Karla K. Allsberry, Appellant, vs. Patrick S. Flynn, et al., Respondents.

KARLA K. ALLSBERRY, ) No. ED113270 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Bruce F. Hilton PATRICK S. FLYNN, ET AL., ) ) Respondents. ) FILED: December 23, 2025

This appeal arises out of the long-running feud between the circuit clerk and the presiding judge of the Circuit Court of Lincoln County, which began immediately after both took office nearly seven years ago and continues to this day, though neither holds office any longer. While she was circuit clerk, Karla Allsberry filed a petition against Judge Patrick Flynn, later adding his then-secretary, Kathy Hall, as a defendant. Allsberry 1 alleged that Flynn and Hall acted in concert to defame her and cause her emotional distress. The petition also averred that the Circuit Court of Lincoln County ("CCLC"), through Flynn's actions, discriminated and retaliated against Allsberry based on her sex in violation of the Missouri Human Rights Act ("MHRA"). Allsberry appeals the various judgments entered in favor of the defendants after dispositive motions and a jury trial. We affirm the summary judgment in favor of Flynn and Hall on the

1 While the parties are or were elected officials with titles, for brevity we refer to them by their surnames only. We intend no disrespect.

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defamation claims because Allsberry presented no evidence to support the element of actual malice. We also affirm the judgment entered on the directed verdict in favor of CCLC on the discrimination and retaliation claims because the State of Missouri, not the circuit court, was Allsberry's employer for purposes of the MHRA. And we affirm the judgment entered on the jury verdict in favor of Flynn on the intentional infliction of emotional distress claim because Allsberry's assertions of trial error, relating to the instructions and defense counsel's conduct, are either not preserved or without merit. Background Flynn and Allsberry were elected to their respective positions as presiding judge and circuit clerk of the CCLC in the 2018 general election. Immediately upon taking office in January 2019, they became embroiled in an intense and acrimonious power struggle. The details of this conflict—including the facts presented at trial in this case—are largely irrelevant to the disposition of the claims of error in this appeal. For our purposes, it suffices to say that the discord began because Flynn and Allsberry disagreed about which of them had appointing authority over the deputy clerks. When they took office, that authority belonged to the circuit clerk pursuant to an existing agreement. Shortly thereafter, Flynn and other judges voted to amend the agreement to grant that authority to the presiding judge. Allsberry brought a lawsuit in May 2019 to challenge the amendment. The Western District ultimately concluded that the presiding judge had appointing power pursuant to the amended agreement. See Allsberry v. Ohmer, 658 S.W.3d 541, 544, 551 (Mo. App. W.D. 2022). During the pendency of that appeal (from November 2021 to May 2022), the Western District had ordered that deputy clerks could be hired or fired only by the written agreement of both Flynn and Allsberry. Allsberry accused Flynn of failing to abide by that order, and they blamed one another for staff-shortages in the circuit clerk's office.

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The pertinent facts in this case began shortly after Allsberry filed the appointing authority lawsuit. On May 28, 2019, Flynn wrote a letter informing Allsberry that she was being placed on administrative leave "due to [her] conduct creating a dysfunctional work environment for the [CCLC] in [her] failure to operate in fact, truth, protocol and respect." Flynn also purported to bar Allsberry from the courthouse. Allsberry filed a lawsuit challenging her suspension, and the circuit court declared that Flynn did not have authority to place Allsberry on indefinite administrative leave but denied her requested injunctive relief against Flynn, believing it lacked the power to grant that remedy. See Allsberry v. Flynn, No. 20L6-CC00031, 2021 WL 4859262, at *15 (Mo. Cir. Feb. 8, 2021). On April 5, 2021, while the appeal of that judgment was pending, Flynn sent a letter to courthouse personnel, explaining that he had been informed of Allsberry's "intention to use 'self-help' to return to this facility" if her request for immediate access was not granted by the courts. In the letter, Flynn stated that he and the other judges were "taking her words seriously" and "felt it important to advise everyone of this event." Flynn added that he had met with law enforcement and courthouse security, all of whom would be "taking a heightened awareness in their safety protocols." The Supreme Court of Missouri handed down its opinion in the suspension case on September 14, 2021, finding that Flynn had no authority to suspend Allsberry indefinitely because it amounted to a de facto removal from her elected office. Allsberry v. Flynn, 628 S.W.3d 392, 395-99 (Mo. banc 2021). The Supreme Court also concluded that the circuit court did indeed have the power to grant the requested injunctive relief and remanded the case for it to grant that remedy. Id. That same day, Flynn wrote a letter to Allsberry telling her that the suspension was lifted and she could return to the courthouse, adding: "It is expected that you will refrain from the misfeasance, malfeasance and nonfeasance behavior and actions that existed prior to the

