Bradley v. Browning-Ferris Industries, Inc.

Decision Date14 November 1989
Docket NumberBROWNING-FERRIS,No. WD,WD
Citation779 S.W.2d 760
PartiesRobert R. BRADLEY, et al., Plaintiffs, v.INDUSTRIES, INC., et al., Respondents, and Lincoln Brothers Land, Inc., Appellant. 40945.
CourtMissouri Court of Appeals

Bruce G. Heavner, G. Edwin Proctor, Jr., Kansas City, for appellant.

William G. Beck, Sue M. Honegger, Kansas City, for respondents.

Before LOWENSTEIN, P.J., and KENNEDY and GAITAN, JJ.

LOWENSTEIN, Presiding Judge.

The ultimate issue tried here was whether, pursuant to a contract, the operator of a landfill, the respondent, had a right to take dirt from the appellant landowner's property adjoining the plot used for the dumpsite.

This is a cross-claim which arose from the filing of a suit in 1983 by surrounding landowners against both appellant Lincoln Brothers (Lincoln) and respondents Browning-Ferris Industries, et al., (BFI). The surrounding landowners' claims were eventually settled, leaving only the cross-claim between Lincoln and BFI. A jury found BFI had a contractual right to use 502,000 cubic yards of dirt as landfill cover.

In 1972, Lincoln and BFI's predecessor, Landfill, Inc. executed a written contract (Landfill Operating Agreement) under which Landfill operated a sanitary landfill and hazardous waste facility on Lincoln's approximately 196-acre property near Missouri City in Clay County. The original contract was for ten years, however, it was modified four times with the last agreement expiring on March 1, 1983. During this ten to eleven year operational period, approximately fifty-four acres of land was actively used in waste management (referred to as the southern portion), while the northern portion remained untouched.

In 1983 BFI closed the landfill to any further refuse. Federal and Missouri regulations in effect required certain "closure" activities when a landfill stopped receiving wastes. The most significant of these was the construction of a "final cover" over the facility. After preparing and securing approval of a closure plan calling for a dirt cover, in June 1985 BFI began implementation of the plan by going on the northern portion of Lincoln's property to remove dirt for the cover.

Lincoln immediately moved for a temporary and permanent injunction to stop the removal. The trial court entered a temporary order in favor of Lincoln. After an evidentiary hearing, the court issued an order on July 30, 1985 concluding the Landfill Operating Agreement entitled BFI to use all of the property for final cover dirt to the extent "necessary, useful or appropriate" in implementing the closure plan. BFI proceeded with closure of the landfill pursuant to the order of the trial court which was not appealed by Lincoln. Trial on this cross claim then started in April, 1988. In what was described at oral argument as the longest civil trial in Clay County history, a jury found for BFI, and Lincoln filed this appeal. In its petition Lincoln feared it 1) would suffer liability for negligent operation and closing by the operator, and 2) that it suffered extensive damage to its tract by the unauthorized taking of soil by the operator to cover the fill. The cross-claim included counts for contractual indemnity, waste fraud, nuisance, negligence, negligence per se, prima facie tort, breach of contract, trespass, res ipsa loquitur, unjust enrichment and intentional tort. Several of these counts along with punitive damages claims fell to directed verdicts. The case boiled down to presenting to a jury whether or not the operator had a right to take the dirt, and if so, the value. On appeal, the points dealing with many of these counts have been stricken.

I.

Lincoln argues the trial court erred in failing to grant a new trial in that the jury verdict was against the law and weight of the evidence. "If a trial court refuses to grant a new trial on the ground that the verdict is against the weight of the evidence, appellate courts will not pass on the weight of the evidence." Veach v. Chicago and North Western Transportation Co., 719 S.W.2d 767, 769 (Mo. banc 1986). The verdict will not be overturned unless there is a complete absence of probative facts to support the verdict, viewing the evidence in the light most favorable to the verdict. Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 145 (Mo.App.1989); Treon v. Hayes, 721 S.W.2d 789, 791 (Mo.App.1986).

In the present case, the jury was shown the entire Operating Agreement along with the subsequent amendments and also was subjected to testimony concerning BFI's attempt at purchasing surrounding land to use as final cover. As will be discussed infra, it is most questionable why this parol testimony was allowed in evidence. But even this evidence which helped Lincoln's cause, did not persuade the jury to believe BFI had no right to use the northern portion of the property as final cover. It cannot be said there was a complete absence of probative facts to support the verdict. Massey-Ferguson, supra.

