GARY D. WITT, Judge.
Synergy, LLC and Kenoma, LLC (collectively "Synergy"), appeal following a jury trial on claims of temporary nuisance which resulted in a judgment for damages in favor of Respondents. We affirm in part, and reverse in part.
Synergy operates large scale hog farms in Barton County, Missouri. The Respondents/Plaintiffs in this case are twelve individuals who filed suit against Synergy claiming that its confined animal farming operations ("CAFO"), in this case hog farming operations, in Barton County constituted
As outlined by Synergy in its appellate brief, this hog farming operation was structured in the following manner:
Br, pg. 8.
Plaintiffs claimed that these CAFO's emitted foul smelling odors, other emissions and flies onto their individual farms and/or homes and substantially impaired the Plaintiffs' ability to use and enjoy their respective properties.
After a two week trial in April and May of 2011, the jury returned a verdict in favor of Plaintiffs.
Plaintiff Against Defendant(s) Verdict Amount Zach McGuire Synergy/Kenoma A-1 $225,000 Debbie Jo McGuire Synergy/Kenoma B-1 $225,000 Darvin Bentlage Synergy (Nichols nursery) C-3 $ 75,000 Darvin Bentlage Synergy (Fischbacher nursery) C-4 $ 75,000 Darvin Bentlage Synergy (Fischbacher nursery) C-6 $ 75,000 Patricia Bentlage Synergy (Nichols nursery) D-3 $ 75,000 Patricia Bentlage Synergy (Fischbacher nursery) D-4 $ 75,000 Patricia Bentlage Synergy (Fischbacher nursery) D-6 $ 75,000 Gregory Harris Synergy/Kenoma E-1 $325,000 Walter Howry Synergy/Kenoma F-1 $ 75,000 Cindy Howry Synergy/Kenoma G-1 $ 75,000 Dale Huber Synergy/Kenoma H-1 $175,000 Carol Huber Synergy/Kenoma I-1 $175,000 Kevin Huber Synergy/Kenoma J-1 $175,000 William Manka Synergy/Kenoma K-1 $ 25,000 Helen Manka Synergy/Kenoma L-1 $ 25,000
The trial court denied Synergy's post-trial
Further details will be outlined as relevant in the analysis section herein.
Synergy's first two points are interrelated, and accordingly we analyze them collectively. In Point One, Synergy argues that the trial court "erred by admitting evidence of the Respondents' damages that were purportedly sustained after filing of suit because such evidence as a matter of law was inadmissible in that in a cause of action for temporary nuisance, such as the case at bar, recovery for damages (and any evidence thereof) is limited to those actually sustained up to the filing of the suit, which in this case was November 18, 2008." We disagree.
We outlined our applicable standard of review regarding this issue in Secrist v. Treadstone, LLC:
356 S.W.3d 276, 280 (Mo.App. W.D.2011).
Here, Plaintiffs' allegations at trial were that the alleged nuisance, CAFO, was temporary. This distinction is important because:
McGinnis v. Northland Ready Mix, Inc., 344 S.W.3d 804, 812 (Mo.App. W.D.2011).
The gravamen of Synergy's argument on appeal is that "because Respondents made a claim for temporary nuisance, damages are properly allowable [only] up to the date the initial Petition was filed, i.e., November 18, 2008," and that any evidence pertaining to the nuisance after the filing of the Petition was improperly admitted because the "controlling case law on this issue" holds that "in an action for temporary nuisance," evidence pertaining to damages "should only be admitted from the time between the commencement of the liability and the date the lawsuit was filed."
The problem with Synergy's argument is that no binding authority has ever held that this is in fact the law in Missouri. While it is true that this Court has outlined damage limitations after the lawsuit is filed in temporary nuisance claims, we have never addressed in this context how this rule specifically relates to the trial court's broad authority to allow amended/supplemented
Synergy primarily relies on two cases to support its proposition. "In suits for damages because of nuisances, damages may be allowed for injuries suffered up to the time of commencement of suit, or, if the suit be in equity for injunction with damages as an incident, up to the time of trial, that is, for damages already sustained." Thompson v. Hodge, 348 S.W.2d 11, 15 (Mo.App.1961).
But the thrust of these rulings is rooted in the principle that the "law assumes that a temporary nuisance will abate — if not by voluntary act of the tort-feasor then by judicial agency — and so confines recovery to injury already accrued." Stevinson, 870 S.W.2d at 855 (emphasis added) (quoting Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 793 (Mo. App. W.D.1980) (overruled on other grounds)). "The only instances ... where damages are awarded for injury which may be suffered in the future are those in which the nuisance is permanent and unabatable." Thompson, 348 S.W.2d at 15 (emphasis added).
Here, there is no dispute that the only evidence allowed at trial pertained to damages already sustained by the Plaintiffs prior to trial
In Point Two, Synergy argues that the trial court erred in allowing Plaintiffs to supplement their pleadings at the beginning of the trial, to include conduct that occurred up to the close of discovery, thereby making the evidence at issue in Point One relevant to the claims raised.
Rule 55.33(d) deals with "Supplemental pleadings," and states, in relevant part, the following:
Synergy argues that the trial court abused its discretion in allowing the supplemental pleading because "Rule 55.33(d) is intended to allow a party to supplement a pleading to include facts and events unknown at the time of the original filing." (citing Miller v. Rothschild Mgmt. Group, 184 S.W.3d 575, 577 (Mo.App. E.D.2005)). Synergy further argues that "Respondents, through their amended and substituted petition, have failed to provide any additional facts, events or occurrences that they were not aware of and were not included when they filed the original petition on November 18, 2008." We disagree.
