Opinion
No. WD65220
April 17, 2007
Appeal from Circuit Court of Jackson County, Hon. W. Stephen Nixon, Judge.
Steve Majors, Counsel for Appellant.
Jason K. Rew and Scott A. Hunter, Counsel for Respondent.
AFFIRMED. Howard and Newton, JJ., concur.
Opinion
The City of Oak Grove appeals the judgment of the trial court entered on the jury's verdict against it and in favor of Randolph and Kelly Akers on their claim of inverse condemnation. In its judgment, the trial court awarded the Akers damages of $110,000 and prejudgment interest of $25,791.12. The City raises four points on appeal. In its first point, the City contends that the trial court erred in denying its motions for directed verdict and new trial, because the Akers failed to present evidence of an affirmative act of the City resulting in inverse condemnation, allegedly a necessary element of this cause of action. In its second point, the City contends that the trial court erred in awarding prejudgment interest because prejudgment interest is not recoverable in inverse condemnation actions. The City claims in its third point that the trial court erred in refusing its proffered converse jury instruction requiring a verdict in the City's favor if the jury believed that natural forces caused the Akers' damages. In its final point, the City contends that it is entitled to reversal of the judgment "because [of] the cumulative errors committed by the court."
An opinion in this case was originally handed down on November 14, 2006. Because the Akers averred that the parties had stipulated to the trial court's adjudication of the Akers' claim for prejudgment interest, this court granted the Akers' motion for rehearing and, now, issues this opinion. Finding no merit in the City's four claims of error, the trial court's judgment is affirmed.
Factual and Procedural Background
The Akers own residential rental property, known as the Harding Street Apartments, located in the southeast portion of the City of Oak Grove. The Harding Street Apartments consist of two four-plex apartment buildings and two six-plex apartment buildings. The two four-plex apartment buildings located at 1902 and 2002 Harding Street are the subject of this litigation.
A sanitary sewer system owned and operated by the City services the Harding Street Apartments. The apartment buildings located at 1902 and 2002 Harding Street are connected to the City's sewer system by two eight-inch lines, which flow into a twelve-inch sewer main running along the southern property line. The twelve-inch sewer main travels east of the property, where it enters a manhole. Also entering this manhole is another twelve-inch sewer main. The two twelve-inch sewer mains drain into one twelve-inch sewer main that exits the manhole and continues south to a lagoon located east of the city limits.
A rainstorm occurred on May 8, 2002. As the rain subsided, sewage from the City's sanitary sewer system backed up from the twelve-inch main line running along the southern property line into the two eight-inch service lines and up through the toilets into individual units in the two four-plex apartment buildings located at 1902 and 2002 Harding Street. The units sustained extensive damage.
The cause of the backup was the design of the two twelve-inch sewer mains running into the one twelve-inch sewer main. The City was aware that, when there was rainfall, the design of the two twelve-inch mains into one twelve-inch main created a bottleneck because there was insufficient capacity for the water to discharge, which in turn caused sewer backups. In addition, the City's sanitary sewer system had problems with inflow and infiltration throughout the sewer system and in the area of the Harding Street Apartments. Inflow and infiltration occurs where water from rain and other sources enters and overwhelms the sewer system, causing the sewers to backup and manholes to overflow. The City was aware of the inflow and infiltration problems, prior to May 8, 2002, and had conducted a study of the sanitary sewer system to identify and remedy any problems. At the time of trial, the City had not completed any of the recommended changes or repairs.
Following the sewer backup on May 8, 2002, the Akers filed a petition for damages against the City. Although their first amended petition included several alternative claims for recovery, including inverse condemnation, the case proceeded to trial on only the claim of inverse condemnation. The jury found for the Akers and assessed damages of $110,000. The trial court entered its judgment on the verdict on December 15, 2004. In its judgment, the trial court awarded prejudgment interest in the amount of $25,791.12, compounded at the rate of nine percent per annum from the stipulated date of the taking, May 8, 2002, to the date of judgment. The City timely filed after-trial motions, including a motion for new trial. All after-trial motions were denied. The City filed this appeal.
No Error in Denying Motion for Directed Verdict and Motion for New Trial
In its first point on appeal, the City contends that the trial court erred in denying its motions for directed verdict at the close of the Akers' evidence and at the close of all the evidence and in denying its motion for new trial, because it is entitled to judgment as a matter of law. Specifically, the City asserts that the Akers failed to plead or present evidence at trial of an affirmative act on the part of the City resulting in an inverse condemnation. The City asserts that the failure to act or an omission cannot serve as the basis for an inverse condemnation action, under Missouri law. The City further claims that the natural force of excessive rainfall caused the Akers' damages, which they allege cannot serve as the basis of an inverse condemnation claim.
