Rita Lynne Terpstra v. State of Missouri, Department of Labor and Industrial Relations Commission

565 S.W.3d 229

• Court: Missouri Court of Appeals
• Decided: January 2, 2019
• Docket: WD80967
• Status: Published

Opinion

In the Missouri Court of Appeals Western District RITA LYNNE TERPSTRA, ) ) Respondent, ) WD80967 ) v. ) OPINION FILED: January 2, 2019 ) STATE OF MISSOURI, ) DEPARTMENT OF LABOR AND ) INDUSTRIAL RELATIONS ) COMMISSION, ET AL., ) ) Appellants. )

Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel R. Green, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge

The Missouri Department of Labor and Industrial Relations Commission ("LIRC"),

the Missouri Department of Employment Security ("DES"), and Robert Lambert

("Lambert") (collectively "Defendants") appeal from the trial court's judgment in an age

discrimination action which awarded actual damages, punitive damages, attorneys' fees,

and costs to Rita Lynne Terpstra ("Terpstra"). The Defendants allege multiple errors

occurred at trial involving questioning of the venire panel about issues of law, the admission of irrelevant evidence, the submission of punitive damages, the amount awarded

in punitive damages, and the amount awarded for attorneys' fees. Finding no error, we

affirm.

Factual and Procedural Background1

In January 2012, Terpstra filed suit against the Defendants. After years of

discovery, Terpstra was granted leave to file an amended petition in March 2016. The

amended petition alleged in Count One that the Defendants engaged in age discrimination

in violation of the Missouri Human Rights Act ("MHRA"), section 213.010 et seq.,2 by

failing to promote Terpstra, age 55, to the position of senior claims supervisor at the

Jefferson City Regional Claims Center ("JCRCC") in August 2010 when two openings

existed.3 The amended petition alleged in Count Two that the Defendants retaliated against

Terpstra in violation of the MHRA by prematurely terminating her temporary position as

senior claims supervisor in March 2011 after Terpstra filed age discrimination complaints

with the Missouri Commission on Human Rights ("MCHR") and the Equal Employment

Opportunity Commission ("EEOC").

Terpstra's claims were tried to a jury beginning in November 2016. Terpstra

presented evidence that she was denied two promotions to senior claims supervisor in 2010,

and that the Defendants promoted two younger, less qualified persons to the positions.

1 We view the facts in the light most favorable to the jury's verdict. Beverly v. Hudak, 545 S.W.3d 864, 868 n.1 (Mo. App. W.D. 2018). 2 All statutory citations are to RSMo 2000 as supplemented through August 2010, when Terpstra's claims arose, unless otherwise noted. 3 The first count also named Patricia Wise and John Short as defendants. Short was dismissed from the suit on November 7, 2016, and Wise was dismissed from the suit on January 20, 2017.

2 Terpstra presented testimony from other employees, over the Defendants' objection,

suggesting that the Defendants engaged in a scheme of promoting younger, less qualified

applicants over older, more qualified applicants. Terpstra also presented evidence that

three employees who had been promoted to senior claims supervisor were later demoted

due to inappropriate email use.

The jury found in favor of Terpstra on Count One, and awarded her $20,000 in

actual damages against DES and Lambert; $260,000 in punitive damages against DES; and

$20,000 in punitive damages against Lambert. The jury found in favor of the Defendants

on Count Two.

Terpstra filed a motion asking the trial court to award reasonable attorneys' fees,

costs, and post-judgment interest ("Terpstra's Motion for Attorneys' Fees and Costs").

Terpstra's Motion for Attorneys' Fees and Costs sought an award of attorneys' fees in the

amount of $1,175,248.90; costs and expenses in the amount of $27,200.26; and post-

judgment interest at 5.5 percent on the total judgment. Terpstra later amended her request

for costs and expenses to $15,000. Terpstra also filed a motion asking the trial court to

conform the judgment and to enter judgment against the LIRC on Count One ("Terpstra's

Motion to Conform the Judgment"). Terpstra's Motion to Conform the Judgment asserted

that, because Lambert is an employee of the LIRC, and because DES is a division of the

LIRC, the LIRC was legally responsible for the acts of age discrimination attributed by the

jury to DES and Lambert on Count One.

On May 5, 2017, the trial court issued its judgment ("Judgment") in conformance

with the jury's verdicts, and ruling Terpstra's motions. The Judgment found that the jury's

3 finding in favor of Terpstra and against Lambert and DES on Count One, the age

discrimination claim, also bound the LIRC. Thus, the Judgment awarded Terpstra actual

damages in the amount of $20,000 from the LIRC, DES, and Lambert. The Judgment

awarded Terpstra punitive damages in the amount of $20,000 from Lambert, and in the

amount of $260,000 from DES, as set forth in the jury's verdicts. The Judgment awarded

Terpstra $731,562.30 in reasonable attorneys' fees and $15,000 in costs and expenses, from

the LIRC, DES, and Lambert. Finally, the Judgment awarded post-judgment interest at

5.75 percent on all amounts awarded to Terpstra.

Following the entry of Judgment, Defendants DES and Lambert filed a motion titled

"Defendants' Motions and Suggestions in Support of Judgment Notwithstanding the

Verdict or, in the Alternative for a New Trial, or in the Alternative for an Elimination

and/or Reduction in Fee Awards" ("Post-Trial Motion").4 The Post-Trial Motion argued

that entry of judgment notwithstanding the verdict or a new trial was required because the

trial court erred in admitting testimony from "me-too" witnesses about discriminatory

statements, actions, or conduct unrelated to the instant action; because Terpstra improperly

instructed the venire panel on the law during voir dire; because the trial court erroneously

admitted emails which led to the demotion of three employees that were not relevant; and

because the trial court's award of attorneys' fees was based on a misapplication of the law.5

4 The Post-Trial Motion expressly states in the first paragraph that it is being filed on behalf of DES and Lambert, which the Post-Trial Motion defines as "Defendants." We question, therefore, whether the LIRC can be fairly said to be a party to the Post-Trial Motion. Because we otherwise find in favor of Terpstra, we need not further address this issue. 5 The Post-Trial Motion also argued that entry of judgment notwithstanding the verdict or a new trial was required because the trial court allowed the report written by Terpstra's expert into evidence. None of the Defendants' points on appeal address this alleged claim of error.

4 The Post-Trial Motion alternatively argued that, because the trial court's award of attorneys'

fees was based on a misapplication of law, the trial court should eliminate or reduce the

attorneys' fees award. Following a hearing, the trial court denied the Post-Trial Motion.

The Defendants appeal. Additional facts will be discussed where relevant to the

Defendants' points on appeal.

Analysis

The Defendants assert six points on appeal alleging error during voir dire, in the

admission of evidence, in the submission and award of punitive damages, and in the award

of attorneys' fees. We address each point separately.