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suspension and that you will act in fact, truth, protocol and respect." Pursuant to the Supreme Court's mandate, the circuit court entered an injunction permanently enjoining Flynn from preventing Allsberry's performance of her circuit clerk duties. See Allsberry v. Flynn, No. 20L6- CC00031, 2021 WL 4859260, at *1 (Mo. Cir. Oct. 6, 2021). On March 4, 2022, Flynn issued an administrative order declaring that Allsberry had "caused there to be a hostile work environment for the circuit court clerk employees[,]" which disrupted the entire clerk's office, caused three employees to quit, and affected nearly every other employee to the point that they were considering resigning. Flynn also noted that a long-time employee had left work that day "upset, crying and unable to perform her duties" after Allsberry "harassed, demeaned and humiliated" her. Flynn ordered Allsberry to refrain from continuing the behavior causing a hostile work environment. The order also provided that any employee subjected to such behavior could call security "to respond immediately" and that security "may take such action as is necessary to address the situation as in their discretion is needed to deescalate the situation, investigate and then report such incident" to him. On Allsberry's motion, the circuit court found that, by threatening to use courthouse security in this administrative order, Flynn was in contempt of the injunction prohibiting him from interfering with the performance of Allsberry's duties as circuit clerk. In August 2022, Hall defeated Allsberry in the primary election for circuit clerk. After winning the general election, Hall replaced Allsberry as circuit clerk in January 2023. Later that year, Flynn resigned from office. In this lawsuit, Allsberry asserted claims for defamation and intentional infliction of emotional distress against Flynn and Hall. She alleged that Flynn and Hall, acting with actual malice, published to the news media or other parties the May 28, 2019, April 5, 2021, and

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September 14, 2021 letters and the March 2022 administrative order, all of which contained false and defamatory statements about her and caused harm to her reputation. Allsberry also claimed that Flynn and Hall made false and defamatory oral statements blaming her for the shortage of deputy clerks, harming her reputation. And in addition to defaming her, Allsberry averred, Flynn and Hall engaged in other conduct throughout her time in office that was intended to cause her emotional distress, including suspending her indefinitely, preventing her from hiring clerks when the office was short-staffed, questioning her in an aggressive manner during meetings and in front of the deputy clerks, and attempting to have her prosecuted criminally under the misdemeanor-in- office statute. Allsberry sought to hold Flynn and Hall jointly liable for defamation and intentional infliction of emotional distress on the theory that they acted in concert for the common purpose of ensuring that Hall would defeat Allsberry in the election. Allsberry also asserted claims against the CCLC for violations of the MHRA, alleging that the circuit court was her employer and that— through the actions of Flynn—it discriminated and retaliated against her based on her sex. On Flynn's and Hall's motion, the trial court entered summary judgment in their favor on the defamation claims and on Allsberry's theory that Flynn and Hall acted in concert. The remaining claims proceeded to a jury trial. At the close of evidence, the trial court concluded that, as a matter of law, the CCLC was not Allsberry's employer for purposes of the MHRA claims and entered directed verdicts on those claims in its favor. Allsberry's claims for intentional infliction of emotional distress resulted in a directed verdict in favor of Hall and a jury verdict in favor of Flynn. This appeal follows. Discussion

