Central Missouri Elec. Co-Op. v. Balke

Decision Date18 November 2003
Docket NumberNo. WD 61106.,WD 61106.
Citation119 S.W.3d 627
PartiesCENTRAL MISSOURI ELECTRIC COOPERATIVE, Respondent, v. Richard W. BALKE and Ruth Balke, Appellants.
CourtMissouri Court of Appeals

William J. Foland, Jr., Esq., Kansas City, MO, Attorney for Appellant.

Spencer J. Brown, Esq., Kansas City, MO, Attorney for Respondent.

Before ELLIS, C.J., HAROLD L. LOWENSTEIN and BRECKENRIDGE, JJ.

OVERVIEW

HAROLD L. LOWENSTEIN, Judge.

The rather simple explanation and overview of this appeal is the appellants (the Balkes) assert error in the trial court's: (1) failure to apply the law of the case doctrine to their counterclaim for damages in tort for wrongful termination of electric service by the respondent (CMEC); and (2) granting partial summary in favor of respondent on appellants' additional counterclaims for the torts of intentional infliction of emotional distress and abuse of process. Although the respondent, the electric supplier to the appellants' dairy farm and home, filed the underlying suit to collect for unpaid electric service, this appeal stems from the appellants' counterclaims. The reader is advised that litigation between these parties includes two separate lawsuits (one filed by each party), an appeal and subsequent reversal of both suits, and a settlement of the first suit. Some of the events, suits, and appeals overlap in time—a condensed chronology is provided in the appendix to this opinion.

STATEMENT OF FACTS

This third appeal involving these parties attempts to resolve a long-standing dispute originating from events commencing more than twenty years ago. Although the initial suit between the Balkes and CMEC has already been settled and is not before this court, it is necessary to revisit the facts that give rise to the entire dispute. The facts, as set forth in detail in Central Missouri. Electric Cooperative v. Wayne, 18 S.W.3d 46, 48-50 (Mo.App.2000),1 ("Balke II") are as follows: CMEC is an electric cooperative, serving customers located in rural, central Missouri. Richard and Ruth Balke operate a dairy farm in Cole Camp, where they live with three of their four children and Richard's mother. CMEC had supplied electrical power to the Balke farm since 1971.

In 1982, CMEC replaced an existing transformer on the property with a larger transformer because of the expansion of the Balke dairy operation. After the installation, the Balkes began experiencing over-voltage problems, which eventually damaged electrical equipment on their farm. As a result, the Balkes' dairy herd developed an increased frequency of mastitis, an inflammation of a cow's udder.

After several years of recurring complaints, in March 1991, CMEC discovered that the transformer was transmitting over-voltages. Subsequently, the transformer was removed and found to be defective. In January 1992, the Balkes received an unusually low electric bill. When they inquired about the bill, they were told that they would not be required to pay any electrical bill until CMEC investigated the low bill. Following that conversation, the Balkes did not pay any electric bills nor did they read their meter.

However, CMEC billed the Balkes for service for February 1992 through June 1992. In response, Mr. Balke sent a letter expressing his dissatisfaction and explaining the financial difficulties the family was experiencing because of the electrical problems. Mr. Balke also sent a statement of his own for the damages caused since 1982 which had never been paid by CMEC.

Sometime in early June 1992, Mr. and Mrs. Balke met with CMEC's general manager, who indicated that the co-op should have resolved the situation a long time ago. However, the general manager requested that the Balkes talk to CMEC's lawyer, Adam Fischer, to make matters "more legal." Mr. and Mrs. Balke met with Fischer, who allegedly informed the Balkes that they would not need to pay their bills until they were compensated for the damages caused by the over-voltage problem. According to Mr. Balke, Fischer assured him that they had a deal. For the next five years, the Balkes did not read their meter, did not receive an electric bill from CMEC, and did not receive a delinquency notice, while CMEC continued to provide electrical service to the Balkes.

The Balkes filed suit against CMEC in July 1992, because their claims for damages to their dairy business had never been paid. A judgment entered after a jury trial awarded damages to the Balkes in the amount of $783,333.00. CMEC then appealed to this court. See Balke v. Cent. Mo. Elec. Coop., 966 S.W.2d 15 (Mo.App.1997) ("Balke I"). In Balke I, this court reversed the judgment and remanded the case.2 However, a settlement was eventually reached in November 1998, prior to the trial on remand but after the filing of the current lawsuit. The settlement agreement disposed of all claims related to the harm to the Balkes' dairy herd caused by the defective transformer provided by CMEC, effectively ending litigation over the initial suit.