Point One: Terpstra's Discussion of the Law During Voir Dire

The Defendants' first point on appeal argues that the trial court erred "in permitting

Terpstra's counsel to improperly instruct the venire panel on the law during voir dire

because it was not relevant to identifying whether the potential jurors harbored any bias or

prejudice against either party in that counsel could have determined the same information

without invading the province of the court." [Appellants' Brief, p. 25]

The purpose of voir dire "'is to determine which persons harbor bias or prejudice

against either party which would make them unfit to serve as jurors.'" Dieser v. St.

Anthony's Med. Ctr., 498 S.W.3d 419, 436 (Mo. banc 2016) (quoting State v. Nicklasson,

967 S.W.2d 596, 608 (Mo. banc 1998)). "Counsel is afforded wide latitude in questioning

'the venire panel to determine preconceived prejudices which would prevent them from

following the court's instructions.'" Id. (quoting Nicklasson, 967 S.W.2d at 608). As such,

"'the trial [court] is vested with the discretion to judge the appropriateness of specific

5 questions, and is generally vested with wide discretion in the conduct of voir dire.'" Adkins

v. Hontz, 337 S.W.3d 711, 716 (quoting State v. Baumruk, 280 S.W.3d 600, 614 (Mo. banc

2009)). We will not reverse a ruling made by the trial court during voir dire unless it

"clearly and manifestly indicate[s] an abuse of such discretion." Id. at 718. "The trial court

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

so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration." Id. at 716. An abuse of discretion alone will not support reversal. The

party claiming error thus has "'the [additional] burden of showing a real probability that

[they were] thereby prejudiced.'" Dieser, 498 S.W.3d 436 (quoting Nicklasson, 967

S.W.2d at 608).

"'Counsel may not tell prospective jurors what law will be applied in the case or

what instructions will be given to them.'" State v. Brown, 902 S.W.2d 278, 286 (Mo. banc

1995) (quoting State v. White, 722 S.W.2d 92, 94 (Mo. App. E.D. 1986)). Here, the

Defendants contend that the trial court abused its discretion during voir dire on three

occasions when it permitted Terpstra's counsel to violate this principle. We disagree.

First, the Defendants complain that Terpstra's counsel was permitted, over the

Defendants' objection, to ask whether members of the venire panel believed a person was

required to file an internal grievance before filing suit for discrimination. After the

Defendants' objection was overruled, Terpstra's counsel briefly explained the process for

filing a complaint with the MCHR. The next morning, the Defendants moved for a mistrial.

The trial court denied the Defendants' motion for a mistrial noting that "a short explanation

of the law, just to clarify the jurors' bias, is appropriate."

6 On appeal, the Defendants do not claim error in the denial of their motion for a

mistrial. Instead, they argue that the trial court abused its discretion in permitting Terpstra

to discuss the procedure for filing a discrimination lawsuit. This claim of error is not

preserved for appellate review. The Post-Trial Motion did not address this aspect of voir

dire. The Post-Trial Motion's discussion of voir dire was limited to the contention that

Terpstra was erroneously permitted to discuss "the definition of discrimination and the

burden of proof," and in so doing, made incorrect statements about the law. [Doc. 94, p.

2] "Rule 78.07(a) requires all allegations of error . . . 'to be included in a motion for new

trial in order to be preserved for appellate review.'" Goudeaux v. Bd. of Police Comm'rs of

Kansas City, 409 S.W.3d 508, 514 (Mo. App. W.D. 2013) (quoting Rule 78.07(a)). We

will not address a claim of error on appeal that has not been raised in a timely filed post-

trial motion. Id. (noting that the failure to include a claim of error in a motion for new trial

preserves nothing for appellate review).

Next, the Defendants complain that Terpstra's counsel was permitted to instruct the

venire panel about the law regarding whether and how employers can take age into account

when making hiring decisions. The record does not support this assertion. When Terpstra's

counsel was addressing whether the venire panel believed an employer could consider age

when making hiring decisions, the Defendants objected that Terpstra was asking the venire

panel to opine on the ultimate issue to be determined by the jury. The trial court effectively

sustained this objection, as it directed Terpstra to rephrase her voir dire questions as to

avoid seeking a commitment from the venire panel. The Defendants do not explain how a

sustained objection can support a finding of an abuse of discretion, even presuming,

7 arguendo, that Terpstra's inquiry of the venire panel could be considered instruction on the

law. In any event, the objection the Defendants' made at trial was not that Terpstra was

instructing the venire panel on the law. "A 'point on appeal must be based upon the theory

voiced in the objection at trial and an appellant cannot expand or change on appeal the

objection as made.'" Kline v. City of Kansas City, 334 S.W.3d 632, 647 (Mo. App. W.D.

2011) (quoting Carroll v. Kelsey, 234 S.W.3d 559, 563 (Mo. App. W.D. 2007)).

After the Defendants' objection was sustained, Terpstra's voir dire continued. The

Defendants again objected, and this time asserted not only that Terpstra was seeking a

commitment from the venire panel on an ultimate issue, but also that Terpstra was

instructing the venire panel on the law. The Defendants also moved for a mistrial. The

trial court denied the request for a mistrial, but once again effectively sustained the

Defendants' objection by advising Terpstra to "clean up" the questions of the venire panel.

The Defendants do not explain how a sustained objection can support a finding of an abuse

of discretion in permitting allegedly improper voir dire.

Later, during the Defendants' voir dire, counsel advised the venire panel that it was

the Defendants' position that the most qualified person could be hired for a job for any

reason, so long as it is not "because of that person's age, gender, [or] race." A member of

the venire panel asked for clarification, noting that the day prior, there had been discussion

about sole versus contributing factors in making hiring decisions.6 The Defendants'

6 The previous day, Terpstra's counsel explained to the venire panel that Terpstra had the burden of proof to demonstrate that Terpstra's age was a contributing factor in the Defendants' hiring decision. A venireperson then asked for a clarification: "So for a trial to be considered discriminatory based on age, it doesn't necessarily have to be that sole point. It has to be a contributing factor?" Terpstra's counsel responded, "Exactly. See? If I can get you

8 counsel responded that "The law says because of their age. You cannot discriminate

against someone because of their age." Terpstra's counsel objected and, outside the hearing

of the jury, complained that the Defendants were misstating the law. The trial court agreed,

and advised that references to age as a factor needed to refer to age as a "contributing

factor." When the Defendants' voir dire continued, the Defendants responded to the

venireperson's request for clarification by stating that age could not be a contributing factor

in a hiring decision and that the trial court would later instruct the jury on the law applicable

to the case. Terpstra did not instruct the venire panel on the law regarding this subject

during the Defendants' voir dire. Rather, the Defendants did as instructed by the trial court,

rendering the Defendants' discussion of this portion of voir dire irrelevant to the

Defendants' point on appeal.

