Bare v. Carroll Elec. Coop. Corp.

• Decision Date: 13 March 2018
• Docket Number: No. SD 34975,SD 34975
• Citation: 558 S.W.3d 35
• Parties: Steven M. BARE and Suzanne M. Bare, Co–Trustees of the Steven M. Bare and Suzanne M. Bare Joint Revocable Trust Agreement dated January 12, 2005, Plaintiffs–Respondents, v. CARROLL ELECTRIC COOPERATIVE CORPORATION, Defendant–Appellant, and Seven Valleys Construction Company, Defendant.
• Court: Missouri Court of Appeals

558 S.W.3d 35

Steven M. BARE and Suzanne M. Bare, Co–Trustees of the Steven M. Bare and Suzanne M. Bare Joint Revocable Trust Agreement dated January 12, 2005, Plaintiffs–Respondents,

v. CARROLL ELECTRIC COOPERATIVE CORPORATION, Defendant–Appellant,andSeven Valleys Construction Company, Defendant.

No. SD 34975

Missouri Court of Appeals, Southern District, Division One.

Filed: March 13, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 2018

Application for Transfer Denied July 3, 2018

CHRISTIAAN D. HORTON, Springfield, MO, for Appellant.

RANDALL R. COWHERD, Springfield, MO, for Respondents.

DON E. BURRELL, J.

Carroll Electric Cooperative Corporation ("Carroll Electric") appeals a judgment¹ in favor of Steven M. Bare and Suzanne M. Bare, Co–Trustees of the Steven M. Bare and Suzanne M. Bare Joint Revocable Trust Agreement Dated January 12, 2005 ("Landowner"), for common-law trespass in connection with the manner and extent of the clearing of a right-of-way easement Carroll Electric acquired from Landowner.² The judgment awarded Landowner $12,224.47 in actual damages (plus court costs), $75,000 in punitive damages, and $59,455.55 in attorney fees.

The judgment also awarded actual damages and court costs (but not punitive damages) in favor of Landowner against a second defendant, Seven Valleys Construction Company ("Seven Valleys"), the entity Carroll Electric retained to clear the right-of-way and pile the resulting severed trees and brush on Landowner's land.³ Landowner claimed, inter alia , that Seven Valleys acted as Carroll Electric's agent in trespassing beyond the right-of-way they ceded to Carroll Electric and that the conduct of both defendants was "outrageous" due to "evil motive or reckless indifference to the rights of others."

Carroll Electric's first two points claim the trial court erred in denying Carroll Electric's motions for directed verdict⁴ and judgment notwithstanding the verdict, or alternatively, a new trial ("JNOV motion"), because Landowner failed to make a submissible case that: (1) Seven Valleys was an agent of Carroll Electric in that there was no substantial evidence "that Carroll Electric controlled or had the right to control the physical conduct of Seven Valleys in the clearing of the" right-of-way; and (2) Landowner's "evidence failed to identify any conduct of Carroll Electric that was outrageous or reckless[.]" Point 2 also claims the trial court erred as a matter of law in submitting punitive damages to the jury "based upon the conduct of employees of Seven Valleys[.]"

Point 3 claims "[t]he trial court erred by giving Instruction No. 15[,] submitting the issue of punitive damages" ("the punitive damages verdict director"), when "there was no substantial evidence that" Carroll Electric's conduct was outrageous due to an "evil motive or reckless indifference to the rights of others." Point 4 claims the trial court erred in denying "Carroll Electric's motion for remittitur [ ("the remittitur motion") ] to set aside the punitive damage award ... in its entirety" because "the jury did not find Seven Valleys liable for punitive damages" and the "entire theory of liability against Carroll Electric was based upon respondeat superior liability[.]"

Point 5 challenges the judgment's award of attorney fees to Landowner on the ground that section 523.283.4⁵ does not allow such fees in cases of common law trespass and Landowner did not claim that there had been an " ‘expanded use’ as defined by that statute." Finally, Point 6 presents the alternative claim that if the punitive damages award is not otherwise set aside, the trial court abused its discretion in denying the remittitur motion because the amount of the award ($75,000) is excessive based upon the totality of the surrounding circumstances and thereby violated Carroll Electric's due-process rights.

Finding no merit in any of Carroll Electric's points, we affirm the judgment. We also grant in part Landowner's "MOTION FOR ATTORNEY'S FEES ON APPEAL " ("attorney fees motion"), and the matter is remanded to the trial court to enter such an award.

The Relevant Evidence

Before the easement was executed, Landowner met with representatives from Carroll Electric on a few occasions, and their discussions included what would happen to the trees and brush cleared from the right-of-way and whether Carroll Electric would need to go beyond the boundaries of the right-of-way in clearing trees. The easement "granted to [Carroll Electric] the perpetual right to clear and keep clear" the right-of-way, and it also permitted the removal of trees and "all other obstacles outside of the [right-of-way] that are tall enough to strike the transmission line[.]"