Because the City presented evidence at trial, this court considers only the City's motion for directed verdict at the close of all the evidence. See Garvis v. K Mart Discount Store , 461 S.W.2d 317, 320 (Mo.App. 1970) (offering evidence, after a motion for directed verdict at the close of plaintiff's case is overruled, waives motion and, therefore, is not subject to review on appeal).
On the other hand, the Akers claim that the issues raised by the City in its first point are not preserved for appellate review. In particular, the Akers assert that the City was required to file a motion for judgment notwithstanding the verdict after the entry of judgment to preserve the issue of the submissibility of the case for review. The City did not file a motion for a judgment notwithstanding the verdict.
"[A] motion for a directed verdict at the close of all the evidence presents the question of whether or not the plaintiff has made a submissible case." Buttram v. Auto-Owners Mut. Ins. Co. , 779 S.W.2d 1, 2 (Mo.App.W.D. 1989). Pursuant to Rule 72.01(b), "a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict." "A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative." Id. "[I]f a plaintiff fail[s] to make a submissible case the defendant [is] not entitled to a new trial but [is] entitled to have judgment notwithstanding the verdict." Buttram , 779 S.W.2d at 2. "[T]he failure to make a submissible case is not ground for a new trial but is only ground for a judgment notwithstanding the verdict." Id. Thus, the failure to file a motion for judgment notwithstanding the verdict following the denial of a motion for directed verdict does not preserve any issue for appellate review. Id. at 3.
Here, the City filed motions for directed verdict at the close of the Akers' evidence and at the close of all the evidence. After judgment, the City did not file a motion for judgment notwithstanding the verdict. The only post-judgment motion filed by the City was a motion for new trial. In failing to file a motion for judgment notwithstanding the verdict, the City did not preserve the issue of the submissibility of the Akers' case for appellate review. Id.
Nevertheless, the City contends that its motion for new trial was merely titled wrongly and asserts that this court should judge the motion by its substance, rather than its form. The City cites Worley v. Worley , 19 S.W.3d 127, 129 (Mo. banc 2000), for the proposition that "[a] pleading is judged by its subject matter-not its caption." In its motion for new trial, the City requested that the court grant it a new trial. It did not request that the court set aside the verdict and judgment and enter judgment in accordance with its motion. In substance, the City's motion for new trial was exactly what it was purported to be, a motion for new trial, not a motion for judgment notwithstanding the verdict. Therefore, the City's argument is without merit.
Finally, "[p]oints not preserved on appeal may be reviewed for plain error at the court's discretion." Syn, Inc. v. Beebe , 200 S.W.3d 122, 135 (Mo.App.W.D. 2006) (citation omitted). In reviewing for plain error, this court "`should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred.'" Care and Treatment of Heikes v. State , 170 S.W.3d 482, 485 (Mo.App.W.D. 2005) (citation omitted). If plain error is shown, this court must then determine "`whether manifest injustice or a miscarriage of justice actually occurred.'" Id. (citation omitted). "However, the court rarely grants plain error review[.]" Beebe , 200 S.W.3d at 135. Because this court does not discern plain error from the trial court's submission of the Akers' inverse condemnation claim to the jury, plain error review is denied.
Rule 84.13(c) governs plain error review of civil cases, while Rule 30.20 governs plain error review of criminal cases. The same two-step analysis for plain error review in criminal cases, however, is applicable to plain error review in civil cases. Davolt v. Highland , 119 S.W.3d 118, 135 n. 14 (Mo.App.W.D. 2003).
No Error in Award of Prejudgment Interest
In its second point on appeal, the City contends that the trial court erred in adding prejudgment interest to the jury's verdict in favor of the Akers because, as a matter of law, landowners in inverse condemnation actions do not have a right to prejudgment interest. Specifically, the City asserts that there is no constitutional authority, statute, or case law providing for an award of prejudgment interest in inverse condemnation actions, and that the Akers failed to comply with any statute, particularly section 408.040.