Finally, the Defendants complain that Terpstra's counsel improperly instructed the

venire panel about the burden of proof. However, it was the Defendants, during their own

voir dire, who made the statement that the Defendants did not have the burden of proof.

When Terpstra objected, the trial court instructed the venire panel that "the burden of proof

to prove age was a contributing factor to the adverse employment action is on the plaintiff,

not the defendant, [which] will be subject to any additional instructions that I will give you

later." It was thus the trial court, not Terpstra, who addressed (correctly, we observe) the

subject of the burden of proof with the jury.

guys to talk, you can do a better job than I can. That's exactly right. Doesn't have to be the sole factor." The Defendants did not object to Terpstra's explanation of the burden of proof and of the standard for age discrimination.

9 The record simply does not support the premise of the Defendants' point on appeal.

However, even were we were to conclude (which we do not) that Terpstra improperly

discussed the law with the venire panel in any of the aforementioned respects, we would

not find reversible error. The Defendants bear the burden of establishing not only an abuse

of discretion in permitting voir dire, but that they were prejudiced by the error. At the end

of the argument portion of their brief addressing the first point on appeal, the Defendants

devote a single sentence to the subject of prejudice, summarily asserting: "By allowing

Terpstra's counsel to explain the law and then shut down the [Defendants'] counsel when

she tried to follow up, the trial court gave the impression that Terpstra's counsel was the

only one who could explain the law to them."7 [Appellants' Brief, p. 30]

When viewed in light of the entire record, the Defendants' summary allegation of

prejudice is disingenuous and inaccurate. We have already explained that the Defendants'

assertion that Terpstra instructed the venire panel on the law is not supported by the record,

and that instead, it was the trial court who either addressed legal issues with the venire

panel, or advised the parties how to do so. In addition, before voir dire began, the trial

court told the venire panel, "It is my job to instruct you in the law which you are to apply

to those facts," and cautioned the venire panel not to "discuss or attempt to research what

7 The Defendants' reply brief sets forth a different claim of prejudice: "[Terpstra's] counsel answered objections in front of the jury and gave the impression that what he said was the law and that what he was saying was proper, all the while preventing the [Defendants] from asking their questions or rebutting his selective presentation of the law. The questions posed by counsel required the venire panel to speculate on their own reactions to the set of circumstances he was providing to them, which created prejudice." [Reply Brief, p. 8] We will not address this separate assertion of prejudice. See Jefferson City Apothecary, LLC v. Mo. Bd. of Pharmacy, 499 S.W.3d 321, 326 n.3 (Mo. App. W.D. 2016) ("'[A] reply brief is to be used only to reply to arguments raised by respondents, not to raise new arguments on appeal,'" so that "'[w]e do not review an assignment of error made for the first time in the reply brief.'" (quoting Arch Ins. Co. v. Progressive Cas. Ins. Co., 294 S.W.3d 520, 524 n.5 (Mo. App. W.D. 2009))).

10 the law may be in this case." Both of those instructions made clear that the trial court, not

counsel for the parties, would be providing instruction about the applicable law. Once voir

dire was complete and the jury was sworn, the trial court advised the impaneled jury that

the instructions provided by the trial court "will direct you concerning the legal rights and

duties of the parties and how the law applies to the facts that you will be called upon to

decide." These instructions from the trial court collectively demonstrate that the venire

panel, and later the jury, was advised to look to the trial court, not the parties, for guidance

on the legal principles governing disposition of the case. The Defendants' bare assertion

that the trial court gave the impression that Terpstra's counsel was the one who could

explain the legal principles governing Terpstra's claims is baseless.

Moreover, the Defendants have not identified any legal discussion that allegedly

occurred during voir dire that was inconsistent with the instructions later given to the jury

by the trial court. Those instructions informed the jury of the burden of proof, instructing

that "[t]he party who relies upon any disputed fact has the burden to cause you to believe

that such fact is more likely true than not true." Those same instructions informed the jury

that the standard of causation for Terpstra's claim of age discrimination was that "Terpstra's

age was a contributing factor in her being denied promotion," and that the standard of

causation for Terpstra's claim of retaliation was that "[Terpstra's] filing a complaint with

the [MCHR] was a contributing factor to her being demoted." A comparison of these

instructions to the aspects of voir dire about which the Defendants complain on appeal

reveals that the venire panel was not misled during voir dire. The Defendants have failed

to demonstrate a real probability that they suffered prejudice based on an alleged (but

11 ultimately undemonstrated) assertion that the trial court abused its discretion by permitting

Terpstra's counsel to inform the venire panel of the applicable law.

The Defendants' first point on appeal is denied.

Point Two: Admission of Emails that Resulted in the Demotion of Three Employees

The Defendants' second point on appeal argues that the trial court erred in admitting

emails that resulted in the demotion of three DES employees who had been previously

promoted to the position of senior claims supervisor. The Defendants describe the emails

as "inappropriate" because they contained "some obscene language, [and discussions

regarding] drinking outside work, and having hangovers at work." [Appellants' Brief, pp.

15, 35 n.2] The Defendants assert that the emails were not logically relevant to Terpstra's

claim of employment discrimination in August 2010 because they resulted in demotions in

September 2012. The Defendants further assert that the emails were not legally relevant

because the subject matter of the emails served solely to prejudice the jury against the

employees who were demoted and, by extension, the Defendants.8

Despite asserting that "[t]he trial court improperly admitted e-mail evidence that

lacked relevance . . . [and] that served only to demonstrate that other employees had, in the

past, engaged in prior bad acts that were not at all relevant to Terpstra's claims," the

Defendants do not indicate where in the record this alleged error was preserved for

8 The Defendants assert in the argument portion of their brief that the emails should not have been admitted into evidence because the manner in which Terpstra's counsel obtained the emails allegedly violated discovery rules. Because the discovery issue is not encompassed with the Defendants' point relied on, we will not address it. "'Claims of error raised in the argument portion of a brief that are not raised in a point relied on are not preserved for our review.'" Davis v. Wieland, 557 S.W.3d 340, 352 n.10 (Mo. App. W.D. 2018) (quoting C.S. v. Mo. Dep't of Soc. Servs., 491 S.W.3d 636, 656 (Mo. App. W.D. 2016)).

12 appellate review. [Appellants' Brief, p. 32] Rule 84.04(e) requires appellants to include in

the argument "a concise statement describing whether the error was preserved for appellate

review; if so, how it was preserved; and the applicable standard of review" for each claim

of error. Compliance with Rule 84.04 is mandatory. Scott v. King, 510 S.W.3d 887, 891

(Mo. App. E.D. 2017).

