Kelly v. Ellis

875 S.W.2d 612, 1994 Mo. App. LEXIS 762, 1994 WL 169762
CourtMissouri Court of Appeals
DecidedMay 5, 1994
DocketNo. 18972
StatusPublished
Cited by3 cases

This text of 875 S.W.2d 612 (Kelly v. Ellis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Ellis, 875 S.W.2d 612, 1994 Mo. App. LEXIS 762, 1994 WL 169762 (Mo. Ct. App. 1994).

Opinion

CROW, Judge.

This litigation arose from a nighttime incident on February 21, 1992, in which two pedestrians, Earl Dean Riggs (“Earl”) and Shona Kelly (“Shona”) were struck by an automobile driven by Dennis Joe Ellis (“Defendant”) on the “outer road” of Interstate Highway 44 in Greene County. Earl was injured, but survived. Shona died.

Two suits were filed against Defendant. Plaintiffs in the first were: (1) Earl; (2) Earl’s father, William Riggs (“William”); and (3) Earl’s mother, Michelle Riggs (“Michelle”). By Count I of that petition, Earl, by his next friend, Michelle,1 sought damages for his bodily injuries. By Count II, William asserted a derivative claim resulting from Earl’s injuries. By Count III, Michelle asserted a similar derivative claim.

The second suit was a wrongful death action by Lena Kelly (“Lena”), Shona’s mother.

On motion by Defendant, the two suits were “consolidated” and tried simultaneously. Just before trial began, William and Michelle dismissed their claims (Counts II and III, respectively, of the first suit).2

On Earl’s claim, the jury assessed 25 percent fault against Defendant and 75 percent against Earl. The jury found Earl’s damages, disregarding his fault, were $100,000.

On Lena’s claim, the jury assessed 25 percent fault against Defendant and 75 percent against Shona. The jury found Lena’s damages, disregarding Shona’s fault, were $45,-000.

The trial court entered judgment per the verdicts, awarding Earl $25,000 and Lena $11,250.3

Earl and Lena (“Appellants”) bring this appeal. Their brief presents three points relied on, the first of which is:

“The trial court erred in failing to sustain Appellants’ Motion to Quash [Defendant’s] Subpoena Duces Tecum, whereby [he] obtained Appellants’ videotape of a reconstruction of the subject automobile collision, because said videotape was Appellant’s [sic] work product, immune from discovery by [Defendant], and [Defendant] did not make the necessary showing, pursuant to Rule 56.01 of the Missouri Rules of Civil Procedure, that [he] had a substantial need for the materials and that [he] was unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.”

The statement of facts in Appellants’ brief does not mention the videotape.

The argument following the first point in Appellants’ brief states — without benefit of a supporting page reference to the transcript — that one Rick Gilmore “videotaped” a July 6,1992, “accident reconstruction” at the instance of Appellants’ counsel.

By seining the transcript,4 we discover that on July 6, 1992, Charles Lee Vaughan, a 25-year veteran of the Springfield Police Department whose duties include teaching the technique of motor vehicle accident investigation, went to the accident site. There, Vaughan measured various distances, then drove an automobile similar to Defendant’s toward the point of impact to determine such factors as visibility and stopping distance.

Although the evidence is imprecise, it supports an inference that Gilmore was in the rear seat of Vaughan’s vehicle with a videotape camera, focused forward over Vaughan’s [614]*614shoulder. By that means, Gilmore recorded Vaughan’s “accident reconstruction” on videotape.

During pretrial discovery, Defendant learned of the videotape. Defendant served notice on Appellants that Defendant would take Gilmore’s deposition on a designated date.

Appellants filed a “Motion to Quash Subpoenas Duces Tecum or in the Alternative, Motion for Protective Order.” The motion alleged a subpoena duces tecum had been served on Gilmore5 requiring him to appear for deposition and bring “any alleged ... video tapes in [his] possession.” The motion prayed the trial court to quash the subpoena or, in the alternative, to prevent Defendant from requiring production of any videotape.

The trial court denied the motion.

At trial, Vaughan testified extensively about his “accident reconstruction,” including what he could see at various distances approaching the point of impact. On cross-examination, he was shown the videotape made by Gilmore. Vaughan identified it.

Defendant offered the videotape in evidence. Over Appellants’ objection, the trial court received it.

Appellants’ theory of error, as we comprehend it, is that Defendant failed to show he (a) had substantial need of the videotape in preparing for trial, and (b) was unable, without undue hardship, to obtain its substantial equivalent by other means.

Appellants have not filed the videotape in this Court. See: Rule 81.16, Missouri Rules of Civil Procedure (1994). Consequently, we may consider it immaterial to the issues on appeal. Id.; David Cooper, Inc. v. Contemporary Computer Systems, Inc., 846 S.W.2d 777, 780 (Mo.App.S.D.1993); City of Lee’s Summit v. Collins, 615 S.W.2d 592, 595[8] (Mo.App.W.D.1981). Inasmuch as we have not seen the videotape, we cannot hold the trial court could not have reasonably found Defendant had substantial need of it in preparing for trial and was unable, without undue hardship, to obtain its substantial equivalent by other means. Indeed, the in-tendment and content of the absent videotape will be taken as favorable to the trial court’s ruling. David Cooper, Inc., 846 S.W.2d at 780[4]; In re Marriage of Gourley, 811 S.W.2d 13, 16[3] n. 2 (Mo.App.S.D.1991).

The above reasons are sufficient to deny Appellants’ first point.

An additional, and equally sufficient, reason is found in Washington University v. Royal Crown Bottling Co., 801 S.W.2d 458 (Mo.App.E.D.1990). There, the appealing parties argued that a pretrial ruling compelling them to produce various memoranda— allegedly work product — was erroneous. Id. at 470. The Eastern District of this Court held that in order to prevail, the complaining parties had to show they were prejudiced at trial by the erroneous and prejudicial admission of the memoranda in evidence. Id. Because they failed to do so, there was no basis for reversal. Id. at [26].

Here, Appellants do not contend the trial court erred in receiving the videotape in evidence, nor do Appellants attempt to demonstrate they were prejudiced thereby. Accordingly, Appellants have shown no basis for reversal.

Defendant argues there are other valid reasons to reject Appellants’ first point. Additional reasons need not be considered, as those above are ample.

Appellants’ second point is:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Care & Treatment Jones
420 S.W.3d 605 (Missouri Court of Appeals, 2013)
U.S. Bank v. Lewis
326 S.W.3d 491 (Missouri Court of Appeals, 2010)
Christian Health Care of Springfield West Park, Inc. v. Little
145 S.W.3d 44 (Missouri Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
875 S.W.2d 612, 1994 Mo. App. LEXIS 762, 1994 WL 169762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-ellis-moctapp-1994.