Opinion
No. 22208
Date: May 15, 1999
APPEAL FROM: CIRCUIT COURT OF OREGON COUNTY, HON. R. JACK GARRETT, JUDGE.
Don M. Henry, Counsel for Appellant. Dan L. Birdsong and Howard B. Becker, Counsel for Respondent.
Garrison. C.J. and Barney, J., concur.
This is a negligence case arising out of a rear-end motor vehicle accident in which a jury awarded Plaintiffs damages but also assessed them with a portion of fault. Plaintiffs appeal, charging that the trial court committed reversible error in (1) admitting irrelevant evidence over objection, (2) submitting a comparative fault instruction that lacked competent evidentiary support, (3) sustaining Defendant's objection to Plaintiffs' closing argument, (4) placing time limits on the examinations of Plaintiffs' medical experts, and (5) denying Plaintiffs' claim that the verdict amounts were so inadequate as to require a new trial. Plaintiffs also request that we review Defendant's closing argument for "plain error." We affirm.
In this opinion, when we refer to Chadwick Peaker and Helen Peaker collectively, we call them "Plaintiffs." When referring to Plaintiffs individually, we call them "Chadwick" and "Helen."
FACTS
On the afternoon of August 2, 1995, Chadwick Peaker was driving northwesterly along Business Route 63 in West Plains, Missouri. Chadwick had just begun to turn right onto an intersecting street, Grace Avenue, when his pickup truck was struck from behind by a pickup truck driven by E.T. Stokes ("Defendant"). The front of Defendant's truck struck the right rear corner of Chadwick's truck. As a result of the impact, Chadwick's truck "spun around and slid sideways into some pole guards" on the north side of Grace Avenue.
Following the collision, Chadwick's first recollection was of "[t]rying to get up, and I couldn't." As he described it, "I was laying over in the seat, and I was paralyzed from the neck down." He was taken by ambulance to a local hospital where he was admitted with an initial diagnosis of "central cord syndrome."
Chadwick was discharged from the hospital on August 7, 1995, five days after the accident. At that time, Chadwick's treating physician diagnosed him with a "cervical spinal cord compression, secondary to trauma, and bi-lateral upper extremity paralysis, secondary to trauma, with spinal stenosis, at C-5, 6." The spinal stenosis was a pre-existing condition, unrelated to the motor vehicle accident.
In January 1997, Chadwick was diagnosed with herniated discs at L5-S1 and at C6-7, both on the left. Chadwick's doctors attempted to treat this condition surgically. The doctor who performed the surgery testified that, in his opinion, Chadwick's herniated disc was caused by the August 2, 1995, accident. Other medical experts disagreed about both the cause of Chadwick's herniated discs and whether they should have been treated surgically.
The parties devoted much of the four-day trial to presenting conflicting evidence and contradictory medical opinions about (1) the nature and extent of Chadwick's medical problems and disabilities, (2) which of his medical problems were causally related to the motor vehicle accident, (3) which of his conditions were pre-existing, and (4) the extent to which he had recovered from injuries causally related to the accident.
In closing argument, Defendant's lawyer suggested to the jury that the evidence warranted a "fifty-fifty" apportionment of fault. He also argued to the jury that $150,000 was a reasonable amount for Chadwick's injuries and that $25,000 was a reasonable figure for the loss of consortium claim made by Chadwick's wife, Helen. The jury disagreed and awarded Chadwick only $50,000 for his personal injuries, awarded Helen $25,000 for loss of consortium, and assessed sixty percent of the fault to Plaintiffs. The trial court entered judgment on the jury's verdict. Thereafter, Plaintiffs filed a "Motion for New Trial or, in the Alternative, Motion for Additur," which the trial court overruled. This appeal followed.
DISCUSSION AND DECISION
Point I: Irrelevant Evidence About Defendant's Family
Plaintiffs' first point complains that the trial court committed reversible error when, despite Plaintiffs' relevancy objections, it allowed Defendant to testify about the length of his marriage and state that his daughter was present in the courtroom. Defendant's testimony on these topics came at the beginning of trial as follows.