The Defendants' brief cites to a location in the transcript where they claim to have

objected to admission of the emails based on Terpstra's failure to exhaust discovery

remedies.9 This reference in the brief is not cited for the proposition that an objection to

logical or legal relevance was preserved at trial. Our independent review of the cited

objection, located at Vol. 9, pp. 127-28 of the transcript, reveals that the Defendants did

make a cursory objection to the logical and legal relevance of the emails. However, when

the emails were later discussed at trial during the testimony of several witnesses, no

objection to discussion or admission of the emails on the basis of relevance was made by

the Defendants. In the statement of facts, the Defendants' brief cite to nearly seventy pages

spanning three volumes of the transcript where Terpstra's counsel asked the three DES

employees who were demoted about the content of the emails, but the Defendants have not

advised us where, during this extended testimony, an objection to the admission of the

testimony or the emails on the basis of relevance was ever made.

9 The Defendants' brief cites to an objection they lodged during trial regarding the means that Terpstra's counsel used to obtain the emails. The Defendants' objection argued that, because Terpstra never filed a motion to compel production of the emails, they could not be used at trial. As discussed in supra note 8, the discovery issue is not encompassed within the Defendants' second point on appeal so that we will not address it.

13 While our Supreme Court's preference is for cases to be decided on the merits, we

will not comb the record to locate when, if at all, the Defendants preserved their objection

to the admission of emails, as that would result in this court "becom[ing an] advocate[] by

inferring facts and arguments that the [Defendants] failed to assert." Scott, 510 S.W.3d at

891-92. It is for this very reason that Rule 84.04(e) mandates that an appellant inform this

court whether and how claimed error was preserved on appeal. On that basis alone, the

Defendants' second point on appeal must be dismissed.

In addition, the Defendants have failed to deposit the emails they allege were

improperly admitted into evidence with this court. Rule 81.12(a) requires the record on

appeal to include "all of the record, proceedings and evidence necessary to the

determination of all questions to be presented, by either appellant or respondent, to the

appellate court for decision." "If original exhibits are necessary to the determination of

any point relied on, they shall be deposited in the appellate court by the appellant." Rule

81.16(a) (emphasis added). Though the Defendants' point on appeal requires us to assess

the admissibility of the referenced emails, the Defendants have failed to provide us with

the emails. "Where, as here, the record does not contain all of the documents necessary for

this court to determine the issue presented, our review is impossible and the claim of error

must be dismissed." Oldham v. Oldham, 223 S.W.3d 886, 887 (Mo. App. W.D. 2007).

The Defendants' second point on appeal is dismissed.

Point Three: Admission of Testimony from "Me-Too" Witnesses

The Defendants' third point on appeal argues that the trial court erred in admitting

testimony from three "me-too" witnesses: Scott Stimson ("Stimson"), Jeffrey Forrester

14 ("Forrester"), and Karen Berendzen ("Berendzen").10 The Defendants assert that the trial

court should not have allowed these witnesses to testify about discriminatory statements,

actions, or conduct by the Defendants that was unrelated to Terpstra's claims of age

discrimination and retaliation because the "me-too" testimony was not relevant. The

Defendants assert that the "me-too" witnesses' experiences were neither similar in time nor

circumstance to Terpstra's claims of age discrimination and retaliation so that, using the

standard for relevancy articulated in Cox v. Kansas City Chiefs Football Club, Inc., 473

S.W.3d 107 (Mo. banc 2015), the trial court should have excluded the testimony from these

"me-too" witnesses. The Defendants further claim that, instead of following the standard

for relevancy articulated in Cox, which requires an individualized balancing of the

probativeness of each "me-too" witness's testimony, the trial court made a blanket ruling

concluding the testimony of "me-too" witnesses was admissible.

As discussed supra, Rule 84.04(e) requires appellants to "include a concise

statement describing whether the error was preserved for appellate review; if so, how it

was preserved; and the applicable standard of review." In an ostensible effort to comply

with this requirement, the Defendants indicate that they "raised . . . objections in their

motions in limine and again during testimony as each [witness] testified." [Appellants'

Brief, pp. 39-40]

10 In addition to those three witnesses, the Defendants characterize three other witnesses as "me-too" witnesses in their statement of facts: Betty Means, Beverly Sommerer, and Ann Spillars. The argument portion of the Defendants' brief does not further address these three witnesses. The failure to develop an argument about the admissibility of these witnesses' testimony in the argument section of the brief preserves nothing for review. Wallace v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018).

15 Though it is true that the Defendants unsuccessfully filed a motion in limine seeking

to exclude evidence of alleged discriminatory acts by "me-too" witnesses as irrelevant, a

ruling on a motion in limine is interlocutory and subject to change during the course of the

trial. Beverly v. Hudak, 545 S.W.3d 864, 875 (Mo. App. W.D. 2018). Thus, a motion in

limine preserves nothing for appeal. Id. The Defendants' reference to their unsuccessful

motion in limine does not serve the purpose of Rule 84.04(e), which requires the appellant

to identify whether and how a claim of error was preserved for appellate review.

"'After the denial of its motion in limine, a party is required to object at trial to the

introduction of the evidence and to reassert the objection in post-trial motions.'" Kerr v.

Mo. Veterans Comm'n, 537 S.W.3d 865, 880 (Mo. App. W.D. 2017) (quoting Wilkins v.

Bd. of Regents of Harris-Stowe State Univ., 519 S.W.3d 526, 541 (Mo. App. E.D. 2017)).

The Defendants' brief alleges that the Defendants objected on the basis of relevance during

the testimony of Stimson, Forrester, and Berendzen. The Defendants refer this court,

however, to only a single record cite. At that point in the record, the Defendants objected

that allowing Berendzen to testify as a "me-too" witness about a 2015 promotion she did

not receive would confuse the issues at trial.11 The Defendants point this court to no

instance where they objected at trial to Stimson's "me-too" testimony or Forrester's "me-

too" testimony on the basis of relevancy. As we noted supra, compliance with Rule

84.04(e) is mandatory so that "appellate courts do not become advocates by inferring facts

11 Berendzen also testified about a 2010 promotion she did not receive. The Defendants did not object to this testimony during trial, so any claim of error relating to the admission of this testimony is not preserved for appellate review. Kerr, 537 S.W.3d at 880.

16 and arguments that the appellants failed to assert."12 Scott, 510 S.W.3d at 891-92. The

Defendants' claim of error in admitting "me-too" evidence from Stimson and Forrester is

not preserved for our review.

Our review of the Defendants' third point on appeal is limited, therefore, to a review

of whether the trial court abused its discretion in admitting Berendzen's "me-too" testimony

regarding the 2015 promotion she did not receive. Our standard of review of a trial court's

decision to admit evidence over an objection is for abuse of discretion. Hesse v. Mo. Dep't

of Corr., 530 S.W.3d 1, 5 (Mo. App. W.D. 2017). A trial court abuses its discretion when

the evidentiary ruling "'is clearly against the logic of the circumstances . . . and is so

unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful,

deliberate consideration.'" Id. (quoting Cox, 473 S.W.3d at 114). If reasonable persons

could disagree about the propriety of the trial court's ruling, then we will not conclude that

the trial court abused its discretion. Reed v. Kansas City Mo. Sch. Dist., 504 S.W.3d 235,

240 (Mo. App. W.D. 2016).

