         In the Missouri Court of Appeals
                               Eastern District
                                         DIVISION III

ERICKA WINCHESTER, et al.                    )              No. ED100968
                                             )
                Respondents,                 )              Appeal from the Circuit Court
                                             )              of the City of St. Louis
vs.                                          )
                                             )              Honorable Rex M. Burlison
ALLISON SUNSHINE,                            )
                                             )
                Appellant.                   )              FILED: October 21, 2014


                                          Introduction

       Appellant Allison Sunshine (“Sunshine”) appeals from the judgment of the trial court

granting Respondent Ericka Winchester’s (“Winchester”) motion for a new trial on the issue of

damages only. Winchester brought suit against Sunshine, Respondent George Johnson

(“Johnson”), and Respondent Paul Achenbach (“Achenbach”) for damages resulting from a car

accident. A jury returned verdicts in favor of Johnson and Achenbach, finding each zero percent

at fault for Winchester’s damages. The jury also returned a verdict against Sunshine, finding

Sunshine 100 percent at fault for Winchester’s damages but assessing Winchester’s damages at

zero dollars.

       The trial court granted Winchester’s motion for a new trial on the issue of damages only,

and only as to Sunshine, on the ground that the verdict was against the weight of the evidence.
The trial court denied Winchester’s motion for a new trial on the issue of liability. Sunshine

appeals both judgments. Because the trial court did not abuse its discretion in granting

Winchester’s motion for a new trial on the issue of damages, and because Sunshine failed to

preserve the issue of the trial court’s denial of Winchester’s motion for a new trial on the issue of

liability for appellate review, the judgment of the trial court is affirmed.1

                                       Factual and Procedural History

        On December 15, 2010, Sunshine was driving her car in the City of St. Louis with

Winchester in the passenger seat. Sunshine stopped at a stop sign at the intersection of Leona

and Burgen. Sunshine’s view of oncoming traffic was blocked by Achenbach’s pickup truck,

which was parked on the corner of the intersection. Sunshine made a left turn through the

intersection and collided with Johnson’s vehicle. Winchester’s right arm struck the passenger-

side door during the collision. She underwent treatment, including surgery, at Barnes-Jewish

Hospital for a right humerus fracture and right ring finger fracture. Winchester was left with a

permanent scar on her right arm and a bent ring finger. Winchester testified at trial that she

experienced pain and discomfort in her arm, and that she continues to experience pain and

discomfort.

        Winchester brought suit for her personal injuries against Sunshine, Johnson, and

Achenbach. The case was tried before a jury from October 7, 2013 to October 11, 2013.

Winchester withdrew her medical bills from consideration in the case, and the jury was

prevented from hearing the amount of her medical bills. The jury found in favor of Johnson and

Achenbach, finding each to be zero percent at fault for Winchester’s damages. The jury found




1
 In her brief, Respondent Winchester contends that Appellant Sunshine has filed a frivolous appeal against her and
requests this Court to award her damages against Appellant Sunshine. We decline this request.

                                                         2
Sunshine to be 100 percent at fault for Winchester’s damages, but assessed Winchester’s

damages at zero dollars.

       Winchester filed a motion for a new trial as to all issues and all parties. Johnson filed a

response to Winchester’s motion for a new trial, Achenbach filed a brief in opposition, and

Sunshine filed a motion in opposition. The trial court granted Winchester’s motion for a new

trial on the issue of damages only, and only as to Sunshine, on the ground that the verdict was

against the weight of the evidence. The trial court denied Winchester’s motion for a new trial on

the issue of liability. This appeal follows.

