Trans-Pro Logistic, Inc. v. Coby Electronics Corp.

E.D.N.Y.,2008.

United States District Court,E.D. New York.

TRANS-PRO LOGISTIC, INC., Plaintiff,

v.

COBY ELECTRONICS CORP., Defendants.

Coby Electronics Corp., Third-Party Plaintiff,

v.

CSX Intermodal, Inc. and Yellowstone Freight, Inc., Third-Party Defendants.

No. 05-CV-1759 (CPS)(CLP).

Sept. 3, 2008.

MEMORANDUM OPINION AND ORDER

SIFTON, Senior District Judge.

Plaintiff Trans-Pro Logistics, Inc. (“Trans-Pro”) commenced this action against defendant Coby Electronics Corp. (“Coby”) claiming breach of contract arising out of defendant’s alleged failure to remit payment to plaintiff for shipping services rendered on behalf of defendant. Defendant filed counterclaims against plaintiff as well as a third-party complaint against third-party defendants CSX Intermodal, Inc. (“CSXI”) and Yellowstone Freight, Inc. (“Yellowstone”) alleging that shipments of goods were lost in the course of transportation provided by plaintiff and third-party defendants.Presently before this Court is third-party defendant CSXI’s motion for summary judgment dismissing the third-party complaint against it. For the reasons set forth below, third-party defendant CSXI’s motion is denied.

Defendant Coby’s third-party claim against third-party defendant Yellowstone concerns a shipment of goods that was transported in November 2004. I do not address defendant’s claims against third-party defendant Yellowstone since their dealings are not at issue for purposes of this motion.

Background

The following facts are drawn from the parties’ papers submitted in connection with this motion. Disputes are noted.

Plaintiff Trans-Pro is a corporation organized and existing under the laws of Quebec Province, Canada. Amended Complaint ¶ 3. Plaintiff is licensed by the Surface Transportation Board as a transport broker  and arranges for the transportation of commercial goods on behalf of shippers in the United States and Canada. Id.  ¶ 4; Deposition of Peter Boyko (“Boyko Dep.”) at 14-16. According to plaintiff, and disputed by defendant, it does not employ drivers or own trucks that are used for the transportation of goods. Deposition of Denis Charbonneau (“Charbonneau Dep.”) at 42; Fax from Trans-Pro Logistics, dated November 30, 2004, Coby Exhibit C.

Under 49 U.S.C. § 13102“[t]he term ‘broker’ means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.”49 U.S.C. § 13102(2).

Defendant and third-party plaintiff Coby is a corporation organized and existing under the laws of New York State, with its principal place of business in Queens, New York. Amended Complaint ¶ 6. Defendant and third-party plaintiff Coby is a wholesaler that imports and sells consumer electronics to retailers.Id.  ¶ 7.

On September 1, 2004, plaintiff Trans-Pro and defendant Coby entered into an oral contract for the transportation and delivery of a shipment of goods from defendant Coby’s warehouse in California to Interbond Corp. d/b/a Brands Mart (“Brands Mart”) in Hollywood, Florida. Coby Amended Answer ¶ 34. The parties dispute whether plaintiff was to transport the goods itself or arrange for the transportation of the goods by other companies.

According to plaintiff, defendant requested plaintiff to arrange for rail transportation of the goods, and plaintiff agreed to arrange for the shipment of goods by consigning the shipment to various carriers  for transport and delivery on defendant’s behalf. Deposition of Jason Leithead (“Leithead Dep.”) at 115-16, 123-25. Defendant states that plaintiff held itself out as a carrier and that defendant hired plaintiff to transport the goods itself. Declaration of Kevin Gu (“Gu Decl.”) ¶¶ 3, 6; Deposition of Tiffany Lin (“Lin Dep.”) at 44, 99, Coby Exhibit B; Deposition of Kevin Gu (“Gu Dep.”) at 40, 99, Coby Exhibit A. Defendant states that it did not authorize plaintiff to hire other companies to transport the shipment of goods. Gu Decl. ¶¶ 4, 6.

Under 49 U.S.C. § 13102, “[t]he term ‘carrier’ means a motor carrier, a water carrier, and a freight forwarder.”49 U.S.C. § 13102(3). A motor carrier is “a person providing commercial motor vehicle … transportation for compensation.”49 U.S.C. § 13102(14).