12 Despite the Defendants' failure to provide a concise statement demonstrating how they preserved their objection to Stimson's testimony and Forester's testimony, we have reviewed the transcript. The Defendants failed to preserve their challenge to either witness's testimony on the basis of relevance by making a timely and appropriate objection. Before Stimson testified, the Defendants asserted that Stimson was not a proper "me-too" witness in that his claims of discrimination did not stem from the same period of time as Terpstra's claims of age discrimination and retaliation, and that, because Stimson was promoted to claims supervisor, he could not make a claim of discrimination. The trial court overruled the Defendants' objection, explaining that because "we don't know what [Stimson's] going to say yet," it could not make a ruling as to whether Stimson was an appropriate "me-too" witness. The trial court instructed the Defendants to make their evidentiary objections "at the appropriate time." (Emphasis added.) Even though Stimson later testified about how he was passed over for a promotion to senior claims supervisor in 2010, the Defendants did not object. With respect to Forrester's testimony, the Defendants made no objection, either before he testified or while he testified, to admission of evidence about the promotions he unsuccessfully applied for in 2010, 2011, and 2012. The Defendants' failure to lodge timely objections during Stimson's and Forester's testimony is fatal to their claim that the trial court erred in admitting their testimony. See Kerr, 537 S.W.3d at 880 ("'An appellant's failure to preserve an issue at the trial court waives the issue, and it is not reviewable on appeal.'" (quoting Ryan v. Maddox, 112 S.W.3d 476, 479 (Mo. App. W.D. 2003))).

17 Terpstra's theory at trial was that the Defendants discriminated against her on the

basis of age, promoting younger, less qualified persons to the senior claims supervisor

positions in 2010. Terpstra argued that testimony from similarly situated persons regarding

their treatment by the Defendants corroborated her claim of age discrimination and

confirmed the existence of the Defendants' discriminatory intent. Our Supreme Court has

explained that this type of circumstantial evidence is often necessary in cases claiming

discrimination on the basis of a protected class like age because "'employers are shrewd

enough not to leave a trail of direct evidence.'" Cox, 473 S.W.3d at 116 (quoting Daugherty

v. City of Maryland Heights, 231 S.W.3d 814, 818 n.4 (Mo. banc 2007)).

Circumstantial evidence, like all other types of evidence, must be both logically and

legally relevant to be admissible. Id. "'Evidence is logically relevant if it tends to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence, or if it tends to corroborate

evidence which itself is relevant and bears on the principal issue of the case.'" Id. (quoting

State v. Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002)). Legal relevance requires the trial

court to "'weigh the probative value, or usefulness, of the evidence against its costs,

specifically the dangers of unfair prejudice, confusion of the issues, undue delay,

misleading the jury, waste of time, or needless presentation of cumulative evidence.'"

Holdeman v. Stratman, 556 S.W.3d 46, 52 (Mo. App. W.D. 2018) (quoting Kroeger-

Eberhart v. Eberhart, 254 S.W.3d 38, 43 (Mo. App. E.D. 2007)). If the probative value of

the evidence outweighs its costs, then the evidence is legally relevant and should be

18 admitted. Id. But if the costs of the evidence outweighs its probative value, then the

evidence should be excluded. Id.

Cox v. Kansas City Chiefs Football Club examined the application of the concepts

of logical and legal relevance to "me-too" testimony. In Cox, our Supreme Court reviewed

the trial court's blanket exclusion of all evidence regarding the firings of other older

employees, including evidence of their age, the fact of their termination by the employer,

and of their pending lawsuits against the employer. 473 S.W.3d at 116. The Court held

that the blanket exclusion of the "me-too" testimony was error because the evidence should

have been "subject to an individualized balancing of probativeness with prejudice as to

each such example of circumstantial evidence of discrimination." Id. at 119, 118. An

individualized assessment of legal relevance requires the trial court to consider carefully

the logical relevance of each piece of "me-too" evidence as weighed against the evidence's

prejudicial effect. Id. at 122. In determining the logical relevance of "me-too" testimony,

the trial court must "look to and weigh aspects of similarity as appropriate given the facts,

context, and theory of the specific case at issue." Id. at 123. Factors to consider include

geographic and temporal similarities; whether the same decision makers were involved;

the similarity of treatment; and whether the witness and plaintiff were otherwise similarly

situated. Id.

The Defendants claim that the trial court misapplied the law when it denied their

objection to Berendzen's testimony. The Defendants assert that contrary to Cox, the trial

court made a blanket ruling that all "me-too" testimony was admissible. They base this

conclusion on the fact that when the trial court denied their objection to Berendzen's

19 testimony, the trial court stated that it believed the "Cox case allows that evidence to come

in." Of course, this on-the-record statement is susceptible to a different conclusion than

that reached by the Defendants. The trial court's reference to Cox can as easily be read to

suggest that the trial court understood it was required to make an individualized assessment

of the logical and legal relevance of Berendzen's testimony.

We comfortably reach the conclusion that the trial court properly relied on Cox to

overrule the Defendants' objection to Berendzen's testimony based on the trial court's

reference to Cox at other times during the proceedings. When the trial court denied the

Defendants' motion in limine seeking exclusion of "me-too" testimony, it did so for the

express reason that Cox required an individualized assessment of the relevance of "me too"

evidence--an assessment that could not be made without the benefit of hearing the

testimony in the context of a trial record. In fact, when the Defendants' motion in limine

was denied, the trial court told the Defendants that they would be required to make an

objection to each "me-too" witness's testimony, addressing on each occasion the

individualized basis for objecting to relevancy. In keeping with this guidance, when the

Defendants objected to Stimson as a "me too" witness before his testimony began, the trial

court overruled the objection because it was not yet clear what Stimson would say, making

it impossible for the trial court to conduct the individualized relevancy assessment required

by Cox. It is plain, in light of these rulings and comments, that the trial court's reference

to Cox when it overruled the Defendants' objection to Berendzen's testimony reflected an

accurate understanding and application of the law.

20 The Defendants alternatively argue that even assuming the trial court properly

applied the law as described in Cox, it abused its discretion in doing so because an

individualized assessment of Berendzen's testimony did not establish logical or legal

relevance. We disagree.

Berendzen was 58 years old at the time of trial, and like Terpstra, she worked for

DES in the JCRCC. Berendzen testified that, while she had been promoted to senior claims

supervisor approximately two months before trial, in 2015, she had applied for a promotion

as a senior claims supervisor which she did not receive though a younger person was

selected. Because Terpstra and Berendzen both worked for DES in the JCRCC, and

because both applied for the same position for which they were rejected in favor of younger

applicants, Berendzen's testimony was logical relevant as it corroborated Terpstra's claim

of age discrimination and suggested that the Defendants possessed discriminatory intent.