Synergy's argument ignores the fact that as it pertains to a temporary nuisance "the defendant is legally obligated to terminate the injury" and "[e]ach day it continues is considered a repetition of the original wrong, and successive actions accrue as to each injury." McGinnis, 344 S.W.3d at 812. Over two years transpired between the filing of the lawsuit (November 18, 2008), to the start of trial (April 25, 2011). The unforeseeable "events that have happened since the date of the pleading" are that plaintiffs could not have foreseen whether Synergy would abate the nuisance after Plaintiffs filed suit, or whether Synergy would instead allow the nuisance to continue (thus causing successive actions to accrue as it pertained to each and every day thereafter). Here, Synergy chose the latter option, and thus Rule 55.33(d) empowered the trial court, in its discretion, to allow Plaintiffs to file a supplemental pleading.
Synergy also argues that the trial court abused its discretion in allowing Plaintiffs to supplement its pleadings because Rule 55.33(d) only permits supplementation "upon reasonable notice and upon such terms as are just." Synergy points to no authority whatsoever to support its conclusion that the trial court's ruling in this regard was somehow unreasonable or unjust.
"`However, Rule 55.33 is to be applied liberally, and is based on the concept of whether a defendant has been given notice sufficient to defend himself against the claims.'" Johnson v. Delmar Gardens West, Inc., 335 S.W.3d 83, 88 (Mo.App. E.D.2011) (quoting Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 116 (Mo.App. W.D.2006)). "Pleadings should not be amended during trial if the party adversely affected will not be afforded a reasonable opportunity to rejoin the allegations of the amended pleading." Thompson, 207 S.W.3d at 114 (Mo.App. W.D.2006) (citations omitted). "The real test is whether additional proof or additional witnesses for which a party is not prepared would be required to meet
Here, the trial court allowed Plaintiffs to supplement their pleading to include Synergy's conduct up to the date of the end of discovery. Thus, Synergy was given ample time to defend against the conduct in question, which Synergy admits on appeal was of the same nature as the conduct that Synergy was engaging in prior to the lawsuit's filing. Specifically, the complained of conduct all pertained to Synergy's CAFO, the only distinction being on what day the specific offense occurred. Plaintiffs made no secret throughout these proceedings that it was their intent to present evidence of damages up until the nuisance ceased or the trial occurred. Synergy deposed the Plaintiffs regarding the damages they claimed to have suffered between the date the petition was filed and the time the respective depositions were taken. Synergy filed motions regarding this issue and the trial court expressed its intention to allow this evidence to be presented at trial. Had the trial court granted the motion to supplement the pleadings on the day discovery ended, Synergy makes no claim on appeal that it would have somehow prepared for trial differently through pursuing additional discovery, or by calling additional witness at trial. In other words, Synergy has presented no argument that it was in any way prejudiced by the amended pleadings. Viewed through that lens, it is hard to discern how the trial court's ruling was unjust, and therefore somehow constituted an abuse of discretion. Synergy makes no argument that it was prejudiced by the introduction of this evidence or the supplemental pleading being allowed. Synergy's argument is limited to arguing that, as a matter of law, no evidence of damages may be introduced in a temporary nuisance case after the date of the filing of the petition. We disagree that this is a correct statement of the law and accordingly find no error.
We therefore deny Points One and Two.
Synergy offered "instruction A" as a definition of the term "nuisance," which was rejected by the trial court and read as follows:
"Whether a jury is properly instructed is a matter of law subject to de novo review by this court." Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.App. W.D. 2006) (citing Boggs, ex rel. Boggs v. Lay, 164 S.W.3d 4, 20 (Mo.App.W.D.2005)).
MAI 22.06
Id. (emphasis original).
Here, it is not disputed that the MAI 22.06 does not require that the term "nuisance" be defined in a separate instruction, and in fact does not even require the word "nuisance" to appear in the instruction at all. Notwithstanding this fact, Synergy contends that the trial court erred in not further defining the term "nuisance" in the verdict directors given in this case (which were patterned after MAI 22.06) because "the jury had no guidance as to the meaning of nuisance," which left the given instructions "confusing and misleading and failed to follow the substantive law." We disagree.
In this case the verdict directors given on each claim were substantially identical and set forth as follows
The use of the term "nuisance" in the verdict directors in question was used in the opening paragraph to alert the jury as to the type of claim addressed in the particular instruction, but the instruction did not require that the jury make any findings in regard to the term "nuisance" as used in the instruction. The verdict director set forth what the jury was required to find or believe in the numbered paragraphs below this opening paragraph. Synergy does not claim that the proper elements of the temporary nuisance claim were not properly set out in the numbered paragraphs in the verdict director or that all necessary elements of the claim were not required to be found by the jury in order to return a verdict. MAI 2.00.F, specifically requires in cases where a package of instructions is used with multiple parties or multiple claims, that "identifying phrases" should be used to clarify the various claims. The MAI informs counsel and trial courts that the "identifying phrases" should be "non-inflammatory and as neutral as possible and should avoid the assumption of disputed facts." In this case, the verdict directors that were given by the trial court used the term "nuisance" as an identifying phrase and we find no error in its use in this fashion. Synergy makes no argument that this phrase was inflammatory, assumed disputed facts or failed to be as neutral as possible.
Further, even if the trial court had been required to give a definition of the term "nuisance" in this case, the next issue is whether or not Synergy's proffered instruction was the proper definition. In Rice v. Bol, 116 S.W.3d 599, 609 (Mo.App. W.D.2003), this Court outlined the following law as it pertained to the trial court's duty to further define terms in MAI instructions:
Id.
Synergy's argument in this Point Relied On is predicated on its assumption that the trial court and this Court are required to follow the definition of "nuisance" contained in Sofka v. Thal, 662 S.W.2d 502, 508 (Mo. banc 1983). But Synergy's argument ignores the fact that the trial court and this Court are "constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court." Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo.App. W.D.2005) (quoting Kinder v. Missouri Dep't of Corrections, 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2)).
Synergy urges us to follow the precedent from nearly thirty years ago, where
Sofka, 662 S.W.2d at 508 (emphasis added).
