# Tune v. Synergy Gas Corp. > Supreme Court of Missouri · September 20, 1994 · 883 S.W.2d 10 URL: https://www.frixlaw.com/law-library/cases/9647425 ## Case - **Full name:** Ronald TUNE, Respondent, v. SYNERGY GAS CORPORATION, Appellant - **Court:** Supreme Court of Missouri - **Decided:** September 20, 1994 - **Citations:** 883 S.W.2d 10; 1994 WL 424438 - **Precedential status:** Published - **Opinion:** Concurring in part by Holstein - **Judges:** Benton, Covington, Holstein, Limbaugh, Price, Robertson, Thomas - **Cited by:** 77 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647425 ## How later opinions describe it (automated extraction) - finding plaintiff’s counsel’s remark that the plaintiff was “certainly not motivated by any desire to place a hardship upon [the defendant] personally” was “grossly and patently improper” in the context of seeking damages for which prejudice was not cured by the trial court’s … ## Opinion text HOLSTEIN, Judge, concurring in part and dissenting in part. I respectfully dissent from part IV of the majority opinion and the reversal of the trial court’s damage award. The majority overrules well reasoned and long-standing precedent vesting the trial court with broad discretion regarding the propriety of closing argument of counsel, excuses the appellant from seeking the most efficient remedy available, excuses the appellant from demonstrating genuine surprise resulting in an absence of opportunity to respond to an argument, and orders a new trial without properly determining whether the allegedly improper argument had a prejudicial effect. In straining to sustain its result, the majority misreads or misapplies the cases on which it relies. I. It was clear from the inception of this trial that the plaintiff’s attorney intended to ask the jury to award his client a substantial amount of money as damages. Before the defendant was ever required to make its closing argument, the plaintiff twice told the jury that he was seeking large sums as compensation for his injuries; “seven figure” damages were mentioned in the voir dire, and the plaintiff testified from the witness stand that $6 million to $10 million would be inadequate compensation for the damages he had received. In addition to the comment in voir dire and the testimony, the opening part of the plaintiff’s closing argument cannot, in any way, be characterized as failing to argue, discuss or mention damages for pain and suffering. That argument included the following: And then when you consider what Ron’s damages are, you look at his present damages, and we’ve got the exhibits there. You can see how they are all figured. His medical bill, which I thought was very reasonable for what was really intensive care. His loss of earnings, $23,846. Those little things of soaps and whatever, and we took them based on what he said, and computed it out, $3,481. Those present loss of earnings are $54,419 — I mean present damages, $54,419.24. And then we come down to the things that you have to consider for the rest of it, for the things we can’t just look at a receipt. Pain and suffering, you have to put a figure down there. You have to figure out what it’s worth. Loss or dimin-ishment of quality of life. Remember the things he liked to do. The golfer can’t golf anymore. I can’t go sailing any more. The things that make life worth living that you can’t do now. You put a figure in there. And that’s present damage, present and tangible damages. Then you’ve got to consider. Remember, we read — the Judge took judicial notice of the life tables? If, God willing, he lives an average life, he’s going to live another 35.8 years. So if he has future medical expenses, if you find that he has some future medical expenses, you have to put a figure in there. If you find that he’s got future loss - of earnings because of his condition, you’ve got to put a figure in there. If you find he’s going to have future pain and suffering because of his condition, you know, his sensitivity to cold, et cetera, you put a figure in there. And, again, quality of life. He’s an outside guy, he said. He likes to do things outside. For the next 38 years, his.life has changed. He’s a different person. He’s lost something, and the law recognizes that, and you’ve got to put a figure in there. And then you total it all up, and that’s what you award him. Furthermore, the defendant’s attorney in his closing argument went considerably further in discussing the plaintiff’s injuries than is suggested by the majority opinion. The following excerpts are taken verbatim from the argument of defense counsel: I, also, ladies and gentlemen, want to talk about these instructions to you a little bit. And we’ll just start with this Number 5 [the verdict directing instruction]. [[Image here]] *24 You cannot return a verdict unless you believe these