Plaintiffs called Defendant as their first witness and questioned him about the accident. Next, Defendant's attorney questioned his client. He began by asking Defendant if he had trouble hearing, if he was married, and if his wife was in the courtroom. Next, defense counsel asked Defendant when he had met his wife. Plaintiffs objected that "this line of questioning is not relevant." The court overruled the objection. Defense counsel next asked how long Defendant and his wife had been married. Plaintiffs again objected on relevancy grounds, and the court promptly overruled the objection. Defendant then testified he had been married fifty-four years. Defense counsel asked Defendant if he had children, and Defendant answered, "Yes." Plaintiffs did not object to this question or to Defendant's response. Defense counsel proceeded to ask Defendant if his daughter was present in the courtroom. Despite Plaintiffs' relevancy objection, the trial court allowed Defendant to answer this question in the affirmative.
Plaintiffs argue that not only was Defendant's testimony about the length of his marriage and his daughter's presence in the courtroom irrelevant, it was prejudicial. They assert that the sole purpose for this testimony was to create sympathy for Defendant and that the prejudice flowing therefrom is evident from the fact that the jury's verdict was even more favorable to Defendant than what Defendant's lawyer suggested would be "reasonable" in closing argument.
Evidence that a plaintiff has children is normally inadmissible on any issue in an action for compensatory damages for personal injury because such evidence is irrelevant and calculated to appeal to the sympathy of the jury. See Donze v. Swofford, 368 S.W.2d 917, 921[1] (Mo.App. 1963); Edwards v. Smith, 286 S.W. 428, 431 (Mo.App. 1926). Consequently, the admission of such testimony over timely and proper objection may be prejudicial error. See Donze, 368 S.W.2d at 921. Plaintiffs also cite Barron v. Missouri-Kansas-Texas Ry. Co. , 696 S.W.2d 338, 341-42 (Mo.App. 1985), in support of their argument. In Barron , the eastern district of this court held it was reversible error in a personal injury case to admit, over objection, evidence that the plaintiff's three brothers were receiving disability benefits.
Plaintiffs insist that the testimony to which they objected, i.e., Defendant's fifty-four-year marriage and his daughter's presence at trial, "is of the same species" as that condemned in Barron, Donze , and Edwards . They argue, therefore, that the trial court's error on this subject was not harmless, that prejudice is shown by the inadequacy of the jury's verdict, and that the judgment must be reversed.
We note that the comments challenged in Edwards were made in closing argument and, although roundly condemned, the comment did not result in reversal because (1) defendant only voiced an "equivocal" objection, and (2) defendant never complained that the verdict was excessive. 286 S.W. at 431.
Evidence regarding Defendant's marriage and the presence of his daughter at trial was not relevant to any issue. Consequently, Plaintiffs' objections thereto should have been sustained. Even so, "[e]rror without prejudice is no ground for reversal." Neavill v. Klemp , 427 S.W.2d 446, 448[9] (Mo. 1968). Even where irrelevant evidence is placed before a jury, reversal is not mandated unless the incompetent evidence prejudices the complaining party or adversely affects the jury in reaching its verdict. Gage v. Morse , 933 S.W.2d 410, 421[13] (Mo.App. 1996).
We conclude that the evidence challenged here does not have the same high potential for prejudicing the jury as that condemned in Donze and Barron . In Barron , the intended effect of the evidence that the plaintiff's three brothers were receiving disability benefits "was to plant in the minds of the jurors the notion that plaintiff was possessed of some familial propensity to assert a fraudulent claim of disability." Id. at 340[1]. Moreover, defense counsel in Barron repeatedly referred to the plaintiff's brothers during trial. Id. at 340. In contrast, the evidence challenged by Plaintiffs here was brief. It consisted of no more than eight lines in a 974-page transcript. The evidence was elicited from the first of twenty-four witness in a four-day trial and was not mentioned again, not even in closing argument. Most importantly, the inferences that a jury might draw from the "disabled brothers" evidence in Barron , i.e., "familial propensities," does not flow from the evidence in dispute here.
