SUPREME COURT OF MISSOURI en banc
MELISSA MOODY, ) Opinion issued March 18, 2025 ) Respondent, ) ) v. ) No. SC100711 ) DYNAMIC FITNESS ) MANAGEMENT, LTD., ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Michael W. Noble, Judge
Dynamic Fitness Management Ltd. appeals the circuit court’s judgment, entered
after a jury trial, in favor of Melissa Moody on her negligence claim arising from an
injury she sustained while weightlifting during a group class led by a Dynamic trainer.
Because the record establishes Dynamic either did not preserve its claims of error for
appellate review or its preserved claims fail on the merits, this Court affirms the circuit
court’s judgment.
Factual Background and Procedural History
Dynamic provided training services at a gym in St. Louis. When Moody joined
the gym in 2011, she signed a personal training agreement with Dynamic and began
working with a Dynamic personal trainer. In January 2013, when the personal trainer transferred to another location, Moody stopped working with that personal trainer and
began taking a group class led by a different Dynamic trainer.
During a group class in May 2013, Moody for the first time did a push press
exercise, a common exercise in which the participant takes a barbell off a rack at about
chest height, drops his or her knees “a little bit,” and then pushes the barbell overhead.
The trainer showed participants how to perform the push press and then instructed
Moody to perform three repetitions of the push press. The trainer left to attend to others
in the class. Moody began using a barbell with two 10-pound plates, weighing a total of
65 pounds. Moody completed the three repetitions at that weight with no problem. The
trainer returned, added two more 10-pound plates to the barbell for a total of 85 pounds,
instructed Moody to perform three repetitions, and then left to check on others in the
class. Moody successfully did two push presses but on the third felt pain in her neck,
shoulders, and back and put the barbell back on the rack before collapsing. Moody was
diagnosed with a herniated disc in her neck and underwent two surgeries.
Moody sued Dynamic for negligence. Dynamic raised as affirmative defenses
implied primary assumption of the risk and express assumption of the risk. It asserted
Moody impliedly assumed the risk of injury by engaging in weightlifting and expressly
assumed the risk of injury by signing Dynamic documents containing liability waivers.
Dynamic filed a motion for directed verdict at the close of Moody’s evidence and
renewed its motion at the close of all the evidence.
The jury awarded $1 million in damages and found Moody 70 percent at fault and
Dynamic 30 percent at fault. The circuit court entered judgment for Moody in the
2 amount of $300,000 plus post-judgment interest. Dynamic filed a motion for new trial,
which was deemed overruled under Rule 81.05(a)(2)(A) when the circuit court did not
rule on it within 90 days after it was filed. Dynamic timely appealed. 1
Analysis
I. Dynamic preserved no claim of error related to its motion for directed verdict
In points I and IV, Dynamic asserts the circuit court erred in overruling its motion
for directed verdict on its affirmative defenses of implied primary assumption of the risk
from Moody’s weightlifting activity and express assumption of the risk by Moody
signing its liability waivers before performing the weightlifting activity. Moody asserts
neither point is preserved for review because Dynamic did not file a motion for judgment
notwithstanding the verdict (“JNOV”). This Court agrees Dynamic preserved no claim
of error.
Rule 72.01(b) governs motions for JNOV and provides, in relevant part:
Not later than thirty days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict …. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.
“[T]o preserve a jury-tried issue for appellate review, a party must include the issue in
both a motion for directed verdict at the close of all evidence, if the defendant puts on
1 This Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10. All rule references are to Missouri Court Rules (2023).
3 evidence, and in a motion for JNOV.” Tharp v. St. Luke’s Surgicenter-Lee’s Summit,
LLC, 587 S.W.3d 647, 654 (Mo. banc 2019); see also Sanders v. Ahmed, 364 S.W.3d
195, 207-08 (Mo. banc 2012) (“After verdict, of course, a motion for JNOV also is
required to preserve the issues raised for appeal.”). Stated another way, a motion for
directed verdict by itself preserves nothing for review; likewise, a motion for JNOV
without a prior timely motion for directed verdict preserves nothing for review. This is
because a motion for JNOV asks the circuit court to reconsider its earlier decision
overruling the motion for directed verdict after the circuit court has had the benefit of
considering all of the evidence at trial. Rule 72.01(b) explicitly recognizes this when it
says:
A party may move for a directed verdict at the close of all the evidence. Whenever such motion is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.