A freight forwarder is:

a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for compensation and in the ordinary course of its business-

(A) assembles and consolidates, or provides for assembling and, consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments;

(B) assumes responsibility for the transportation from the place of receipt to the place of destination; and

(C) uses for any part of the transportation a carrier subject to jurisdiction under this subtitle.

49 U.S.C. § 13102(8).

Thereafter, plaintiff hired TRT Carriers (“TRT”) to arrange for the transportation of defendant’s shipment. Leithead Dep. 117-18. According to third-party defendant CSXI, and disputed by defendant Coby, TRT is a division of the company NYK Logistics. Plaintiff Trans-Pro hired TRT to arrange for the transportation of defendant’s shipment because NYK Logistics had a low-cost rate agreement with third-party defendant CSXI. Id. Plaintiff states, and defendant disputes, that it informed defendant that TRT’s trucks would pick up the goods from defendant’s warehouse. Leithead Dep. at 125-126. TRT in turn hired third-party defendant CSXI to arrange for the shipment of defendant’s goods. Declaration of Joseph McCauley (“McCauley Decl.”) ¶ 6.

Third-party defendant CSXI is a corporation organized and existing under the laws of the state of Delaware, with its principal place of business in Jacksonville, Florida. Third-Party Complaint ¶ 3. Third-party defendant CSXI calls itself a “shipper’s agent” and arranges transportation by rail and motor on behalf of its customers. McCauley Decl. ¶ 7.

The agreement between TRT and third-party defendant CSXI was made pursuant to the terms of the CSXI Service Directory No. 1 (“Service Directory”), effective August 15, 2004. McCauley Decl. ¶ 6. The Service Directory provides the terms for filing a claim against CSXI for lost or damaged cargo. Service Directory Item 90, CSXI Exhibit B. It requires shippers to inform CSXI of an alleged shortage within 24 hours of delivery so that CSXI may inspect the shipment and stipulates that failure to do so serves as a release from liability. Id. The Service Directory requires all claims to be made in writing within eight months from the date of the delivery and also stipulates that if the shipper disputes the denial of a claim, the parties will agree to participate in mediation.Id. If mediation is unsuccessful, the shipper may file legal proceedings within six months of receiving the denial notice in Jacksonville, Florida, or the point of origin or destination of the shipment arranged by CSXI. Id.

Third-party defendant CSXI arranged for American Road Line, Inc. (“ARL”), an independent motor carrier, to transport the shipment from defendant Coby’s warehouse to Union Pacific Railways. Union Pacific Railways was contracted to ship the goods to Chicago, Illinois, where the goods were to be delivered to CSX Transportation, Inc. (“CSXT”), which was to provide rail transportation to Jacksonville, Florida. Upon arrival in Jacksonville, Florida, the goods were to be delivered to Florida East Coast for rail transportation to Dade County, Florida. An ARL truck would then pick up the goods upon arrival in Dade County and deliver them to Brands Mart. McCauley Decl. ¶ 9.

On September 1, 2004, a shipment consisting of 1290 cartons, containing consumer electronics products, left defendant’s warehouse. Defendant loaded its shipment into a container and then sealed the cargo within the container with a security seal. September 1, 2004, Service Verification Report, CSXI Exhibit A; September 1, 2004 Coby Bill of Lading, CSXI Exhibit A.

On September 17, 2004, ARL delivered the shipment to Brands Mart. September 17, 2004 ARL Bill of Lading, CSXI Exhibit A. Brands Mart signed the bill of lading on the line next to the statement “SEAL INTACT/RECEIVED BY.”  Id.When Brands Mart opened the shipment it discovered that 55 cartons, containing $81,427.03 worth of goods, were missing from the shipment and noted the shortage on the delivery receipt. Lin Dep. at 160; NYK Logistics Claim Letter, CSXI Exhibit A; Gu Dep. at 54-55.

Thereafter, defendant learned about the missing goods, informed plaintiff of the loss and filed a claim with plaintiff. Leithead Dep. at 133, 147. Defendant states that it was never informed prior to the alleged loss of goods that plaintiff intended to hire another entity to transport the shipment. Gu Decl. ¶ ¶ 4, 6. Third-party defendant CSXI states that it was not informed of the alleged loss within 24 hours of delivery. McCauley Decl. ¶ 14.

On October 27, 2004, NYK Logistics filed a claim for the missing goods with third-party defendant CSXI. NYK Logistics Claim Letter, CSXI Exhibit A. On December 6, 2004, third-party defendant CSXI denied the claim because the seal was intact at the time of delivery. Declination Letter, CSXI Exhibit A.

