire pages of trial testimony,” generally complains about the admission of
evidence of liability and damages, and fails to specify the allegedly inadmissible evidence,
Appellant’s objection thereto, and the trial court’s erroneous ruling. In response, Appellant argues
its point is directed at the trial court’s decision to allow the admission of irrelevant liability
evidence but admits “it involves more than one ruling.” Appellant suggests “it would hardly serve
the goal of efficient appellate review to set forth each of multiple rulings permitting the irrelevant
evidence question in a separate point.”
Rule 84.04 sets forth the requirements of briefs filed in Missouri appellate courts. 3 City of
Harrisonville v. Mo. Dep’t of Nat. Res., 681 S.W.3d 177, 180–81 (Mo. banc 2023); Lexow v.
Boeing Co., 643 S.W. 3d 501, 505 (Mo. banc 2022). “Rule 84.04(d) … requires separate points to
3 All rule references are to the Missouri Supreme Court Rules (2023) unless otherwise indicated. 15 challenge separate rulings or actions.” Lexow, 643 S.W.3d at 505–06. Consolidating “multiple,
independent claims” into a single point relied on is not permitted. Id. at 506 (quoting Kirk v. State,
520 S.W.3d 443, 450 n.3 (Mo. banc 2017)). “Multifarious points relied on are noncompliant with
Rule 84.04(d) and preserve nothing for review.” Id. (quoting Macke v. Patton, 591 S.W.3d 865,
869 (Mo. banc 2019)). Noncompliant points relied on can lead to the dismissal of the point.
Harrisonville, 681 S.W.3d at 182; Barbieri v. Barbieri, 633 S.W.3d 419, 432 (Mo. App. E.D.
2021).
Appellant’s Point IV states:
THE CIRCUIT COURT ERRED IN ADMITTING EVIDENCE ABOUT LIABILITY AND ELEMENTS OF DAMAGES THAT ARE NOT RECOVERABLE BECAUSE THE EVIDENCE WAS NOT RELEVANT TO ANY ISSUE IN DISPUTE, IN THAT LIABILITY WAS ADMITTED BY FORMAL AMENDMENT TO THE PLEADINGS, AND DAMAGES FOR LOSS OF CONSORTIUM AND GRIEF ARE NOT RECOVERABLE.
Though we sympathize with Appellant’s concern for efficient appellate review, the point
is multifarious in that it implicates multiple rulings regarding the admissibility of liability evidence
and damages for loss of consortium and grief.
Appellant’s point additionally violates Rules 84.04(d) and (e) in that the point relied on
fails to specify the particular ruling Appellant challenges and the argument section of Appellant’s
brief fails to include specific references to an objection and associated ruling in the record on
appeal. A generalized statement that the trial court erred in admitting evidence is insufficient under
Rule 84.04. See Pickett v. Bostwick, 667 S.W.3d 653, 660 (Mo. App. W.D. 2023).
While this Court prefers to reach the merits of a case and has “discretion to review
noncompliant points gratuitously, overlooking the technical deficiencies in the points relied on,
when the deficiencies do not impede review on the merits,” Lexow, 643 S.W.3d at 508, these
16 deficiencies impede review on the merits, and we decline to review this point. Effectively,
Appellant asks this Court to review the trial transcript line-by-line in search of arguably
inadmissible evidence of liability and damages. This we will not do. Reviewing this point as
written would require this Court to act as an advocate for Appellant and would render the
requirements of Rule 84.04 meaningless. As we explained in Pearson v. Keystone Temporary
Assignment Group, Inc., 588 S.W.3d 546 (Mo. App. E.D. 2019): “We cannot become advocates
for an appellant by speculating about facts and arguments that have not been made. It is not the
function of an appellate court to search the record to identify possible errors and research any
issues so revealed.” Id. at 552 (internal citations omitted).
Because Appellant’s Point IV is multifarious and fails to specify any evidence erroneously
admitted, we decline to review it.
Point IV is denied.
Point V
In its fifth point, Appellant argues the trial court erred in submitting Instruction 6 to the
jury because the instruction contained an incorrect statement of law that the jury may award “any
damages” without limitation.
Love contends Appellant has waived appellate review of its claim of instructional error
because Appellant was the proponent of Instruction 6, the same instruction Appellant now claims
the trial court erroneously submitted to the jury. She is correct.