Without a prior timely motion for directed verdict, there is no ruling for the circuit court to
reconsider. Without a motion for JNOV, the circuit court is never asked to set aside the
verdict on the basis it should have sustained the motion for directed verdict.
Dynamic failed to follow the well-established procedure in Rule 72.01(b) when it
did not file a motion for JNOV. Dynamic raised in its answer the affirmative defenses of
implied primary assumption of the risk and express assumption of the risk. At trial,
Dynamic filed a motion for a directed verdict at the close of Moody’s evidence and
renewed its motion at the close of all the evidence; the circuit court overruled both. After
the jury returned its verdict, Dynamic did not file a motion for JNOV under Rule 72.01(b).
4 Instead, Dynamic filed a motion for new trial, including its affirmative defenses of
implied primary assumption of the risk and express assumption of the risk. Dynamic’s
motion stated it was a motion for new trial “pursuant to Rule 78.01” and did not mention
a motion for JNOV or Rule 72.01(b). It asked the circuit court to grant a new trial and
“such other and further relief as it deems just and appropriate under the circumstances,”
but it did not ask the circuit court to enter JNOV or to reconsider its overruling of
Dynamic’s motion for directed verdict.
Dynamic asserts the Court should find points I and IV preserved by looking
beyond the title of its motion for new trial and finding its broad prayer requesting “such
other and further relief as [the circuit court] deems just and appropriate under the
circumstances” sufficient to preserve its points.
As a preliminary matter, the Court notes it need not reach this argument because
points I and IV assert no claim of error related to overruling a motion for new trial or a
motion for JNOV and, instead, assert only: “The trial court erred in denying [Dynamic]’s
motion for directed verdict.” Rule 84.04(d)(1)(A) provides a point relied on must
“[i]dentify the trial court ruling or action that the appellant challenges.” As set out above,
a motion for directed verdict by itself preserves nothing for appellate review. Dynamic’s
points I and IV, therefore, assert a circuit court error—overruling a motion for directed
verdict—Dynamic never preserved for appellate review and upon which an appellate
court could never grant relief. “Rule 84.04’s requirements are mandatory.” Lexow v.
Boeing Co., 643 S.W.3d 501, 505 (Mo. banc 2022) (internal quotation omitted). Points I
and IV as written preserve nothing for appellate review.
5 Further, were this Court to overlook Dynamic’s defective points relied on, which
this Court declines to do, the Court would reject its argument. “Cases should be heard on
the merits if possible, and court rules should be construed liberally to allow an appeal to
proceed.” Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 641 (Mo. banc 2005).
While this Court desires to hear cases on the merits, Dynamic’s argument asks this Court
to disregard Rules 72.01(b) and 78.01 and the fundamental differences between a motion
for new trial and a motion for JNOV, which the Court will not do.
“The purpose of a motion for new trial is to give the circuit court the opportunity
to correct its own errors without appellate court intervention.” Smith v. Brown &
Williamson Tobacco Corp., 410 S.W.3d 623, 640 (Mo. banc 2013). “[A] motion for
JNOV and a motion for new trial serve different purposes.” City of Harrisonville v.
