The Flag: Closing arguments, spoliation doctrine, and more
Vol. 81, No. 3 / May-June 2025
Compiled by W. Dudley McCarter
COUNSEL GIVEN WIDE LATITUDE IN CLOSING ARGUMENT
Lopez v Cedar Fair, L.P., 702 S.W.3d 114 (Mo. App. W.D. 2024).
Jose Lopez appealed the trial court’s judgment, entered after a jury trial, in favor of Cedar Fair, L.P. on Lopez’s claim for disability discrimination in a place of public accommodation under the Missouri Human Rights Act. Lopez argued Cedar Fair’s lawyer misstated the law in closing argument.1
The permissible field of argument is broad, and so long as counsel does not go beyond the evidence and the issues drawn by the instructions, or urge prejudicial matters, or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments … The court should exclude only those
statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.2
On appeal, the Missouri Court of Appeals-Western District considered whether the objectionable comment was “plainly unwarranted and clearly injurious to [the opposing party]” when “interpreted in light of the entire record.”3 The court affirmed the trial court’s judgment, stating:
Lopez has not demonstrated that Cedar Fair’s alleged misstatement of the law during closing argument was “clearly injurious” to him. “For, as a general principle, even if counsel misstates the law in closing argument, as long as the trial court properly instructs the jury, we will rarely find reversible error.” … We find no prejudice resulted from Cedar Fair’s alleged misstatements during closing argument.4
SPOLIATION DOCTRINE ALLOWS ADVERSE INFERENCE
K.B., et al v. Oasis Foot Spa and Massage, LLC, 703 S.W.3d 606 (Mo. App. E.D. 2024).
Appellants Oasis Foot Spa & Massage, LLC and Zhengzhao Lu appealed the circuit court’s judgment entered after a jury trial awarding compensatory and punitive damages to six plaintiffs for sexual assault caused by Oasis’ employee, Xing Wu Zhang. Oasis challenged the trial court’s application of the spoliation doctrine, arguing:
(1) there was no evidence of any fraud, deceit, or bad faith in the destruction of Oasis’s records and (2) even if the adverse inference admission were warranted, it went too far because there was no evidence the business records would have put it on notice of Zhang’s dangerous proclivities.5
The evidentiary spoliation doctrine applies when there is intentional destruction of evidence, indicating “fraud, deceit, or bad faith.”6 “Spoliators are subject to an adverse evidentiary inference where they are held ‘to admit that the destroyed evidence would have been unfavorable to their position.’”7
If the alleged spoliator knew or should have known there was a duty to preserve the evidence, the evidence’s destruction may give rise to an inference of fraud.8 The appellants received a preservation letter from the plaintiffs. Despite this knowledge, Lu’s wife, Angela Zuo, testified that she destroyed all of Oasis’ business records.9 The plaintiffs’ counsel read the following adverse inference admission to the jury: “[Appellant] destroyed all Oasis’s business records after this lawsuit was filed. [Appellant] admit[s] that Oasis business records would have contained evidence unfavorable to [Appellant’s] position that they did not have notice of Xing Wu Zhang’s dangerous proclivities while working at Oasis.”10
“[T]o properly preserve for appeal the admission of evidence complained of in a motion in limine, the party challenging the evidence must also object at trial.”11 The appellants raised the issue of whether giving the adverse inference was appropriate in motions in limine and in the post-trial motion, but the appellants did not object to it at trial, thus failing to preserve the issue for appeal, the Missouri Court of Appeals-Eastern District stated.12
MEETING OF MINDS REQUIRED TO ESTABLISH SETTLEMENT AGREEMENT
Puga v. Nephrite Fund I, LLC, 697 S.W.3d 783 (Mo. App. W.D. 2024).
Appellants Elena Puga and Nicole Edwards appealed the trial court’s judgment denying their motion to enforce a settlement agreement between themselves as representatives of a class and Nephrite Fund I, LLC; Jesse Davila; and Strategic Properties, LLC (collectively “respondents”). The Missouri Court of Appeals- Western District affirmed the ruling.13
Since settlement agreements are governed by contract law, the appellants had to prove the essential elements of a contract: offer, acceptance, and consideration.14 “A valid settlement agreement also requires a meeting of the minds and a mutual assent to the essential terms of the agreement.”15 “A mutual agreement is reached when the minds of the contract parties meet upon and assent to the same thing in the same sense at the same time.”16
Our Courts have held that a determination of whether there was a meeting of the minds among parties is a question of fact for the trial court to decide … We find based on the evidence that the trial court did not err in finding that no settlement agreement was reached because there was no meeting of the minds regarding lien prioritization which was a material term of the settlement.17
LANDLORDS BREACHED IMPLIED WARRANTY OF HABITABILITY
Herr v. Zhao, 697 S.W.3d 589 (Mo. App. E.D. 2024).