The Donze case, likewise, does not compel reversal here for three principal reasons. First, asking the plaintiffs in a suit for damages about their children, as occurred in Donze , is objectionable because of the subtle implication that the plaintiffs need money to support their children. Thus, such evidence tends to divert a jury's attention away from relevant facts regarding liability and damages. However, our extended search reveals no Missouri cases that have been reversed because the trial court admitted evidence about a defendant's children over objection. Here, the "children" question was asked of Defendant, not Plaintiffs. Consequently, Donze is not directly on point.
Second, because Plaintiffs did not object to defense counsel's question or to Defendant's answer regarding whether he had any children, Plaintiffs waived any error stemming from that testimony. Accordingly, we need not and do not decide whether evidence regarding a defendant's children has the same potential for improper appeal to jury sympathy as evidence regarding a plaintiff's children.
Third, the inferences that a jury might draw from the "children" inquiry, i.e., that the litigant (plaintiff or defendant) needs money to support his or her children, does not flow from either evidence of the length of a party's marriage or testimony that a litigant's adult child is present in the courtroom.
By an extensive motion for new trial and by written and oral argument, Plaintiffs renewed their complaint to the trial court that the "length of marriage" testimony and "daughter in the courtroom" evidence prejudiced their case. With the benefit of hindsight and having heard all the evidence, the trial court again rejected Plaintiffs' argument.
Absent an abuse of discretion, we defer to the trial court, which is "`far better able to judge whether the trial has been fair than is the court that reviews the record.'" Farley v. Johnny Londoff Chevrolet, Inc. , 673 S.W.2d 800, 804 (Mo.App. 1984) (quoting Benjamin v. Metropolitan Street Ry. Co. , 245 Mo. 598, 151 S.W. 91, 97 (1912)). Based on the record, we find no abuse of discretion by the trial court. Point I is rejected.
Point II: Plain Error Review of Comparative Fault Instruction
Plaintiffs' second point charges that the trial court erred in instructing the jury that it "must assess a percentage of fault to [Chadwick]" if it believed Chadwick "failed to signal [his] intention to turn," or "suddenly slowed his [pickup] on the highway without first giving an adequate and timely warning of his intention to slow." Plaintiffs insist that neither of the disjunctive submissions were supported by sufficient competent evidence and that, as a result, reversal is mandated.
Defendant points out that Plaintiffs did not allege this claim of error in their motion for new trial and, consequently, that Plaintiffs failed to preserve the claim for review. Rule 78.07. In their reply brief, Plaintiffs concede they should have raised this issue in their motion for new trial. They ask, however, that we nonetheless exercise our discretion to review this point for plain error under Rule 84.13(c). Because Plaintiffs objected to the instruction at trial and alleged there was insufficient evidence to support an assessment of fault to Chadwick in their motion for new trial, we gratuitously review the point for plain error.
With exceptions that are inapplicable here, Rule 78.07 provides that "[i]n jury tried cases . . . allegations of error to be preserved for appellate review must be included in a motion for new trial."
Rule 84.13(c) provides: "Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."
In reviewing for plain error under Rule 84.13(c), we have wide discretion. Glidewell v. S.C. Management, Inc. , 923 S.W.2d 940, 953[16] (Mo.App. 1996). To give Plaintiffs relief on the ground of unpreserved instructional error, the error must be "[p]lain error affecting substantial rights" resulting in "manifest injustice or miscarriage of justice." Mosher v. Levering Investments, Inc. , 806 S.W.2d 675, 677 (Mo.banc 1991).
Each submission of a disjunctive instruction, such as the one challenged here, must be supported by substantial evidence. Stevens v. Craft , 956 S.W.2d 351, 358 (Mo.App. 1997). It is error to submit a disjunctive comparative fault instruction where there is no substantial evidence to support one or more of the submissions. Id. at 358-59[14].