Allsberry raises six points on appeal, challenging the summary judgment, the judgment directing verdicts for the CCLC on her MHRA claims, and the judgment entered on the jury verdict

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for Flynn on her claim for intentional infliction of emotional distress. 2 For the following reasons, we affirm each judgment. Defamation Claims We review the grant of summary judgment de novo. Switzer Living Tr., U/A Dated Feb. 5, 2019 by & Through Switzer v. Lake Lotawana Ass'n, Inc., 687 S.W.3d 476, 482 (Mo. App. W.D. 2024). Defending parties may establish a right to judgment by showing (1) facts that negate any one of the plaintiff's elements, (2) that after an adequate period of discovery, the plaintiff has not been and will not be able to produce evidence sufficient to allow the trier of fact to find any one of the plaintiff's elements, or (3) that there is no genuine dispute as to each of the facts necessary to support a properly-pleaded affirmative defense. Albright v. Union Elec. Co., 701 S.W.3d 725, 728 (Mo. App. E.D. 2024). 3

"Defamation law protects an individual against harm to his or her reputation." Smith v. Humane Soc'y of United States, 519 S.W.3d 789, 798 (Mo. banc 2017). To prevail on a defamation claim, the plaintiff must prove that, with the requisite degree of fault, the defendant published a false and defamatory statement identifying the plaintiff, which damaged the plaintiff's reputation.

2 In the conclusion section of her brief, Allsberry also requests reversal of the judgment directing a verdict against Hall on the intentional infliction of emotional distress claim, but she does not assert any claim of error in a point relied on regarding that ruling nor provide any argument in support of that request. "Issues not raised in the point relied on, as well as those that are unsupported by argument, are deemed abandoned." Jones v. Jones, 296 S.W.3d 526, 528 n.1 (Mo. App. W.D. 2009) (declining to review request for relief raised only in conclusion of brief but not included in a point relied on and not supported by argument). 3 In her brief, Allsberry contends the trial court entered summary judgment on the ground that she did not produce sufficient evidence of her claims without considering her responses to the defendants' statement of undisputed material facts ("SUMF") or her additional material facts, an approach she contends is not "favored" pursuant to Albright. But in Albright, this Court concluded only that the defendant failed to make a prima facie case for summary judgment based on the plaintiff's failure to produce evidence of the cause of her injury since its SUMF contained no more than a recitation of what the plaintiff had alleged in the petition. 701 S.W.3d at 729. As such, the SUMF presented no substantive facts, and the burden never shifted to the plaintiff to produce evidence of the cause. Id. Allsberry argues that, similarly, the burden never shifted to her in this case. But she only makes that argument with respect to the reputational-harm element of the defamation claims and the acting-in-concert theory, neither of which we reach. As to the other elements of defamation, Allsberry merely argues that she successfully disputed the SUMF and provided sufficient evidence to withstand summary judgment, not that the defendants failed to make a prima facie case.