propositions. And that’s the propositions [sic] in this instruction right here, these five elements. Ladies and gentlemen, in order to find for Mr. Tune, in order to find in favor of Mr. Tune, you must find all five of these elements. [Elements one through four are reviewed.] [[Image here]] Fifth, “Plaintiff was damaged as a direct result of the propane being sold without adequate warning.” [[Image here]] Dr. Gaska [plaintiffs physician] testified, and he said, stated you could see the outline of the clothes right around where the burns — just right where there was no clothes. There weren’t any burns sustained in the areas where there was clothes. [[Image here]] You know, I’m sorry for Mr. Tune. I think every one of us feel sorry for Mr. Tune. I think every one of us feels sorry for anybody that’s burned. I know I do. It’s a shame. And I really feel sorry for him. But ladies and gentlemen, the oath that you took as jurors, regardless of sympathy, you would render a just and fair verdict. [[Image here]] Ladies and gentlemen, it’s sad that the injuries that Mr. Tune received are bad injuries, and I certainly would not want to downplay the types of injuries that he has had. II. The broad general principle to which all other rules relating to closing argument are subordinate is that the trial court has wide discretion on rulings of the propriety and prejudicial effect of the argument of counsel, and appellate courts will defer to the trial court’s ruling absent an abuse of discretion. Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 434 (Mo. banc 1985); Conlon v. Roeder, 418 S.W.2d 152, 162 (Mo.1967); Votrain v. Illinois Terminal Ry. Co., 268 S.W.2d 838, 844 (Mo. banc 1954). Thus, the rule is well established that the standard of appellate review is that of abuse of trial court discretion. Because of that standard, only rarely have judgments been reversed due to improper argument. There is only one case of this Court cited by the majority, and research discloses no others, resulting in a reversal because of improper argument due to raising “new matters” as to amount of damages in the closing part of the plaintiff’s argument. In that case, Shaw v. Terminal R.R. Assoc. of St. Louis, 344 S.W.2d 32 (Mo.1961), there was no mention of injury or damages in the opening portion of the plaintiffs closing argument. Defense counsel, before plaintiffs counsel completed the opening portion of his argument, approached the bench and specifically demanded that plaintiff make all arguments in the opening part of summation and, if plaintiff failed to do so, defendant would object to any new matters of argument in the closing part of the plaintiffs argument. Defense counsel made no mention of injuries or damages during his argument that might be considered to have waived the point. Shaw is distinguishable from the case at hand. Here the damages, including damages for pain and suffering, were specifically mentioned in the opening part of the plaintiffs argument. As correctly noted by the majority, Shaw stands for the proposition that in the second portion of closing argument, a plaintiff can argue anything that plaintiff argued in the initial part of closing argument and may rebut anything that the defendant argued in defendant’s portion of the closing argument. Applying that principle here, plaintiff argued both special and general damages during the initial argument, specifically mentioning plaintiffs claim for pain and suffering. Defendant’s argument made reference to damages in at least three different contexts. Thus, the Shaw rule was not violated. Notwithstanding that, the majority has, for the first time, discovered a “similar but more specific rule” which it extracts from Goldstein v. Fendelman, 336 S.W.2d 661 (Mo.1960); Hart v. Forbes, 633 S.W.2d 90 (Mo.App.1982); and Clark v. Kansas City Area Transp. Auth., 673 S.W.2d 55 (Mo.App.1984). *25 Remarkably, none of those three cases claim to create any new or different rule than that stated in Shaw . Indeed, a careful reading of those cases demonstrates that they reflect nothing more than the general rule that appellate courts will not tinker with rulings regarding argument, absent an abuse of trial court discretion. In the primary case relied on, Goldstein v. Fendelman, supra, the plaintiff had used a cardboard during closing argument on which he wrote fourteen items of damages totaling $77,735. The opinion fails to make clear what occurred, but it appears no mention was made regarding damages during the initial portion of plaintiffs argument. The Court concluded that no error occurred in plaintiffs counsel writing on the large cardboard his claims as to the worth of particular injuries, and arguing the amounts of those to the jury. The Court based its conclusion on the fact that the verdict was not excessive and the scope of defendant’s objection only included complaints regarding the use of the cardboard. 