The difference in time and circumstance is not so significant as to render the probative

value of Berendzen's testimony outweighed by its prejudicial effect, and would instead go

to the weight of the testimony. The trial court did not abused its discretion in admitting

Berendzen's testimony.

The Defendants' third point on appeal is denied.

Point Four: Sufficiency of Evidence to Support the Punitive Damages Instruction

The Defendants' fourth point on appeal argues that the trial court erred in submitting

a punitive damages instruction because Terpstra failed to present evidence that the

Defendants engaged in outrageous conduct stemming from an evil motive or reckless

indifference.

21 Before we reach the merits of the Defendants' fourth point on appeal, we must first

determine whether the issue is preserved for our review. Mansfield v. Horner, 443 S.W.3d

627, 638 (Mo. App. W.D. 2014). "[I]n a civil, jury-tried case, it is necessary, 'to preserve

the question of submissibility for appellate review, to file a motion for directed verdict at

the close of all evidence and to assign the error of the court in having failed to have directed

such a verdict in an after-trial motion' . . . .'" Heifetz v. Apex Clayton, Inc., 554 S.W.3d

389, 395 (Mo. banc 2018) (quoting Ukman v. Hoover Motor Express Co., 269 S.W.2d 35,

36 (Mo. 1954)). "'A motion for directed verdict at the close of all evidence becomes the

meaningful motion to preserve the issue as it presented itself to the trial court at that time,

prior to submission to the jury.'" Id. (quoting Sanders v. Ahmed, 364 S.W.3d 195, 207

(Mo. banc 2012)). Once a verdict has been reached, a motion for JNOV is required to

preserve any submissibility issues for appeal. Sanders, 364 S.W.3d at 207-08. To be

properly granted, a motion for JNOV must correctly identify at least one element of the

plaintiff's case that is not supported by evidence. Clevenger v. Oliver Ins. Agency, Inc.,

237 S.W.3d 588, 590 (Mo. banc 2007).

With respect to the issue of preservation, the Defendants assert in their brief that,

"As [they] argued in [their] directed verdict motions, at the jury instruction conference, at

closing, and in [their] post-trial motion, the trial court . . . should not have submitted

punitive damages to the jury." [Appellants' Brief, p. 43] Later in the argument portion of

the brief, the Defendants provide specific citations to the record where they raised the issue

of submissibility of punitive damages in their motion for a directed verdict and during the

instruction conference, and where they argued to the jury that there was no evidence of evil

22 motive or reckless indifference to support an award of punitive damages. The Defendants

provide no citation to the record, however, to support their assertion that they made the

same argument in their Post-Trial Motion.

Our review of the Defendants' Post-Trial Motion reveals that it devotes a single

sentence to the topic of punitive damages: "Additionally, in lieu of JNVO or a new trial,

and pursuant to [Rule] 78.10, Defendants move the court for an elimination of punitive

damages and a more reasonable assessment of attorneys' fees." (Emphasis added.) The

Post-Trial Motion did not contest the sufficiency of the evidence to submit punitive

damages to the jury, and by its plain terms sought only the relief of remittitur (the subject

of Rule 78.10) with respect to the award of punitive damages.13 Because the Post-Trial

Motion did not claim error in the submission of punitive damages to the jury, the issue is

The Defendants' fourth point on appeal is dismissed.

Point Five: Failure to Reduce the Punitive Damages Award

The Defendants' fifth point on appeal argues that the trial court committed error "in

denying a motion for remittitur of the punitive damages award because under the state rules

of remittitur and the federal due process clause the punitive damages award was

impermissibly excessive given that it was thirteen times [Terpstra's] compensatory

damages and there is no other discrimination to deter at the workplace." [Appellants' Brief,

p. 49] This point on appeal is necessarily limited in its application to DES. The punitive

13 The trial court's failure to remit the award of punitive damages is the subject of the Defendants' fifth point on appeal.

23 damage award against DES was in the amount of $260,000--an amount that is thirteen

times the $20,000 awarded Terpstra in actual damages. No claim of error is asserted on

appeal with respect to the $20,000 award of punitive damages against Lambert.14

DES asserts that it "argued . . . in its post-trial motion" that remittitur was

appropriate because the punitive damages award was excessive.15 [Appellants' Brief, p.

49] Later in the brief, however, DES asks us to review the issue of remittitur for plain error

because the claim of error "was not included in the [Post-Trial Motion]." DES does not

explain the contrary positions taken in its brief with respect to preservation of the claim of

error relating to remittitur.

We have already explained, supra, that the Post-Trial Motion sought, "in lieu of

JNOV or new trial, and pursuant to [Rule 78.10], . . . an elimination of punitive damages."

Rule 78.10(a) provides that a party "requesting . . . remittitur shall file a motion for such

relief within the time prescribed by Rule 78.04 for filing a motion for new trial." Rule

78.10(a) does not describe what must be included in a motion requesting remittitur, and we

have located no case law addressing the subject. However, as a general matter, Rule 78.09

requires a party, "at the time the ruling or order of the court is made or sought, [to make]

known to the court the action that the party desires the court to take or objections to the

action of the court and grounds therefor." The failure to do so "precludes a party from

obtaining appellate review of error in the trial court's ruling or order." Brown v. Brown,

14 The Judgment did not award Terpstra punitive damages against the LIRC. 15 The Defendants also assert that that they raised the issue of remittitur "at the jury instruction conference." [Appellants' Brief, p. 49] Under section 537.068 a remittitur order is appropriate "if, after reviewing the evidence in support of a jury's verdict, the court finds that the jury's verdict is excessive." (Emphasis added.) Any request for remittitur prior to the jury making its verdict would have been premature.

24 423 S.W.3d 784, 787 (Mo. banc 2014). Here, the Post-Trial Motion neither argued nor

explained why the punitive damage was excessive and subject to remittitur pursuant to

Rule 78.10. DES's claim of error relating to the failure to order remittitur is not preserved

for appellate review.

DES nonetheless asks us to review the trial court's failure to order remittitur of the

punitive damages award for plain error. Plain error review is available, at our discretion,

for "errors affecting substantial rights" if we "find[] that manifest injustice or miscarriage

of justice has resulted therefrom." Rule 84.13(c). Plain error review is a two-step inquiry.

Riggs v. State Dep't of Soc. Servs., 473 S.W.3d 177, 186 (Mo. App. W.D. 2015). "'We first

determine whether or not the error is plain, and second, we determine whether or not

manifest injustice or miscarriage of justice would result if the error is left uncorrected.'"