Here, the first submission in Defendant's comparative fault instruction was that Chadwick failed to signal an intention to turn. Evidence supporting that submission came mostly from Defendant. He testified that after turning onto Business 63, he "watch[ed] the road in front of [him]." Defendant testified that although it was raining and his vehicle windshield wipers were turned on, these conditions did not interfere with his vision. Defendant first saw Chadwick's pickup truck when it was "in the vicinity of the Catholic Church," and he "caught up with [Chadwick's] vehicle . . . somewheres [sic] in [the] area" of Butler Street. Defendant testified that once he caught up with Chadwick, he (Defendant) maintained a distance of approximately fifty feet between his and Chadwick's vehicles. Defendant saw Chadwick's truck in front of him before the collision but did not see Chadwick "put on any type of turn signal." When asked if "at any point prior to . . . collision" he had seen "any turn signal at all," Defendant answered, "I did not."
Plaintiffs argue that the foregoing is not sufficient substantial evidence to support the "failed to signal" submission. We disagree. As this court observed in Lafferty v. Wattle , 349 S.W.2d 519 (Mo.App. 1961),
"A negative fact ordinarily must be demonstrated by negative evidence. Negative evidence that `I . . . did not see' is positive, probative evidence where it is probable `or reasonably certain' that the witness could and would have seen . . . had the event occurred. The test is as to whether it is probable or reasonably certain that the witness would have seen . . . had it happened. Of course, this depends upon the proximity and position, the attention or lack of attention of the witness, and the surrounding circumstances." (Citations omitted.)
Id. at 527[14]. Here, Defendant stated he was traveling behind Chadwick's truck, watching the road and vehicle ahead of him. If believed, this testimony established that Defendant was in a position to observe a turn signal or hand signal if either had been given. Although Plaintiffs asked Defendant questions that suggested he may have turned his attention from the road to a construction site near the accident scene, Defendant responded, "Not necessarily. I had just seen [the construction activity] there." Since we are bound to review the sufficiency of this evidence in the light most favorable to the submission of the instruction, Hollis v. Blevins , 927 S.W.2d 558, 564[2] (Mo.App. 1996), we cannot say that this evidence was without probative value in establishing Defendant's "failed to signal" submission.
Plaintiffs' reliance on Brassfield v. Sears , 421 S.W.2d 321 (Mo. 1967), in support of their second point is misplaced. The questioned submission in Sears was "suddenly slow[ing] . . . without first giving adequate and timely warning of his intention to slow." Although ample evidence existed of a sudden stop, there was only equivocal testimony on whether the brake light of the front vehicle was on. Specifically, the rear vehicle driver stated, "I don't believe [the brake lights] were on, but I can't say they were not." Id. at 324. Also, there was evidence that the rear vehicle driver was not looking and would not have seen the brake lights if they were on. Id. These are not the facts of this case, and Sears does not aid Plaintiffs.
The second submission — that Plaintiff "suddenly slowed . . . without . . . adequate and timely warning" — is a different matter. We find no evidence in this record to indicate that Chadwick "suddenly slowed" his vehicle. Defendant testified that he saw no brake lights on Chadwick's pickup. Police investigators found no skid marks attributable to Plaintiffs' vehicle prior to the point of impact. Neither Defendant nor any other witness testified to a movement of Chadwick's vehicle from which it could be found or reasonably inferred that Chadwick "suddenly slowed" his pickup truck on the roadway. Because there was no substantial evidence to support the submission that Chadwick "suddenly slowed" his truck, the trial court erred in submitting the disjunctive comparative fault instruction. Moreover, the trial court's submission of the unsupported instruction would have constituted reversible error had Plaintiffs properly preserved it. See Stevens, 956 S.W.2d at 358.
Nevertheless, we are reviewing this point for plain error. "Plain error and prejudicial error are not synonymous terms." State v. Harrison , 864 S.W.2d 387, 389[2] (Mo.App. 1993). "Plain error review encompasses only prejudicial error which so substantially affects the rights of the party that manifest injustice or a miscarriage of justice inexorably results if left uncorrected." Duffy v. Director of Revenue , 966 S.W.2d 372, 377[3] (Mo.App. 1998). A finding of manifest injustice or miscarriage of justice is distinguishable from and goes beyond prejudice. Slankard v. Thomas , 912 S.W.2d 619, 629 (Mo.App. 1995). Relief under the plain error rule is rarely resorted to in civil cases. Id. at 628[20].