Because inverse condemnation actions have been removed "from the realm of tort liability," Shade v. Mo. Highway Transp. Comm'n , 69 S.W.3d 503, 510 (Mo.App.W.D. 2002), section 408.040.2, authorizing prejudgment interest in tort actions when a pretrial demand is made, does not apply to inverse condemnation actions. Therefore, this court will not address the City's contention that the Akers failed to comply with section 408.040.
In this case, in their petition for damages, the Akers prayed for an award of interest at the "statutory rate" of nine percent per annum. At trial, the issue of prejudgment interest was not submitted to the jury. After the verdict was read and the jury dismissed, the Akers moved for prejudgment interest on the amount of the verdict from the stipulated date of taking, May 8, 2002, to the date of judgment at the "statutory rate" of nine percent per annum. The City opposed the Akers' request, and the court took the matter under advisement.
In its judgment on the verdict, the trial court added prejudgment interest at the rate of nine percent per annum from the date of the stipulated taking to the date of judgment. In its post-trial Motion to Amend Judgment, the City prayed that the trial court amend its judgment to withdraw the award of prejudgment interest. In its suggestions in support of that motion, the City asserted that prejudgment interest in an inverse condemnation case is not authorized by statute or prior case law and, alternatively, that the issue of prejudgment interest must be submitted to the jury and should be at the rate of six percent per annum. On appeal, however, the City's point relied on does not assert error in submitting the issue to the jury or in the rate of interest awarded.
Resolution of the question whether the Akers are entitled to prejudgment interest requires an examination of the nature of a cause of action for inverse condemnation. The cause of action has its roots in the constitutional prohibition of the government taking property of a citizen without just compensation. See Mo. Const. art. I, section 26. "The action for inverse condemnation was developed to provide the landowner a remedy when a condemnor physically accomplished a taking or damaging of private property carried out with none of the procedural or compensatory requirements of a regular eminent domain action." State ex rel. Chiavola v. Vill. of Oakwood , 931 S.W.2d 819, 824 (Mo.App.W.D. 1996). "The landowner does not have to show a physical taking but an invasion or appropriation of a valuable property right that caused an injury." Id . "If property is taken or damaged without agreement or legal proceedings," the owner may "`sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry.'" Shelton v. M A Elec. Power Coop. , 451 S.W.2d 375, 378-79 (Mo.App. 1970) (citations omitted). Although an action in inverse condemnation is not a condemnation proceeding, it is similar in that it allows for just compensation for a taking. In direct condemnation and in inverse condemnation, "`[t]he injury is the same; the damage is the same; and the compensation should be the same.'" Stewart v. City of Marshfield , 431 S.W.2d 819, 822 (Mo.App. 1968) (citation omitted).
Because the damage and compensation are the same for direct condemnation and inverse condemnation, it is helpful to examine the substantive law regarding prejudgment interest in direct condemnation actions. Currently, there is a statute that authorizes prejudgment interest in a direct condemnation action, section 523.045, RSMo 2000. Prior to the enactment of section 523.045, however, the Supreme Court found that the right to prejudgment interest in condemnation actions was not dependent on statute or agreement. St. Louis Hous. Auth. v. Magafas , 324 S.W.2d 697, 699 (Mo. 1959). Rather, the right to prejudgment interest was "considered part of the just compensation required by Article I, Section 26 of the Missouri Constitution." City of Cottleville v. Am. Topsoil, Inc. , 998 S.W.2d 114, 120 (Mo.App.E.D. 1999) (citing Magafas , 324 S.W.2d at 699). Likewise, this court finds that because actions in inverse condemnation fall within the same constitutional context as direct condemnation actions, and prejudgment interest in direct condemnation actions is considered an element of just compensation required by the Missouri Constitution, landowners in inverse condemnation actions are entitled to prejudgment interest as well.
All statutory references are to the Revised Statutes of Missouri 2000.
See , e.g. , Shade , 69 S.W.3d at 510 (Mo.App.W.D. 2002) ("The effect of the court's holding in Heins [Implement Co. v. Missouri Highway Transportation Commission , 859 S.W.2d 681 (Mo. banc 1993)] was to remove inverse condemnation actions from the realm of tort liability and set them in a constitutional context, i.e., preventing the taking of private property for public use without compensation.").
As noted previously, in a direct condemnation action, section 523.045 codifies the constitutional right to prejudgment interest. By the time that section 523.045 was enacted, it was well established that a "landowner was entitled to interest for delay in payment of compensation" for direct condemnation; consequently, the Supreme Court found that the statute did not give the landowner any new substantive rights but "is merely procedural." State ex rel. State Highway Comm'n v. Kendrick , 383 S.W.2d 740, 747 (Mo. 1964). Under section 523.045, "interest is to be included in the judgment by the court when the case is tried to the court without a jury" and "[w]hen the case is tried to a jury the interest is to be computed by the jury and included in its verdict." Id.