Id. (quoting Hammett v. Atcheson, 438 S.W.3d 452, 463 (Mo. App. W.D. 2014)). Reversal

for plain error in civil cases is rare and is only appropriate "'when the injustice of the error

is so egregious as to weaken the very foundation of the process and seriously undermine

confidence in the outcome of the case.'" Id. (quoting Snellen ex rel. Snellen v. Capital

Region Med. Ctr., 422 S.W.3d 343, 357 (Mo. App. W.D. 2013)).

Though DES's point relied claims error based on the failure to remit the punitive

damages award pursuant to Rule 78.10, the argument portion of the brief does not further

develop the point on appeal, and is devoted exclusively to DES's claim that the punitive

damages award was constitutionally excessive, a claim we discuss infra. We refuse to

exercise our discretion to conduct plain error review of a claim of error regarding violation

25 of Rule 78.10 when that claim has not been developed in the argument portion of DES's

brief.

DES's point on appeal separately argues that the punitive damages award was

constitutionally excessive in violation of due process. "'Remittitur and a constitutionally

reduced verdict, though potentially achieving the same result, are in theory different.'"

Diaz v. AutoZoners, LLC, 484 S.W.3d 64, 89 n.28 (Mo. App. W.D. 2015) (quoting Blanks

v. Fluor Corp., 450 S.W.3d 308, 412 n.71 (Mo. App. E.D. 2014)). "'[R]emittitur is a

substitution of the court's judgment for that of the jury regarding the appropriate award of

damages.'" Id. (quoting Blanks, 450 S.W.3d at 412 n.71); see also section 537.068. "'In

other words, the court may order remittitur relief when the jury awards a verdict that is

simply too bounteous under the evidence.'" Id. (quoting Blanks, 450 S.W.3d at 412 n.71).

"'A constitutional reduction, on the other hand, is a determination that the law does not

permit the award.'" Id. (quoting Blanks, 450 S.W.3d at 412 n.71). "'Unlike a remittitur,

which is discretionary with the court, a court has a mandatory duty to correct an

unconstitutionally excessive verdict so that it conforms to the requirements of the due-

process clause.'" Id. (quoting Blanks, 450 S.W.3d at 412 n.71).

To raise a constitutional challenge properly, a party must:

(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated . . . (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

Mayes v. Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260, 266 (Mo. banc 2014)

(quoting United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004)). "The purpose of

26 this rule is 'to prevent surprise to the opposing party and permit the trial court an

opportunity to fairly identify and rule on the issue.'" Id. (quoting Winston v. Reorganized

Sch. Dist. R-2, Lawrence Cnty., Miller, 636 S.W.2d 324, 327 (Mo. banc 1982)).

DES did not raise its constitutional question at the first available opportunity--in its

Post-Trial Motion. Cognizant of this fact, DES requests plain error review. "Plain error

review, however, rarely is granted in civil cases." Id. at 269. Error, if any, in the award of

$260,000 in punitive damages against DES is not evident, obvious, or clear. See Diaz, 484

S.W.3d at 91 (rejecting a preserved claim that a 13:1 ratio of punitive to compensatory

damages violated due process violation). We are not persuaded that the unpreserved error

about which DES complains is "'so egregious as to weaken the very foundation of the

process and seriously undermine confidence in the outcome of the case.'" Riggs, 473

S.W.3d at 186 (quoting Snellen ex rel. Snellen, 422 S.W.3d at 357). We decline to review

DES's newly asserted, unpreserved claim of constitutional error for plain error.

The Defendants' fifth point on appeal, which applied only to the award of punitive

damages against DES, is denied.

Point Six: Award of Attorneys' Fees

The Defendants' sixth point on appeal argues that the trial court's award of attorneys'

fees constituted an abuse of discretion. The Defendants assert that the trial court erred in

two respects. First, the Defendants claim that the trial court used an unreasonable hourly

rate in calculating the award. And second, the Defendants contend that the trial court's use

of a multiplier was unnecessary in that it created a windfall for Terpstra's counsel contrary

to Missouri law.

27 Before we reach the merits of the Defendants' sixth point on appeal, we first note

that the point fails to comply with Rule 84.04(e)'s briefing requirement that appellants

"include a concise statement describing whether the error was preserved for appellate

review; if so, how it was preserved; and the applicable standard of review." While the

Defendants have correctly asserted that we review the trial court's award of attorneys' fees

for an abuse of discretion, the Defendants do not include a concise statement of whether

and how this alleged error was preserved for appellate review. Despite the Defendants'

failure to comply with Rule 84.04(e), the record is clear that, in response to Terpstra's

motion for the court to award attorneys' fees, the Defendants filed suggestions in opposition

arguing that the hourly rate suggested by Terpstra was unreasonable and that no multiplier

was necessary. And the Post-Trial Motion raises the same concerns about the attorneys'

fees award. This point on appeal is preserved for our review.

We review the trial court's award of attorney's fees for abuse of discretion. Hoeper

v. Liley, 527 S.W.3d 151, 158 (Mo. App. W.D. 2017). The trial court abuses its discretion

when its "'decision was against the logic of the circumstances and so arbitrary and

unreasonable as to shock one's sense of justice.'" Id. (quoting Howard v. City of Kansas

City, 332 S.W.3d 772, 792 (Mo. banc 2011)). ""The trial court is considered an expert on

fees, given its familiarity with all of the issues in the case and with the character of the

legal services rendered,' and 'may determine attorney fees without the aid of evidence.'"

Id. (quoting Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 55 (Mo. App. W.D. 2016)).

"'We will not reverse [the award of attorneys' fees] unless we find that the amount was

arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper

28 judicial consideration." Ferguson v. Curators of Lincoln Univ., 498 S.W.3d 481, 497 (Mo.

App. W.D. 2016).

The general rule in Missouri is that "'attorney fees are not awarded to every

successful litigant.'" Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 431 (Mo.

banc 2013) (quoting Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445

(Mo. banc 2010)). "However, attorneys' fees may be awarded when they are provided for

in a contract or when they are authorized statutorily." Id. The MHRA provides that the

trial court "may award . . . reasonable attorney fees to the prevailing party." Section

213.111.2.

"While the trial court has discretion to award reasonable attorneys' fees, there are

factors that may be considered to determine the amount of attorneys' fees to award." Berry,

397 S.W.3d at 431. Factors considered include: the rates customarily charged by the

attorney in the case and other attorneys in the community for similar services; the number

of hours reasonably expended on the litigation; the nature and character of services

rendered; the degree of skill required; the nature and importance of the subject matter of

the litigation; the amount involved or result achieved; and the vigor of the opposition. Id.

The starting point in determining reasonable attorneys' fees is the "lodestar." Alhalabi v.