336 S.W.2d at 667 . In what was plainly dicta, the Court said, “[Wjhile we recognize the trial court has considerable discretion in the matter of arguments of counsel, we consider it unfair and improper to permit plaintiffs counsel to do this for the first time in his closing argument, when defendant’s counsel has made no argument as to amount.” (Emphasis added). Id. The majority here has supplemented the words “do this” with the words “asked for specific amounts of damages” in order to create its new rule. By adding the bracketed words, the majority suggests that in Gold-stein there was some argument of damages but no mention of specific amounts in plaintiffs initial argument. One could as easily argue that “do this” means “mentions damages.” In light of the fact that less than a year later, Goldstein was the primary authority relied on in Shaw , there is substantial reason to believe that “mentions damages” was what “do this” referred to in the Gold-stein quote noted above. In concluding that under the circumstances of the Shaw case there was error in allowing the argument, this Court went on to say, “It is not practicable to lay down a hard and fast rule governing all cases in all their varying circumstances; we do not attempt to do so.” 344 S.W.2d at 37 . Those same words have been echoed repeatedly in cases where a complaint is made of prejudicial error because the plaintiff went into new matters during the final portion of the closing argument. Clark at 59 ; Samborski v. Price, 417 S.W.2d 205, 209 (Mo.App.1967); Sullivan v. Hanley, 347 S.W.2d 710, 715 (Mo.App.1961). If Goldstein set down a similar but distinct rule, it was plainly overruled or, at least, consumed, by Shaw . The majority’s reliance on Hart v. Forbes and Clark v. Kansas City Area Transp. Auth. is similarly misplaced. In both cases, the appellate court affirmed the trial court’s exercise of discretion in limiting argument. Neither of those cases purports to adopt a strict rule of error and presumption of prejudice, as is suggested by the majority. At most, their references to such a rule are merely dicta in support of the trial court’s exercise of discretion in refusing to permit argument. In any event, a ruling of the court of appeals is subordinate to the most recent pronouncement of this Court in Shaw . As noted by the majority, the reason that it is considered “unfair and improper to permit plaintiffs counsel to [mention new mát-ters] for the first time in his closing argument” is that the defendant may be surprised by a demand to which he has no opportunity to respond. Goldstein, 336 S.W.2d at 667 . A plaintiff should not be permitted to “conceal[ ] or withhold[ ] [his] position” so as to deceive or surprise the defendant. Shaw, 344 S.W.2d at 37 . “It is generally improper for counsel having the burden of issues in a civil case to argue new matters or points in closing summation, after his opponent’s argument, where such matter was not argued, discussed or mentioned in the opening summation.” D.E. Evins, Annotation, Propriety and Effect of Permitting Counsel Having Burden of Issues in Civil Case to Argue New Matters or Points in his Closing Summation, 93 A.L.R.2d 273 , 274, § 1[c] (1964). Nevertheless, the courts prior to today have consistently rejected the notion of a rule of absolute error. Under the traditional abuse *26 of discretion standard articulated in Gold-stein and elsewhere, numerous circumstances have been recognized in which arguments of new matters in closing have been held not to result in reversal on appeal. 93 A.L.R.2d at 275 , § 2. Several factors play a role in determining whether the trial court has abused discretion in permitting an argument as to specific amounts of damages for the first time in closing or abused discretion in determining no prejudicial effect of such argument. No factor is absolutely controlling in determining whether there has been an abuse of discretion, but at least three considerations must be weighed. The first is whether, based on the entire record and the opening part of the argument of plaintiff, the plaintiff may be said to have “sandbagged” or surprised the defendant with the amount demanded in the closing argument. The second is whether the argument of new matters was waived by the defendant’s conduct. The third consideration is whether the argument had the effect of producing an excessively large verdict. These factors were well articulated by Judge Elmo Hunter sitting as a special judge on the Missouri Court of Appeals, Southern District: Each case must be determined upon its own peculiar facts. In the case before us although plaintiffs counsel in his opening argument did not mention personal injury, defendant’s counsel in his closing argument did make the mentioned remark about the plaintiffs doctor’s