Collier v. City of Oak Grove, No. WD 65355 (Mo. App. 4/24/2007), WD 65355.
| Decision Date | 24 April 2007 |
| Docket Number | No. WD 65355.,WD 65355. |
| Parties | Donna Collier, Respondent v. City of Oak Grove, Missouri, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County, Hon. Michael W. Manners.
Steve Majors, Counsel for Appellant.
William L. Carr, Counsel for Respondent.
Before: Spinden and Newton, J.J.
This case presents two issues: (1) whether a municipality is subject to an action in inverse condemnation for its failure to correct a city sewage system that causes continued and substantial backup into its citizens' homes; and (2) if the city is liable, whether it be subject to having an award rendered against it for prejudgment interest. A Jackson County jury awarded a homeowner property damages ($200,000) for her home, and the court ordered the city to pay prejudgment interest ($139,528.76).
The respondent, Donna Collier ("Collier"), bought a newly built house in Oak Grove, a suburb of Kansas City, in September 1972. Sometime prior to 1992, Collier finished the basement and furnished the space with carpet, a couch, a television, and a fireplace to use as a family room. In 1992, Collier was single, retired, and living in her home alone, her children having both moved out of the home.
In March 1992, Collier's basement flooded after a heavy rainstorm. A black, slimy, watery mixture backed up into her basement through the drain in the floor. Collier testified that the mixture was ankle deep, smelled of feces, and made her physically ill. Collier rented a carpet cleaner and cleaned the walls and furnishings with Clorox, Lysol, and vinegar water. She later made a claim against the city, and Oak Grove (hereinafter "the City") compensated her for the damage.
In the summer of 1993, after a heavy rain, sewage again backed up into Collier's basement. She suffered recurrent backups in June 1995, June 1999, June 2001, and May 2002. Collier characterized each backup as becoming worse than the preceding event and that the smell intensified with each flood. After each backup she contacted the City by either phone or letter. The City did not respond to the contacts until June 2001 when two public works employees came out to the home. The workers said they would get back to her. The City later disclaimed any responsibility for the backups.
Collier characterized the backup of May 2002 as much worse than the previous events. Sewage flowed into Collier's basement and covered the entire floor. After that backup, Collier was forced to remove the carpet. She discovered feces and waste under the pad. She removed her shoes when she was in the basement, her feet began to burn and she couldn't breathe. The fire department and an ambulance were called.
After the magnitude of the 2002 backup, Collier contacted her city councilman. Two city employees again visited her home and viewed the damage. She was again told that the City would get back to her. In September 2002, she received a letter in which the City claimed that the damage arose when the volume of surface water from a rainstorm overwhelmed the sewer system. The City again disclaimed responsibility.
The pattern of recurrent backups after heavy rains continued over the next two years. In fact, the frequency of the backups increased. Collier's basement flooded in April 2003, August 2003, and on two occasions in March 2004. The backups continued in June 2004, July 2004, and August 2004. Collier continued to contact the City after each backup, but she did not receive any relief from the pattern of flooding. In September 2004, Collier received a letter saying that the City had "videotaped" the sewers near her home and that the "lines were clear."
During this time, Collier began to experience headaches, nausea, bronchitis, and trouble breathing from continuous congestion. Her symptoms began as early as 1999 but became markedly worse in 2001. Her doctor prescribed rounds of antibiotics. In 2003, Collier met with Dr. Kanarak, an allergist, who informed her home was infested with mold and her health complaints likely arose from her exposure to the environmental mold. He recommended that she should move out of her home. Collier was reluctant to leave her home of thirty years; but after she was hospitalized in August 2004, she agreed to leave. The allergist recommended that she leave everything in her home to avoid contaminating another environment and that she would likely need to discard everything in her home. He told her to wear a mask and gloves if she ever went into the house.
At the time of trial, Collier was alternately staying with a neighbor or her children. Although the City began work on the sewer outside her home in September 2004, her home remained empty with the utilities turned off as of February 2005.
II. Procedural posture
Collier brought claims for negligence, nuisance, and inverse condemnation against the City of Oak Grove seeking damages arising from the repeated backups of the City's sewer into her home. Oak Grove moved to dismiss the claims for negligence and nuisance. The court denied the motion and the trial proceeded.