However, much more recently, the Missouri Supreme Court defined "nuisance" as follows:
The problem with Synergy's argument is that the verdict directing instructions, as submitted to the jury in the instant case and as patterned after MAI 22.06, accurately reflect the Missouri Supreme Court's most recent definition of the term nuisance in Green. Specifically, Green outlined two distinct components in defining the term "nuisance": (1) whether use of the land was "unreasonable," and (2) whether the defendant's use of the property "substantially impaired plaintiffs' use and enjoyment of their property." Id. Indeed, it is not surprising then that MAI 22.06 (and each of the verdict directors in question on appeal) therefore contained this precise language in third and fourth numbered paragraphs of the verdict directing instructions.
For this precise reason, we must reject Synergy's contention that the term "nuisance" needed to be further defined. To the contrary, it is Synergy's proposed "instruction A" that does not track and reflect current Missouri law on this issue.
The problem with "instruction A" is that instead of using the terms "unreasonable" and "substantially impaired plaintiffs' use and enjoyment of their property" as required by the Missouri Supreme Court's most recent holding regarding the definition of "nuisance" in Green, "instruction A" instead relies on a "significant harm" test. Synergy argues that this "significant harm" test is the proper definition of "nuisance" because it "is derived from the Missouri Supreme Court case of Sofka ... [that] has not been overturned." However, as we previously stated, "[t]his court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court," and thus we conclude the trial court did not err in rejecting Synergy's proposed definitional instruction. Custer, 174 S.W.3d at 609.
Even if the trial court were required to give a definition of "nuisance" under the instructions given, it was not error to refuse to give a proffered instruction that fails to follow current Missouri law. In order to give a not-in-MAI instruction, the instruction must follow the current substantive law. See Kauzlarich v. Santa Fe Ry. Co., 910 S.W.2d 254, 260 (Mo. banc 1995).
Point Three is denied.
In Point Four, Synergy argues that the trial court erred "by submitting non-MAI instruction Nos. 22, 24, 37 and 39 (the "utilization" verdict directors) to the jury because they misstated the law and misstated the requisite elements for a finding of nuisance in that Synergy's liability, if any, for the nursery operations of Wayne Nichols or Marcel Fischbacher depended
Here, the four complained of instructions were identical in that they all submitted liability against Synergy on the basis that it caused a nuisance by utilizing a farm owned by another party. For example, Instruction Number 22 stated the following:
LF 164.
On appeal, Synergy argues that these "`utilization' verdict directors were modifications of MAI 22.06." We disagree.
Id.
Synergy argues the instruction was "modified" because of the language used to describe the nuisance, as required by MAI 22.06 in the second prong of the instruction. But the italicized language in the second prong of MAI 22.06 is merely language to assist the trial court in instructing the jury based on the facts established by the evidence at trial. Indeed, MAI 22.06, in prong two, requires the trial court to "here describe nuisance
Indeed, we have held that the trial court's failure to include the precise descriptive information as required by the MAI instruction is instructional error that can rise to the level of requiring plain error relief. See City of Columbia v. Hardin, 963 S.W.2d 6, 9-10 (Mo.App. W.D. 1998) ("Here, the submitted instruction [MAI 330.14] used the phrase "physical interference." Where it was required to include a description of that interference, it should have explicitly described Ms. Hardin's conduct, such as stating that she put her arms around Dante and held onto him while police were attempting to take him into custody. Instead, the instruction simply said that Ms. Hardin "attempted to prevent Dante Hardin from being taken into custody by police officers.")
Finally, we must also reject the notion that these instructions somehow "misstated the law." "Property ownership is not a prerequisite to nuisance liability." City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 617 (Mo. App. W.D.2009) (quoting Rosenfeld v. Thoele, 28 S.W.3d 446, 452 (Mo.App. E.D. 2000) (quoting 58 Am.Jur.2d Nuisances § 117 (1989)). "Indeed, `one who creates a nuisance whether on his property or not, is liable for the damage caused thereby.'" Id. (emphasis original).
On appeal, Synergy does not dispute the above case law did not require Synergy to own the land in question in order to be liable under the nuisance theory. Instead, Synergy argues that "in nuisance, the primary focus is on whether the defendants
But this argument was not the argument advanced before the trial court at the instructions conference or in the motion for new trial. Here, counsel for Synergy never complained before the trial court that the proper language in the instruction should have been "controlled" as opposed to "utilized." Rather, Synergy argued the following at the instructions conference as it pertains to the "utilized" verbiage in the instruction:
Tr. 2446-7 (emphasis added).
This Court recently outlined the following applicable law in Edwards v. Gerstein:
363 S.W.3d 155, 167 (Mo.App. W.D.2012).
The fact that Synergy did not articulate the arguments it raises on appeal before the trial court is problematic because it precluded the trial court from simply substituting the language pursuant to a specific request. "Where an alleged error relating to an instruction differs from the objections made to the trial court, the error may not be reviewed on appeal." Goralnik v. United Fire and Cas. Co., 240 S.W.3d 203, 210 (Mo.App. E.D.2007) (internal citations and quotations omitted). "Errors not preserved on appeal may be reviewed for plain error at the appellate court's discretion, however appellate courts seldom grant plain error review in civil cases." Id. Like in Goralnik, "[w]e decline to do so here." Id.
Even were we to grant such review ex gratia, no relief would be warranted. Simply put, we do not believe that a manifest injustice ensued because the term "utilized" as opposed to "controlled" was used in the instructions. "We will decline to exercise our discretion to review a claim of plain error unless the claim facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Environmental Waste Management, Inc. v. Industrial Excavating & Equipment, Inc., 981 S.W.2d 607, 616 (Mo.App. W.D. 1998). Here, evidence was presented at trial that Synergy "controlled" and "utilized" the land in question in their CAFO. We need not attempt to recount what precisely this evidence was because it is beyond the scope of this opinion. Suffice it to say, the jury was free to believe the evidence at trial that Synergy entered into a contract where it oversaw the minute details of the day to day CAFO operations, including administering how the swine's waste and dead carcasses were to be disposed. Accordingly, we do not believe a manifest injustice resulted from the trial court including the term "utilized" instead of "controlled" in the instructions in question because the evidence overwhelmingly supported the conclusion that Synergy in fact both "utilized" and "controlled" the swine growing operations.