testimony concerning the number of times he saw plaintiff. Certainly in his closing argument plaintiff was entitled to go into that subject. Thus, the objection upon which the court was called to pass was too broad in endeavoring to exclude any argument about any injuries. Nor was there any notice to plaintiffs counsel at the close of the opening argument that defendant’s counsel was insisting upon literal compliance with what until the Shaw case had been more a custom policed by the trial judge than a strict rule with appellate court reversal the penalty. There are some additional considerations which although not in and of themselves controlling are noteworthy. As we read the record defendant was reasonably well-informed as to plaintiffs medical contentions by the very evidence that plaintiff had offered. Defendant did not ask for any opportunity to reply to the newly mentioned items of the closing argument of plaintiffs counsel. See 88 C.J.S. Trial § 169, p. 839, n. 63. We are unconvinced that defendant was surprised or “sandbagged” by the very general and brief remarks touching on damages and personal injury which we have set out in full. And, as mentioned there is no complaint made on this appeal that the sum awarded as damages for the personal injuries suffered was excessive. Sullivan, 347 S.W.2d at 716 . III. Applying the above principles here, I am persuaded, first of all, that the defendant cannot claim surprise or deception by the mention of $3,368,825 for the “first time” in the last part of the plaintiffs argument. Plaintiffs counsel had indicated he was seeking a “seven figure” verdict during voir dire. The plaintiff testified that $6 million to $10 million would be inadequate to compensate him for his damages. In addition, although plaintiffs counsel never requested a specific amount of damages for pain and suffering in the initial part of his closing, he strongly emphasized that the jury would have to arrive at figures for future medical expenses, future lost earnings, and pain and suffering, and would have to total these amounts. The discussion involving pain and suffering was lengthy and detailed. Specific amounts for economic loss were argued. The arguments did not occur in a vacuum. The jury was well aware of the size of the verdict sought by the plaintiff. Indeed, plaintiffs counsel’s request for only $3,368,825 is far less than the demand stated by the plaintiff in his testimony. The majority may well be correct that the defendant made a calculated tactical decision not to argue a specific amount of damages. But that decision was not the product of sandbagging, deception or surprise engineered by the plaintiff. *27 IV. Another factor which weighs against a finding of an abuse of discretion is the question of whether any complaint about the mention of a specific amount in the closing part of argument was waived by the defendant. One might read the majority opinion to say that a waiver only occurs by failing to timely and properly object or by the defendant arguing a specific amount of damages. That is not borne out by the eases. Other considerations impact on an assessment of the waiver factor. Failure to give “notice and demand” for full argument is indicative of waiver. See Shaw, supra. Here defendant gave no “notice and demand” that plaintiff make argument for a specific amount of damages before plaintiff concluded the opening portion of his argument. Second, as noted by Judge Hunter in Sullivan , failure to ask for an opportunity to reply to the figures mentioned in the final part of plaintiffs closing argument is a consideration in determining the “waiver” factor. The appellant here is asking for a new trial on the issue of damages when any harm could have been cured with a few minutes of reply argument. The trial court’s broad discretion to control arguments of counsel clearly includes the discretion to allow such additional argument. Missouri and other states’ cases have recognized the availability of the remedy of reply argument where new matters are argued in plaintiffs closing. State v. Hale, 371 S.W.2d 249, 256 (Mo.1963); Sullivan, 347 S.W.2d at 716 ; Wallis v. State, 546 S.W.2d 244, 247 (Tenn.Crim.App.1976); Fort Worth Nat. Bank of Fort Worth v. Jones, 403 S.W.2d 861, 862 (Tex.App.1966); Pettibone v. State, 160 So.2d 126, 129 (Fla.App.1963); and Reddell v. Norton, 225 Ark. 643 , 285 S.W.2d 328, 332 (1955). Of these cases, Reddell held that such request was required before a claim of reversible error could be made. 225 Ark. 643 , 285 S.W.2d at 332 . Here, the majority finds it preferable to impanel a new jury and go through the entire process of a trial to correct a perceived harm which could have been corrected with a request for a few minutes of reply argument at the original trial. It is only sensible and efficient. to require appellant to seek