Unlike section 523.045, however, which authorizes an award of prejudgment interest in a direct condemnation action, there is no statute authorizing an award of prejudgment interest in an inverse condemnation action. The case law governing interest in direct condemnation actions prior to the enactment of section 523.045 can give guidance as to the award of prejudgment interest for inverse condemnation. In State ex rel. State Highway Comm'n v. Green , 305 S.W.2d 688, 693 (Mo. 1957), the Supreme Court held that, if there was no statutory authority for the trial court to add interest to the judgment, "it must . . . be computed by the jury and included in its verdict." Consequently, this court, in its original judgment, found that, because the Akers did not submit the issue of prejudgment interest to the jury, the trial court erred in adding prejudgment interest to the jury's verdict, and the award of prejudgment interest was reversed.
In their motion for rehearing, the Akers argued that, prior to trial, the parties agreed that the court, as opposed to the jury, would decide whether prejudgment interest would be awarded. Since the record appeared to support the Akers' claim, this court granted their motion for rehearing and requested supplemental briefing on the issues of whether the parties intended to waive the submission to the jury of the issue of prejudgment interest and whether a waiver was legally valid.
Regarding whether the parties intended to waive submission of the issue of prejudgment interest to the jury, the record shows that, before trial, the parties discussed the issue of prejudgment interest. In their discussion, counsel for the Akers stated, "all parties are in agreement" that the issue of prejudgment interest is "a legal matter to be decided by the Court rather than an issue that needs to be submitted to the jury." Counsel for the City stated that while it did not believe that prejudgment interest should be awarded in this case, it nevertheless agreed that, "it is a ruling for the Court and not a jury question." Counsel for the City added that the City "would be glad to have [the court] rule on that should a taking be found." "`An oral admission or agreement, made in open court for the purposes of the trial or hearing, and preserved in the record, has the same binding force and effect as a written, signed stipulation.'" Fair Mercantile Co. v. Union-May-Stern Co. , 221 S.W.2d 751, 755 (Mo. 1949) (citations omitted). Thus, this court finds that the parties entered into an agreement, prior to trial, that the court would decide the issue of prejudgment interest.
Regarding the issue of whether a waiver was legally valid, in its supplemental brief, the City contends that the agreement is not enforceable because parties cannot stipulate to expand a trial court's authority. The Akers, on the other hand, claim that the agreement was a stipulation to procedure and that such stipulations are enforceable. Thus, the Akers conclude that the trial court did not exceed its authority in awarding prejudgment interest.
As discussed above, once the jury found a taking and assessed damages for inverse condemnation, the Akers were entitled to prejudgment interest as a substantive right. While the right to prejudgment interest is substantive, the mechanism for awarding that interest, such as that established by section 523.045, is "merely procedural." See Kendrick , 383 S.W.2d at 747. "Stipulations varying or altering trial procedure, or waiving the benefit of procedural statutes, have been consistently enforced by our courts in the absence of any claim of fraud, duress or mistake[.]" Pierson v. Allen , 409 S.W.2d 127, 130 (Mo. 1966). Thus, because the parties agreed that the court rather than the jury would determine prejudgment interest, a procedural matter, the agreement was valid and enforceable. Therefore, the trial court did not err in adding prejudgment interest to the jury's verdict.
In this case, the trial court awarded the Akers prejudgment interest at the rate of nine percent per annum, which is the statutory rate of prejudgment interest in contract and tort actions under sections 408.020 and 408.040. While this court finds that the scope of sections 408.020 and 408.040 do not include an action for inverse condemnation, the City did not claim error in the rate of interest applied by the trial court. In Magafus , the Supreme Court held that interest should be allowed at "the legal rate." 324 S.W.2d at 700. Since the rate of interest was not challenged on appeal, this court need not decide whether "the legal rate" would be nine percent per annum, as established by sections 408.020 and 408.040 for other causes of action, or six percent, as authorized by section 532.045 in direct condemnation actions.
