Children Intern. v. Ammon Painting Co.

• Decision Date: 12 December 2006
• Docket Number: No. WD 65766.,WD 65766.
• Citation: 215 S.W.3d 194
• Parties: CHILDREN INTERNATIONAL, Appellant, v. AMMON PAINTING COMPANY, Respondent.
• Court: Missouri Court of Appeals

215 S.W.3d 194

CHILDREN INTERNATIONAL, Appellant, v. AMMON PAINTING COMPANY, Respondent.

No. WD 65766.

Missouri Court of Appeals, Western District.

December 12, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2007.

Application for Transfer Denied March 20, 2007.

Kevin E. Glynn, Michael P. Joyce, and Anne Linton Pond, for Appellant.

Stephen D. Manz and Theresa Shean Hall, Kansas City, for Respondent.

Before: HOWARD, C.J., and BRECKENRIDGE and HOLLIGER, JJ.

VICTOR C. HOWARD, Chief Judge.

The current breach of contract action involves the imprudent performance of Defendant Ammon Painting Company in painting Plaintiff Children International's printing room floor. While preparing the floor for paint, Defendant Ammon damaged beyond repair Plaintiff's recently purchased printing press. This court is left with two issues on appeal: did the trial court abuse its discretion in remitting the jury's verdict after each itemized damage was examined independently and is the Plaintiff entitled to prejudgment interest as a matter of law.

Facts

Appellant Children International is a Missouri non-for-profit corporation, which mails approximately 26,000,000 pieces of material to its donors annually. It has historically been in the practice of printing some of its own materials and outsourcing, or having third-party printers prepare the remaining material. In November of 2002, Children International purchased a new printing press for $1,400,000 from a German company. At this time, the U.S. dollar and Euro were trading at close to parity. After the printer had been installed, but before it had been placed in ordinary operations, Children International entered into a contract with Ammon Painting Company in which Ammon would repaint the floor of Children International's printing room.

While preparing the floor of the printing room, Ammon failed to protect the printing press. The press was severely damaged, by small pieces of shot used to abrade the floor, and later determined to be beyond repair. As a result, Children International ordered an identical new press from the same German company to replace the press destroyed by Ammon. By April 2004, however, the Euro and dollar were no longer in parity; one Euro could be bought for $1.187. The price of an identical replacement press was negotiated for $1,600,000. Children International sold the damaged machine for $635,000.

While Children International was negotiating with Ammon and its representatives and waiting for the new machine to arrive, it employed other companies to print its mailing materials. The total cost of this outsourcing was roughly $690,648.¹

Children International brought suit for damages. A breach of contract claim was submitted to the jury.² Children International requested that the jury return itemized damages: one damage for the damage to the machine and one for the loss of use of the machine. During closing arguments, counsel for Children International asked the jury to fully compensate the Plaintiff in the amount of $965,000 for damage to loss of property and $691,758.27 for loss of use of the property. Children International introduced no evidence that damage done by loss of use was more than $691,758.27. The parties agreed that the court would determine the propriety of prejudgment interest after the jury had returned a verdict. In April of 2005, the jury returned the following numbers on the verdict form supplied to them with the instructions:

We, the undersigned jurors, assess the damages of Plaintiff, Children International, as follows:

For property damage, $765,000 (state the amount or, if none, write the word, "none").

For loss of use of property, $892,000 (state the amount, or if none, write the word, "none").

Later in April of 2005, the court entered judgment. The court found "the verdict was contrary to the weight of the evidence and exceeds fair and reasonable compensation for Plaintiff's damages for loss of use." Pursuant to section 537.068,³ the court sua sponte remitted $201,352 of the verdict on the loss of use line. The court also found that Plaintiff was not entitled to prejudgment interest because its claims were not liquidated. Appellant filed a motion to amend the judgment or in the alternative for a partial new trial, which the trial court denied.⁴ This timely appeal follows.