During the instruction conference, Appellant submitted Instruction 6. Neither Appellant
nor Love objected to that instruction. Accordingly, we must deny Appellant’s point as a matter of
law. “A party cannot complain on appeal of alleged error which his own conduct creates.”
Calarosa v. Stowell, 32 S.W.3d 138, 146 (Mo. App. W.D. 2000). Further, “[a] party cannot lead
17 the court into error and then employ that error as a source of the complaint.” Reed v. Rope, 817
S.W. 2d 503, 509 (Mo. App. W.D. 1991); see also Rouse v. Cuvelier, 363 S.W.3d 406, 416 n. 6
(Mo. App. W.D. 2013) (quoting Sprague v. Sea, 152 Mo. 327, 53 S.W. 1074, 1078 (Mo.1899))
(“Under the invited error rule, ‘a party is estopped from complaining of an error of his own
creation, and committed at his request.’”).
More specifically, Rule 70.03 states, “Counsel shall make specific objections to
instructions considered erroneous.” Rule 70.03. “No party may assign as error the giving or failure
to give instructions unless that party objects thereto on the record during the instructions
conference, stating distinctly the matter objected to and the grounds of the objection.” Id. Here,
neither party objected to Instruction 6, meaning neither Love nor Appellant may assign error to
the submission of Instruction 6.
Appellant’s Point V also violates Rule 84.04, in that, when “a point relates to the giving,
refusal or modification of an instruction, such instruction shall be set forth in full in the argument
portion of the brief.” Rule 84.04(e). Appellant’s brief only selectively quotes Instruction 6.
Appellant insists that, while applicable law limits recoverable damages to discrete
categories, Instruction 6 “commissioned the jury to rove through the evidence and choose anything
in it that it believed justified an award of damages.” Appellant represents to this Court at page 55
of its brief that Instruction 6 “merely informed the jury that ‘you must award Plaintiff such sum as
you believe will fairly and justly compensate Candace Love for any damages she and Decedent
sustained and Candace Love is reasonably certain to sustain in the future as a direct result of the
fatal injury to Casey Redmond.’” Appellant omits several portions of Instruction 6, including the
paragraph explicitly admonishing the jury, “You must not consider grief or bereavement suffered
by reason of the death.” Appellant nonetheless maintains in its reply brief that “the terms of the
18 objectionable instruction were set forth verbatim on page 55 of Osage’s brief, in compliance with
Rule 84.04(e).”
Putting aside that Appellant was the proponent of Instruction 6, Appellant’s failure to set
forth the instruction in full in the argument section of its brief as required by Rule 84.04(e) is
exemplary of the reasons the rule exists in the first place. Appellant’s failure to set forth the
instruction in full fails to preserve the point for appeal. Daniel v. Indiana Mills & Mfg., Inc., 103
S.W.3d 302, 311 (Mo. App. S.D. 2003).
For all of these reasons, Point V is denied.
Point VI
Finally, Appellant argues the trial court erred in entering judgment because a federal
district court injunction prohibited the entry of judgment.
Love contends Appellant failed to preserve this point for appellate review because
Appellant failed to file any pre- or post-judgment motion objecting to the form or entry of the
judgment. See Rule 78.07(c) (“In all cases, allegations of error relating to the form or language of
the judgment . . . must be raised in a motion to amend the judgment in order to be preserved for
appellate review.”); Rule 75.01 (“The trial court retains control over judgments during the thirty-
day period after entry of judgment and may, after giving the parties an opportunity to be heard and
for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.”).
Our review of the record confirms that Appellant failed to file a post-trial motion objecting
to the form or entry of the judgment, and thus Point VI is not preserved for our review. 4 See
4 Our review of the record includes Appellant’s motion to correct and/or supplement the record on appeal, which confirms Appellant did not file any post-trial motion preserving this point for appeal. 19 Williams v. Williams, 669 S.W.3d 708, 718 (Mo. App. E.D. 2023) (holding point not specifically
raised in post-trial motion pursuant to Rules 78.07(c) and 75.01 was not preserved for appeal).
Point VI is denied. 5
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Cristian M. Stevens, J. Robert M. Clayton III, P.J., and Philip M. Hess, J., concur.
5 If we were to reach the merits of Point VI, we would find it frivolous. The federal district court’s order clearly and unambiguously stated the court would dissolve its injunction so Love could prosecute her Jones Act claim in the forum of her choosing. 20