For all of the above reasons, Point Four is denied.
In Point Five, Synergy argues that the trial court erred "by submitting instruction Nos. 23, 25, 38, and 40 (the "Agency" verdict directors) to the jury because they were outside the scope of the pleadings and not supported by substantial evidence in that: (1) respondents failed to allege in their Petition, whether initial or
"Whether a jury was properly instructed is a question of law that this Court reviews de novo." Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605, 608 (Mo. banc 2008) (citing Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003)). "Review is conducted in the light most favorable to the submission of the instruction, and if the instruction is supportable by any theory, then its submission is proper." Id. (citing Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991). "Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action." Id. (emphasis added); see also Stanton v. Hart, 356 S.W.3d 330, 334 (Mo.App. W.D. 2011) ("Reversal for instructional error is appropriate when the instruction misdirected, misled, or confused the jury and resulted in prejudice." Rule 84.13(b) prohibits reversal of any judgment unless the circuit court committed error that materially affected the merits of the action.") (emphasis added).
On appeal, Synergy does not even attempt to allege, let alone explain, how the complained of instructional error was somehow prejudicial. Instead, Synergy merely argues the following:
Br, pg. 54.
But the law is clear on appeal: Synergy must demonstrate more than that the trial court merely erred; it must demonstrate that the trial court committed error that "materially affected the merits of the action." Id. Synergy's failure to make such an argument on appeal is dispositive of this Point Relied On because this Court must "ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." City of Lee's Summit v. Cook, 337 S.W.3d 757, 758 (Mo.App. W.D.2011); see also Kline v. City of Kansas City, 334 S.W.3d 632, 640, n. 3 (Mo.App. W.D.2011) ("We take issue with the notion that because Kline could not be bothered to set forth the requisite analysis to demonstrate that any one of these alternative instances was grounds for reversal, that this Court should wade through this list on its own to do the analysis for Kline. Indeed, our rules prohibit us from doing so.").
Finally, we must also take issue with Synergy's argument that "respondents failed to allege in their Petition, whether initial or amended, that Wayne Nichols or Marcel Fischbacher were agents of or acted within the scope and course of the agency for Synergy." To the contrary, Plaintiff's Petition alleged that "Fischbacher, along with Wayne Nichols own the land and the structures that comprise the hog facilities in question in this suit, or, are purchasing the land and structures, either as individuals or through an ownership interest in Kenoma, LLC, or, manage the hog operations on behalf of Synergy." While Plaintiffs may not have used the precise legal term "agent" in setting forth this theory in their Petition, we believe this theory was fairly set forth in the Petition and at trial.
In Point Six, Synergy argues that the "trial court committed plain error in receiving and then entering judgment upon verdicts for Darvin and Patricia Bentlage against Synergy respecting the Fischbacher nursery because the verdicts awarded redundant damages — a double recovery — in that the jury twice awarded damages to the Bentlages for the same claim of nuisance." We agree.
Here, it is not disputed by Synergy that it did not properly preserve this claim for our review by timely making an objection pertaining to the verdict. As previously mentioned, it is within this Court's discretion to review for plain error. See Rule 84.13(c). In deciding whether to exercise our discretion to conduct plain error review, we determine whether the trial court "committed error that is evident, obvious and clear, which resulted in manifest injustice or a miscarriage of justice." In re J.L.B., 280 S.W.3d 147, 155 (Mo.App. S.D. 2009). "We will reverse for plain error in civil cases only in those situations when the injustice of the error is so egregious as to weaken the very foundation of the process and seriously undermine confidence in the outcome of the case." Atkinson v. Corson, 289 S.W.3d 269, 276-77 (Mo.App. W.D.2009).
Accordingly, in determining whether to exercise our discretion to provide plain error review, we look "to determine whether there facially appears substantial grounds for believing that the trial court committed error that is evident, obvious and clear, which resulted in manifest injustice or a miscarriage of justice." Cohen v. Express Fin. Servs., Inc., 145 S.W.3d 857, 864 (Mo.App. W.D.2004).
Hogan v. Board of Police Com'rs of Kansas City, 337 S.W.3d 124, 133 (Mo.App. W.D.2011) (citation and quotation omitted).
Again, it is not disputed that Synergy did not object to the jury's award in this specific regard until after the jury was discharged, and therefore we may review these claims for plain error only.
"[A] party is `not entitled to be made more than whole or receive more than one full recovery for the same harm.'" Martha's Hands, LLC v. Starrs, 208 S.W.3d 309, 316 (Mo.App. E.D.2006) (quoting Davis v. Cleary Building Corp., 143 S.W.3d 659, 670 (Mo.App. W.D.2004)). "Thus, if the damages for two causes of action `are the same, then the damage award merges.'" Id.; Kincaid Enterprises, Inc. v. Porter, 812 S.W.2d 892, 900 (Mo.App. W.D.1991) ("A single transaction may invade more than one right, and the person injured may sue on more than one theory of recovery. The plaintiff, however, may not be made more than whole or receive more than one full recovery for the same harm.").
Plaintiffs contend that this award did not constitute a double recovery in light of the fact that "[i]t has long been the law in Missouri that where a party commits two separate wrongs, damages can be awarded for each," and "[h]ere the jury found for plaintiffs on both the agency theory and the utilization theory." But plaintiffs ignore that both of these theories were grounded in the same claim of nuisance on the same property against the same defendant, and plaintiffs cite no case or statute to support its contention that these two agency/utilization theories of nuisance somehow allowed a separate recovery for the same wrong of nuisance. Whether by agency or utilization, the damage to the Bentlage's property by the nuisance of the operation of the CAFO was the same damage. The damage to the property did not increase, decrease or change depending upon which theory the jury found liability.