Discussion

Summary Judgment Standard

A court must grant a motion for summary judgment if the movant shows that “there is no genuine issue as to any material fact” and that “the moving party is entitled to a judgment as a matter of law.”Fed.R.Civ.P. 56(c). Summary judgment is appropriate “[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is material when it “might affect the outcome of the suit under the governing law.”Id.

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a “metaphysical doubt” as to the material facts. See Matsushita, 475 U.S. at 586;Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir.2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.2003).

Goods Transported in Interstate Commerce

Pursuant to 49 U.S.C. § 14706, freight forwarders and carriers, but not brokers, may be held liable for goods lost while transported in interstate commerce. 49 U.S.C. § 14706. Brokers may be held liable under state law causes of action. See Electroplated Metal Solutions, Inc. v. American Servs., Inc., No. 07-CV-409, 2008 WL 345617,(N.D.Ill.2008); Hewlett-Packard Co. v. Brother’s Trucking Enters., Inc., 373 F.Supp.2d 1349, 1352 (S.D.Fla.2005).“Whether a company is a broker or a carrier is not determined by what the company labels itself, but by how it represents itself to the world and its relationship to the shipper.”Hewlett-Packard Co., 373 F.Supp.2d at 1352.

A shipper who uses the services of an intermediary to arrange for the transportation of its goods is bound by the terms of the contract between the intermediary and the carrier. Great Northern Ry. Co. v. O’Connor, 232 U.S. 508, 514, 34 S.Ct. 380, 58 L.Ed. 703 (1914) (addressing contract between freight forwarder and rail carrier). A carrier has the right to assume that the entity presenting the goods for shipment has the authority to ship them and agree upon the terms of the shipment and if there is a violation of the shipper’s “instructions, resulting in damage, the plaintiff has her remedy against that [intermediary].”Id. at 515;see also Norfolk Southern Ry. Co. v. Kirby, 543 U.S. 14, 34, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (applying Great Northern to a maritime action); Burnell v. Butler Moving & Storage, 826 F.Supp. 65, 68-69 (N.D.N.Y.1993) (applying Great Northern and holding that carrier had the right to assume that a freight forwarder had the authority to agree to the terms of the shipment with a motor carrier); Nippon Fire & Marine Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53, 61 (2d Cir.2000) (shipper who contracted with an air carrier for the shipment of goods was bound by the terms of the contract that air carrier subsequently entered into with subcontracted secondary air carriers).

Third-Party Defendant CSXI’s Claims

Third-party defendant CSXI argues that the third-party complaint against it should be dismissed because defendant and third-party plaintiff Coby failed to abide by the terms of the Service Directory.Relying on the Supreme Court’s holding in Great Northern, and Kirby, as well as the Second Circuit’s decision in Nippon, third-party defendant CSXI argues that defendant and third-party plaintiff Coby was bound by the terms of the Service Directory, because plaintiff was acting on defendant and third-party plaintiff Coby’s behalf when plaintiff contracted with TRT which in turn contracted with third-party defendant CSXI for the shipment of the goods in question.

Specifically, third-party defendant CSXI argues that it has been released of liability for the alleged loss of goods because: (1) it was not informed of the alleged shortage within 24 hours of delivery as required by the terms of the Service Directory; (2) defendant and third-party plaintiff Coby failed to file suit within six months of the denial of the claim as required by the Service Directory; (3) defendant and third-party plaintiff Coby failed to pursue mediation prior to filing suit as required by the Service Directory; and (4) defendant and third-party plaintiff Coby failed to file suit pursuant to the terms of the Service Directory’s forum selection clause.

In its initial moving papers, third-party defendant appeared to argue that summary judgment should be granted in its favor because third-party plaintiff had failed to establish a triable issue of fact with respect to the alleged loss of goods. However, in its reply papers, third-party defendant states that it is not moving for summary judgment on this ground, but rather included a discussion on the loss of goods to demonstrate that it had valid reasons for denying third-party plaintiff’s claim. Accordingly, I need not and do not consider the issue.

In Great Northern, Kirby, and Nippon, the shippers disputed the liability limitations that their freight forwarders and/or carriers entered into with downstream carriers. In all three cases, the courts determined that a rule permitting carriers to distinguish between shippers and intermediaries would potentially interfere with the obligation of carriers not to discriminate.Nippon, 235 F.3d at 61;Great Northern, 232 U.S. 514;Kirby, 543 U.S. at 35. In Kirby, the Supreme Court also noted that the task of finding out whether carriers were dealing with freight forwarders or directly with shippers would be costly or impossible because goods change hands many times in the course of intermodal transport.