When measured by these principles, we cannot confidently conclude that the trial court's submission of this instruction, though erroneous, was plain error under Rule 84.13(c). We have already concluded that there was sufficient substantial evidence to support one of the disjunctive submissions. Accordingly, this is not a case wholly devoid of evidence to support the jury's verdict. It is possible that all jurors who agreed on the verdict based their assessment of fault on the first submission, i.e., failure to signal a turn. Consequently, manifest injustice or miscarriage of justice does not inexorably result when the error is left uncorrected. Under the circumstances, a finding of manifest injustice or miscarriage of justice is not warranted. Point II is denied.
Point III: Preclusion of Plaintiffs' Argument About Speed
In their third point, Plaintiffs contend that the trial court erred in refusing to allow their lawyer to argue the following in his final remarks to the jury: "By his own admission [Defendant], at some point on business 63 highway, was exceeding the speed limit, considerably exceeding the speed limit." In sustaining Defendant's objection to this argument, the trial judge observed, "The Verdict Director does not include excessive speed."
Plaintiffs agree that their verdict directing instruction did not contain an excessive speed submission. Even so, they argue they were entitled to make the questioned argument to the jury because evidence of speed "was relevant to refute [Defendant's] testimony as to how or why the accident occurred and to rebut his contention that this was a low impact collision." Plaintiffs also argue that the speed argument "was a proper comment on [Defendant's] credibility."
A trial court has broad discretion in deciding whether to sustain an objection to closing argument. Howe v. Ald Services, Inc. , 941 S.W.2d 645, 654[32] (Mo.App. 1997). We will not reverse a trial court's ruling regarding closing argument absent a clear showing of an abuse of discretion. Edwards v. Union Pacific Ry. Co. , 854 S.W.2d 518, 520 (Mo.App. 1993). It is within the trial court's discretion to confine arguments to the issues and preclude a litigant from urging theories of recovery or defenses different from those submitted in the instructions. Id.
Plaintiffs' verdict director hypothesized that Defendant either failed to keep a "careful lookout" or allowed his truck to collide with the rear of Plaintiffs' vehicle (often called the "rear-end" doctrine). In their brief, Plaintiffs say they did not proffer an excessive speed hypothesis because Chadwick did not know how fast Defendant was driving. Since there was no direct proof that the accident was caused by excessive speed, and since excessive speed was not an issue within the instructions, we find no abuse of discretion in the trial court's ruling.
We are confirmed in this view by the fact that Plaintiffs first mentioned excessive speed to the jury in the final part of their argument to the jury. Our supreme court has said:
"[I]n the final portion of the closing argument a plaintiff can argue anything that plaintiff argued in the initial portion of the closing argument and rebut anything that the defendant argued in defendant's portion of the closing argument.
. . . .
"Of course, it is obvious that in applying the foregoing rule to the specific facts of any case, there is an infinite spectrum of issues as to what constitutes the same subject that was previously argued or what constitutes a new and therefore improper argument. The Missouri courts . . . have recognized that the practical application of a specific rule must be left to the broad discretion of the trial court." (Footnotes omitted.)
Tune v. Synergy Gas Corp. , 883 S.W.2d 10, 18 (Mo.banc 1994).
Although Tune involved the prohibition against arguing a damage amount for the first time in the final part of a closing argument, the reasoning of that case is applicable here. In making their excessive speed remarks, Plaintiffs did not clearly delineate their "excessive speed" comments as being relevant for the reasons they now contend, i.e., "to refute [Defendant's] version" of the accident, to refute his claim that the collision was low impact, and as a comment on Defendant's credibility. Considering the content and context of the excluded remarks, it was reasonable for the court to view them as a "new and therefore improper argument" and as urging a theory of recovery different from what was submitted in Plaintiffs' verdict directing instructions. We find no abuse of discretion. Point III is denied.
