Shahidah Hazziez vs. City of Kansas City, Missouri

SHAHIDAH HAZZIEZ, ) ) Appellant, ) WD87219 v. ) ) OPINION FILED: ) December 16, 2025 CITY OF KANSAS CITY, MISSOURI, ) ) Respondent. ) Appeal from the Circuit Court of Jackson County, Missouri The Honorable Justine E. Del Muro, Judge Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge, and Cynthia L. Martin, Judge Shahidah Hazziez appeals the circuit court's order granting a new trial following a jury trial and verdict in her favor against the City of Kansas City (City). The bases identified by the circuit court in ordering a new trial were (1) giving an improper jury instruction (Instruction 15) relating to the City's impeachment of Hazziez with an ordinance violation; and (2) improper closing argument by Hazziez's counsel concerning future damages. In claiming the court erred in ordering a new trial, Hazziez raises three points on appeal: (1) Instruction 15 was proper; (2) the City waived objection to Hazziez's closing argument about damages by not moving for directed verdict on

2 damages; and (3) Hazziez's closing argument about damages was proper. Because we find that the circuit court did not err in granting a new trial based on its decision that Instruction 15 was improper, we affirm without reaching Hazziez's Points II-III. Background The City hired Hazziez in 2013 as an event coordinator and terminated her employment in May 2014. In 2015, Hazziez sued the City, claiming her 2014 termination resulted from discrimination prohibited by the Missouri Human Rights Act, and she obtained a judgment against the City that was affirmed on appeal in 2020. 1

Meanwhile, in 2016, Hazziez applied for another job with the City but was not hired. Hazziez sued the City again in 2018, claiming that the City's refusal to hire her was retaliation for the 2015 lawsuit and also discrimination on the basis of race and disability. During the ensuing jury trial in May 2023, Hazziez testified about the salary and benefits of the job for which she was not hired, including (1) the dollar amount of her expected starting salary; (2) the current amount and expected increases of another City employee; (3) the expected benefits of the job; and (4) that Hazziez expected to stay in that job until retirement age. Neither Hazziez nor any other witness testified about the total or present value of the expected pay and benefits Hazziez would have expected to receive had the City rehired her in 2016. On cross-examination, the City attempted to impeach Hazziez by using Hazziez's April 2023 guilty plea to a municipal ordinance violation for assault. Over an objection and two requests for a mistrial by Hazziez's counsel, the court allowed the impeachment

1 Hazziez v. City of Kansas City, 606 S.W.3d 149 (Mo. App. W.D. 2020).

3 but, by the following day of trial, had determined that the City's use of an ordinance violation for impeachment was improper. At the close of evidence, rather than use the MAI "withdrawal" instruction, 2 the court instead gave Instruction 15 to the jury, which stated: The defendant asserted that plaintiff had pled guilty to an offense. The plaintiff has not been convicted of any offense. The assertion was false. The defendant's actions were improper, as they are untrue. You are instructed to disregard the defendant's assertions. After deliberation, the jury awarded Hazziez $2.4 million in compensatory damages on her retaliation claim and $1 million in punitive damages. The court then granted the City's motion for new trial on the grounds identified above. Specifically, as to Instruction 15, the court stated: The Court concedes that it was error to submit Instruction No. 15 to the jury in that it did mislead and misdirect the jury thereby prejudicing the Defendant. The proper instruction to be given was M.A.I. 34.02, as it is a neutral instruction that does not suggest the Court's opinion as to facts or issues in this case. The instruction submitted deviated completely from M.A.I. 34.02. In its order, the court twice referred to Hazziez's municipal ordinance violation as an "offense." First, the court stated that it was error to permit "the cross-examination of [Hazziez] over a municipal offense." Then, when

2 MAI 34.02, commonly known as a "withdrawal" instruction, provides this template: The [evidence] [matter] [issue] [fact] [] of (here insert withdrawn issue such as "the plaintiff's hospital and medical bills") is withdrawn from the case and you are not to consider such [evidence] [matter] [issue] [fact] [] in arriving at your verdict. Missouri Approved Jury Instructions MAI No. 34.02 (1978 Revision).