In this action, third-party defendant CSXI is a shipper’s agent, not a carrier, and knew that defendant and third-party plaintiff Coby was the shipper and not a freight forwarder at the time that it contracted with TRT to arrange for the shipment of the goods in question. Accordingly, the holdings of the courts in Great Northern, Kirby, and Nippon are not controlling with respect to the disputed issues in this action.

The parties in the instant action dispute whether plaintiff was hired to act as defendant’s carrier or broker and whether plaintiff had the authority to act as defendant’s agent for purposes of negotiating subsequent transactions related to the shipment of goods in question. Because there are material factual disputes about the terms of the contract between plaintiff and defendant, a jury must first determine their relationship before addressing whether defendant and third-party plaintiff Coby was bound by the terms of the Service Directory.

Accordingly, third-party defendant CSXI’s motion for summary judgment is denied.

Conclusion

For the reasons set forth above, third-party defendant CSXI’s motion for summary judgment is denied. The Clerk is directed to transmit a copy of the within to the parties and the magistrate judge.

SO ORDERED.

Missouri Court of Appeals,Western District.

Lisa GILES, et al., Appellant,

v.

RIVERSIDE TRANSPORT, INC., et al., Respondent.

No. WD 68378.

Sept. 16, 2008.

JOSEPH P. DANDURAND, Judge.

Lisa and Patrick Giles appeal the judgment after jury trial in favor of Riverside Transport, Inc. (Riverside Transport) and Rickie Licht. The eight points on appeal contend the trial court erred in: excluding evidence; refusing to allow a fourth amended petition; failing to strike a venireperson for cause; failing to allow an offer of proof; and failing to grant a new trial because the verdict was against the weight of the evidence. Cumulative error is also claimed. The points are denied, and the judgment of the trial court is affirmed.

Facts

On April 25, 2001, Lisa Giles was driving her Ford Explorer westbound on Front Street in Kansas City. Rickie Licht was following Ms. Giles in a semi-truck. The truck was not pulling a trailer.

Mr. Licht came around a curve and saw traffic had slowed to a significant degree or stopped. A four car collision subsequently occurred where Mr. Licht’s vehicle rear-ended Ms. Giles’ vehicle, who in turn rear-ended the vehicle in front of her, who in turn rear-ended the vehicle in front of it. There was a dispute at trial regarding whether Ms. Giles rear-ended the vehicle in front of her before being rear-ended by Mr. Licht. Ms. Giles suffered injuries as a result of the accident.

Ms. Giles and her husband  filed a petition for damages on November 2, 2004, naming Riverside Transport as the defendant. Ms. Giles served her first discovery request on August 17, 2006. Riverside Transport had difficulties locating the requested discovery. These difficulties were caused by the fact that Mr. Licht left employment with the business in 2001 and the fact that the business was sold to new owners in 2004. Mr. Licht’s personnel file was among the requested documents Riverside Transport could not locate. Ms. Giles received the file on January 8, 2007.

There was also some difficulty in taking Mr. Licht’s deposition. He failed to show for the deposition scheduled for December 13, 2006. He was deposed on January 19, 2007. Riverside Transport’s safety officer was deposed on February 1, 2007.

Ms. Giles filed a third amended petition on January 10, 2007. The petition alleged a simple claim of negligence against Mr. Licht and a claim of respondeat superior against Riverside Transport. It also alleged a claim of loss of consortium.

Ms. Giles’ motion for leave to file a fourth amended petition was faxed to Riverside Transport on February 1, 2007. It was filed with the court on February 5, 2007. The fourth amended petition sought to add claims for negligent hiring, negligent supervision, negligent entrustment, and punitive damages. Riverside Transport filed its opposition to the fourth amended petition on February 15, 2007. The motion was denied on February 22, 2007.

The case was subsequently transferred to a second judge. Trial began March 5, 2007. Ms. Giles’ second request for leave to file a fourth amended petition was denied the morning of trial. She repeated this request multiple times during the trial; her requests were denied. The jury found in favor of Riverside Transport. Judgment was entered accordingly.

This appeal followed. Further facts will be set forth as necessary.