* * * * * *

However during the pendency of CMEC's appeal of the initial lawsuit and prior to executing the settlement, the following events occurred, leading to the current lawsuit. CMEC asked the Balkes to sign a "Partial Assignment of Proceeds" that would give CMEC preference over the Balkes' other creditors who would be paid out of the November 1996 judgment. Although CMEC threatened to discontinue electric service, the Balkes refused to sign the assignment.

On June 2, 1997, CMEC workers appeared on the Balkes' farm and disconnected the electricity supply without notifying the Balkes the electric service to the farm was being shut off. Although Mr. Balke had requested a reconnection, the CMEC declined to restore service, and the Balkes lived without electricity for over 480 days.

On July 24, 1997, CMEC filed the underlying suit against the Balkes, alleging that they had refused to pay for electrical service from July 1, 1992, through June 1, 1997. The Balkes filed an answer containing several affirmative defenses, as well as a counterclaim for wrongful termination of electrical power. Their counterclaim set forth that an agreement had been made with CMEC's lawyer Adam Fischer acknowledging that the Balkes would not have to pay for their electricity until the previous damages had been paid to them. The trial court granted summary judgment in favor of CMEC on its petition for damages for service it had provided to the Balkes. After commencement of the trial on the Balkes' counterclaim, the court directed a verdict for CMEC. In Balke II, this court reversed the trial court's decision to grant CMEC's motions for summary judgment and directed verdict. Cent. Mo. Elec. Coop., 18 S.W.3d at 53. Specifically, with respect to the directed verdict granted after submission of the Balkes' evidence, this court stated that "there was substantial evidence admitted to show that CMEC intentionally terminated the Balkes' electrical service in violation of their payment agreement previously made with Adam Fischer." Id. at 52. Thus, this court found that the trial court erred in granting the directed verdict in favor of CMEC and reversed and remanded for a new trial.

On remand, the Balkes amended their counterclaim to include two additional claims: intentional infliction of emotional distress (rising from CMEC disconnecting service to the Balkes' farm) and abuse of process (rising from CMEC filing the current lawsuit for unpaid account). Prior to trial, the Balkes filed a brief with the court asserting that the law of the case doctrine applied to their claim for wrongful termination. They argued that this court found, in Balke II as a matter of law, that the Balkes had established the third and fourth elements of the tort of wrongful termination of electricity. Thus, they claimed that they had met their burden of proof on these two elements. CMEC subsequently filed its own motion in limine seeking to exclude any mention of this court's decision in Balke II. The trial court, in a letter to counsel, denied the claims in the Balkes' brief and required them to "adduce evidence on all elements of the tort of wrongful termination of electricity and meet their burden of proof on each element...." The trial court sustained CMEC's motion in limine.

Prior to trial, CMEC also filed a motion seeking partial summary judgment on the Balkes' counterclaim for intentional infliction of emotional distress and abuse of process. The trial court granted this motion.

In September 2001, this case proceeded to jury trial on CMEC's claim on the unpaid account and the Balkes' sole remaining counterclaim for wrongful termination of electrical service. The jury returned a verdict in favor of CMEC on its claim for unpaid account and in favor of CMEC on the Balkes' counterclaim. The Balkes' filed a motion for new trial, asserting that the trial court erred in denying the relief they sought concerning the applicability of the law of the case doctrine and in granting CMEC's motion in limine. The trial court did not rule on the motion, and, thus, it was deemed denied under Rule 78.06. This appeal follows.3

I. WRONGFUL TERMINATION OF ELECTRIC SERVICE

In their first point on appeal, the Balkes claim that the trial court erred in denying their motion for new trial because the law of the case doctrine precludes the re-examination of issues decided by this court in the same action. They claim that this court held, in Balke II, that the Balkes had met their burden of proof concerning the third and fourth elements of their counterclaim for wrongful termination of electric service,4 and, thus, they should not have been required to submit evidence concerning these elements.

The law of the case doctrine is inapplicable to the facts of this case in the manner asserted by the Balkes. "The doctrine of law of the case governs successive appeals involving substantially the same issues and facts, and applies appellate decisions to later proceedings...

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