Plaintiffs were "entitled to be made whole by one compensatory damage award, but not to the windfall of a double recovery." Kincaid Enterprises, Inc., 812 S.W.2d at 900. "A double recovery is a species of unjust enrichment and is governed by the same principles of preventive justice." Id. "Thus, instructions that allow a jury to return damages that overlap or duplicate are error." Id. at 901 (citing Clayton Brokerage Co. of St. Louis v. Pilla, 632 S.W.2d 300, 306 (Mo.App. E.D. 1982)).
Indeed, Missouri law is clear that this type of double recovery constitutes plain error, which constitutes a manifest injustice. "It was error for the trial court to enable the jury to return verdicts for redundant damages. It was plain error for the trial court then to receive the verdicts." Kincaid Enterprises, Inc., 812 S.W.2d at 901; see also Senu-Oke v. Modern Moving Systems, Inc., 978 S.W.2d 426, 432 (Mo.App. E.D.1998) ("While plaintiff's submission for conversion is not inconsistent with his submission for breach of contract,
Here, plaintiffs do not even attempt to address this specific line of cases, holding that the trial court's allowance of a double recovery constitutes plain error, regardless of Synergy's failure to object. Based on the doctrine of stare decisis, we believe that this Court is compelled to reverse the trial court's judgment as it pertains to this double verdict. While proper packaging of the jury instructions could have prevented this error and Synergy should have offered appropriate instructions to avoid such a result, caselaw is clear that such a double recovery cannot stand.
Plaintiffs further argue that the doctrine of the election of remedies applies to the instant matter, but we disagree. "The principle of election of remedies has a narrow application." Clayton Brokerage Co. of St. Louis, Inc. v. Pilla, 632 S.W.2d 300, 305 (Mo.App. E.D.1982). "Election of remedies must be pleaded or be raised [by the defendant] by a motion to strike or by a motion to elect at the close of all the evidence" and "[i]f it is not so raised, the objection is deemed waived." Citizens Bank of Appleton City v. Schapeler, 869 S.W.2d 120, 125 (Mo.App. W.D.1993).
The election of remedies doctrine applies "where a party has the right to pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to final judgment, that party cannot thereafter pursue another and inconsistent remedy." Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140, 142 (Mo. banc 2005) (emphasis added). "The doctrine is only applicable when a party has more than one remedy to correct a single wrong and the remedies are inconsistent." Tolbert v. Automotive Finance Corp., 341 S.W.3d 195, 200 (Mo.App. W.D.2011) (emphasis added). "To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another." Id. (citation and quotation omitted). "If the remedies are concurrent and consistent, or cumulative, the doctrine of election of remedies does not apply." Id.
Based on the above holdings, we conclude that the election of remedies doctrine is inapplicable to the instant case. This is because the alternate theories of nuisance recovery pursued by these plaintiffs were not "inconsistent" in that both the "agency" and the "utilization" theory rested on the same core of consistent facts that Synergy was the driving force behind the nuisance caused by the Fischbacher nursery. Simply put, because Synergy has failed to demonstrate how Plaintiff's nuisance theories were "repugnant to one another," we conclude that the election of remedies doctrine is inapplicable. Id.
However, because we conclude that a manifest injustice resulted in that Patricia Bentlage and Darvin Bentlage both received double recoveries on their duplicative nuisance claims against Synergy, this Court must take the corrective action of ordering that only one $75,000 nuisance judgment stand in each of their individual favor against Synergy; the second such judgment is hereby reversed and struck down pursuant to our authority under Rule 84.14.
Point Six is granted.
In Point Seven, Synergy argues that the trial court erred "in denying Synergy's motion to amend requesting that the verdicts entered against Synergy and in favor of Plaintiffs Bentlage be reduced by the amount of the settlement agreements reached with former defendants Nichols and Fischbacher because Synergy met its burden of showing that it is entitled to a reduction under Section 537.060 in that Wayne Nichols and Marcel Fischbacher are, by operation of the verdicts rendered, jointly liable with Synergy for the injury purportedly suffered by Plaintiffs Bentlage as a result of the alleged nuisance."
The parties do not dispute that the proper standard of review for this specific issue is de novo. Gibson v. City of St. Louis, 349 S.W.3d 460, 465 (Mo.App. E.D.2011).
Section 537.060
Id. (emphasis added).
Recently, the Eastern District summarized the applicable law that guides our disposition of the instant issue:
Gibson v. City of St. Louis, 349 S.W.3d 460, 465-66 (Mo.App. E.D.2011).
On appeal, plaintiffs do not dispute that the predicate substantive requirements pursuant to Section 537.060 were met by Synergy in seeking the reduction of the judgment based on the settlements before the trial court in its Motion to Amend Judgment. Instead, plaintiffs argue that the trial court was justified in denying Synergy's motion to amend the judgment based on how the reduction evidence was procedurally presented before the trial court.
Specifically, plaintiffs argue that Synergy's reduction based on settlement "claim fails for never having been properly pleaded." "[A] reduction under section 537.060 must be affirmatively pleaded." Norman v. Wright, 100 S.W.3d 783, 785 (Mo. banc 2003). "Satisfaction is an affirmative defense," and "[affirmative defenses must be pleaded and proved." Id.