Point I

In her first point on appeal, Ms. Giles claims the trial court erred in refusing to admit certain evidence. The evidence pertained to Mr. Licht lying on his employment application. It also pertained to whether Riverside Transport advised Mr. Licht to lie. Ms. Giles states that these lies were violations of the Federal Motor Carrier Regulations, which would expose Riverside Transport to punitive damages. She argues in her first point that this evidence goes directly to Mr. Licht’s credibility and would expose his employer, Riverside Transport, to punitive damages.

“[A] trial judge has wide latitude in ruling on whether to admit or exclude evidence and discretion to determine the materiality and relevancy of evidence.”State v. Hawkins, 778 S.W.2d 780, 782 (Mo.App. W.D.1989).“The trial court is in the best position to evaluate whether the potential prejudice of relevant evidence outweighs the relevance.”Id.“The trial court is vested with broad discretion in ruling questions of relevancy of evidence and, absent a clear showing of abuse of that discretion, the appellate court should not interfere with the trial court’s ruling.”Id. at 782-83.

In essence, Ms. Giles complains that she was not able to question Mr. Licht about lying on his employment application. She asserts this information was admissible for two reasons: (1) to impeach Mr. Licht and (2) to impose punitive damages.

Ms. Giles fails to adequately argue her first basis. Her brief states: “The import of this information cannot be emphasized enough. First, the Court should have allowed this testimony simply to impeach the credibility of Licht.”She cites McHaffie v. Bush, 891 S.W.2d 822 (Mo. banc 1995).“In an appeal, the movant has the burden to establish error that warrants relief through adequate points and arguments. This burden shall not be shifted to the appellate court.”State ex rel. Greene County v. Barnett, 231 S.W.3d 854, 858 (Mo.App. S.D.2007).

Moreover, her argument fails. Ms. Giles called Mr. Licht as her first witness. She now argues she should have been able to use evidence of him lying on his employment application, which was irrelevant to the claims before the jury, to impeach him. “A party calling an adverse party as a witness may contradict that person’s testimony, but may not directly impeach the witness’ credibility, except with the witness’ prior inconsistent statements.”Waters v. Barbe, 812 S.W.2d 753, 757 (Mo.App. W.D.1991) (citation omitted). A second exception is that a witness’ prior criminal convictions may also be used to impeach witness credibility. See§ 491.050; Love v. Baum, 806 S.W.2d 72, 74 (Mo.App. W.D.1991).“Impeachment means an attack on a witness’ general credibility, whereas contradiction means an attack on the accuracy of a witness’ testimony and, unlike impeachment, usually adds factual evidence.”Waters, 812 S.W.2d at 757. Ms. Giles was not cross-examining Mr. Licht. His lying on an employment application, an act unrelated to the substantive claims before the jury, was not proper impeachment. Ms. Giles has provided no facts or argument suggesting otherwise.

Ms. Giles second basis is also unavailing. Again, Ms. Giles fails to adequately argue that punitive damages should have been submitted. Even had she properly briefed her claim, however, it would fail. “[I]t is fundamental that a determination of liability is a prerequisite to a finding of damages, such that an award of damages cannot survive independent of the accompanying determination of liability.”Parshall v. Buetzer, 121 S.W.3d 548, 554 (Mo.App. W.D.2003).“A plaintiff must prevail on his or her underlying claim to submit punitive damages to the jury.”Kelly v. State Farm Mut. Auto. Ins. Co., 218 S.W.3d 517, 526 (Mo.App. W.D.2007) (citation and quotation marks omitted). The jury found in favor of Riverside Transport. Mr. Licht’s alleged lies were not relevant to the issue of liability for the accident; they occurred prior in time to the accident. They would not have impacted plaintiffs’ substantive claim of negligence. As Ms. Giles did not prevail on her claim of error regarding the court’s refusal to allow the filing of the fourth amended petition to assert a claim for punitive damages, her argument of error is misplaced. See Embree v. Norfolk & W. Ry. Co., 907 S.W.2d 319, 326-27 (Mo.App. E.D.1995)(holding that even assuming that trial court erred in denying instruction regarding damages for aggravation of preexisting condition, error was harmless where jury found no liability on substantive claim).

Finally, Ms. Giles focuses upon whether leave should have been granted to file a fourth amended petition. This is more properly discussed in the second point as that is where it is identified as an issue on appeal. See Schmidt v. Warner, 955 S.W.2d 577, 583 (Mo.App. S.D.1997)(“The questions for decision on appeal are those stated in the points relied on; a question not there presented will be considered abandoned.”).

