Bond v. California Compensation and Fire Co., WD

• Decision Date: 10 February 1998
• Docket Number: No. WD,WD
• Citation: 963 S.W.2d 692
• Parties: Gary BOND, et al., d/b/a All Star Amusement Co., Appellants, v. CALIFORNIA COMPENSATION AND FIRE COMPANY, Respondent, v. INDUSTRIAL SALVAGE & WRECKING CO., INC., Respondent. 53653.
• Court: Missouri Court of Appeals

Page 692

963 S.W.2d 692

Gary BOND, et al., d/b/a All Star Amusement Co., Appellants, v. CALIFORNIA COMPENSATION AND FIRE COMPANY, Respondent, v. INDUSTRIAL SALVAGE & WRECKING CO., INC., Respondent.

No. WD 53653.

Missouri Court of Appeals,

Western District.

Feb. 10, 1998.

Kenneth C. Hensley, Raymore, for Appellants.

Mark E. Johnson, Kansas City, for Respondent California Compensation & Fire Co.,

John M. Waldeck, Kansas City, for Respondent Industrial Salvage & Wrecking Co.

Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Gary Bond and Linda Bond, d/b/a All Star Amusement Co., appeal from the circuit court's judgment directing a verdict against them on their negligence claim for damages against California Compensation and Fire Company (Cal-Comp).

The appellants advance two points on appeal. In Point I, they claim that the trial court erroneously declared and applied the law in granting Cal-Comp's motion for a directed verdict because they made a submissible case of negligence in that, contrary to the trial court's belief, they were not required to present expert testimony on the issue of whether Cal-Comp's agent, Industrial Salvage and Wrecking Co. (Industrial Salvage), was negligent in using a trac-type bulldozer, instead of a tire-type bulldozer, to remove debris from the concrete floor of their building. In Point II, the appellants claim that the trial court erred in granting Cal-Comp's motion for directed verdict because, even if they did not make a submissible case of specific negligence, they made a submissible case under the theory of res ipsa loquitur.

We affirm.

Facts

In late 1988, the appellants purchased the building at 1818 Independence Avenue, Kansas City, Missouri, for $200,000 and made approximately $50,000 in improvements by way of remodeling and upgrading. The appellants purchased from Cal-Comp $200,000 of insurance for the building.

On Saturday, January 21, 1989, the building owned by the appellants was destroyed by fire. The roof of the building collapsed, sending steel beams, air conditioning units and other heavy debris onto the floor of the building. After the fire, the floor was covered with steel and charred rubble. Mr. Bond inspected the premises on the Sunday after the fire and reported his claim to Cal-Comp on Monday morning.

Cal-Comp asked Mr. Bond to contact several contractors to bid on the removal of the fire debris from the property. Given his choice of which contractor to hire, Mr. Bond chose Industrial Salvage because he knew the owner, Mr. Charles Cacioppo, Sr. On February 16, 1989, Mr. Bond signed a contract with Industrial Salvage for debris removal from the building.

Steve Sobolik, the adjuster handling the appellants' claim for Cal-Comp, his supervisor, and Mr. Bond were present the day the debris was removed. Industrial Salvage used a "trac-type" bulldozer at the site to remove the debris. As the bulldozer proceeded to move around the premises, Mr. Bond noticed cracks in the cement floor and brought this to the attention of Mr. Sobolik. Mr. Sobolik did not take any action after Mr. Bond's comment. After the debris' removal and the cause and origin investigation were completed, Cal-Comp paid him the $200,000 as required by his insurance policy. It also paid Mr. Bond $10,036 to cover the cost of the debris removal, which Mr. Bond paid to Industrial Salvage.

On April 18, 1996, the appellants filed a petition for damages against Cal-Comp alleging that "as a direct and proximate result of the use of the trac-type bulldozer or loader at the premises at 1818 Independence Avenue the concrete floor of the building at 1818 Independence Avenue was damaged and broken up and in some places destroyed by the trac-type bulldozer being used by Industrial Wrecking Company at the direction of the Defendant, California Compensation and Fire Company." This was the appellants' sole allegation of negligence. Cal-Comp denied that it was negligent as alleged by the appellants and denied that Industrial Salvage acted as its agent. Cal-Comp then filed a third-party petition against Industrial Salvage for contribution and/or indemnity with respect to the appellants' claim against it.