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Id. The requisite degree of fault for a public figure like Allsberry is actual malice. Bauer v. 7-Eleven, Inc., 391 S.W.3d 25, 28 (Mo. App. E.D. 2012). Despite the ordinary understanding of the word "malice," in the defamation context, "[a]ctual malice is not about whether [the defendant] had ill will toward [the plaintiff]." Bugg v. Vanhooser Holsen & Eftink P.C., 152 S.W.3d 373, 377 (Mo. App. W.D. 2004) (emphasis added). "Actual malice" does not mean that the defendant acted out of spite, or to injure the plaintiff, or because of animosity. Smith v. UAW-CIO Fed. Credit Union, 728 S.W.2d 679, 683 (Mo. App. W.D. 1987); Wright v. Over-The-Rd. & City Transfer Drivers, Helpers, Dockmen & Warehousemen, Loc. Union No. 41, 945 S.W.2d 481, 497 (Mo. App. W.D. 1997). Rather, actual malice exists "where a defendant had actual knowledge that the alleged defamatory statement was false or acted with reckless disregard as to its truth or falsity at a time when the defendant had serious doubts as to its truth." Bauer, 391 S.W.3d at 28. Allsberry contends the trial court erred in finding that she could not produce evidence that Flynn and Hall knew the allegedly defamatory statements were false or acted with reckless disregard as to their falsity. She argues there was "ample evidence" of actual malice, referring primarily to legal rulings and disciplinary proceedings about Flynn's conduct over the years: Flynn and Hall published false letters about [Allsberry] on May 28, 2019, April 5, 2021, and September 14, 2021, Flynn unlawfully suspended [Allsberry] for more than 57% percent of her four (4) year term, after which an injunction was issued against Flynn to prohibit him from interfering with [Allsberry]'s performance of her job duties, after which, Flynn was held in contempt of court for violating the injunction by falsely accusing [Allsberry] of being a risk to the security of the courthouse and its personnel, after which the Commission on Retirement, Removal, and Discipline of Judges issued charges against Flynn for violating an order of the Missouri Court of Appeals, Western District, by refusing to sign the [Personnel Change Authorization forms] for three (3) new deputy clerks that both he and [Allsberry] had agreed to hire, in writing, and then falsely blaming [Allsberry] for the staff shortage, after which Flynn resigned or retired to avoid removal from office by the Commission on Retirement, Removal, and [Discipline] of Judges.

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In support of these "factual assertions" in her argument, Allsberry cites to entire documents without a "specific page reference to the relevant portion of the record on appeal" as mandated by Rule 84.04(e). 4 The documents she cites—her response to the defendants' SUMF and her statement of additional facts, along with the packages of exhibits filed in support and her affidavit—total over 550 pages. Without specific page references, this Court would be required to act as Allsberry's advocate, sifting through these voluminous documents to look for the evidence she claims supports the actual malice element, which we cannot do. See Switzer, 687 S.W.3d at

In any event, none of the above facts are relevant to actual malice. "Proof of falsity is not proof of malice." Westhouse v. Biondo, 990 S.W.2d 68, 72 (Mo. App. E.D. 1999). Allsberry's repeated insistence that the statements were untrue is misplaced as it does not show that Flynn and Hall knew the statements were false. Moreover, "actual malice is to be measured at the time of publication." Glover v. Herald Co., 549 S.W.2d 858, 861 (Mo. banc 1977); Sigafus v. St. Louis Post-Dispatch, L.L.C., 109 S.W.3d 174, 180 (Mo. App. E.D. 2003) (affirming summary judgment where plaintiff presented no evidence that defendants "knew of the inaccuracy of their source attribution at the time the article was published" as is required for actual malice element). Even assuming subsequent conduct might, under some circumstances, be probative of what a defendant knew at the time of publication, Allsberry fails to explain how the various legal rulings on which she relies show that Flynn or Hall knew the statements at issue were false at the time they made them. For example, the fact that the Supreme Court ultimately reached the legal conclusion that Flynn lacked authority to suspend Allsberry indefinitely has nothing to do with the veracity of the stated reasons for the suspension, much less whether Flynn or Hall had actual knowledge that those

4 Missouri Supreme Court Rules (2025).

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reasons were false or that they acted recklessly with regard to their truth or falsity. Similarly, the fact that the circuit court determined that Flynn's threat to call security in the administrative order violated the injunction not to interfere with Allsberry's work does not prove that Flynn and Hall published that order knowing the statements were false or with reckless disregard for their truth. And it is pure speculation to suggest that Flynn's retirement from the bench—even if there was evidence that it was timed to avoid facing discipline for blaming staff-shortages on Allsberry— demonstrates that he and Hall knew those shortages were not Allsberry's fault when they made such claims. In a further attempt to demonstrate that there was evidence of actual malice in the record, Allsberry points out that the trial court found sufficient evidence that Flynn and Hall engaged in outrageous and extreme conduct for purposes of her intentional infliction of emotional distress claim. According to Allsberry, this finding is inconsistent with the trial court's conclusion that she failed to produce evidence of actual malice. But Allsberry does not indicate what evidence in the record satisfied the outrageous-and-extreme-conduct standard, nor is any such evidence identified in the judgment itself. Outrageous and extreme conduct is that which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." State ex rel. Halsey v. Phillips, 576 S.W.3d 177, 181 (Mo. banc 2019). Even if there was evidence that Flynn's or Hall's conduct in making the defamatory statements was indecent, atrocious, and intolerable, that would not necessarily be probative of whether they had actual knowledge that the statements were false when they made them. Finally, to the extent that Flynn or Hall harbored ill-will or animosity toward Allsberry, wanted to harm her reputation, or acted out of spite, those sentiments do not, without more,

