Brown v. Cedar Creek Rod & Gun Club

Citation298 S.W.3d 14
Decision Date31 July 2009
Docket NumberNo. WD 69950.,WD 69950.
PartiesDaniel & Donna BROWN, Respondents, v. CEDAR CREEK ROD & GUN CLUB, Appellant.
CourtCourt of Appeal of Missouri (US)

Bruce D. Ryder, Esq., St. Louis and Louis J. Leonatti, Esq., Mexico, MO, for appellant.

Steven J. Gunn, Esq., Tyler R. Breed, Esq., and Stephen M. Ryals, Esq., St. Louis, MO, for respondent.

Before DIVISION THREE: HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS and LISA WHITE HARDWICK, Judges.

LISA WHITE HARDWICK, Judge.

This appeal arises from a judgment that awarded Daniel and Donna Brown ("Browns") $700,000 on their nuisance claim and granted injunctive relief against the Cedar Creek Rod & Gun Club ("Club"). The Club seeks to vacate the injunction based on a statutory amendment granting firearm ranges immunity from civil liability for nuisance based on noise or sound emissions. The Club also appeals the damages award, contending the circuit court erred in: (1) denying a motion for new trial based on prejudicial remarks by the Browns' counsel during closing argument and (2) denying remittitur based on the excessive jury award. For reasons explained herein, we remand the injunction for further consideration and affirm the remainder of the judgment.

I. FACTUAL AND PROCEDURAL HISTORY

The Browns own and live in their home on two-and-a-half acres of land on St. Charles Road in rural Boone County. Mr. Brown's family has owned the land since the 1940's. Mr. Brown has lived on the land since 1985, and Mrs. Brown has resided with him in the home on St. Charles Road since 1998.

Ralph and Maryann Gates own property located southwest of the Browns' home. In 1992, the Cedar Creek Rod & Gun Club was established on the Gates' property. The Club includes shooting ranges, skeet and trap fields, and clay sporting courses to simulate hunting. The Club has between 125 and 150 members and provides practice ranges for youth groups, five area high schools, and the University of Missouri's shooting teams. It also hosts numerous shooting tournaments and contests.

The Browns' home is approximately 560 yards from the center of the Club's trap and skeet fields. As the Club's membership has grown and activities have intensified over the years, the Browns have found the increasing noise and vibrations from the shooting intolerable. More than 500,000 shots were fired on the fields, ranges, and courses during a single year. The Browns were unable to entertain outside or play in the yard with their child. While inside the house, they turned up the television or radio volume to drown out the noise from the Club. Mr. Brown described the vibrations from the shots as so strong that it made his chest tremble, and he felt as if "somebody busted [him] right in the chest." Friends and relatives were able to hear gunfire over the telephone when speaking with the Browns. The Browns made many complaints to County officials but were told that nothing could be done.

In January 2004, the Browns filed a petition seeking damages and injunctive relief against the Club for nuisance. Following a three-day trial in December 2007, a jury found in favor of the Browns and ordered the Club to pay $700,000 in damages. The circuit court held a one-day hearing on the claim for injunctive relief. On April 4, 2008, the court entered a permanent injunction limiting the Club's operation to certain days, hours, and types of events.

The Club filed post-trial motions for remittitur and for a new trial. On July 2, 2008, the Club filed an additional motion requesting the circuit court to vacate the permanent injunction based on the passage of House Bill 2034 (H.B. 2034) during the 2008 session of the Missouri General Assembly. H.B.2034 amended Section 537.294, RSMo 2000,1 by granting the owners and operators of firearm ranges immunity from liability arising out of noise or sound emission from the use of any firearm. The circuit court denied the motion to vacate, noting that the new law had not gone into effect. The court also denied all of the remaining post-trial motions.

The Club appeals the judgment awarding damages and granting injunctive relief. The H.B. 2034 amendment to Section 537.294.2 became effective on August 28, 2008. Based on this new law, the Club has filed a Motion to Vacate the Permanent Injunction in this court. The motion was taken with the case and will be addressed as part of the first point on appeal.