                                          Points on Appeal

       Sunshine presents three points on appeal. In her first point on appeal, Sunshine argues

that the trial court erred in granting Winchester’s motion for a new trial on the issue of damages

because the trial court abused its discretion by substituting its judgment for that of the jury with

respect to the weight and credibility of the evidence. In her second point on appeal, Sunshine

argues that the trial court erred in granting Winchester’s motion for a new trial on the issue of

damages because the trial court abused its discretion in finding the award to be against the

weight of the evidence where there was not substantial evidence to support a verdict for

Winchester other than for zero dollars. In her third point on appeal, Sunshine argues that the trial

court erred in denying Winchester’s motion for a new trial on the issue of liability because the

trial court abused its discretion in finding that the verdict was not against the weight of the

evidence in that evidence existed that Achenbach and Johnson shared in the liability with

Sunshine.




                                                  3
                                                 Standard of Review

           A trial court “has broad discretion to grant a new trial on the ground that the verdict is

against the weight of the evidence, and its discretion must be affirmed by an appellate court

absent manifest abuse of that discretion." Badahman v. Catering St. Louis, 395 S.W.3d 29, 39

(Mo. banc 2013). An abuse of discretion occurs when the trial court makes a ruling that “is so

clearly against the logic of the circumstances that it shocks the sense of justice.” Brown v. Poetz,

201 S.W.3d 76, 78 (Mo. App. E.D. 2006). In reviewing an order granting a motion for a new

trial, we “must view the evidence and all reasonable inferences therefrom in the light most

favorable to the [trial court’s] order.” Badahman, 395 S.W.3d at 39. We may not, however,

weigh the evidence, as that is “solely the function of the trial court in considering a motion for

new trial where the ground asserted is that the verdict is against the weight of the evidence.”

Vogt v. Katz, 745 S.W.2d 221, 222 (Mo. App. E.D. 1987).

                                                     Discussion

           Before considering Sunshine’s points on appeal, we first address Respondent Johnson’s

argument that this Court lacks authority to consider the appeal. Johnson argues that because the

trial court granted a new trial as to one defendant only, Sunshine, and as to one issue only,

damages, the trial court’s judgment is not a final judgment and is therefore not an appealable

judgment. We disagree.

           Johnson correctly notes that the trial court’s grant of Winchester’s motion for a new trial

is not a “final judgment” within the meaning of that term as used in Section 512.020,2 because

the judgment does not dispose of all of the parties and all of the issues and leaves matters for

future determination. However, this fact does not preclude a party from appealing the grant of a

motion for new trial pursuant to Section 512.020. As the Missouri Supreme Court explained in
2
    All statutory references are to RSMo 2000.

                                                         4
Travagliante v. J. W. Wood Realty Co., where, as here, a party is exercising its right to appeal

under the clause of Section 512.020 which authorizes an appeal “from any order granting a new

trial,” the “general rule that in order for a judgment to be final and appealable it must dispose of

all parties and issues in the case and leave nothing for future determination is not applicable.”

Section 512.020; Travagliante v. J. W. Wood Realty Co., 425 S.W.2d 208, 211 (Mo. 1968).

Instead, the portion of Section 512.020 authorizing an appeal from any order granting a new trial

governs. For this reason, the court in Travagliante concluded that “Wood Realty had a right to

appeal the order granting plaintiffs a new trial notwithstanding there were other counts remaining

undisposed of involving it and another defendant.” Id. The rule articulated in Travagliante has

been affirmed by subsequent courts addressing the issue, including this court in C.M. v. K.M., in

which we stated, “[u]nder Section 512.020, any order granting a new trial is appealable even

though the judgment to which the motion is directed is not final.” C.M. v. K.M., 878 S.W.2d 55,

56 (Mo. App. E.D. 1994). Accordingly, the trial court’s grant of Winchester’s motion for a new

trial is an appealable judgment under Section 512.020.

I. The trial court did not abuse its discretion in finding that the verdict was against the
weight of the evidence and granting Winchester’s motion for a new trial on the issue of
damages only.