At the close of plaintiff's evidence, Oak Grove moved for a directed verdict. The motion was denied and Oak Grove presented its evidence. At the close of all evidence, Collier's claims were submitted to the jury in two packages of instructions. The first claim was for property damage arising in an inverse condemnation claim. The second claim was for personal injury arising for the City's negligent operation of its sewers.
The jury returned a $60,000 award for personal injury damages. The City does not appeal the personal injury damages award. The jury also awarded Collier $200,000 for property damage on her inverse condemnation claim. After the jury returned its verdict, but before judgment was entered, Collier filed a motion for prejudgment interest. Oak Grove objected to the motion but did not file suggestions in opposition. The court granted Collier's motion for interest and awarded her another $139,528.76, finding that the date of taking was June 30, 1993. The trial court denied Oak Grove's motion for a new trial or, in the alternate, a grant of remittitur.
Oak Grove now appeals the judgment entered by the court. Oak Grove assigns as error (1) the trial court's denial of its motion for new trial claiming that Collier did not make a submissible case for inverse condemnation; (2) the measure of damages was excessive and this court should grant Oak Grove's request for remittitur; and (3) the trial court erred as a matter of law in awarding Collier interest on her inverse condemnation claim. This court will first address Oak Grove's claim of error as to whether the trial court erred in submitting Collier's claims to the jury. The court will then address the award of interest and, finally, the request for remittitur is discussed.
III. Discussion
A. Inverse Condemnation — Preservation of Error
Oak Grove argues in its first point of error that the trial court erred in submitting Collier's case to the jury as she failed to prove a submissible case of inverse condemnation. In determining whether the plaintiff has made a submissible case, this court will review the evidence in the light most favorable to the plaintiff and accord the plaintiff all favorable inferences that can be reasonably drawn from the evidence. Polovich v. Sayers, 412 S.W.2d 436, 437 (Mo. 1967). Moreover, this court will disregard defendants' evidence that does not support the plaintiff's case. Feely v. City of St. Louis, 898 S.W.2d 708, 709 (Mo.App.1995).
Error raised on appeal must be properly preserved at trial. Drury v Mo. Pac. R.R. Co., 905 S.W.2d 138, 148 (Mo. App. 1995). Thus, preliminary to discussing the merits of Oak Grove's argument, this court must address whether Oak Grove properly preserved the submissibility claim for appellate review.
The proper procedure for preserving submissibility error in a jury-tried case is clear. A motion for a directed verdict at the close of plaintiff's case is required. Goede v. Aerojet Gen. Corp., 143 S.W.3d 14, 18 (Mo. App. 2004); Rule 72.01. The defendant must renew the motion for directed verdict at the close of all evidence. Goede, 143 S.W.3d at 18. If the jury returns an adverse verdict, the defendant's motion for judgment notwithstanding the verdict assigns as error the trial court's failure to grant defendant's motion for directed verdict at the close of all evidence. Millar v. Berg, 316 S.W.2d 499, 502 (Mo. 1958).
A motion for directed verdict at the close of plaintiff's evidence without a subsequent motion for directed verdict at the close of all evidence is insufficient to preserve the issue of submissibility. Defendant waives any claim of error in the denial of the directed verdict at the close of plaintiff's case if, after the denial, the defense proceeds to present evidence. Browning v. Salem Mem'l Dist. Hosp., 808 S.W.2d 943, 948 (Mo. App. 1991). When the court denies the motion for directed verdict at the close of all evidence, "the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." Rule 72.01(6). If the defendant does not make the motion for directed verdict, no legal questions remain for the court to determine when the defendant makes a motion for judgment notwithstanding the verdict. Moreover, the motion for judgment notwithstanding the verdict asks the court to enter judgment in accordance with the motion for directed verdict made at the close of all evidence. Goede, 143 S.W.3d at 18. If the defendant fails to make such a motion, the court cannot enter judgment in accord with a nonexistent motion for directed verdict.
In failing to move for directed verdict at the close of all the evidence, a defendant has "in effect, requested the court to submit the case to the jury, and he may not thereafter complain of that which he voluntarily...
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