II. ANALYSIS
A. Injunctive Relief

The Club seeks an order vacating the permanent injunction in light of the 2008 amendment to Section 537.294.2, which provides:

All owners and authorized users of firearm ranges shall be immune from any criminal and civil liability arising out of or as a consequence of noise or sound emission resulting from the use of any such firearm range. Owners and users of such firearm ranges shall not be subject to any civil action in tort or subject to any action for public or private nuisance or trespass and no court in this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the use of any such firearm range. Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.

Prior to the 2008 amendment, Section 537.294.2 provided limited immunity from criminal liability for noise or sound emissions resulting from the "normal use" of a firearm range.2 H.B. 2034 eliminated the normal use requirement and broadened the immunity to any civil or criminal liability arising from noise or sound emissions at a firearm range. The Club argues that the enactment of this amended law on August 28, 2008, renders the permanent injunction void and unenforceable.3 Although the law changed after the entry of the injunction, the Club contends the injunction cannot be enforced and must be vacated to the extent that it conflicts with the new law. Landolt v. Glendale Shooting Club, Inc., 18 S.W.3d 101, 105 (Mo. App.2000).

In Landolt, a shooting club began operating under restricted hours in 1987 pursuant to an injunction entered in a nuisance action. Id. at 103. In 1988, the General Assembly enacted the original version of Section 537.294.2, which granted firearm ranges limited immunity for nuisance actions. Several years later, the shooting club filed a motion to dissolve the injunction based on the new law and modifications that had been made to abate the noise at the firearm range. The trial court denied the motion. Reversing the trial court, the appeals court concluded that an injunction can be modified or vacated when a change occurs in the factual setting or the legal basis for the injunction.

Because a permanent injunction acts in futuro and gives Plaintiff no vested right in the judgment of the court, there is no retroactivity bar to applying a new statute after the initial issuance of an injunction. Even if an injunction has matured into a final judgment, when the legislature amends the substantive law on which an injunction is based, the injunction may be enforced only insofar as it conforms to the changed law.

Id. at 105 (internal citations omitted). In light of the change in the law, the court remanded the matter "to allow the trial court to consider the effect of Section 537.294 on the standing injunction." Id.

Here, the Browns oppose the motion to vacate the injunction and request instead, as in Landolt, that the cause be remanded to the circuit court to consider the extent to which the immunities in amended Section 537.294.2, apply in this case. The Browns point out that the amended law does not create blanket immunity for all nuisance activity caused by firearm ranges; rather, it immunizes only those nuisances caused by noise or sound emissions from the use of such ranges. The pleadings in this case alleged nuisance caused by noise emissions and "vibrations of the earth" resulting from the discharge of pistols, shotguns, and high-powered weapons at the Club. The evidence at trial also briefly addressed the issue of vibrations, albeit primarily in the context of the sound emissions. Most of the evidence at trial focused on the noise level from the firing range, but the court's judgment does not specifically state that the injunction was based on the nuisance of sound emissions or whether the vibrations also may have been a factor. To the extent that any part of the injunction was designed to abate the vibrations, it is valid and enforceable notwithstanding the broadened immunities in the amended law.

Under these circumstances, we agree that the matter should be remanded to the circuit court to consider the effect of amended Section 537.294.2, on the permanent injunction. The remand will also allow consideration of arguments raised by the Browns concerning constitutional challenges to the amended law and whether the savings statute bars dissolution of the injunction. The circuit court shall conduct such proceedings as necessary to determine whether and to what extent the permanent injunction shall remain in effect.

B. Damages Award
1. Motion for New Trial

The Club contends the circuit court erred in denying the motion for new trial based on improper closing arguments that prejudicially affected the jury verdict. Counsel for the Browns' made the following statement during closing, which the Club characterizes as an inflammatory "rich man—poor man" argument:

Think about the record. These people for 15 years have been trying to get somebody to help them, to get some relief. They're just folks. They are not Ralph Gates who owns a mortgage company, who owns hundreds of acres, who is ...

[Counsel for the Club]: Your Honor, I object to that.

(At this time a...

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