The point is denied.

Point II

In her second point, Ms. Giles clams the trial court erred in refusing to allow the fourth amended petition. Ms. Giles asserts that she did not learn of Mr. Licht’s lies on his employment application and Riverside Motors’ involvement until she received Mr. Licht’s personnel file and until she was able to depose Mr. Licht and Riverside Motors’ safety officer. The fourth amended petition added claims for negligent entrustment, negligent hiring, negligent supervision, and punitive damages, based on the new information. Ms. Giles argues she attempted to amend the petition as soon as she learned of the lies on the employment application. She maintains her amendment was not untimely and the delay was the result of Riverside Motors’ failure to comply with discovery requests. She concludes it was error to not allow the fourth amended petition, as it prevented her from seeking punitive damages and her claims of negligent entrustment, negligent hiring, and negligent supervision.

[10][11]Rule 55.33(a) provides that a pleading may be amended by leave of court and that such leave shall be freely given when justice so requires. Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 677 (Mo.App. S.D.2008).“The right to amend a pleading, however, is not absolute.”Id. (quoting Duecker v. Grill, 175 S.W.3d 662, 671 (Mo.App. S.D.2005). The following factors should be considered in determining whether to allow leave to amend a petition:

“(1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier pleadings; (3) timeliness of the application; (4) whether an amendment could cure the inadequacy of the moving party’s pleading; and (5) injustice resulting to the party opposing the motion, should it be granted.”

Id. (quoting Dueker, 175 S.W.3d at 671).

[12][13][14]“Whether to allow amendment of pleadings is a matter primarily within the sound discretion of the trial judge whose ruling will not be disturbed absent obvious abuse of that discretion.”Woods v. Friendly Ford, Inc., 248 S.W.3d 699, 710, (Mo.App. S.D.2008) (citation and quotation marks omitted).“In this context, the denial of an amendment is presumed correct and the burden is on the proponent to show that the trial court clearly and palpably abused its discretion.”Dueker, 175 S.W.3d at 671 (citation and quotation marks omitted).“Judicial discretion is abused when a ruling is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.”Id. (citation and quotation marks omitted).“The determination of whether a circuit court abused its discretion in denying leave to amend is best measured in terms of whether justice is furthered or subverted by the course taken.”Id. (citation and quotation marks omitted).

Riverside Transport was not timely in responding to discovery. The delay was caused by a change in ownership of the business, the off-site storage of documents, and inability to locate Mr. Licht. Ms. Giles sought to amend the petition as soon as she received Mr. Licht’s personnel file and deposed both him and the safety officer.

While the discovery issues weigh heavily in favor of Ms. Giles, she has not demonstrated that the trial court abused its discretion in failing to allow the fourth amended petition. Ms. Giles filed her initial petition in November 2004. She did not initiate discovery until August 2006. She filed a second amended petition; she filed a third amended petition in January 2007. Trial was scheduled to begin March 5, 2007. She sought to file her fourth amended motion on February 5, 2007. Riverside Transport responded on February 15, 2007, a mere two weeks before trial.

[15] In addition, Ms. Giles has not alleged or demonstrated that she requested a continuance in trial date or that she was prevented from dismissing her claim and refiling to include all claims. It is also significant that the fourth amended petition sought to add three new claims and punitive damages.“The recognized purpose of allowing amendments to pleadings is to allow a party to present evidence that was overlooked or unknown when the original pleading was filed without changing the original cause of action.”Id. (citation and quotation marks omitted). Given all this and the earlier discussed fact that the jury found in favor of defendants on the issue of liability, Ms. Giles suffered no prejudice, and the trial court did not clearly and palpably abuse its discretion.

The point is denied.

Point III

[16] In her third point, Ms. Giles claims the trial court erred in refusing to submit punitive damages to the jury. She claims such damages were warranted by the information pertaining to Mr. Licht’s lies on his employment application and Riverside Transport’s involvement.

[17] Ms. Giles has failed to argue this point. Instead, she states that her “arguments on this point are adequately addressed in the previous point on appeal.”Further, she adopts and incorporates her “entire previous point as though set forth in full herein.”“In an appeal, the movant has the burden to establish error that warrants relief through adequate points and arguments. This burden shall not be shifted to the appellate court.”State ex rel. Greene County v. Barnett, 231 S.W.3d 854, 858 (Mo.App. S.D.2007). As Ms. Giles has failed to argue her third point as a claim of error distinct from her first two points, it will not be considered. See Boswell v. Steel Haulers, Inc., 670 S.W.2d 906, 912 (Mo.App. W.D.1984)(“As to this point, respondent has provided this court with one-half page of argument in its brief and has cited no authority or rationale to support the contention. We deem the point abandoned.”).