4 identifying trial events "that incited the bias and prejudice of the jury," the court referred to Hazziez's cross-examination about "a municipal offense, referenced as an assault" and that the jury was later instructed that "such evidence was false and should not have been presented." Analysis Hazziez appeals the circuit court's order granting a new trial following a jury trial and verdict in her favor against the City. The bases identified by the circuit court in ordering a new trial were (1) giving an improper jury instruction (Instruction 15) relating to the City's impeachment of Hazziez with an ordinance violation; and (2) improper closing argument by Hazziez's counsel concerning future damages. In claiming the court erred in ordering a new trial, Hazziez raises three points on appeal: (1) Instruction 15 was proper; (2) the City waived objection to Hazziez's closing argument about damages by not moving for directed verdict on damages; and (3) Hazziez's closing argument about damages was proper. On appeal from an order granting a new trial, the appellate court affirms "if the ruling by the trial court can be sustained on any of the grounds specified in the motion for new trial." Boswell v. Steel Haulers, Inc., 670 S.W.2d 906, 911 (Mo. App. W.D. 1984). Because we find that the circuit court did not err in granting a new trial based on its decision that Instruction 15 was improper, we affirm on Point I without reaching Hazziez's Points II-III. Generally, the trial court has broad discretion when ruling on a motion for new trial. Koppe v. Campbell, 318 S.W.3d 233, 240 (Mo. App. W.D. 2010). The trial court's

5 power to grant a new trial "is discretionary only regarding fact questions, not questions of law." Id. "Whether a jury was instructed properly is a question of law," however, subject to de novo review. Ross-Paige v. St. Louis Metro. Police Dep't, 492 S.W.3d 164, 172 (Mo. banc 2016). When a Missouri Approved Instruction "prescribes a particular form of instruction, submission of that instruction is mandatory." Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo. App. W.D. 2006). 3 "[W]here there is deviation from an applicable MAI instruction which does not need modification under the facts of the particular case, prejudicial error will be presumed." Abbott v. Mo. Gas Energy, 375 S.W.3d 104, 109 (Mo. App. W.D. 2012) (quoting Brown v. St. Louis Pub. Serv. Co., 421 S.W.2d 255, 259 (Mo. banc 1967)). That presumption of error can be rebutted only if "it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation." Id. (quoting Brown, 421 S.W.2d at 259). The court uses a 4-step analysis to determine if there is prejudicial error from the use of an instruction that deviates from an applicable MAI instruction: First, if the MAI prescribes a particular form of instruction, submission of that instruction is mandatory. If the appropriate MAI instruction is not used, prejudicial error is presumed. Second, the proponent of the instruction bears the burden of demonstrating nonprejudice. The presumed prejudice prevails unless the proponent makes it "perfectly clear" that no prejudice ensued. Third, the appellate court determines if any prejudicial

3 We do not believe that any modification to MAI 34.02 was necessary here, but we note that, under Missouri Supreme Court Rule 70.02(b) (2022), "[w]here an MAI must be modified to fairly submit the issues in a particular case," such modifications must be (among other things) "simple, brief, [and] impartial." (Emphasis added.)

6 effect is created. Finally, to be reversible, the error must materially affect the merits of the case. Id. (quoting Syn, 200 S.W.3d at 128-29). We also bear in mind that "we should look with liberality upon that court's action in granting a new trial" because the prejudicial effect of an instruction "is primarily within the trial court's purview." Berger v. Copeland Corp., LLC, 505 S.W.3d 337, 341 (Mo. App. S.D. 2016). Although the determination whether an instruction is erroneous is a matter of law, once the instruction is determined erroneous, "we then defer to the discretion of the trial court, . . . because the trial court has the best opportunity to determine the effect of any error." Thurman v. St. Andrews Mgmt. Servs., Inc., 268 S.W.3d 434, 441 (Mo. App. E.D. 2008). Here, the circuit court determined in its order that MAI 34.02 was the appropriate instruction to withdraw the evidence of Hazziez's ordinance violation and instruct the jury not to consider it. We agree. The court's giving of Instruction 15 is, therefore, presumed error. Thus, Hazziez had the burden of demonstrating the lack of prejudice. But she failed to make it "'perfectly clear' that no prejudice ensued" from the giving of Instruction 15. Instead, she argued only that the jury's verdict of $3.4 million was less than the amount her counsel had suggested. We agree with the circuit court that, based on the record, Instruction 15 was so misleading as to materially affect the merits. A prejudicial error "materially affects the merits of the action by misdirecting, misleading or confusing the jury." Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 15 (Mo. banc 2013) (finding prejudice