McCall Serv. Stations, 495 S.W.3d 738, 755 (Mo. banc 2016) (Fischer, J., concurring in
part and dissenting in part). “The motion for new trial is required to raise grounds that
would entitle a party to a new trial.” Id. (internal quotation omitted). “[A]n allegation
that the court erred in failing to grant a new trial because the court should have granted a
motion for a directed verdict at the close of all of the evidence does not state a ground for
new trial.” Id. (emphasis omitted) (internal quotation omitted). “It only states a ground
for [JNOV] and must be raised in a motion seeking that relief and not in a motion for new
trial.” Id. (emphasis omitted) (internal quotation omitted).
Rule 72.01(b) explicitly permits a party to join a motion for new trial with a
motion for JNOV or request a new trial in the alternative in the motion for JNOV. This is
because a motion for new trial and a motion for JNOV are distinct and ask for different
6 relief. Rule 72.01(c)(1) requires a circuit court sustaining a motion for JNOV to rule on
any motion for new trial. Again, this is because a motion for new trial and a motion for
JNOV are fundamentally different and request different relief, and one type of relief may
be appropriate even if the other is not.
Dynamic filed only a motion for new trial. Dynamic titled its motion a motion for
new trial, referenced only Rule 78.01, and asked only for a new trial. The Court will not
construe Dynamic’s general prayer for relief for “such other and further relief as [the
circuit court] deems just and appropriate under the circumstances” as a request the circuit
court grant JNOV under Rule 72.01(b). A contrary ruling would render meaningless
Rules 72.01(b) and 78.01 and the distinct purposes of motions for new trial and motions
for JNOV. Further, if the Court construed Dynamic’s broad prayer as Dynamic requests,
it would require the Court to disregard Dynamic’s motion title, rule reference, and
specific request for relief and become an advocate for Dynamic, which this Court will not
do. See also Massman Constr. Co. v. Mo. Highway & Transp. Comm’n, 914 S.W.2d 801,
803-04 (Mo. banc 1996) (holding a circuit court committed reversible error in treating the
plaintiff’s motion for additur as a motion for new trial when the plaintiff did not ask for a
new trial but included a broad prayer for relief for “such other and further relief as the
court deems appropriate”).
Because Dynamic did not preserve for review points I and IV concerning its
affirmative defenses of implied primary assumption of the risk and express assumption of
7 the risk, this Court denies points I and IV. 2
II. Dynamic preserved no claim of error related to spoliation
In point III, Dynamic argues the circuit court abused its discretion in letting
Moody read spoliation adverse inference admissions to the jury. Moody filed a pretrial
motion for adverse admissions against Dynamic for spoliation and for sanctions, alleging
Dynamic had intentionally destroyed certain evidence. Moody alleged she was entitled
to present adverse inference admissions to the jury that the destroyed evidence would
have been unfavorable to Dynamic. Dynamic filed a motion in opposition, asserting
there was no intentional destruction of evidence supporting an adverse inference due to
spoliation. After a pretrial hearing, the circuit court sustained Moody’s motion and
entered its order permitting Moody to read the adverse inference admissions to the jury.
The adverse inference admissions were Exhibits 30 through 33. On the first day of trial,
before the jury was sworn, the circuit court held a hearing during which the parties
discussed the final wording of Exhibits 30 through 33. Dynamic’s counsel objected only
to the wording of Exhibit 33 and repeated his objection that spoliation had not occurred.
When Moody read the adverse inference admissions to the jury, Dynamic did not object.
The circuit court admitted Exhibits 30 through 33 in evidence but ordered they should not
be published to the jury. As to admission of Exhibits 30 through 33, Dynamic’s counsel
2 Pursuant to Rule 84.13(c), “[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Dynamic does not request plain error review and, in any event, has not alleged or proven manifest injustice or miscarriage of justice.
8 stated: “No objection, just for the legal record.” Dynamic included its spoliation
argument in its motion for new trial. Moody argues Dynamic preserved no claim related
to spoliation because Dynamic did not object when Moody read the adverse inference
admissions to the jury. This Court agrees.