Landowner was concerned that this language seemed vague, and Carroll Electric's field service supervisor, Michael Allen,⁶ told Landowner that the language was in the easement so that Carroll Electric could " ‘take danger trees[.]’ " Mrs. Bare asked if Carroll Electric "would just take that [danger tree provision] out since it was so vague[.]" Representatives from Carroll Electric "said no, but they said, " ‘You have nothing to worry about.’ " Carroll Electric's design engineer, Bryce Barton, had walked the portions of the right-of-way where the trees were located and the lay-of-the-land was visible. Both Mr. Barton and Mr. Allen "assured [Landowner] that they could do the project in 100 feet" (the width of the right-of-way). Mr. Allen indicated that there would be no exception requiring the right-of-way to be wider than 100 feet. Mr. Allen told Landowner that Carroll Electric would only need to go beyond the right-of-way "in case of an emergency, an ice-storm-type situation[.]"

Mr. Allen also said that if damage occurred to Landowner's property outside of the right-of-way, then Landowner should "make a written claim to Carroll Electric and they would take care of restoring or repairing the damage." Mrs. Bare testified that she would not have signed the "Agreement for Compensation" ("the easement contract") if these promises had not been made by Carroll Electric.

The easement contract did not address where the trees and brush cleared from the right-of-way would be placed. Mr. Allen told Landowner that Carroll Electric would " ‘just leave the timber on the edge of our right-of[-]way.’ " Landowner clarified that this meant that the cleared trees and brush would be " ‘[o]n the edge of your right-of-way, not the edge of our [Landowner's] land?’ and [Mr. Allen] said, ‘Yes[.]’ "

The easement contract consisted of a single page. It guaranteed payment of $9,060 to Landowner for the easement, and it included typewritten language at the bottom of the page: "Note: Logs shall be left on the edge of right-of-way for landowner" ("the typed-note").⁷ Mrs. Bare recalled that someone from Carroll Electric said that the typed-note "satisfied what we had discussed about [the cleared trees and brush] being left on the edge of" the right-of-way.

In September 2010, Landowner executed the easement contract. The version of the easement contract introduced at trial contained a hand-written note that stated: " ‘Brush also to be left pushed off edge of right-of-way.’ " Mrs. Bare did not recognize the handwriting, and she was sure that the hand-written note was not on the easement contract when she signed it. If it had been, she would have "done something about it" when she was about to sign it. Mr. Allen testified that he had added the hand-written note to the easement contract.⁸

Carroll Electric also had a contract with Seven Valleys ("the Seven Valleys contract") for clearing the right-of-way and certain areas of other parties' lands to make way for the electric transmission line ("the project"). The Seven Valleys contract stated that Seven Valleys would "perform the work as an independent contractor, not as a subcontractor, agent, or employee of [Carroll Electric,]" but it also reserved to Carroll Electric "the right to require the removal from the project of any employee of [Seven Valleys] if in the judgment of [Carroll Electric] such removal shall be necessary in order to protect the interest of [Carroll Electric]." It also compelled Seven Valleys to increase the number of its employees on the project. Carroll Electric could also require Seven Valleys to increase or change its tools or equipment.

The engineer employed by Carroll Electric ("the engineer") was the authority to "designate all danger trees which shall be removed or topped at option of [Carroll Electric]." Seven Valleys could "not suspend work [pursuant to the recommendation of the engineer] without written authority from [Carroll Electric to do so]." Carroll Electric was entitled to Seven Valleys' records and other information concerning the project and Seven Valleys.

Mr. Allen inspected Seven Valleys' work on the project. Mr. Allen "had the ability to correct [Seven Valleys'] work if it was being done incorrectly," and he could talk to Seven Valleys' foreman if there was a problem. Mr. Allen could stop something like "putting logs off of the right-of-way" if he "felt that was wrong[.]" As he inspected the clearing work, he made "sure [that] they wasn't [sic] leaving stumps real high, making sure they was [sic] cutting it to the width. If there was [sic] any danger trees, [he] made sure they ... was [sic] getting them, making sure they was [sic], you know, following what we would want."

Portions of deposition testimony given by the president of Seven Valleys, Robert D. Ennes, were read to the jury. Mr. Ennes said that the project was about 10 miles long, and there was never a "reason or occasion for [Seven Valleys] to go—for [its] crew to go outside the 100–foot easement[.]" Inspectors from Carroll Electric "made sure [Seven Valleys] was in the right place" and oversaw the "daily progress" on the project. It was Carroll Electric's "job" to determine whether there were any danger trees that should be removed by Seven Valleys.

Carroll Electric's supervisor...