No Error in Failing to Submit Jury Instruction
In its third point on appeal, the City claims that the trial court erred in denying its request for the submission of a converse jury instruction seeking a verdict in its favor if the jury believed natural forces caused the damages suffered by the Akers. Specifically, the City asserts that the proposed instruction was an accurate statement of the law as it relates to the effect of natural forces on a claim of inverse condemnation and that the evidence at trial clearly established that natural forces were a factor in the Akers' damages.
This court reviews the trial court's refusal to submit an instruction to the jury de novo, "evaluating whether the instructions were supported by the evidence and the law." Marion v. Marcus , 199 S.W.3d 887, 893-94 (Mo.App.W.D. 2006) (citing Rule 70.02(a)). This court will reverse only if it determines that the "error resulted in prejudice" and "`materially affect[ed] the merits of the action.'" Id. at 894 (citing Rules 70.02(c) and 84.13(b)).
The Akers claim that the City's proposed instruction is not a true converse instruction, but is an affirmative converse instruction without facts sufficient in law to defeat the Akers' claim. A true converse instruction is "[a]n instruction beginning `Your verdict must be for defendant unless you believe' followed by one or more propositions submitted by the verdict directing instruction and in substantially the same language used in the verdict directing instruction." MAI 33.01 [1996 Revision]. An affirmative converse instruction is "an instruction beginning `Your verdict must be for defendant if you believe' followed by a hypothesized ultimate issue which, if true, would defeat plaintiff's claim." Id. Use of an affirmative converse instruction "requires independent evidence to support it." Id. "The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat the plaintiff's claim." Id. (citing Shepard v. Ford Motor Co. , 457 S.W.2d 255 (Mo.App. 1970)).
The City's proposed jury instruction read: "Your verdict must be for defendant if you believe that plaintiff's damages were caused by natural forces and not a government act." The verdict directing instruction submitted to the jury read: "Your verdict must be for plaintiffs if you believe that plaintiffs have been damaged by either or both of the following: (1) The taking or damaging of the property rights. (2) The use which defendant has the right to make of the property rights taken or damaged." The City's proposed instruction does not contain one or more of the propositions submitted by the verdict directing instruction and is not in substantially the same language as the verdict directing instruction submitted to the jury. Therefore, it is an affirmative converse instruction.
The question, then, is whether the facts hypothesized in the City's affirmative converse instruction are sufficient in law to defeat the Akers' claim. The City claims that this instruction correctly states the law in Missouri regarding liability for inverse condemnation when natural forces cause the damage. Specifically, the City relies on Ressel v. Scott County , for its proposition that "[w]hen some natural force interacts with a municipality's property and, as a result of that interaction, private property suffers damage, then the governmental entity is not to be held liable for a taking." 927 S.W.2d 518, 521 (Mo.App.E.D. 1996) (stating, "Where, as here, the asserted damage is the result of a force of nature, it is that natural force and not a government act that destroys the plaintiff's property interest.").
In Ressel , landowners brought suit against Scott County after the county refused to repair a bridge washed out by a flood. 927 S.W.2d at 519. The landowners claimed that as a result of the bridge washing out, they became landlocked and had no means of ingress or egress to and from their property, causing a diminution in value of their property and forcing them to establish a second residence. Id. at 519-20. The Eastern District of this court held that "a plaintiff does not state a claim for inverse condemnation under Art. I, [section] 26 when the asserted damage is the result of some natural force." Id. at 521. Consequently, "[s]ince the asserted damage, the destruction of the bridge, was directly caused by the flood," the landowners failed to state a claim for inverse condemnation under Article 1, Section 26 of the Missouri Constitution. Id.
While Ressel may be an accurate statement of the law in Missouri regarding damages directly caused by natural forces in inverse condemnation cases, Ressel does not apply to the facts of this case. Here, unlike Ressel , the City's operation and maintenance of the sanitary sewer system was a significant factor in the backup. The City does not cite any authority holding that the interaction of a natural force with a defective improvement bars a claim of inverse condemnation. However, there is authority that there is a cause of action for damages to real property resulting from the inability of a defective sewer system to handle rainfall. See Fletcher v. City of Independence , 708 S.W.2d 158 (Mo.App.W.D. 1986). The City's proposed instruction is contrary to established law in light of the evidence presented at trial. Consequently, the trial court did not err in rejecting the City's proposed jury instruction.