A jury trial was commenced on appellants' petition on November 5, 1996, in the Circuit Court of Jackson County, Missouri, before the Honorable Edith L. Messina. The defendants moved in limine to exclude any evidence beyond the scope of the appellants' pleadings, which was granted. During the appellants' case, the only evidence regarding the type of equipment used by Industrial Salvage to remove the debris came from Mr. Bond. He testified the concrete floor was not damaged until after the trac-type bulldozer had removed the debris from it.

At the close of the appellants' evidence, Cal-Comp and Industrial Salvage moved for directed verdicts. The trial court granted Cal-Comp's motion for directed verdict as to the appellants' claim against it, ruling that they had failed to present sufficient evidence from which a reasonable jury could find that Cal-Comp was negligent as alleged or that its alleged negligence was the cause of their damages. And, because Cal-Comp's claim against Industrial Salvage was predicated on the appellants' claim against Cal-Comp being successful, Industrial Salvage's motion for directed verdict was also granted. On November 8, 1995, the trial court entered judgment in favor of Cal-Comp on appellants' claim against it and in favor of Industrial Salvage on Cal-Comp's third-party claim against it. Neither the appellants nor Cal-Comp filed a motion for new trial.

This appeal follows.

Standard of Review

Rule 78.07 requires that where a directed verdict is granted in a jury-tried case, any contention that the verdict was erroneously directed must be raised in a motion for a new trial to be preserved for appellate review. R.E. Denton, Inc. v. Spelman Memorial Hosp., 784 S.W.2d 810, 813 (Mo.App.1990); Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo.App.1993). Because the record here reflects that the appellants did not file a motion for new trial, their claim that the trial court erred in directing a verdict against them was not preserved for appeal. However, Rule 84.13(c) provides that

[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

Thus, we review here for plain error only.

In reviewing the grant of a motion for directed verdict, we review to determine if the plaintiffs made a submissible case. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984). In determining whether a submissible case is made, we view the evidence and all reasonable inferences therefrom in the light most favorable to the claimant's case and disregard all evidence to the contrary. Mathis v. Jones Store Co., 952 S.W.2d 360, 365 (Mo.App.1997). Each and every element essential to establish the liability of a defendant must be supported by substantial evidence. Id. at 366. In this regard, substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. " 'Liability cannot rest upon guesswork, conjecture, or speculation beyond inferences that can reasonably decide the case.' " Id. (quoting Garrett v. Overland Garage & Parts, Inc., 882 S.W.2d 188, 191 (Mo.App.1994)). And, if one or more of the elements of a cause of action are not supported by substantial evidence, a directed verdict is proper. Id. However, a directed verdict is a drastic action and should only be granted if reasonable persons could not differ as to the outcome of the case. Gamble v. Bost, 901 S.W.2d 182, 185 (Mo.App.1995). If a claimant makes a submissible case on any theory pled, it would be plain error affecting substantial rights resulting in a manifest injustice or a miscarriage of justice for the court to direct a verdict against him or her. R.E. Denton, Inc., 784 S.W.2d at 813; Meyer v. Thornhill, 879 S.W.2d 786, 787 (Mo.App.1994).

Parties on Appeal

Although the appellants filed their notice of appeal only as to the trial court's grant of the directed verdict as to their claim against Cal-Comp, in their brief, they charge in both of their "Points Relied On" that the trial court erred in granting a directed verdict, not only as to their claim against Cal-Comp, but also as to Cal-Comp's claim against Industrial Salvage. This they cannot do.

Section 512.020 RSMo 1994 states, in pertinent part:

[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from ... any final judgment in the case....

In other words, a party not aggrieved by a judgment has no right or standing on appeal to appeal. In re Marriage of Kinnick, 621 S.W.2d 104, 105 (Mo.App.1981) (citations omitted). Here, even though Cal-Comp's third-party claim against Industrial Salvage was contingent upon the success of the appellants' claim against Cal-Comp, logically and legally the appellants were only aggrieved as to the directed verdict granted as to their claim against Cal-Comp and not as to the directed verdict in favor of Industrial Salvage. Thus, the appellants have no standing on appeal to challenge the directed verdict in favor of Industrial Salvage on Cal-Comp's claim against it. As such, our review is limited to the trial court's grant of a directed verdict on appellants' claim against Cal-Comp.

I.

In Point I, the appellants claim that the trial court erred in granting Cal-Comp's motion for a directed verdict in that they made a submissible case of negligence. Specifically, they contend that the trial court erroneously declared and applied the law in sustaining Cal-Comp's motion in that it relied on an...