[18] Ms. Giles attempts to present an argument in her reply brief. It is essentially a summary of her first point. Moreover, “[a]ppellate courts are generally precluded from addressing assertions made for the first time in a reply brief because a respondent has no opportunity to address the argument.”Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App. E.D.2000).

The point is denied.

Point IV

In her fourth point on appeal, Ms. Giles claims the trial court erred in failing to strike for cause venireperson number seventeen. She claims venireperson seventeen demonstrated she could not be fair and impartial. Ms. Giles also makes several other assertions about venireperson seventeen in her argument section. As they are not identified in her point relied on, they will not be addressed. Sexton v. Omaha Prop. & Cas. Ins. Co., 231 S.W.3d 844, 846 n. 2 (Mo.App. S.D.2007)(“Arguments raised in the argument portion of the brief only and not included in the point relied on are not preserved for appeal.”).

[19][20] After the trial court failed to strike venireperson seventeen for cause, Ms. Giles used one of her peremptory strikes for venireperson seventeen.Thus, venireperson seventeen was not a member of the jury that heard Ms. Giles’ claims. “ ‘A civil litigant does not have a right to a new trial if the trial judge requires him or her to use a peremptory challenge to remove a juror who should have been removed for cause.’ “  Allen v. Grebe, 950 S.W.2d 563, 565 (Mo.App. S.D.1997)(quoting Rodgers v. Jackson County Orthopedics, Inc., 904 S.W.2d 385, 389 (Mo.App. W.D.1995)). “ ‘[T]he mere fact that a litigant, civil or criminal, was erroneously required to use a peremptory strike to remove a juror who should have been stricken for cause does not require grant of a new trial, so long as all 12 jurors who in fact sat on the jury were qualified.’ “  Id. (quoting Rodgers, 904 S.W.2d at 389);see also Edley v. O’Brien, 918 S.W.2d 898, 902 (Mo.App. S.D.1996)(“[A] litigant in a civil case does not have a right to a new trial because he or she was required to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause. So long as an unqualified juror who was not removed based on a proper challenge for cause does not serve in a civil case, there is no reversible error.”). As Ms. Giles complains only about venireperson seventeen in her point relied on, and said venireperson did not serve on the jury, her point is without merit.

The point is denied.

Point V

[21] In her fifth point on appeal, Ms. Giles claims the trial court erred in refusing to allow her to present an offer of proof from Brian Sodders. Mr. Sodders is the safety officer for Riverside Transport. Ms. Giles states her offer would have pertained to Mr. Licht lying on his application and whether Riverside Transport should have hired Mr. Licht.

[22][23]“[A] litigant who complains about the exclusion of evidence should invariably make an offer of proof, both to inform the trial court about the content of the proffered evidence and to allow an appellate court to assess the prejudicial effect of the exclusion.”McAllister v. McAllister, 101 S.W.3d 287, 291 (Mo.App. E.D.2003) (citation and quotation marks omitted). The proponent of evidence bears the burden of making an offer of proof.Vehlewald v. Vehlewald, 853 S.W.2d 944, 954 (Mo.App. E.D.1993).

After examining Mr. Sodders, Ms. Giles’ counsel again requested leave to file the fourth amended petition and stated he would like to make an offer of proof. The court stated: “Okay, let the record reflect that the motion is overruled. And at a convenient time, since he’s here anyway, we’ll put him on so you can make your offer of proof.”After cross-examination, Ms. Giles’ counsel again requested an offer of proof, and the court stated it would be made at a later time. The trial court dismissed the jury at 5:00 p.m. that day. After the jury was dismissed for the day, the trial court heard an offer of proof for Mr. Licht. The court stated that it would hear Mr. Licht’s offer of proof then and “then we’ll make the remaining offer of proof tomorrow with Mr. Sodders.”

Ms. Giles’ request occurred on the third day of the four day trial. After Mr. Sodders testified, Ms. Giles called four additional witnesses. The request to make the offer of proof for Mr. Sodders was never repeated. Offers of proof were made for two other witnesses, however. The trial court did not refuse to allow an offer of proof from Mr. Sodders. The court simply indicated that it should be made at a later time convenient to the court. Ms. Giles did not satisfy her burden of making an offer of proof as she failed to repeat her request before the case was submitted to the jury.

