Phillip H. March, Plaintiff/Respondent, v. Midwest St. Louis, L.L.C., Defendant/Appellant.
Annotate this Case
Download PDF
In the Missouri Court of Appeals Eastern District DIVISION ONE PHILLIP H. MARCH, Plaintiff/Respondent, vs. MIDWEST ST. LOUIS, L.L.C., Defendant/Appellant. ) ) ) ) ) ) ) ) ) No. ED96722 Appeal from the Circuit Court of the City of St. Louis Hon. Edward W. Sweeney, Jr. Filed: October 2, 2012 DISSENTING OPINION I respectfully dissent. The majority reverses the trial court's decision to grant a new trial on the basis of perjury by Defendant's expert Louis Akin because they find that Akin did not testify falsely and that his allegedly false testimony was immaterial. In light of our standard of review, whether a witness committed perjury is a decision more properly made by the trial court, not the Court of Appeals. After virtually all jury-tried cases, the losing party files a motion for new trial. Because it is so extremely rare for a trial court to grant a new trial, our Court is more liberal in affirming the grant of a motion for new trial than the denial of a motion for new trial. Lowdermilk v. Vescovo Building and Realty Co., Inc., 91 S.W.3d 617, 625 (Mo. App. E.D. 2002). We may not reverse a trial court's decision granting a motion for new trial unless there has been a clear abuse of discretion. Id. An abuse of discretion occurs only where the trial court's decision is clearly against the logic of the circumstances before the trial court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration by the trial court. Id. Granting a new trial on the basis that a witness committed perjury requires a showing that the witness willfully and deliberately testified falsely to a material fact. Hoodco of Poplar Bluff, Inc. v. Bosoluke, 9 S.W.3d 701, 704 (Mo. App. S.D. 1999); McC. v. McC., 501 S.W.2d 539, 541 (Mo. App. 1973). The determination of whether perjury occurred and whether an improper verdict likely resulted therefrom rests largely within the discretion of the trial court, and we will not reverse the trial court's ruling unless there has been an abuse of discretion. Hoodco, 9 S.W.3d at 704. In this case, the trial court found that Akin committed perjury by willfully and deliberately testifying falsely about his qualifications and background and that an improper verdict likely resulted from Akin's false testimony. The trial court also found that Akin's false testimony related to a material fact. Those findings must be viewed in light of the facts of this case. As noted by the trial court, "the critical issue" in determining whether Defendant was liable for premises liability arising from Plaintiff being stabbed in the vicinity of Defendant's property was "where the stabbing took place." Akin opined that the stabbing did not occur on Defendant's property. Akin was the only person who offered an expert opinion as to where the stabbing occurred and there were no witnesses to the stabbing. In its judgment granting Plaintiff a new trial on the grounds that Akin committed perjury, the trial court specifically found that the jury's evaluation as to how much weight and value should be given to Akin's testimony regarding "the critical issue of where the stabbing took place" depended on the jury's evaluation of Akin's qualifications and background, an area in which he testified falsely. The trial court found that Akin willfully and deliberately testified falsely about his qualifications and background: 2 . . . [I]t strains credulity past the breaking point to suggest that when Akin heard the question at trial whether he was retained by the U.S. Government, he thought he was being truthful by giving his answer [that he 'recently just finished reconstructing the Fort Hood shooting by Major Malik Hasan'] without any clarification that he was working for the defense of Major Hasan, and not on behalf of the U.S. Government. [and] ... . . . Akin's answer gave the [c]ourt and the jury the distinct idea that Akin was working for the U.S. Government in connection with the prosecution of Maj. Hasan for the Fort Hood shootings and that idea or fact turned out to be false. [and] ... . . . [T]his [c]ourt has no doubt that witness Akin knew at the time he was asked the question by defense counsel who he was working for and if he was currently involved in any major investigation where he had been retained by the U.S. Government that when he gave his answer he was prevaricating, he was deviating from the truth, he was deceiving the [c]ourt and the jury. (emphasis added). The trial court was in the best position to determine whether Akin willfully and deliberately testified falsely because a trial court has the superior advantage of seeing and observing the witness and is in a much better position to judge the witness's credibility than our Court which merely reads the cold record. Hoodco, 9 S.W.3d at 704. Moreover, I disagree with the majority's conclusion that Akin's testimony did not relate to a material fact. The false impression created by Akin's deceiving testimony (that he had worked for the U.S. Government in connection with the prosecution of Major Hasan) could have substantially affected the outcome of this case. 1 As found by the trial court, the jury's evaluation as to how much weight and value should be given to Akin's testimony regarding "the critical issue of where the stabbing took place" depended on the jury's evaluation of Akin's qualifications and background, an area in which he testified falsely. Had the jury not been misled regarding Akin's qualifications and 1 Although the elements of the crime of perjury and criminal cases interpreting those elements are instructive, there is no compelling authority for the proposition that they should be strictly applied in a civil case such as this. Therefore, I would find that false testimony relates to a material fact in a civil proceeding when it could substantially affect the outcome of the case. 3 background, the jury may not have given as much weight and value to Akin's testimony and a verdict in Plaintiff's favor could have resulted. Based upon the facts of this case and the trial court's findings set out above, the trial court's decision that Akin committed perjury and that an improper verdict likely resulted from his false testimony was not clearly against the logic of the circumstances and was not so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration. Therefore, I would find that the trial court did not clearly abuse its discretion in granting Plaintiff a new trial on the basis that Akin committed perjury. ________________________________ GLENN A. NORTON, Judge 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