Point IV: Time Limits Imposed on Examining Plaintiffs' Expert
Plaintiffs' fourth point charges that the trial court committed reversible error in placing time limits on the parties' examinations of Dr. Clara Applegate, one of Chadwick's treating physicians. Additionally, Plaintiffs contend the trial judge committed prejudicial error when he commented to the jury about the time limits. Background facts on this point follow.
In a pre-trial conference held June 16, 1997, the trial judge told the lawyers that during trial he would begin to "shut down" each day at 5:00 p.m. and end each day by 6:00 p.m. During voir dire, the judge told the jury they would not "work past 5:30 and . . . [would] look around five for a breaking point." Even so, Plaintiffs asked Dr. Clara Applegate to appear a few minutes before 4:00 p.m. on the first day of trial, November 4, 1997, anticipating they would start her testimony at 4:00 p.m. Dr. Applegate, apparently by mistake, did not arrive at court until 4:36 p.m. The parties then stipulated to Dr. Applegate's credentials as a board-certified neurologist and her curriculum vitae was placed into evidence by agreement. At that time, the trial judge made the following remarks to the jury:
"I promised you, and I told the lawyers for several days now, that we're going to break at 5:30. We've been waiting about forty minutes on this witness and . . . my intentions are to place some time limits on the amount of time the lawyers have with this witness, because I understand that she will not be available at another time."
After a colloquy between the trial judge and lawyers, the judge told them they had sixty-five minutes to question Dr. Applegate. He alloted thirty-five minutes for Plaintiffs' direct examination and thirty minutes for Defendant's cross-examination. The trial court also limited Plaintiffs' redirect examination to two questions. Under these strictures, the lawyers completed their examinations of Dr. Applegate by 5:48 p.m.
Defendant correctly points out that Plaintiffs never objected to the trial judge's limitations on Dr. Applegate's testimony, nor did they object to his comments to the jury regarding the limitations. Consequently, Defendant argues that Plaintiffs failed to preserve this claim of error for review. Rule 78.07.
See footnote 3.
In their reply brief, Plaintiffs concede they failed to object to the trial judge's imposition of time limits and to the trial judge's comments to the jury regarding the time constraints. Consequently, they ask us to review this point under the plain error provisions of Rule 84.13(c). We decline to do so. "`The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.'" State v. McMillin , 783 S.W.2d 82, 98[31] (Mo.banc 1990) (citation omitted).
Our decision not to review this point for plain error is influenced, in part, by the possibility that Plaintiffs' failure to object was a matter of trial strategy. Trial strategy is an important consideration in any trial, State v. Amrine , 741 S.W.2d 665, 669 (Mo.banc 1987), and "[p]lain error is not a doctrine available to revive issues already abandoned by selection of trial strategy or oversight." King v. Unidynamics Corp. , 943 S.W.2d 262, 266[4] (Mo.App. 1997). We believe Plaintiffs' decision to schedule Dr. Applegate's testimony at 4:00 p.m. the first day of trial when they had known for months that the trial judge intended to end each day of trial by 6:00 p.m. could reasonably be viewed as trial strategy. When arguing Plaintiffs' motion for new trial, Plaintiffs' lawyer told the trial judge he had anticipated his direct examination of Dr. Applegate would take an hour and a half, which would have left only thirty minutes for Defendant's cross-examination if the trial court "shut down" by 6:00 p.m. The record also reflects that the trial judge viewed Plaintiffs' scheduling of Dr. Applegate at the end of the first day as a "trial strategy decision that didn't work out because of her being late." The record provides no direct insight into why Plaintiffs adhered to the trial court's time restrictions without objecting or explaining the problems presented by such limitation. It is not unreasonable to infer, however, that this decision was dictated by trial strategy. This follows because Plaintiffs had not rested their case. Consequently, they could have called Dr. Applegate the next day. Her appearance could have been compelled by subpoena, if necessary. Perhaps Plaintiffs' counsel considered the time constraints preferable to alienating Dr. Applegate with a forced appearance the next day and giving defense counsel another opportunity to elicit unfavorable testimony from her. Whatever the reason for counsel's failure to object, we decline to exercise our discretion to review this point under the plain error standards of Rule 84.13(c).