Here, it is not disputed that Synergy pled this affirmative defense in its Answer, answering plaintiffs' Third Amended Petition as follows:
Notwithstanding that Synergy raised this affirmative defense in its Answer, Plaintiffs contended that this defense was "improperly pleaded" because "[t]heir affirmative defense states a legal conclusion, not a set of facts from which that legal conclusion can be drawn" because "[i]t does not set out the terms of the settlements it seeks to invoke." However, under the facts of this case, Synergy could not have set out the specific "facts" of the Plaintiffs' settlement in its Answer because the settlement did not take place until the time of trial, and accordingly it is undisputed that the settlement took place well after Synergy filed its Answer and too late to amend its answer. The record shows that the settlements in question occurred during the trial and while Synergy had some knowledge that the settlement had occurred, the documentation of the amount and terms of the settlements were not provided by the Plaintiffs to Synergy until
Plaintiffs fail to cite any persuasive case law that supports their proposition that this reduction issue was not properly raised before the trial court. While plaintiffs analogize the instant matter to our holding in Echols v. City of Riverside, that case is easily distinguishable from the instant matter because in Echols "the City failed to plead an affirmative defense of credit or offset."
It is true that we held in Echols that "[a] pleading that makes a conclusory statement and does not plead the specific facts required to support the affirmative defense fails to adequately raise the alleged affirmative defense, and the alleged affirmative defense fails as a matter of law." Id. at 211. Here, Plaintiffs cite no caselaw to support the conclusion that Synergy was somehow required to plead specific facts in its Answer regarding a settlement that had not yet occurred because to have done so would have been impossible.
Plaintiffs also argue that "set off [reduction] is never properly raised after verdict," but fail to cite any authority that actually so holds. Again, plaintiffs cite an easily distinguishable case from the instant matter, wherein the Missouri Supreme Court reversed the trial court after defendant was granted a reduction notwithstanding the fact that the defendant failed to set forth the affirmative defense in his answer. Norman v. Wright, 100 S.W.3d 783, 785-86 (Mo. banc 2003) ("Here, the issue of reduction under section 537.060 was not raised by the pleadings ... Pleadings present, define, and isolate the issues, so that the trial court and all parties have notice of the issues ... The trial court should not have reduced the judgment, because Dr. Wright failed to plead and prove the affirmative defense of reduction under section 537.060.").
Gibson v. City of St. Louis, 349 S.W.3d 460, 465 (Mo.App. E.D.2011).
In denying the reduction, the trial court ruled that Synergy "failed in its burden to prove its affirmative defense of set off [reduction]." But it is undisputed that in its motion to amend the judgment, Synergy attached the relevant settlement documentation that irrefutably proved that the underlying settlement in fact occurred. Specifically, both Darvin and Patricia Bentlage entered into a settlement with Wayne Nichols for the amount of $105,000 for each of these plaintiffs. Furthermore, Darvin and Patricia Bentlage entered into a settlement with Marcel Fischbacher for the total amount of $140,000. Accordingly, because plaintiffs did not dispute either on appeal or before the trial court, that Synergy was a "joint tortfeasor" with both Wayne Nichols and Marcel Fischbacher for the "single indivisible harm" that was caused by Synergy's utilization of their farms in their CAFO operations, we conclude that the trial court erred as a matter of law in failing to enter an order granting the reduction.
Like in Point Six, we conclude that, pursuant to Rule 84.14, our holding does not require a remand. "An appellate court may give judgment as the circuit court ought to have given, but only in circumstances that indicate there is no further need for proceedings in the circuit court." DeBaliviere Place Ass'n v. Veal, 337 S.W.3d 670, 679 (Mo. banc 2011). We, therefore, order the following relief pursuant to Rule 84.14:
As it pertains to the Nichols Nursery jury awards awarded against Synergy in favor of Darvin Bentlage (Verdict C-3) and Patricia Bentlage (Verdict D-3), we order that both of these separate $75,000 judgments against Synergy be reduced by the settlement amounts (for a total of $150,000). It is not disputed that the Bentlages entered into a settlement with Wayne Nichols in the amount of $210,000 ($105,000 for each individual) for the damage caused to their property by the CAFO identified as Nichols Nursery, and that therefore this amount exceeded the recovery awarded by the jury to the Bentlages against Synergy. After granting Synergy the $210,000 reduction based on the settlement, the $150,000 judgment (i.e. $75,000 each) against Synergy in favor of the Bentlages regarding the nuisance damages caused by the Nichols Nursery, these specific judgments are deemed satisfied.
As it pertains to the Fischbacher Nursery jury awards against Synergy in favor of Darvin Bentlage (Verdict C-4) and Patricia Bentlage (Verdict D-4), we order that both of their separate $75,000 judgments (for a total of $150,000) against Synergy be reduced by the settlement they entered into with Marcel Fischbacher in the amount of $140,000. Therefore the judgments in favor of Darvin Bentlage (Verdict C-4) and Patricia Bentlage (Verdict D-4), shall be reduced to $5,000 for each of these specific awards (for a total of $10,000). It is not disputed that the Bentlages entered into a collective settlement with Marcel Fischbacher in the amount of $140,000, for the nuisance damage caused to their property by the Fischbacher Nursery.
Point Seven is granted.
In Point Eight, Synergy argues that the trial court erred "by excluding evidence of the fair market value of the real property owned or occupied by respondents because such evidence constitutes competent, relevant and material evidence of whether respondents had been deprived of the use and enjoyment of their property as a result of the claimed nuisance in that the value of the real property is probative of its use and enjoyment." We disagree.
"The admissibility of evidence lies within the sound discretion of the trial court and will not be disturbed absent abuse of discretion." Mitchell v. Kardesch, 313 S.W.3d 667, 674-75 (Mo. banc 2010) (citation and quotation omitted). "This standard gives the trial court broad leeway in choosing to admit evidence, and its exercise of discretion will not be disturbed unless it is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." Id. "We review the trial court's admission or exclusion of evidence under a deferential
"When reviewing for an abuse of discretion we presume the trial court's finding is correct, and reverse only when the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 872 (Mo. App. E.D.2009) (citation and quotation omitted). "Upon finding an abuse of discretion, this court will reverse only if the prejudice resulting from the improper admission of evidence is outcome-determinative."