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establish the element of actual malice in a defamation claim. See Bugg, 152 S.W.3d at 377; Smith, 728 S.W.2d at 683; Wright, 945 S.W.2d at 497. Points III and IV are denied. Acting-in-Concert Theory

Allsberry sought to hold Flynn and Hall jointly liable on the defamation and intentional infliction of emotional distress claims on the theory that they acted in concert to defame her and cause her emotional distress. Because we affirm the summary judgment in favor of Flynn and Hall on the defamation claims, the issue of joint liability on those claims is moot. Likewise, because Allsberry has not preserved any claim of error with respect to the directed verdict against Hall on the emotional distress claim and because, as discussed below, we affirm the judgment in Flynn's favor on that claim, joint liability for that tort is also a moot issue. Point V is denied as moot. MHRA Claims

This Court reviews the grant of a directed verdict de novo. Johnson v. City of St. Louis, 613 S.W.3d 435, 445 (Mo. App. E.D. 2020). We will affirm a judgment on a directed verdict if at least one element of the plaintiff's case was not supported by the evidence. Id. Under the MHRA, it is unlawful for an "employer" to discriminate against any individual based on sex and to retaliate against that person for opposing a discriminatory practice. Sections 213.055.1(1)(a) and 213.070.1(2). 5 To prevail on a claim for violation of the MHRA, a plaintiff must prove that the defendant is his or her employer. 6 See Williams v. Hutcheson Enters., Inc., 699 S.W.3d 244, 249 (Mo. App. S.D. 2024).

5 All statutory references to the MHRA are to RSMo (Supp. 2017). 6 Section 213.010(8) defines "employer" as: [A] person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and shall include the state, or any political or civil subdivision thereof, or any person employing six or more persons within the state but does not include corporations and associations owned or operated by religious or sectarian organizations. There is no contention on appeal that a circuit court cannot ever be an "employer" under this definition, only that the CCLC was not Allsberry's employer in this case.

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The trial court concluded that the CCLC was not Allsberry's employer and was therefore not liable to her under the MHRA. Rather, it found that the State of Missouri was Allsberry's employer. On appeal, Allsberry effectively concedes that, for most purposes, she was an employee of the State—that is, she does not argue there was any evidence at trial showing the CCLC was her employer. Allsberry instead contends that, for the limited purpose of her MHRA claims, she was not a State employee and that, in any event, it does not matter whether her employer was the State or the CCLC. 7 We disagree. By statute, certain circuit clerks—including the circuit clerk of Lincoln County—are "considered state employees for all purposes except the manner of their selection, appointment or removal from office[.]" Section 483.083.4. 8 According to Allsberry, because her MHRA claims arise from the circumstances surrounding her de facto removal from office, the "exception" in section 483.083.4 applies and she is not to be considered a state employee for purposes of this lawsuit. But the "exception" language on which she relies is merely a clarification that being considered a state employee does not change the rules regarding the circuit clerk's selection, appointment, and removal from office. See section 483.015. This provision does not have any impact on Allsberry's status as a state employee for purposes of an MHRA claim. Alternatively, Allsberry contends that it simply does not matter whether the State or the CCLC is her employer because a suit against a circuit court is a suit against the State and a judgment against either entity would be paid from the same legal expense fund. None of the authorities she cites support this proposition.

