Carter v. White

• Decision Date: 09 November 2007
• Docket Number: No. 28230.,28230.
• Citation: Carter v. White, 241 S.W.3d 357 (Mo. App. 2007)
• Parties: Landell CARTER and Darrell Carter, Respondents, v. Lance WHITE and Noranda Aluminum, Inc., Appellants.
• Court: Missouri Court of Appeals

241 S.W.3d 357

Landell CARTER and Darrell Carter, Respondents, v. Lance WHITE and Noranda Aluminum, Inc., Appellants.

No. 28230.

Missouri Court of Appeals, Southern District, Division Two.

November 9, 2007.

Motion for Rehearing or Transfer Denied December 4, 2007.

Application for Transfer Denied January 22, 2008.

Lawrence H. Rost, New Madrid, for Appellants.

Daren K. Todd & Cameron Bunting Parker, Welch, Todd & Parker, Malden, for Respondents.

Before BARNEY, P.J., RAHMEYER, J., and McGHEE, SR. J.

PER CURIAM.

Appellants Lance White ("Officer White") and Noranda Aluminum, Inc. ("Noranda") (collectively "Appellants") appeal the trial court's judgment following a jury trial in favor of Respondents Landell Carter ("Landell") and Darrell Carter ("Darrell") (collectively "Respondents") on their petition for conversion,¹ interference with a business relationship, and trespass.² The jury awarded each Respondent actual damages of $200.00 as against both Appellants; denied an award of punitive damages against Officer White; and awarded each Respondent punitive damages in the amount of $25,000.00 only against Noranda. Appellants now assert three points of trial court error, discussed below.

The record reveals that in 1999, the Southeast Missouri ("SEMO") Drug Task Force began several undercover investigations at private companies to help those companies uncover illegal drug activity and other internal issues. At that time, the SEMO task force worked with several executives at Noranda to place two undercover, commissioned officers, Officer White and Officer Darren Bullard ("Officer Bullard"), at Noranda as paid employees.³ During the investigation, the undercover officers "worked as workers" at Noranda and did not report their findings to Noranda while the investigation was pending; instead, the officers filed reports directly with the SEMO Drug Task Force. The undercover officers were paid by Noranda during the undercover investigation and did not receive wages from the drug task force or any other law enforcement agency during that time. Officer White testified at trial that he "answered to the SEMO Drug Task Force. [He] didn't have any contact with any personnel at Noranda . . ." other than with his direct work supervisors who did not know about his undercover status. Officer Bullard testified the undercover officers "were . . . under the direct control and supervision of the SEMO Drug Task Force" throughout the investigation.

The undercover investigation at Noranda lasted approximately eighteen months and at the close of the investigation the SEMO task force performed a series of searches at the homes of several suspects, including Respondents.

On January 29, 1999, Officer White and Officer Bullard, accompanied by a Missouri Highway Patrol officer,⁴ performed consensual searches at the homes of both Respondents, who were Noranda employees.

Officer White testified that Landell's home was searched because Officer White had received information that Landell along with Darrell and other Noranda employees had broken into a trailer and stolen several items. Officer White further testified that he had personal knowledge that Landell as well as Darrell "carried out items [belonging to Noranda] in their tool boxes or their lunch boxes."

Officer White testified that on the morning of January 29, 1999, he and the other officers received written consent to search Landell's home from his mother-in-law and that Landell was not at home at the time of the search. He stated the officers gathered numerous items which they believed to be stolen property; made a list of the items seized; "labeled [the items] as evidence and put it in the SEMO Drug Task Force Evidence Locker." Officer White stated he "put evidence tape on [the items] . . . put a property record on it, sealed it as evidence. . . ." Officer Bullard also testified that the seized property was "gathered up and taken to a [SEMO Drug Task Force] locker . . ." following the search.

Later on the morning of January 29, 1999, the officers went to Darrell's home. Darrell was home at the time and gave the officers written consent to search his home. The officers seized approximately ten items which they believed belonged to Noranda from a shed on Darrell's property and from his vehicle. The officers collected the items by following "evidence procedures" and Officer White made a list of the items for his police report when they returned to the police station. Officer White testified the items were "packaged, evidence tape across them, property records attached, placed in the SEMO Drug Task Force Evidence Locker."