At trial, plaintiffs made a motion in limine to exclude any evidence pertaining to the fair market value of plaintiffs' property, which the trial court granted. Synergy then made an offer of proof of the fair market value of the plaintiffs' respective land holdings.
The crux of Synergy's argument is that "[e]vidence of the fair market value of real property owned or occupied by Respondents in this case tended to prove the extent to which their use and enjoyment of the property had been affected by the claimed nuisance caused by neighboring agricultural operations." But this Court has recently held that such evidence is not relevant in the context of a temporary nuisance claim:
Owens v. ContiGroup Companies, Inc., 344 S.W.3d 717, 728-29 (Mo.App. W.D. 2011).
Accordingly, we conclude that the trial court did not err in excluding this evidence at trial pertaining to the value of the plaintiffs' real property in light of the fact that it had no direct correlation to the value of the plaintiffs' damages pursuant to their temporary nuisance claims.
Even when assuming arguendo that this evidence was in fact relevant, Synergy does not even attempt on appeal to explain how the exclusion of this evidence resulted in outcome determinative prejudice beyond putting forth the following bare assertion: "Excluding the evidence had a material effect on the merits of the cause of action." Synergy's failure to articulate and demonstrate outcome-determinative prejudice on appeal is just further reason for this Court to deny this Point Relied On.
For all of the aforementioned reasons, Point Eight is denied.
In Point Nine, Synergy argues that the trial court "erred by admitting evidence of the Richland Township zoning ordinance vote because the evidence was prejudicial to the appellants in that it was irrelevant, immaterial and incompetent evidence that did not logically tend to prove or disprove a fact in issue and legally its admission was outweighed by its danger of confusing and misleading the jury and otherwise unfairly prejudicing Appellants."
As outlined in detail in Point Eight above, we review this evidentiary issue for an abuse of discretion.
Here, Synergy complains of two specific instances where the trial court allowed, over Synergy's objections, evidence regarding a vote that took place in the Richland Township (where the Plaintiffs resided) pertaining to zoning over commercial, large scale hog farming. At trial, plaintiffs' counsel cross-examined the Operations Manager for Synergy in the following manner:
Tr, 679.
Synergy also objected to the following cross-examination of their expert witness, Dwaine Bundy, PH.D.:
Tr, 2164.
Synergy objects to this evidence on the basis that "[t]he outcome of the township vote was not relevant to the central question the jury was asked to decide, specifically whether the operation of the facility constitutes a nuisance." We conclude that the trial court did not abuse its discretion in finding that this evidence was in fact relevant under the facts of this case.
"Evidence is relevant if it logically tends to prove or disprove a fact in issue." State ex rel. Missouri Highways and Transp. Com'n v. Greenwood, 269 S.W.3d 449, 457 (Mo.App. W.D.2008) (citation and quotation omitted). "Logical relevance
Here, plaintiffs had to present relevant evidence at trial in order to prove that Synergy's conduct constituted a nuisance. "The crux of a nuisance case is unreasonable land use." Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 880 (Mo. banc 1985). "There is no exact rule or formula by which the existence of a nuisance or the nonexistence of a nuisance may be determined." Id. at 881.
This Court has previously held that this type of zoning evidence is relevant in proving a nuisance at trial. "The zoning of a district may be relevant for consideration in a nuisance claim but only as an indicia of the relative freedom from pollution which neighboring property owners may expect." Davis v. J.C. Nichols Co., 714 S.W.2d 679, 684 (Mo.App.W.D. 1986) (emphasis added). "Merely because an area may be zoned industrial (or business or commercial) does not justify the maintenance of a nuisance." Id.
We do not conclude that in all instances, evidence pertaining to zoning votes may be necessarily relevant, admissible evidence in a nuisance action because that determination is for the trial court in the first instance. But in this specific case because "[n]uisance is the unreasonable, unusual or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his property," we find that the trial court did not abuse its discretion in allowing this evidence at trial. Id. Specifically, to demonstrate an abuse of discretion, Synergy would have to show that the trial court's "ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Williams, 281 S.W.3d at 872. Here, Synergy has not made that showing because this evidence tended to prove "the relative freedom from pollution which neighboring property owners may expect." Davis, 714 S.W.2d at 684.
Furthermore, even when assuming arguendo that the admission of this evidence constituted error, Synergy has failed to articulate how it resulted in outcome determinative prejudice at trial. "To warrant reversal, improperly admitted evidence must have prejudiced the defendant." Asset Acceptance v. Lodge, 325 S.W.3d 525, 529 (Mo.App. E.D.2010). "Unless the error materially affects the merits of the action, the judgment should not be reversed." Id. "A determination of prejudice by the erroneous admission of evidence depends largely upon the facts and circumstances of the particular case." Kearbey v. Wichita Southeast Kansas, 240 S.W.3d 175, 184 (Mo.App. W.D.2007). "The appropriate question then is whether the erroneously admitted evidence had any reasonable tendency to influence the verdict of the jury." Id.
Here, Synergy neglects to consider that at trial, plaintiffs presented voluminous evidence, unrelated to the townships' vote, as to how Synergy's conduct constituted a nuisance. Attempting to outline the totality of this evidence would be impractical at this time, especially when this Court need not do so in order to illustrate why Synergy's claim must fail on appeal. Synergy's own appellate brief illustrate how numerous Plaintiffs testified as to how the odors from the hog farms substantially impaired and interfered with their day to day enjoyment of normal, ordinary life activities because of such maladies as nausea and headaches. Plaintiffs further testified how after Synergy began its operations flies and rats infested their properties. Simply put, Synergy has not even attempted to argue that, had this complained of evidence been excluded by the Court at trial, a different result at trial would have somehow resulted. Rouse v. Cuvelier, 363 S.W.3d 406, 417 (Mo.App. W.D.2012) ("Rouse simply assumes on appeal that this evidence pertaining to pulling over to let other vehicles pass was prejudicial because it lead [sic] the jury to believe that [Rouse's] failure to pull over and allow trailing traffic to pass caused the accident at issue as reflected in the jury's assessment of 100% fault to [Rouse] in its verdict. We disagree. This argument neglects to consider ... that there was evidence at trial from which the jury could conclude that Rouse's failure to look behind him prior to turning left while operating the tractor at such a low rate of speed on a highway is what caused the accident.").