       Sunshine advances two arguments as to why the trial court erred in granting Winchester’s

motion for a new trial on the issue of damages. In Point One, Sunshine argues that in finding

that the award of zero dollars in damages was against the weight of the evidence, the trial court

abused its discretion by substituting its judgment for that of the jury with respect to the weight

and credibility of the evidence. Sunshine asserts that the trial court substituted its subjective

opinion of the value of Winchester’s damages for that of the jury. In Point Two, Sunshine

argues that in finding that the award of zero dollars in damages was against the weight of the



                                                  5
evidence, the trial court abused its discretion because there was no substantial evidence to

support any award other than an award of zero dollars. Sunshine maintains that because

Winchester has no lasting injuries from the accident other than a scar on her arm and a bent

finger, no substantial evidence exists to support an award greater than zero dollars. Because

Points One and Two present substantially the same argument, we consider these points together.

       Viewing the evidence in the light most favorable to trial court’s order, we cannot

conclude that the trial court abused its discretion in finding the award of zero dollars in damages

to be against the weight of the evidence. The trial court concluded that a jury verdict which

found in favor of Winchester and against Sunshine as to liability (assigning 100 percent of fault

to Sunshine) but which awarded Winchester zero dollars in damages was against the weight of

the evidence. The undisputed evidence at trial and the liability verdict confirm that Winchester

was injured as a direct result of the accident caused by Sunshine’s negligence and suffered

lasting injuries including a scar on her arm, a bent finger, and pain and discomfort. The jury,

having found the issue of liability in favor of the plaintiff, “may not give any verdict it pleases,”

but rather is “bound to award damages commensurate with the nature and extent of the injuries.”

Davidson v. Schneider, 349 S.W.2d 908, 913 (Mo. 1961). The jury award of zero dollars in

damages in light of Winchester’s injuries was egregiously inconsistent with the evidence at trial

and the liability verdict. We hold that the trial court did not abuse its discretion in granting

Winchester’s motion for a new trial as to damages, but acted within its sound discretion in

ordering a new trial on the issue of damages only. Points One and Two are denied.

II. Sunshine did not preserve the issue of the trial court’s denial of Winchester’s motion
for a new trial as to liability for appellate review.

       In Point Three, Sunshine argues that the trial court erred in denying Winchester’s motion

for a new trial on the issue of liability because evidence existed that Achenbach and Johnson

                                                  6
shared in the liability with Sunshine. Sunshine also argues that she was prejudiced by the trial

court’s decision to grant a new trial on the issue of damages only, and asserts that any new trial

must deal with all issues, damages and liability, and all four parties.3

          Sunshine has failed to properly preserve the trial court’s denial of Winchester’s motion

for a new trial as to liability for our review. It is well-settled that the denial of a motion for a

new trial is not an appealable judgment. Cady v. Kansas City S. Ry. Co., 512 S.W.2d 882, 884

(Mo. App. W.D. 1974). An appeal may instead only be taken from the underlying judgment, Id.,

which requires filing a motion for a new trial from the underlying judgment pursuant to Rule

78.07. Sunshine did not file a motion for a new trial from the underlying judgment of the trial

court. Instead, Sunshine filed only a motion in opposition to Winchester’s motion for a new

trial. Thus, Sunshine failed to properly preserve the issue for appellate review. Point Three is

denied.

                                                    Conclusion

          The judgment of the trial court is affirmed.



                                                               _________________________________
                                                               Kurt S. Odenwald, Presiding Judge
Robert G. Dowd, Jr., J., Concurs
Gary M. Gaertner, Jr., J., Concurs




3
  We do not reach this argument, but note that where a trial court has granted a motion for a new trial as to some
issues but not others, the trial court is deemed to have determined that injustice to the defendant will not thereby
result. Wessels v. Smith, 341 S.W.2d 104, 106 (Mo. 1960). We may therefore not hold that a trial court has abused
its discretion by granting a new trial on the issue of damages only unless it appears from the record that the damages
issue may not be tried alone without injustice to the defendant. Badahman, 395 S.W.3d at 40-41. Here, there is
nothing in the record to indicate that trying the damages issue alone will result in any injustice to Sunshine. The
jury’s verdict, which was supported by substantial evidence, found Sunshine to be 100 percent at fault, with no
liability for either Johnson or Achenbach.

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