7 Allsberry points out that she originally named the State and Flynn as the respondents in her complaint to the Missouri Commission on Human Rights, which then directed her to strike those respondents and amend the complaint to name only the CCLC. At the conclusion of her argument in this point on appeal, Allsberry lists this fact as one of the reasons the trial court erred in entering the directed verdict, but she does not cite any authority in support of this cursory assertion or explain why these circumstances warrant reversal. 8 All statutory references to Chapter 483 are to RSMo (2016). Effective August 28, 2025, the contents of this subsection 4 are now found in subsection 3.

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Allsberry asserts that the circuit courts are divisions or departments of the state government, relying on Smith v. Thirty-Seventh Jud. Cir. of Missouri, 847 S.W.2d 755, 757 (Mo. banc 1993), where the Supreme Court held that an employee of a circuit court could be considered a state employee for purposes of the workers' compensation statute. But nothing in Smith suggests that Allsberry should have been allowed to pursue her employment discrimination claims against the circuit court instead of her actual employer, the State. Nor does the fact that circuit courts play an integral role in state government support her proposition that a suit against the CCLC is a suit against the State. Allsberry cites to State ex rel. O'Leary v. Missouri State Bd. of Mediation, 509 S.W.2d 84, 89 (Mo. banc 1974), where the Supreme Court concluded that, regardless of which governmental unit paid the compensation of the juvenile court employees—the State or the county—they were employed by a public body for purposes of the labor organization statutes. According to Allsberry, the identity of her employer is likewise irrelevant because a judgment against either the CCLC or the State would be paid by the State Legal Expense Fund ("SLEF"), section 105.711. 9 But by this logic, any of the entities and individuals to whom SLEF applies could be substituted for the State in this case. See section 105.711.2(1)-(7) (listing seven categories of defendants and claims to whom monies in the fund are available). Nothing in the SLEF statute or O'Leary supports Allsberry's untenable argument that a common defense fund renders the CCLC and the State interchangeable defendants for purposes of her MHRA claims. Point I is denied. Intentional Infliction of Emotional Distress Claim

In her remaining points on appeal, Allsberry asserts that a new trial is warranted on her intentional infliction of emotional distress claim against Flynn because of errors during trial.

9 All statutory references to SLEF are to RSMo (2016).

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First, she argues that Flynn's attorney engaged in misconduct during the trial by coaching Flynn about his demeanor while he was testifying on cross-examination and by informing the jury that Allsberry had a lawsuit against other court personnel. This point is not preserved because Allsberry did not challenge any of that conduct when it occurred at trial. She made no comment when a juror told the trial court during a sidebar about counsel's behavior during Flynn's cross- examination, nor did she object when counsel briefly mentioned her other lawsuit during closing argument. While Allsberry raised this alleged misconduct in her motion for new trial, that alone is not sufficient to preserve a claim of error for appellate review. See Hill v. SSM Health Care St. Louis, 563 S.W.3d 757, 763 (Mo. App. E.D. 2018) (recognizing that failure to properly object to closing argument waives the right to complain about that argument on appeal, even if the matter is raised in a post-trial motion). Allsberry has not requested plain error review, and we decline to engage in it. See Porter v. City of St. Louis, 552 S.W.3d 166, 171-72 (Mo. App. E.D. 2018). Point VI is denied. Second, Allsberry contends the trial court erred in giving Instruction 8, a converse to the verdict director for intentional infliction of emotional distress. Instruction 8 stated: Your verdict must be for Defendant Judge Patrick Flynn unless you believe that the sole purpose of the conduct as submitted in [the verdict director] 10 was to cause extreme emotional harm to the plaintiff.

Allsberry maintains that this instruction was "prejudicial, misleading, and misstate[d] the law" because it included the phrases "sole purpose" and "extreme emotional harm" and because it

10 The verdict director stated: Your verdict must be for Plaintiff and against Defendant Judge Patrick Flynn if you believe: First, defendant [engaged in the alleged conduct], and Second, defendant acted intentionally or in a reckless manner, and Third, defendant's conduct was extreme or outrageous, and Fourth, such conduct resulted in severe emotional distress, and Fifth, such conduct directly caused damage to plaintiff. Unless you believe plaintiff is not entitled to recover by reason of Instruction Number 8.