7 "exacerbated" by counsel's emphasis on the erroneous instruction during closing argument). "The test for determining whether the jury was misdirected, misled, or confused is 'whether an average juror would correctly understand the applicable rule of law' being conveyed by the jury instruction." Livingston v. Baxter Health Care Corp., 313 S.W.3d 717, 728 (Mo. App. W.D. 2010) (quoting Rice v. Bol, 116 S.W.3d 599, 606 (Mo. App. W.D. 2003)). The question then becomes "whether an average juror would correctly understand" the instruction given. Id. (quoting Rice, 116 S.W.3d at 606). Language that may commonly be found in legal opinions or legal texts is not necessarily "proper language for an instruction." Wilson v. Murch, 354 S.W.2d 332, 340 (Mo. App. 1962) (quoting Taylor v. Commerce Tr. Co., 319 S.W.2d 895, 897 (Mo. App. 1959)). In contrast, the "meaning of ordinary words used in their usual or conventional sense" is presumed to be clear without the need for further explanation; jurors are presumed to have "ordinary intelligence, common sense, and an average understanding of the English language." DeWalt v. Davidson Service/Air, Inc., 398 S.W.3d 491, 505 (Mo. App. E.D. 2013) (rejecting the argument that the term "contributing factor" required definition for the jury) (quoting Warren v. State, 291 S.W.3d 246, 250-51 (Mo. App. S.D. 2009)). But a trial court must define for the jury "legal or technical terms occurring in the instructions, for their meaning is not within the ken of the ordinary juror." Rice, 116 S.W.3d at 609 (quoting Brock v. Firemens Fund of Am. Ins. Co., 637 S.W.2d 824, 827 (Mo. App. E.D. 1982)). If the legal definition for an undefined term in an instruction "materially varies from the term's ordinary, common sense meaning," it creates

8 confusion. State v. Richards, 300 S.W.3d 279, 286 (Mo. App. W.D. 2009) (finding error in the failure to define "deprive" in an instruction when the term was capable of two different meanings: the legal definition ("permanently deprive") and the commonly understood meaning ("temporarily deprive")). Use of a confusing term in an instruction creates prejudicial error when it causes the jury to be "adversely influenced." State v. Rodgers, 641 S.W.2d 83, 85 (Mo. banc 1982) (quoting State v. Aitkens, 179 S.W.2d 84, 94 (Mo. 1944)). Here, the language used in Instruction 15 is misleading, and thus prejudicial, because it instructed the jury that the City's assertion—that plaintiff pled guilty to an "offense"—was "false," "improper," and "untrue," when it was only the use of inadmissible impeachment evidence that was improper. The error was then exacerbated during closing argument by Hazziez's counsel, who told the jury that Instruction 15 was "the most important instruction you are going to receive," "the City made the decision to offer false evidence to you," "over the weekend the Judge caught them [the City]," and "someone is not telling you the truth here." The transcript reflects the circuit court's struggle to draft Instruction 15 appropriately. The City's impeachment questions to Hazziez, while procedurally improper, referred only to "assault" (not "crime" or "conviction"), thus the evidence elicited was true: Hazziez did plead guilty to assault. 4 The court rejected MAI 34.02, as

4 Contrary to what Hazziez argues in her brief, the City did not tell the jury that the City had a "certified copy of the conviction"—that statement was made by the City's counsel to the court in a sidebar.