Dynamic argues it preserved its claim by objecting at trial, but Dynamic cites only
the discussion of the wording of Exhibits 30 through 33 and its objection to Exhibit 33 at
the hearing held the first day of the trial before the jury was sworn. To preserve for
appeal a claim of evidentiary error, a party must object to the evidentiary ruling at trial.
Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 452 n.4 (Mo. banc 2014). 3 A hearing on the
first day of trial before the jury is sworn is a pretrial hearing, and an objection at a pretrial
hearing concerning an evidentiary error preserves nothing for appellate review. See
Petersen v. State, 658 S.W.3d 512, 515-16 (Mo. banc 2022) (finding a motion in limine
filed and overruled the morning of trial amounted to a pretrial objection preserving
nothing for appellate review); K.B. v. Oasis Foot Spa & Massage, LLC, 703 S.W.3d 606,
614 (Mo. App. 2024) (holding challenges to an adverse inference admission were not
preserved for appellate review when the appellant raised the issue in its motions in limine
and in its post-trial motion but did not object at trial to the adverse inference being
given). As this Court recently explained, requiring a contemporaneous objection at trial
to an evidentiary ruling
serves the important dual purposes of allowing the trial judge to reconsider the pretrial, preliminary admissibility ruling in light of the evidence actually
3 This Court has held spoliation is an evidentiary doctrine. Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. banc 1993).
9 presented at trial and preserving the claim of error for appeal by making a clear record ... so an appellate court may consider the same in determining whether the circuit court’s ruling was proper.
Schultz v. Great Plains Trucking, Inc., No. SC100582, _ S.W.3d _, slip op. at 6 (Mo.
banc Feb. 11, 2025); see also Oasis, 703 S.W.3d at 614 (“An objection at trial would
have placed the issue squarely before the circuit court after the court was able to consider
all of the evidence presented at trial. ... The circuit court may have come to a different
conclusion regarding the propriety of the adverse inference after hearing [a witness’s]
testimony.”).
Dynamic made no objection at trial to the adverse inference admissions. Any
objection it made before the jury was sworn was not an objection at trial. Because of
this, Dynamic preserved nothing for appellate review concerning spoliation. 4 Point III is
denied.
III. Moody’s verdict director did not give the jury a roving commission
In point II, Dynamic argues the circuit court erred in overruling its motion for new
trial because Moody’s verdict director, Instruction 10, gave the jury a roving commission
“[b]y failing to address that these conditions increased the risk, or would have revealed
some relevant fact, or caused [Moody’s] injury,” which “permitted the jury to roam freely
through the evidence of the case and choose any fact of their liking to find fault.”
Because Instruction 10 did not give the jury a roving commission, the circuit court did
not err in submitting Instruction 10.
4 As in points I and IV, Dynamic does not request plain error review and has not alleged or proven manifest injustice or miscarriage of justice.
10 Standard of Review
“[W]hether a jury was properly instructed is subject to de novo review.” Williams
v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396, 413 (Mo. banc 2019). “Review is
conducted in the light most favorable to the instruction’s submission.” Id. “When
determining whether a roving commission occurred, a jury instruction should be
considered in the context of the trial as a whole.” Id. “An instructional error is only
grounds for reversal when the instruction misdirected, misled, or confused the jury and
resulted in prejudice.” Id. (internal quotation omitted). “This Court will reverse only if
the error resulted in prejudice that materially affected the merits of the case.” Id.
“A roving commission occurs when an instruction assumes a disputed fact or
submits an abstract legal question that allows the jury to roam freely through the evidence
and choose any facts which suit [ ] its fancy or its perception of logic to impose liability.”
Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 766 (Mo. banc 2010) (alteration in
original) (internal quotation omitted). “Where the testimony in a case explains a phrase
used in the verdict director, there is no roving commission.” Id. at 767 (internal quotation
omitted).