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improperly presented a question of law to the jury. But the only one of these arguments preserved for our review is her assertion that the instruction misstated the law by using the phrase "sole purpose." "Timely objections to an instruction are required as a condition precedent to appellate review in order to afford the trial court an opportunity to correct any mistakes immediately and inexpensively without risking the delay and expense of an appeal and a retrial." Racket Merch. Co. v. 718 Grand, LLC, 713 S.W.3d 672, 681 (Mo. App. W.D. 2025) (internal quotation marks and citation omitted). "In order to preserve an objection to a jury instruction for appellate review, a party must also set forth the same objection in his or her motion for new trial and in his or her point on appeal." Berra v. Danter, 299 S.W.3d 690, 702-03 (Mo. App. E.D. 2009) (emphasis added). The point on appeal "may not enlarge or change the objection made at trial." Id. at 703 (internal quotation marks and citation omitted). "When the point on appeal contends that an instruction is erroneous on a different ground than was asserted in the objection made at trial, we may not review that error on appeal." Id. Flynn submitted Instruction 8 with citations to Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997) and Thomas v. Special Olympics Missouri, Inc., 31 S.W.3d 442, 446 (Mo. App. W.D. 2000). At the instruction conference, Allsberry objected: I don't believe it properly submits the law. Even the cases that are cited don't refer to sole purpose. . . . . It doesn't even use the same language as the cases it cites at the bottom. There's no reference to the sole purpose in the cases that he cited. This language about only to cause but it doesn't say sole purpose.

In her motion for new trial, Allsberry reiterated her objection to the phrase "sole purpose" but also added two new arguments: the use of the word "extreme" was not supported by the case law and the instruction improperly posed a legal question to the jury. These additional arguments are not

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preserved for appellate review because Allsberry did not raise either of them during the instruction conference. See Berra, 299 S.W.3d at 703. And since Allsberry does not request plain error review, we decline to engage in it. See Racket Merch. Co., 713 S.W.3d at 685-86. We turn to the preserved argument regarding the phrase "sole purpose." Our review of instructional error is de novo. See id. at 681. Where, as here, there is no applicable Missouri Approved Instruction ("MAI"), we determine "whether the jury could understand the instruction and whether the instruction follows applicable substantive law by submitting the ultimate facts required to sustain a verdict." First Bank v. Fischer & Frichtel, Inc., 364 S.W.3d 216, 219 (Mo. banc 2012) (internal quotation marks, brackets, and citations omitted). If we find the instruction was erroneous, then we decide whether the error resulted in prejudice by misdirecting, misleading, or confusing the jury. Id. Allsberry contends that the phrase "sole purpose" is not used in any of the case law and, therefore, proof that the defendant's sole purpose was to cause emotional distress is not an element of an intentional infliction of emotional distress claim. To the contrary, our courts have repeatedly and expressly held—using that precise language or its equivalent—that one of the essential elements of this tort is proof that the defendant's conduct was solely for the purpose of causing emotional distress to the plaintiff. For example, in Gibson, the Supreme Court recognized that "[i]ntentional infliction of emotional distress requires not only intentional conduct, but conduct that is intended only to cause severe emotional harm." 952 S.W.2d at 249. The Gibson Court affirmed dismissal of the plaintiffs' petition because it did not sufficiently allege that the defendant's "sole purpose in its conduct was to invade the [plaintiffs'] interest in freedom from emotional distress." Id.; see also K.G. v. R.T.R., 918 S.W.2d 795, 799-800 (Mo. banc 1996) (affirming dismissal of claim for intentional infliction of emotional distress where allegations did