9 proffered by the City in this form: "The evidence of Miss Hazziez's plea to the municipal ordinance violation that was elicited last Friday, is withdrawn from the case and you are not to consider such evidence in arriving at your verdict." Hazziez's counsel objected to the City's instruction, claiming that it simply reminded the jury of the inadmissible guilty plea without any reprimand to the City. Hazziez's counsel insisted on the reprimand, suggesting that the court use the word "offense" because an ordinance violation is not a "crime," 5 and the court acquiesced. On appeal, Hazziez argues that "offense" is the proper term because of the relationship between that word and improper impeachment procedure. We do presume that jurors understand "ordinary words used in their usual or conventional sense." See DeWalt, 398 S.W.3d at 505 (quoting Wa r re n, 291 S.W.3d at 250). But we cannot expect the average juror to know or understand legal definitions or classifications of wrongful acts, much less whether an ordinance violation is not legally an "offense" for purposes of impeachment in a civil trial—and nothing in Instruction 15 did (or could) explain the difference. 6 The "usual or conventional" meaning of "offense" is "an infraction of law." Offense, Merriam-Webster's Dictionary (11th ed. 2003). Even Black's Law Dictionary

5 RSMo § 556.061(35) defines "offense" as "any felony or misdemeanor." However, other statutes refer to ordinance violations as "offenses." See, e.g., § 577.001, in the chapter on "public safety offenses," which defines various traffic-related "offenses" as an "offense committed in violation of any . . . municipal ordinance." Statutory references are to the Revised Statutes of Missouri (Supp. 2022). 6 The court acknowledged the conundrum presented by the literal truth of the impeachment questioning, stating, "And therein lies the problem. [Section] 491.050 says the admission of pleas is only permissible in criminal cases. So to allow me to state that in an instruction, no less[] in a civil case, would be violating 491.050. I'm not doing that."

10 defines "offense" broadly: "A violation of the law; a crime, often a minor one." Offense, Black's Law Dictionary (12th ed. 2024). Both those definitions are broad enough to encompass an ordinance violation, as the circuit court demonstrated in its order, referring twice to Hazziez's ordinance violation as an "offense." Thus, Instruction 15 told the jury that the City had presented "false" and "untrue" evidence, implying that the City's counsel had lied to the court and jury when, in fact, the evidence was factually true. Similarly confusing is the word "conviction" in Instruction 15. We acknowledge that lawyers are expected to know that "a plea of guilty . . . followed by a suspended imposition of sentence in municipal court . . . is not a conviction." Turner v. State, 245 S.W.3d 826, 828 (Mo. banc 2008) (emphasis omitted). Therefore, for impeachment purposes, Hazziez's guilty plea to assault was neither a "conviction" nor an "offense." However, the jury had no way of knowing that they were to disregard this evidence simply because it was inadmissible. Instead, they were free to assume that, because Hazziez "has not been convicted of any offense," the City had lied about her ordinance violation. Hazziez repeatedly emphasizes that the City's counsel deserved a reprimand. The City acknowledges that the court had reason for some reprimand, and we do not condone the City's improper impeachment, nor did the circuit court. But the solution was not to reprimand counsel in a jury instruction that not only deviated from MAI 34.02 but used language that was, at best, confusing and misleading. Had the jury been given no reason for the withdrawal of this evidence, as would have happened had MAI 34.02 been given, there would have been no instructional error. Likewise, had the court granted Hazziez's

11 request for mistrial immediately following the improper impeachment, there likely would have been no error. But two wrongs do not make a right—the attempt to cure improper impeachment with an improper instruction resulted in prejudicial error. We find no reason to question the circuit court's determination that the error prejudiced the City, given that Instruction 15 impugned the veracity of the City's counsel, which Hazziez's counsel then highlighted to the jury in closing. Finding no error in the court's order granting a new trial on the basis of jury instruction error, we affirm on Point I and need not reach Hazziez's remaining two points. 7

Conclusion Finding no error in the circuit court's order granting a new trial, we affirm and remand the case to the circuit court for further proceedings.

Karen King Mitchell, Judge Edward R. Ardini, Jr., Presiding Judge, and Cynthia L. Martin, Judge, concur.

7 Because we affirm the circuit court's decision to grant a new trial, we deny the motion of appellant's counsel for attorney's fees and costs on appeal. ___________________________________