For all of these reasons, Point Nine is denied.
In Point Ten, Synergy argues that the trial court erred "by failing to sever the claims against former defendants Fischbacher and Nichols because the evidence pertaining to the Marcel Fischbacher and Wayne Nichols nurseries misled and confused the jury in that not all respondents
We outlined our applicable standard of review in Guess v. Escobar:
26 S.W.3d 235, 239 (Mo.App. W.D.2000) (emphasis added).
Rule 52.05(a) pertains to permissive joinder and provides, in relevant part, the following:
Rule 52.05(b), in turn, pertains to "separate trials" and provides the following:
Prior to trial, Synergy filed a motion to sever the plaintiffs' claims "against Synergy and Kenoma as to the Kenoma sow farm from the remaining Respondents as to their claims against Synergy for the Nichols and Fischbacher nursery sites." Because the trial court denied the motion, Synergy claims that the jury was required to hear evidence "regarding the Nichols and Fischbacher nursery sites which was irrelevant to all Respondents' claims against the Kenoma sow farm ... [which] misled and confused the jury and Appellants were prejudiced by the admission of that evidence." Synergy's arguments significantly underestimate the dedication, intelligence and abilities of the members of our juries.
The Missouri Supreme Court has made clear that the touchstone in this area of law is whether the conduct at issue constituted a "series of transactions or occurrences" pursuant to Rule 52.05(a), which the Court has defined as following:
State ex rel. Nixon v. Dally, 248 S.W.3d 615, 617 (Mo. banc 2008).
In arguing that the trial court abused its discretion in refusing to the grant its motion to sever, Synergy argues that certain plaintiffs "claimed no nuisance against Synergy for their alleged involvement with either the Nichols or the Fischbacher facilities." Specifically, Synergy argues that because some plaintiffs to the lawsuit had claims that stemmed from being in close proximity to the Kenoma facility, severance of the claims was mandatory because these plaintiffs "provided no testimony at trial regarding any odor or problems with the flies from the Nichols or Fischbacher facilities." We disagree.
As outlined above, the relevant inquiry pursuant to Rule 52.05(a) is whether the conduct at issue constituted a "series of transactions or occurrences" that were "related by a common question of law or fact." State ex rel. Nixon, 248 S.W.3d at 617. Based on Synergy's own summary of how the defendants worked together in running this pig farming operation in the Richland Township can leave no doubt that the trial court did not abuse its discretion in denying the motion to sever:
Br, pg. 8.
Based on Synergy's own summary of the operative facts, it is clear that these defendants were involved in a highly interrelated operation of pig farming in the same community. Therefore, based on our deferential standard of review, we fail to see how the trial court abused its discretion in concluding that the defendants were involved in a "series of transactions or occurrences," implicating numerous common questions of law and fact.
As outlined above, in order to be properly joined under Missouri law, all of the plaintiffs' claims need not be identical to one another.
Point Ten is denied.
The judgment of the circuit court is affirmed in part, and reversed in part. Pursuant to Rule 84.14, this Court enters the following order in lieu of remanding this matter to the trial court:
I. Point Six is granted. Because we conclude that manifest injustice resulted in that Patricia Bentlage and Darvin Bentlage both received a double recovery on their duplicative nuisance claims against Synergy, this Court takes the corrective action of ordering that only one $75,000 nuisance judgment stand in each of their individual favor against Synergy; the second such judgment in each of their individual favor is hereby reversed and struck down pursuant to our authority under Rule 84.14. Therefore, this Court reverses and strikes down both "agency" nuisance awards in favor of Patricia Bentlage (Verdict D-6) and Darvin Bentlage (Verdict C-6) in the amount of $75,000 each.
II. Point Seven is granted. Because we conclude that Synergy was entitled to a reduction as a matter of law, as it pertains to the Wayne Nichols jury awards in favor of Darvin Bentlage (Verdict C-3) and Patricia Bentlage (Verdict D-3), we order that both of their separate $75,000 judgments against Synergy be deemed satisfied (for a total of $150,000), based on their settlements. Furthermore, as it pertains to the Marcel Fischbacher jury awards in favor of Darvin Bentlage (Verdict C-4) and Patricia Bentlage (Verdict D-4), we further order that both of their separate $75,000 judgments against Synergy be reduced to $5,000 awards each (for a combined total of $10,000), based on their settlements.
The judgment of the circuit court is in all other respects hereby affirmed.
All concur.
In Greger, the Eight Circuit attempted to summarize too broad a swath of Missouri law as it pertained to nuisance lawsuits because in that case, the plaintiffs did not seek to supplement their pleadings pursuant to Rule 55.33(d). Accordingly, Greger attempted to answer the instant legal question, when in fact no reported Missouri court had yet to do so under the specific parameters of Rule 55.33(d). For all the reasons set forth above, we respectfully decline to follow Greger in this specific regard.
It is worth noting that on appeal Synergy complains of instructional error as it pertains to four instructions. But as it pertains to two of the instructions (Instructions 23 and 38), there can be no doubt that Synergy cannot demonstrate prejudicial error because the jury entered a verdict in Synergy's favor as it pertains to these two instructions.
As it pertains to Instructions 25 and 40, (wherein the jury entered an award against Synergy), we are left to speculate by Synergy as to whether the inclusion of the term "agency" in these specific instructions somehow constituted prejudicial error. But, for the reasons discussed above, this Court is precluded from speculating as to what Synergy believes was prejudicial, and if so why specifically it believes it was prejudicial.