Mo. Dep't of Nat. Res., 300 S.W.3d 518, 530 n.6 (Mo. App. E.D. 2009). The lodestar "is

determined by multiplying the number of hours reasonably expended by a reasonable

hourly rate." Id. A reasonable hourly rate is established according to "the rates customarily

charged by the attorneys involved and by other attorneys in the community for similar

services." Selleck v. Keith M. Evans Ins., Inc., 535 S.W.3d 779, 786 (Mo. App. E.D. 2017).

29 "'[T]he relevant market for attorneys in a matter . . . may extend beyond the local

geographic community,'" so that "'[a] national market or a market for a particular legal

specialization may provide the appropriate market'" for determining the reasonable hourly

rate. Ferguson, 498 S.W.3d at 497 (quoting Casey v. City of Cabool, Mo., 12 F.3d 799,

805 (8th Cir. 1993)).

The Defendants argue that the trial court's calculation of the lodestar "[was] not

reflective of rates awarded to other attorneys who have similar experience and expertise in

employment litigation." [Appellants' Brief, p. 57] Here, Terpstra's Motion for Attorneys'

Fees and Costs acknowledged that counsel's usual and customary hourly rates were

$325.00 for attorney Roger Brown, $210.00 for attorney Hong Chen, $185.00 for attorney

Jason McClitis, and either $85.00 or $95.00 for paralegals. Nonetheless, Terpstra's Motion

for Attorneys' Fees asserted that the application of the lodestar factors would support a trial

court setting a reasonable hourly rate for attorney Roger Brown at $475.00, for attorney

Hong Chen at $300.00, for attorney Jason McClitis at $210.00, and for paralegals at

$125.00. To support her request to use an hourly rate higher than the one customarily

charged by her attorneys, Terpstra's Motion for Attorneys' Fees attached affidavits from

other attorneys with similar experience and similar knowledge of employment

discrimination claims regarding their rates; billing statements showing the hours expended

on the case; and judgments awarding attorneys' fees in similar cases in Cole County.

The Judgment found that Terpstra's request to set an hourly rate above counsel's

usual and customary rate was a reasonable request, as: litigation of the case took over four

years, and involved fifteen days of trial over several weeks; billing statements revealed that

30 Terpstra's counsel committed substantial time to the case without compensation; counsel

expended $20,000 of his own funds in expenses that would not be reimbursed; the case

was in the public interest; the contingent nature of the case meant that Terpstra's counsel

risked no compensation for either hours or costs expended; and Terpstra's counsel

ultimately achieved a compensatory damages verdict and two punitive damages verdicts.

The trial court did not use the hourly rates suggested by Terpstra's Motion for Attorneys'

Fees. Instead, the Judgment set an hourly rate for attorney Roger Brown at $405.00, for

attorney Hong Chen at $250.00, for attorney Jason McClitis at $210.00, and for paralegals

at $100.00.

The Defendants argue that these hourly rates "are not reflective of rates awarded to

other attorneys who have similar experience and expertise in employment litigation." To

support their claim, the Defendants refer to two Cole County and one DeKalb County

employment cases wherein plaintiff's counsel was awarded attorneys' fees. The Defendants

presented the same argument, including citation to the Cole County and DeKalb County

employment cases, to the trial court, and the trial court accepted it in part, setting hourly

rates lower than those requested by Terpstra's Motion for Attorneys' Fees. The Defendants

argue on appeal that, in those cases, the total attorneys' fees awarded were much less than

those awarded by the trial court's Judgment. However, only one of those cases includes

the hourly rates used by the trial court to calculate the total award. In that case, while the

total attorneys' fees awarded is lower than the trial court awarded in this case, the hourly

rates are greater than the ones set by the trial court's Judgment.

31 Given the trial court's consideration of all the factors necessary for determining the

lodestar, we cannot say that the trial court abused its discretion in its determination of

reasonable hourly rates. The trial court is considered the expert in the determination of

attorneys' fees, given its familiarity with Terpstra's case and the character of legal services

provided by Terpstra's counsel. See Hoeper, 527 S.W.3d at 158. Although the trial court

could have made the determination without the aid of evidence, the trial court had before

it affidavits from other attorneys with similar experience and similar knowledge of

employment discrimination claims regarding their rates; and judgments awarding

attorneys' fees in similar cases in Cole County and DeKalb County. The Judgment's

analysis of the factors necessary for determining the hourly rates used to calculate the

lodestar demonstrates that the trial court did not arrive at the hourly rates arbitrarily or

without proper judicial consideration. As such we cannot say that the trial court's

calculation of the lodestar was an abuse of discretion.

The Defendants also complain about the trial court's use of a multiplier. After the

trial court calculates the lodestar, it may also make "a finding that a multiplier [is] necessary

to ensure a market fee that compensated . . . counsel for taking this case in lieu of working

less risky cases on an hourly basis." Berry, 397 S.W.3d at 433. In doing so, though, the

court "should avoid awarding a multiplier based upon facts that it considered in its initial

determination of the lodestar amount." Id. at 432. The Defendants argue on appeal that

usual hourly rate charged by Terpstra's counsel was adequate so that the trial court's use of

the multiplier was unnecessary. The Defendants argue that Terpstra's Motion for

32 Attorneys' Fees and Costs failed to prove that the lodestar failed to provide the Defendants

with adequate compensation.

Terpstra's Motion for Attorneys' Fees and Costs requested that the trial court apply

a 2.0 multiplier, but suggested that if the trial court found the 2.0 multiplier too high under

the circumstances, a multiplier between 1.25 and 2.0 would be appropriate. The trial court's

Judgment concluded that a multiplier of 1.5 was appropriate. The Judgment reasoned that,

in working on this type of public interest case on a contingent fee basis, Terpstra's counsel

took the risk of not prevailing and endured the delay of payment for his services until the

conclusion of litigation. The Judgment concluded that, in representing Terpstra in this

litigation, Terpstra's counsel fronted expenses and turned down other cases that would

generate an hourly fee due to time constraints. The Judgment further concluded that a

multiplier was appropriate in order to encourage private attorneys to take these kinds of

cases.

While the trial court also considered the contingent nature of the case in its

determination of the lodestar, the trial court's consideration of other factors support

application of the multiplier and demonstrate that the trial court did not abuse its discretion

in setting a multiplier of 1.5. The trial court's conclusion that Terpstra's counsel declined

representation of other cases that would generate hourly fees and its conclusion that a

multiplier was appropriate to encourage private attorneys to take these kinds of cases is

indicative of its careful consideration of whether a multiplier was necessary to ensure that

Terpstra's counsel was compensated for representation of Terpstra. The Judgment's

analysis demonstrates that the trial court did not arrive at the multiplier arbitrarily or

33 without proper judicial consideration. As such we cannot say that the trial court's

calculation of the multiplier was an abuse of discretion.

The Defendants' sixth point on appeal is denied.

Conclusion

The trial court's Judgment is affirmed.

__________________________________ Cynthia L. Martin, Judge

All concur