and be denied the opportunity to respond before being entitled to the drastic remedy of a new trial. Failure to seek the least drastic remedy weighs heavily in favor of finding that the complaint was waived. At a minimum, such failure should be considered in determining whether an appellate court should find an abuse of discretion. A third consideration in determining the waiver factor is whether the defendant’s argument mentions the damages issue. Here that occurred not once, as suggested by the majority, but on at least three occasions: first by making specific reference to that paragraph of the verdict directing instruction requiring a finding of damages; second, in referring to the testimony of Dr. Gaska in an attempt to minimize the extent of the bum injuries that would have occurred if plaintiff had been properly dressed; third, when defendant acknowledged the seriousness of plaintiffs injuries in an unvarnished effort by defense counsel to present himself and his client as sympathetic and compassionate. These were substantial references to the injuries and damages of plaintiff. Together the references support a conclusion that defendant waived any complaint about more detailed discussion of the injuries and damages in the closing part of the plaintiffs arguments. Defense arguments here were much more detailed than those found in Bassett Furniture Indus. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 330 (1976), where the defendant was held to have sufficiently raised the issue of damages in his argument to permit the plaintiff to respond in closing argument on damages and injuries when the defendant alluded to the plaintiff “as a man who is in serious circumstances,” and to the fact that the plaintiff “has had his spinal cord injured.” In Missouri, the fact that a defense counsel makes arguments to the jury on any aspect of the issue of damages has been held to permit the plaintiff to discuss specific amounts of damages for the first time in the closing portion of the argument. Midwest Library Serv. v. Structural Systems, 566 S.W.2d 249, 252 (Mo.App.1978); Barrett v. Morris, 495 S.W.2d 100, 105 (Mo.App.1973). *28 Among the factors to be considered in determining waiver include the defendant’s failure to seek the least drastic relief, the discussion of issues relating to injuries and damages during the defendant’s closing argument, and the defendant’s failure to make demand and give notice as was done in Shaw . Again, while not controlling, these are all considerations in determining whether there was a waiver of the complaint and, consequently, whether an abuse of discretion occurred. V. Even assuming the argument in this case was improper, an additional matter to be determined by the appellate court in every case where reversal is sought based on closing argument is whether the trial court abused discretion in making a determination of an absence of prejudice. Until today, a significant, if not controlling, factor in determining whether to reverse on appeal is whether the verdict is excessive. McCormick v. Smith, 459 S.W.2d 272, 278 (Mo.1970); Faught v. Washam, 329 S.W.2d 588, 602 (Mo.1959). The excessiveness of the verdict is mentioned repeatedly in the cases on the subject, Conlon v. Roeder, 418 S.W.2d 152, 162 (Mo.1967); Votrain v. Illinois Terminal Ry. Co., 268 S.W.2d 838, 846-47 (Mo. banc 1954); and Sullivan, 347 S.W.2d at 716 . Indeed, the primary authority relied on by the majority, Goldstein , plainly declined to reverse the judgment not only because of the absence of a proper objection but because this Court specifically “found the verdict[] not [to be] excessive.” 336 S.W.2d at 667 . The term “excessive,” in the context of the above cases, does not mean that the amount of the verdict is unconscionable or “exceeds fair and reasonable compensation.” See § 537.068, RSMo Supp.1993. The size of the verdict alone is wholly unworkable as a basis for determining exeessiveness. Rather, “excessive” means the improper argument relating to damages had a significant effect on the amount of damages found. Sparks v. Auslander, 353 Mo. 177 , 182 S.W.2d 167, 173 (1944). The majority rejects any claim to be relying on the notion of excessiveness in determining whether there was prejudicial error. Surprisingly, the majority goes back to the point by noting that this was a “very substantial ... big league” verdict. If, as the majority argues, size of verdict is irrelevant in determining prejudice, lawyers and judges are left to wonder what purpose is served by referring to this as a “big league” verdict and to wonder how to distinguish between “big league” and “little league” verdicts. I confess I would be more comfortable with a conclusion by the majority that Goldstein, Shaw and their progeny establish excessiveness as a significant factor, and it is upon that factor that this