CHRISTOPHER SCOTT and                       )
JILL SCOTT,                                 )
                                            )
              Plaintiffs-Appellants,        )
                                            )
v.                                          )      No. SD32972
                                            )      Filed: 9-22-14
SHELLEY SPEARS,                             )
                                            )
              Defendant-Respondent.         )

           APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                         Honorable Mark E. Orr, Circuit Judge

AFFIRMED

       Christopher Scott (Scott) was a passenger in a bass boat driven by his uncle when

it collided with a power boat driven by Shelley Spears. Scott’s uncle was killed, and

Scott was injured. Scott and his wife (hereinafter referred to as Plaintiffs) brought the

underlying lawsuit against Spears (hereinafter referred to as Defendant) seeking damages

for her alleged negligent operation of the power boat. The case was tried to a jury, and

the jury found in favor of Defendant. Plaintiffs filed a motion for new trial. The only

ground asserted in the motion was that the jury’s verdict was against the weight of the
evidence. The trial court conducted a hearing on the motion, and it was denied by

operation of law pursuant to Rule 78.06.1 This appeal followed.

       Plaintiffs’ single point contends the trial court erred by denying the motion for

new trial because the jury’s verdict was against the weight of the evidence. Plaintiffs

argue that we must review that ruling for an abuse of discretion. We disagree.2

       Plaintiffs bore the burden of proving negligence, causation and damages. The

evidence presented by Plaintiffs on those issues was not found persuasive by the jury.

Having heard all of that same evidence, the trial court denied Plaintiffs’ request for a new

trial on the ground that the jury’s verdict was against weight of the evidence.3 Under

such circumstances, Plaintiffs’ point presents nothing for this Court to review. As we

explained in Woods v. Friendly Ford, Inc., 248 S.W.3d 699 (Mo. App. 2008):

       Hanson’s second claim under Point I challenges the trial court’s denial of
       his motion for new trial on the basis that the verdict is contrary to the
       undisputed facts from the trial, in that defendant Wise admitted striking
       Hanson, “and the undisputed slapping and grabbing [Hanson’s] genitals
       would be presumed an offensive touching, and no reasonable juror could
       conclude that [Hanson] was not a victim of a battery[.]” Hanson, in the
       argument portion of his brief, characterizes this claim as an assertion that

       1
           All references to rules are to Missouri Court Rules (2014).
       2
            Plaintiffs cite Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247 (Mo. banc
2006), to support that assertion. Stehno is factually distinguishable because it involved
the much different situation in which the jury ruled against the party bearing the burden
of proof, and the trial court granted a new trial on the ground that the verdict was against
the weight of the evidence. Id. at 250. Our Supreme Court reviewed the grant of a new
trial for a manifest abuse of discretion. Id.
       3
          Plaintiffs suggest it is somehow significant that their motion was denied by
operation of law after 90 days pursuant to Rule 78.06. They cite no authority for that
argument, and we are aware of none. The trial court is presumed to know and be guided
by the applicable rules of civil procedure. See Lane v. Lensmeyer, 158 S.W.3d 218, 224
(Mo. banc 2005). Therefore, we presume the trial court understood that it could either
expressly deny the motion or simply allow it to be automatically denied by the passage of
the requisite time period. We see no legally relevant distinction between those two
modes of denying relief.

                                              2
       the verdict is against the weight of the evidence. We agree with that
       characterization and observe that as such it preserves nothing for appellate
       review. Weighing evidence remains a trial court function. “An appellate
       court cannot rule on the weight of the evidence in a jury-tried case.” The
       trial court’s denial of a motion for new trial challenging the verdict as
       against the weight of the evidence is a conclusive determination that
       cannot be overturned on appeal.

Id. at 705 (citations omitted).

       The western district of this Court reached the same conclusion in Warren v.

Thompson, 862 S.W.2d 513 (Mo. App. 1993). There, the plaintiffs sued the defendants

for their alleged negligence in causing an automobile collision. The jury found against

the plaintiffs, who sought a new trial on the ground that the verdict was against the

weight of the evidence. After that motion was denied, the plaintiffs appealed. The

western district denied relief for the following reasons:

       The Warrens’ sole point on appeal presents nothing for appellate review.
       The Warrens assert error in the trial court’s denying them a new trial on
       the ground that the jury verdict was against the weight of the evidence.
       However, weighing evidence remains a trial court function. An appellate
       court cannot rule on the weight of the evidence in a jury-tried case.
       Reasons for this longstanding rule abound. The plaintiff bears the burden
       to prove that the defendant was negligent and that the injuries directly
       resulted from the defendant’s negligence. When the plaintiff relies on
       evidence that is not legally conclusive, the defendant need not present
       evidentiary support and may rest on the plaintiff’s failure to meet the
       burden of proof. The jury determines credibility. The trial court alone has
       discretion to grant or deny a motion for new trial on the ground that the
       verdict was against the weight of the evidence. The trial court’s
       overruling a motion for new trial on that ground constitutes a conclusive
       determination that cannot be overturned on appeal.

Id. at 514 (citations omitted).

       Citing Warren, the western district again denied relief for the same reason in

Desselle v. Complete Home Concepts, Inc., 211 S.W.3d 168 (Mo. App. 2007):

       [I]t is the rule that where the burden of proof is on the plaintiff who relies
       on oral testimony, or upon documentary testimony that is not legally
       conclusive, or a mixture of both, to establish all or some of the essential


                                              3
       elements of his cause of action a verdict in the defendant’s favor is not
       required to have evidentiary support but rests upon a finding by the jury
       against the party having a burden of proof, and after the trial court
       exercises its discretion by overruling a motion for new trial, the appellate
       court, on the sole contention of abuse of discretion thereby, will not
       entertain the contention …. This appeal, in essence, stems from the
       homeowners’ disagreement with the jury’s determination that CHC was
       not at fault for the fire. The jury, however, was free to find “against the
       party having a burden of proof.” Where, as here, the trial court, who has
       seen the evidence at trial, denies a motion for new trial on the ground that
       the verdict was against the weight of the evidence, that denial is “a
       conclusive determination that cannot be overturned on appeal.”

Id. at 171-72 (citations omitted).

       Plaintiffs’ point is denied, and the judgment of the trial court is affirmed.



JEFFREY W. BATES, J. – OPINION AUTHOR

DANIEL E. SCOTT, J. – CONCUR

WILLIAM W. FRANCIS, JR., C.J./P.J. – CONCUR




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