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not support inference that "sole purpose" of defendant's conduct was to cause plaintiff emotional distress); Sansonetti v. City of St. Joseph, 976 S.W.2d 572, 580 (Mo. App. W.D. 1998) (affirming summary judgment where evidence did not support inference that "sole purpose" of defendants' conduct was to cause plaintiff emotional distress), abrogated on other grounds by Delana v. CED Sales, Inc., 486 S.W.3d 316 (Mo. banc 2016). In Thomas, the Western District called this "the sole intent element," holding that it is "an essential element" of a claim for intentional infliction of emotional distress. 31 S.W.3d at 446,

1. "In order to recover under this theory, one must allege not just that the actor knew that

emotional distress would result from his or her acts, but that this was the sole motivation for the actor's conduct." Id. at 448 (emphasis in original); see also Conway v. St. Louis Cnty., 254 S.W.3d 159, 166 (Mo. App. E.D. 2008) ("it is essential that the conduct be intended only to cause emotional distress to the victim"); Crow v. Crawford & Co., 259 S.W.3d 104, 119 (Mo. App. E.D. 2008) (setting out "essential elements," including that "the conduct must be intended solely to cause extreme emotional distress to the victim"); Geran v. Xerox Educ. Servs., Inc., 469 S.W.3d 459, 468 (Mo. App. W.D. 2015) ("the plaintiff must demonstrate that the sole intent in acting was to cause emotional distress"). The Thomas court found that summary judgment was proper because the plaintiff failed to "create a factual issue as to whether [the defendant's] sole purpose . . . was to cause him extreme emotional distress." 31 S.W.3d at 443 (emphasis in original). Although the above-discussed cases did not involve a jury instruction, they firmly establish the substantive law regarding the "sole purpose" element of an intentional infliction of emotional distress claim. Instruction 8 accurately stated the law by instructing the jury to return a verdict for Flynn unless "the sole purpose of [his] conduct" was to cause emotional distress to the plaintiff.

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Allsberry's contention that Instruction 8 misstated the law is wholly without merit. See First Bank, 364 S.W.3d at 219. She also argues Instruction 8 was improper for the same reasons that Missouri law prohibits a "sole cause" instruction in a negligence case. We disagree. The MAI provides: "No instruction shall be given on behalf of the defendant which hypothesizes that the conduct of one other than defendant was the sole cause of the occurrence." MAI–Civil 1.03 (8th ed.). There are three stated reasons for this prohibition:

1. Such instructions require the recitation of detailed evidentiary facts and this

practice is no longer permitted;

1. The negligence of one other than defendant is properly submitted in the causation

element of the verdict director and reference thereto in an additional instruction is confusing and misleading; and

1. The prescribed converse forms adequately present the same defense.

MAI–Civil 1.03 (8th ed.), Committee Comment A (1981 Revision). None of these concerns are present here: there were no detailed evidentiary facts in Instruction 8, the "sole purpose" element was not part of the verdict director, and there is no prescribed form for addressing this issue. Allsberry's reliance on Drury v. Missouri Pac. R.R. Co., 905 S.W.2d 138 (Mo. App. E.D. 1995), is similarly misplaced. In Drury, this Court recognized that "[o]ne of the premises of MAI is to submit only the affirmative elements of plaintiff's case and to avoid the duplication and confusion involved in submitting other propositions that are merely inconsistent with the propositions plaintiff must prove." Id. at 146. There, the verdict director instructed the jury to find for the plaintiff if, among other things, the defendant's conduct "resulted in whole or in part" in the plaintiff's injury. Id. at 144-45. A converse instruction required the jury to find for the defendant if the plaintiff's own conduct was the "sole cause" of his injury. Id. at 145. This Court found the converse instruction "confusing and misleading" because it duplicated and was inconsistent with the verdict director. Id. at 147. Here, no such confusion resulted from giving

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Instruction 8, which neither duplicated nor was inconsistent with any propositions in the verdict director. Point II is denied. Conclusion For the foregoing reasons, the judgments are affirmed.

_______________________________ MICHAEL E. GARDNER, Judge

Lisa P. Page, Presiding Judge, concurs. Philip M. Hess, Judge, concurs.