The point is denied.

Point VI

[24][25] In her sixth point on appeal, Ms. Giles claims the trial court erred in refusing to hold an evidentiary hearing on her motion for a new trial. She claims she had been in contact with the court’s administrative assistant and was attempting to schedule a hearing when the court denied her motion. She also complains that the trial court refused to set aside its denial of her motion for a new trial when she brought her attempts to schedule a hearing to its attention.

[26] Ms. Giles cites absolutely no authority in support of her contention. She provides no legal precedent that an evidentiary hearing is required.“Points are considered abandoned where contentions are supported by argument consisting of mere conclusions .”Rainey v. Express Med. Transporters, Inc., 254 S.W.3d 905, 908 (Mo.App. E.D.2008). Failure to cite legal authority in support of her point preserves nothing for review.Id.

Moreover, the court never formally denied a hearing. Instead, it denied the motion while Ms. Giles was in the process of trying to schedule a hearing. Ms. Giles never requested a hearing in her motion or reply brief. Finally, Ms. Giles has not indicated what she would have argued or how she was prejudiced.

The point is denied.

Point VII

In her seventh point on appeal, Ms. Giles claims the jury’s verdict was against the weight of the evidence. She notes that she and Mr. Licht were the only two witnesses to testify how the accident happened. She testified that Mr. Licht struck her from behind, and Mr. Licht testified that he did not see Ms. Giles hit the vehicle in front of her before he struck her from behind. Ms. Giles also states that she suffered $4,400 in lost wages, $13,000 in past medical expenses, and $150,000 in future medical expenses. Because of this, she concludes the verdict was “obviously the result of passion and prejudice.”Accordingly, she asserts it was error for the trial court to deny her a new trial.

[27][28][29][30][31][32][33]“Because the plaintiff has the burden of proof, a verdict in defendant’s favor need not be supported by any evidence.”Warren v. Thompson, 862 S.W.2d 513, 514 (Mo.App. W.D.1993).“Therefore, the evidence need not be recounted because the sufficiency of the evidence to support a defendant’s verdict is not a question amenable to appellate review.”Id.“[W]eighing evidence remains a trial court function.”Id.“An appellate court cannot rule on the weight of the evidence in a jury-tried case.”Id.“The plaintiff bears the burden to prove that the defendant was negligent and that the injuries directly resulted from the defendant’s negligence.”Id.  “The jury determines credibility.”  Id.“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.”Id.“The trial court’s overruling a motion for new trial on that ground constitutes a conclusive determination that cannot be overturned on appeal.”Id. Ms. Giles’ point is without merit.

The point is denied.

Point VIII

In her eighth point on appeal, Ms. Giles claims she was deprived of a fair trial due to the cumulative effect of the errors complained of in her first seven points. As she has failed to persuasively identify any error during the trial, the point must fail.

The point is denied.

Conclusion

Ms. Giles’ points are denied, and the judgment of the trial court is affirmed.

All concur.

Ms. Giles and her husband will be referred to as Ms. Giles throughout this opinion.

Riverside Transport asserts in its brief that Ms. Giles did not use a peremptory strike to remove venireperson seventeen from the jury. The transcript shows that this is incorrect. Ms. Giles did indeed use a peremptory strike on venireperson seventeen.

Ms. Giles’ point states that the trial court erred in refusing to allow an offer of proof. While her argument contains some complaint about the timing of the proposed offer, this court will address only the issue identified in her point relied on. See, e.g., Sexton v. Omaha Prop. & Cas. Ins. Co., 231 S.W.3d 844, 846 n. 2 (Mo.App. S.D.2007).

This court’s independent research failed to disclose any requirement that a trial court hold an evidentiary hearing before denying a motion for new trial. There is a requirement that a hearing be held before a motion for new trial is granted. See, e.g., Knothe v. Belcher, 691 S.W.2d 297, 299 (Mo.App. W.D.1985)(holding that an evidentiary hearing on a motion for new trial should be granted where a hearing was requested); Howe v. Bowman, 429 S.W.2d 339, 342 (Mo.App.1968)(holding it was error to grant a motion for new trial without giving the other party an opportunity to be heard as to the propriety of the order). This is not such a case.