decision turns. The majority has also overlooked the impact of the Missouri Approved Instructions in determining the prejudicial effect of the argument. Most of the earlier cases cited and relied on here were decided prior to the adoption of MAI. Under MAI, every jury in a civil case in Missouri takes with them to the jury room MAI 2.01. In relevant part it instructs the jury, “At the close of the evidence, the lawyers may make arguments on behalf of their clients. Neither what is said in opening statement or in closing argument is to be considered as proof of a fact. However, if a lawyer admits some fact on behalf of his client, the other party is relieved of the responsibility of proving that fact.” In this case, there was direct testimony by the plaintiff that $6 million to $10 million would be inadequate compensation. In closing argument, defense counsel came dangerously close, if he did not cross the line, to admitting the reasonableness of Mr. Tune’s assessment of damages when counsel stated, “The injuries that Mr. Tune received are bad injuries, and I certainly would not want to downplay the type of injuries he has had.” The effect of MAI 2.01 is to put the jurors on notice that their duty under the law is not defined by argument of counsel except to the extent the counsel admits a fact in evidence. Even when no admission is made, the purpose of the instruction is to communicate to jurors that argument is not evidence and it is not law; the instruction is a polite way of telling the jury that argument is “baloney.” I am unwilling to ássume that the jury disregards that instruction and is swept away by *29 lawyer rhetoric. The instruction undergirds the general rule that verdicts should not be set aside on appeal for erroneous argument absent a clear abuse of discretion by the trial judge. McCormick v. Smith, 459 S.W.2d at 277 . The trial judge, who not only hears the testimony and argument but sees the witnesses, lawyers and jurors, is in a far superi- or position to judge the propriety and prejudicial effect of any argument. The majority cites Lester v. Sayles, 850 S.W.2d 858 (Mo. banc 1993), for the proposition that “the party responsible for error relating to argument,” is charged with demonstrating an absence of prejudice. Id. at 864 (emphasis added). In point of fact, Lester did not involve any alleged error in the argument. The argument in Lester was quite proper in all respects. The issue there had only to do with the management of the jury during deliberations and what it was allowed access to. It requires substantial restructuring, stretching and analogizing of the Lester holding to say that it overruled a vast body of caselaw establishing abuse of discretion as the standard of appellate review in cases where a claim of error in argument is raised. Finally, it is hardly “circular argument” to require that an error must be prejudicial before appellate courts should reverse. Neither is it circular to require at least some indication that the improper conduct had some prejudicial effect before concluding that the trial court abused discretion. If the majority desires to overrule the fundamental standard of abuse of discretion by which all appellate courts, prior to this date, have reviewed claims of erroneous argument, it should simply do so directly. VI. The majority has chosen to change the rules rather than decide this case on the factual nuances that might demonstrate an abuse of discretion. The majority adopts a new, rigid and technical rule requiring that absent mention of a dollar amount for a distinct type of damages in opening summation, the mention of an amount for that element may not be made in the closing portion of the argument, no matter how detailed the opening part of the argument was regarding that element or that a demand for a far larger amount was before the jury. This new rule is an exception to the more general rule of trial court discretion regarding argument, and the new rule is itself riddled with exceptions. I am unable to distill such a precise rule from the cases. All the cases relied on are distinguishable in one or more ways from this one. As convenient as a hard and fast rule of error regarding closing argument accompanied by presumption of prejudice may seem in the abstract, such rules often prove to be impractical and unjust when applied to specific cases. At best, this ease is one in which reasonable persons could reach opposite conclusions as to whether the argument was improper or had a prejudicial effect. Such decisions are best left to a case by case analysis. For all the above reasons, I believe the trial court did not abuse its discretion in controlling argument or in determining the prejudicial effect of that argument. I would affirm the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647425. Public record. Not legal advice.