Point V: Inadequate Verdict Showing Jury Bias and Prejudice.
Plaintiffs' fifth point maintains that the trial court erred in "accepting the jury's verdict awarding . . . [Chadwick] . . . $50,000.00 and . . . [Helen] . . . $25,000.00 . . . because the awards are so inadequate that they are manifestly unjust and are shocking to the conscience of the court and they indicate bias and prejudice on the part of the jury." However, Plaintiffs' point does not identify a single error or occurrence at trial which it claims biased or prejudiced the jury. We cannot infer such bias or prejudice. This is explained in Porter v. Erickson Transport Corp. , 851 S.W.2d 725 (Mo.App. 1993), as follows:
"In a tort action, the determination of the amount to be awarded for personal injuries is a matter resting primarily in the discretion of the jury in that it involves the credibility of witnesses and the weight and value to be given their testimony. While a trial court may infer bias and prejudice from the size of a verdict alone, an appellate court may not. On appeal, the party against whom the verdict was rendered must first show some error or occurrence at trial sufficient to incite prejudice against him . . . ." (Citations omitted.)
Id. at 743[25, 26] (emphasis added).
Plaintiffs first allege errors and occurrences that may have prejudiced or biased the jury in the argument portion of their brief. "An appellate court is obliged to determine only those questions stated in the points relied on. Issues raised only in the argument portion of the brief are not preserved for review." Boatman's Bank v. Foster , 878 S.W.2d 506, 509 n.4 (Mo.App. 1994). Consequently, Plaintiffs have not preserved these claims of error for our review.
We are confirmed in our treatment of this point by the fact that the only supposed trial errors mentioned in the argument portion of Plaintiffs' brief and otherwise preserved — i.e., by objection at trial and inclusion in Plaintiffs' motion for new trial — were the trial court's admission, over Plaintiff's objection, of Defendant's testimony about his marriage and the presence of his daughter in the courtroom and the trial court's sustention of Defendant's objection to Plaintiffs' "excessive speed" argument. Plaintiffs do not explain how these alleged errors could have incited bias and prejudice against Plaintiffs or in favor of Defendant. We believe Plaintiffs made no such argument because of its implausibility.
Point VI: Unchallenged Closing Argument Remarks
Plaintiffs' final point relied on asks this court "to consider under the plain error rule" certain closing argument statements made by defense counsel which Plaintiffs claim "were improper and prejudicial, substantially affect[ing] [Plaintiffs'] right to a fair trial and miscarriage of justice resulted therefrom."
Plaintiffs concede they did not object to the improper remarks and, with one exception, did not raise them in their motion for new trial. Consequently, these claims can only be reviewed for plain error under Rule 84.13(c). We decline to do so here.
"[I]n the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention." State v. Clemmons , 753 S.W.2d 901, 907-08 (Mo.banc 1988). By not objecting to the arguments, Plaintiffs denied the trial court any opportunity to take remedial action. Sherpy v. Bilyeu , 608 S.W.2d 521, 523 (Mo.App. 1980). Plaintiffs waived their claims of error by failing to preserve them. Id. Perhaps Plaintiffs' counsel "considered the remarks inconsequential not warranting objection[,] or as trial strategy [counsel] set the stage for built in error." State v. Wood , 719 S.W.2d 756, 760 (Mo.banc 1986). "A party who witnesses misconduct or error and decides to play a game of chance, cannot later object to the alleged mistake or error if the result later proves unfavorable." Baumgartner v. Bi-State Dev. Agency , 811 S.W.2d 63, 65[3] (Mo.App. 1991). Whatever the reason for counsel's failure to object, we decline to exercise our discretion to review under the plain error rule.
The judgment is affirmed.