Landlords Min Zhao and Yanqun Dong appealed the trial court’s judgment in favor of tenants Grace Herr, Ally Burke, and Marjorie Alvord on their petition for breach of the implied warranty of habitability. The Missouri Court of Appeals-Eastern District affirmed the court’s judgment.18
“[A] landlord impliedly warrants the habitability of leased residential property.”19 To indicate a cause of action for breach of the implied warranty of habitability, the tenants must prove:
(1) they entered into a lease agreement for residential property;
(2) the subsequent development of dangerous or unsanitary conditions on the premises that materially impact their life, health, or safety;
(3) reasonable notice of the conditions to Landlords; and
(4) Landlords’ subsequent failure to restore the premises to habitability.20
The law is clear that a de minimis or minor housing code violation does not constitute a breach of the implied warranty of habitability. To succeed on a claim for breach of implied warranty of habitability, a tenant must prove the condition of the premises was “unsafe or unsanitary,” not merely affected by minor poor conditions. Instead, the materiality of the breach of warranty claimed is determined by its effect on the life, health, or safety of the tenant.21
Each of the tenants sent the landlords multiple emails informing them of the property’s conditions, which constituted more than simple inconvenience, including mold in the refrigerator, water leaking from the dishwasher onto the kitchen floor, water leaking from the ceiling into a bucket in the living room, live wires coming from the bathroom light switch, inoperable air conditioning, and no electricity in parts of the premises. Since these conditions “materially affect the life, health, and safety” of the tenants, the trial court did not err in its judgment, the Court of Appeals stated.22
Endnotes
1 Lopez v Cedar Fair, L.P., 702 S.W.3d 114 (Mo. App. W.D. 2024).
2 Hill v. SSM Heath Care St. Louis, 563 S.W.3d 757, 764 (Mo. App. E.D. 2018).
3 Minze v. Mo. Dep’t. of Pub. Safety, 541 S.W.3d 575, 581 (Mo. App. 2017).
4 Lopez, 702 S.W.3d at 127 (quoting Minze, 541 S.W.3d at 583)).
5 K.B., et al v. Oasis Foot Spa and Massage, LLC, 703 S.W.3d 606, 613 (Mo. App. E.D. 2024).
6 Marmaduke v. CBL & Assocs. Mgmt., Inc., 521 S.W.3d 257, 269 (Mo. App. 2017).
7 Tribus, LLC v. Greater Metro, Inc., 589 S.W.3d 679, 693 (Mo. App. 2019) (quoting Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 526 (Mo. App. 1998)).
8 Morris v. J.C. Penny Life Ins. Co., 895 S.W.2d 73, 77-78 (Mo. App. 1995).
9 Oasis, 703 S.W.3d (2024).
10 Id. at 614.
11 Cottonaro v. Express Med. Transportation, Inc., 688 S.W.3d 751, 756 (Mo. App. 2024).
12 Oasis, 703 S.W.3d at 614.
13 Puga v. Nephrite Fund I, LLC, 697 S.W.3d 783 (Mo. App. W.D. 2024).
14 See Youngs v. Conley, 505 S.W.3d 305, 313 (Mo. App. W.D. 2016).
15 Id.
16 Stickler v. McGinnis, 649 S.W.3d 38, 44 (Mo. App. W.D. 2022).
17 Puga, 697 S.W. at 792.
18 Herr v. Zhao, 697 S.W.3d 589 (Mo. App. E.D 2024).
19 Chiodini v. Fox, 207 S.W.3d 174, 176 (Mo. App. E.D. 2006) (quoting Detling v. Edelbrock, 671 S.W.2d 265, 270 (Mo. banc 1984), abrogated on the other grounds by Green v. City of St. Louis, 870 S.W.2d 794 (Mo. banc 1994)).
20 Herr, 697 S.W.3d at 592 (citing Kolb v. DeVille I Props., LLC, 326 S.W.3d 896, 901 (Mo. App. W.D. 2010)).
21 Id. at 593 (citing Kolb, 326 S.W.3d at 901; Chiodini, 207 S.W.3d at 177; Seymour v. Switzer Tenant LLC, 667 S.W.3d 619, 626 (Mo. App. W.D. 2023)).
22 Id. (citing See Chiodini, 207 S.W.3d at 177).