At trial, Landell testified that at an ensuing arbitration hearing he had asked a Noranda representative for the return of the items seized from his home but was told he could not have the items back. Landell admitted he lost his job with Noranda because the arbitrator found he had stolen property from Noranda. Darrell testified at trial that he never asked anyone to return the seized items to him. Darrell admitted he was fired from Noranda because they found he was smoking marijuana while at work as well as for stealing from Noranda.

Officer White testified that on February 4, 1999, he removed the property seized from Respondents' homes from the SEMO Drug Task Force evidence locker and took it to the Sikeston Highway Patrol office for it to be identified by Noranda employees. The Noranda employees indicated the items "were used commonly at Noranda" and were "typical Noranda items." In his police report, which was entered into evidence at trial, Office White noted that the Noranda employees noted that many of the items definitely "came through the warehouse" at Noranda and that many of the items were obviously for industrial use only.

Officer White testified that Noranda was in no way involved in the seizure of items from Respondents' homes and he was not "ordered to go there by them." He stated that the items seized were taken on behalf of a criminal investigation being performed by the SEMO Drug Task Force. Officer White also testified that he was then working for the Mineral Area Drug Task Force and he did not know the current location of the items seized from Respondents' homes. He stated the last time he saw the items was at the arbitration hearing conducted in relation to Respondents' discharges from Noranda.

Officer Bullard testified that Noranda was not involved in the seizure of items from Respondents' homes and that at all times he and Officer White were operating a criminal investigation as police officers. He stated they took possession of the items "on behalf of the SEMO Drug Task Force."

Sergeant Kevin Glaser ("Sergeant Glaser"), an officer with the Missouri Highway Patrol and the Coordinator of the SEMO Drug Task Force, testified that Officer White and Officer Bullard were working undercover for the task force while they were employed at Noranda. He stated they filed reports with the task force and sent drug samples and other evidence to the task force to be tested.

Rick Eisenbach, the superintendent of employee relations and security for Noranda, testified that Landell was discharged from Noranda for "steal[ing] or attempt[ing] to steal [Noranda] property ...." He stated Darrell was discharged for the same reason as well as "for smoking marijuana on [Noranda] property, actually at work." Mr. Eisenbach related that under the terms of the collective bargaining agreement with the Union both Respondents had an opportunity to appeal their suspension and termination through "a grievance procedure." He also stated that following the arbitration hearings it was determined that Darrell and Landell were properly discharged from Noranda for violating the company's rules of conduct. Also, regarding the searches at Respondents' homes, Mr. Eisenbach testified that Noranda was in no way involved in the searches which were carried out by officers of the SEMO Drug Task Force. He stated there were no Noranda employees present at Respondents' homes during the searches. He also related that the items seized from the homes were "used in ... the [a]rbitration case ..." and were brought from the Missouri Highway Patrol storage locker to the arbitration by Corporal Cone. He stated the items were in the possession of the Missouri Highway Patrol and had always been "in the storage locker at the evidence locker at the [Missouri Highway Patrol] Zone Office in Sikeston." Mr. Eisenbach testified he had no right to return the seized property to Respondents because he did not "have the right to. It's not ... our property. It's in the SEMO Drug Task Force Locker." Mr. Eisenbach also stated that at the time of the raid on Respondents' homes, Officers White and Bullard were no longer employed by Noranda. He related that their employment with Noranda was terminated "prior to the raid."

Appellants raise three points of trial court error. For ease of analysis we have chosen to address Appellants' points out of order. We commence with our analysis of Point Two. In this point of trial court error, Appellants maintain the trial court erred in denying their Motion for New Trial "because the verdict is against the evidence in that there was no proof of a conversion ...." Specifically Appellants maintain "there was no evidence showing that Appellants had possession of the property listed in the Petition ...;" accordingly, there was no tortious taking.

We recognize, of course, that the standard of review for the denial of a motion for new trial is abuse of discretion by the trial court. M.E.S. v. Daughters of Charity Servs., 975 S.W.2d 477, 482 (Mo.App. 1998). Accordingly, we will not reverse "unless there is a substantial or glaring injustice." Fierstein v. DePaul Health Ctr., 24 S.W.3d 220, 225 (Mo.App.2000). Moreover, 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...