Instruction 10 stated:
In your verdict, you must assess a percentage of fault to [Dynamic], whether or not [Moody] was partly at fault, if you believe:
First, either:
[the Dynamic trainer] did not conduct the required initial fitness assessment of [Moody], or
11 [the Dynamic trainer] failed to assess whether [Moody] was capable of performing a push press, or
[the Dynamic trainer] did not supervise [Moody] while she was performing a push press, or
[the Dynamic trainer] instructed [Moody] to perform a push press when it was unsafe to do so, and
Second, [Dynamic], in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to [Moody].
(Emphasis added).
Dynamic asserts the first three disjunctive subparts in Instruction 10 gave the jury
a roving commission by permitting “the jury to find that [Dynamic] was negligent
without explaining how the facts set forth in the instruction caused or increased Moody’s
risk of injury.” Dynamic did not object to the fourth disjunctive subpart.
Instruction 10 complied with MAI 17.02 (8th ed.), which provides the required
instruction for submission to the jury of multiple negligent acts and does not require or
permit paragraph first to include language that the alleged negligent act caused or
increased the risk of injury. Instead, MAI 17.02 specifies paragraph first should set out,
in the disjunctive, each allegedly negligent act. Paragraph third should address causation
and, in a comparative fault case, should require the jury to find “such negligence directly
caused or directly contributed to cause damage to plaintiff.” See MAI 37.01 (8th ed.).
Contrary to Dynamic’s argument, Instruction 10 did not give the jury a roving
commission because it complied with MAI 17.02 in requiring the jury to find both that
Dynamic committed negligent acts and that those negligent acts directly caused or
12 directly contributed to cause Moody’s damages. Paragraph 2 of the Notes on Use to MAI
17.02 makes this clear: “This instruction submits three improper acts in the disjunctive.
… As is the case with all disjunctive submissions, there must be sufficient evidence to
support all of the improper acts or the instruction will be erroneous.”
Dynamic also asserts Instruction 10 gave the jury a roving commission because
there was not sufficient evidence the allegedly negligent acts submitted in paragraph first
caused or contributed to cause Moody’s damages. Dynamic gives as an example the first
disjunctive and asserts there was no evidence the trainer’s failure to perform the initial
assessment caused or contributed to cause Moody’s damages months later.
The Court concludes Moody presented sufficient evidence from which a
reasonable juror could have found Dynamic’s alleged negligent acts in paragraph first of
Instruction 10 directly caused or directly contributed to cause Moody’s damages. Moody
presented the expert testimony of her former personal trainer, who explained Dynamic’s
standards provided trainers are expected to conduct initial assessments of clients before
training begins. The personal trainer testified performing an assessment is important for
a trainer “to know anything [the trainer] needed to know to reduce the risk of injury for
that client[,]” and the assessment “was the form of reducing that risk.” The personal
trainer explained the initial assessment would evaluate a client’s posture, mobility, and
range of motion to reduce the risk of injury. The personal trainer testified health history
is included in the assessment. The personal trainer testified she had performed an initial
assessment of Moody, and she believed Moody had tightness in her neck and shoulders
limiting her range of motion and causing her to lack the range of motion and the
13 appropriate posture to perform overhead lifts with a barbell. The personal trainer testified
Moody should not have been instructed to perform the push press, and the group class
trainer exposed Moody to a type of harm well known in the personal training industry in
so instructing her. The personal trainer also testified she did not have Moody perform
barbell overhead training because it was not a benefit to Moody at the time and posed a
risk of injury based on her monitoring of Moody. The personal trainer also testified a
trainer has a responsibility to always assess the client in a given situation and “constantly
coach any given client all the time” to reduce the risk of injury.
The jury had before it sufficient evidence from which it reasonably could have
found a causal connection between Moody’s injury and the Dynamic group trainer’s
failure to perform an initial assessment, failure to assess Moody’s ability to perform a
push press, and failure to supervise Moody while she was performing a push press.
Instruction 10 did not give the jury a roving commission. Point II is denied.
Conclusion
This Court affirms the circuit court’s judgment.
Ginger K. Gooch, Judge
All concur.