The disturbing aspect of this point which was not alluded to by either party is why the jury was even involved in this determination. The Landfill Operating Agreement, the contract in dispute, is not ambiguous and therefore the entire issue should have been taken from the jury and disposed of by the trial judge. Harris v. Union Electric Co., 622 S.W.2d 239, 247 (Mo.App.1981). "Where there is no ambiguity in the contract the intention of the parties is to be gathered from it and it alone, and it becomes the duty of the court and not the jury to state its clear meaning." Edgewater Health Care v. Health Systems, 752 S.W.2d 860, 865 (Mo.App.1988). Courts determine what the parties intended by what they said, not by what they might have said or what perhaps they should have said. L & K Realty Co. v. R.W. Farmer Construction Co., 633 S.W.2d 274, 280 (Mo.App.1982).

In the instant case, the Landfill Operating Agreement reads in pertinent part:

Owner is the owner of the parcel of land of approximately 206 acres ... such land being sometimes herein called the "property."

* * * * * *

Operator shall be entitled to the use of all of the property when and to the extent necessary, useful or appropriate for the conduct of its landfill operations.

(Emphasis added).

Although there were subsequent amendments, the controlling sections of the Agreement were not affected.

Looking at the document, the word "property" is a defined term within the contract meaning the entire acreage involved. Lincoln gave BFI permission to use all of the property to conduct landfill operations. However, this does not end the matter. Lincoln contends the Landfill Operating Agreement had expired by the time BFI took the dirt, therefore, even if the Agreement was not ambiguous, it is not controlling. This contention is against the clear meaning of the Agreement. Although the final amendment expired on March 1, 1983, there is language in the original Agreement which extends its application well beyond this date.

Operator shall ... be responsible for the grading, final cover and seeding.

* * * * * *

Operator shall comply with all applicable ordinances, statutes and other governmental rules and regulations.

The date of March 1, 1983 was the expiration date for accepting waste and operating the dump, while the above stated language controls the actual closing of the landfill. These are two distinct areas covered by the same Agreement. Even when the original Agreement was signed in 1972, regulations mandated final cover over a landfill which stopped receiving wastes. The Missouri Division of Health specified final cover of not less than twenty-four inches and the implementation of a maintenance program until the fill stabilized. Lincoln apparently knew of this regulation because it was alluded to in the Agreement. It is ridiculous for Lincoln to assert BFI had to comply with these regulations before closure on March 1, 1983. In fact, it would be impossible to do so. No doubt if BFI refused to conduct the final cover operation Lincoln would not hesitate to use the Agreement in their favor. Lincoln cannot now try to shorten the term of the Agreement to suit its own purpose.

II.

Lincoln asserts the trial court erred by not directing a verdict in its favor. However, it never moved for a directed verdict on its cross-claim against BFI--the point is therefore not preserved for appellate review. Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 320-21 (Mo. banc 1975); see also Sab Harmon Ind. v. All State Building Systems, 733 S.W.2d 476, 487 (Mo.App.1987). Even if preserved, the point would be without merit.

III.

Lincoln asserts the trial court erred in allowing the Order of July 30, 1985 to be read, shown and passed to the jury in that it was not relevant and highly prejudicial. This is the order which allowed BFI to take dirt from the northern portion of the property for use in final cover. It read in part:

The court finds and concludes that the contracts among ... [Lincoln and BFI] ... do permit ... [BFI] to use as much of the entire ... tract owned by ... [Lincoln] ... as is "necessary, useful or appropriate" to the implementation of the approved closure plan....

The trial court admitted the order into evidence for many reasons: 1) it was evidence that BFI was authorized to take and use the dirt for final cover; 2) it was relevant as to whether the dirt actually taken by BFI was "necessary, useful or appropriate" in that the order authorized a grievance procedure Lincoln was to follow if it felt BFI was abusing the court's order, a procedure which Lincoln never utilized; 3) the order was used to rebut Lincoln's claim that BFI was trespassing on its property; and 4) it was used to defend against Lincoln's punitive damage claim. The court finds these reasons sufficient to justify the admittance of the order into evidence. "[A] determination that the probative value of certain evidence outweighs any potential unfair prejudice is ... a...

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