Inverse condemnation is now the exclusive and proper remedy for landowners seeking to recover for damages to their own property. George Ward Builders, Inc. v. City of Lee's Summit , 157 S.W.3d 644, 649 (Mo.App.W.D. 2004). Before the determination that the proper cause of action was inverse condemnation, landowners sought recovery in nuisance for damages to their property resulting from defective sewer systems. See , e.g. , Fletcher , 708 S.W.2d at 162. The facts that previously supported a claim of nuisance are now sufficient to prosecute a claim of inverse condemnation. George Ward Builders , 157 S.W.3d at 649 (citing Byrom v. Little Blue Valley Sewer Dist. , 16 S.W.3d 573, 576 (Mo. banc 2000)).
No Cumulative Error
In its fourth point on appeal, the City contends that this court should grant relief "because [of] the cumulative errors committed by the court." Specifically, the City asserts that the errors alleged in its Points I and III on appeal, combined with the trial court's improper admission of evidence regarding other incidents of sewer backups and evidence of a manhole overflowing five years prior to the stipulated date of taking, constitutes cumulative error and entitle it to a new trial. The entire point relied on reads:
The City's fourth point relied on claims cumulative error due to the trial court's refusal to submit its proffered converse instruction, and mistakenly states that this claim is raised in its Point II. Point II is the claim of error for the award of prejudgment interest. The City intended to refer to its claim of error in its Point III, not Point II.
THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT/APPELLANT CITY OF OAK GROVE'S MOTION FOR NEW TRIAL BECAUSE THE CUMULATIVE ERRORS COMMITTED BY THE COURT AND BECAUSE OF THE LACK OF SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY'S VERDICT AS FURTHER DESCRIBED AND DETAILED IN POINT I, IN THAT (1) THE EVIDENCE IMPROPERLY ADMITTED AS RELATIVE TO INCIDENTS OF BACKUPS BY NEIGHBORS AND OTHER PROPERTY OWNERS IN OAK GROVE, (2) EVIDENCE OF MANHOLE R-23 OVERFLOWING FIVE YEARS PRIOR TO THE STIPULATED DATE OF TAKING, AND (3) THE REFUSAL TO ALLOW DEFENDANT/APPELLANT'S SUBMISSION OF CONVERSE JURY INSTRUCTION ALLOWING FOR JURY CONSIDERATION OF NATURAL FORCES BEING RESPONSIBLE FOR PLAINTIFF'S DAMAGES AS FURTHER DESCRIBED IN POINT II, AND FOR THESE STATED ERRORS THE COMBINED EFFECT OF WHICH WAS TO DENY THE CITY OF OAK GROVE A FAIR TRIAL.
First, the claim of cumulative error due to errors raised in other points is not well taken. This court has determined, supra, that the City did not preserve the claimed error raised in Point I, so that claim of error cannot be the basis for cumulative error. Also, this court found that the trial court did not err in refusing the City's proffered converse instruction, as raised in Point III, so that claim of error cannot be the basis of the City's claim that it is entitled to a new trial because the cumulative effect of error denied it a fair trial.
Finally, the City contends, in its fourth point relied on, that the trial court erred by improperly admitting evidence of other incidents of sewer backup and manhole overflow, claims that are not addressed in the argument section. The entirety of the City's argument in support of its Point Relied On IV is one sentence: "A new trial can be ordered when there are cumulative errors, even without deciding whether any single point would constitute grounds for reversal." The City cites to Crawford v. Shop `N Save Warehouse Foods, Inc. , 91 S.W.3d 646, 652 (Mo.App.E.D. 2002), as authority for this proposition. This is merely a statement of a general principle of law, without any application to the facts of this case.
"While there is no requirement that the argument section of an appellate brief be perfect, it must adequately present and address the issues to be decided." Firestone v. VanHolt , 186 S.W.3d 319, 324 (Mo.App.W.D. 2005). "Hence, the appellant must develop, in the argument section of the brief, error raised in the point relied on." Id. "`An argument is not properly before an appellate court if it merely makes bald assertions of general principles of law and never develops how such principles mandate reversal in the factual context of the particular case.'" Id. (citation omitted). "It is not within the appellate court's province to speculate about and then decide arguments that are not asserted or that are merely asserted, but not developed." Id. "A submission of error, being without reasoned argument does not require, or even allow, a decision." Id. "`Thus, errors raised in the points relied on, which are not supported by argument, are deemed abandoned and present nothing for appellate review.'" Id. (citation omitted). The City failed to develop an argument to support its claim of improperly admitted evidence. Consequently, this claim of error presents nothing for this court's review and is deemed abandoned.
The judgment of the trial court is affirmed.