I. Remittitur

A. Standard of Review

Trial courts have broad discretion in awarding or declining to award remittitur. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998). We presume that the trial court acted within its discretion and will only find otherwise after a showing that the ruling in question is so arbitrary and unreasonable as to shock the conscience. Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

B. Analysis

This court is charged with the task of determining whether a trial court, when ordering remittitur, is to look to the verdict as a whole or look to the component, itemized portions of the verdict when determining if the jury verdict is excessive. Remittitur is authorized, in Missouri, by statute. The remittitur statute states, "[a] court may enter a remittitur order if, after reviewing the evidence in support of the jury's verdict, the court finds that the jury's verdict is excessive because the amount of the verdict exceeds fair and reasonable compensation for plaintiff's injuries and damages." Section 537.068.

If we were to examine the verdict as a whole, we would likely find an abuse of discretion. Ample evidence supported and little evidence disputed the jury's finding that Plaintiff suffered $1,656,758.26 in total damages. Alternatively, if we analyze each itemized damage of the jury's verdict independently, then the trial court would be well within the bounds of the remittitur statute in authorizing a reduction of the loss-of-use damage. The parties produced no evidence that the loss-of-use damage totaled $892,000.

Except in limited circumstances, inapplicable to the current case, plaintiffs are not required to seek itemized damages.⁵ While the purpose of these inapplicable and required instances of seeking itemized damages is partially to comply with section 510.270, requiring itemized damages when punitive damages are sought, it also is used by the court to spot jury error and misunderstanding. When the jury describes how it arrived at its total award, the court can more readily determine if the jury's findings were against the manifest weight of the evidence.⁶ See Byrd v. Burlington N. R.R., 939 S.W.2d 416, 418 (Mo.App. E.D.1996) (reasoning "the non-itemized verdict of the jury does not enable us to determine what award it made for future pecuniary damages and whether or not it made some adjustment for `present value.' We find no error." (Internal citations omitted.)). The court can reverse if the evidence presented does not support the jury's particular conclusions. It thus compels the jury to arrive at a rational verdict.

Discretionary, as opposed to mandatory, itemized verdicts presumably serve a similar function. They operate not only as a tool for the plaintiff but also a means for the court to temper improper jury awards. In this case the Plaintiff, on its own accord, requested that the jury return two component, itemized damages rather than a single award in gross. Having the jury return itemized damages, rather than damages in gross, is a tool used by the plaintiff to steer the jury toward a favorable verdict. Courts in Missouri have long since noted the tactical benefit of an itemized verdict. See Holten-Warren Lumber Co. v. Miller, 64 Mo.App. 620, 626 (Mo. App.1896). However, it is also a means for spotting erroneous jury findings. Disregarding a jury's findings of particularized damages would render their chief benefit to the court null.

Children International argues that the jury intended to award it full compensation. According to Children International, this intent is apparent from the face of the verdict. Children International sought $1,656,758.27 and the jury found its damages to be $1,657,000. So, it claims, rounding to the nearest thousand dollars, the jury found damages exactly in the amount Plaintiff sought. Children International speculates that the jury attempted to award full damages, and only placed the $200,000, attributable to the decrease in the value of a dollar, in the loss-of-use itemized damage.

We find this contention to be possible yet far from certain. The jury is the justice system's black box; historical information enters and legal conclusions are produced. The methods and reasons for arriving at those conclusions are unknown in ordinary review. We decline to hypothesize about the jury's reasoning. Johnson v. Estate of Girvin, 370 S.W.2d 163, 167 (Mo.App. S.D.1963).⁷ Reviewing courts examine what the jury found, not the possible or even probable reasoning it used.⁸ "[W]e may not speculate upon what a jury meant by what it said." Id.

While we note it is possible that the jury reached its result by errantly placing the $200,000 in the wrong category, the jury may have also reached its result through improper means. The jury could have reached its verdict, against all evidence, that the loss of use actually amounted to $200,000 more than the evidence permitted. The jury may have attempted to punish Ammon even though no punitive damages were permitted. This court cannot determine, as a matter of logic nor are we willing to assume on suspicion alone, which route the jury took to its final determination of loss-of-use damages.⁹

Furthermore, Children International argues when entering an order of remittitur, the trial court must look to the verdict as a whole because the statute compels us to do so. Section 537.068 states in pertinent part, "a court may enter a remittitur order if, after reviewing the evidence in support of the jury's verdict, the court finds that the jury's verdict is excessive . . . ." (Emphasis added.)...