Friend v. Yokohama Tire Corp., 19774

• Decision Date: 04 August 1995
• Docket Number: No. 19774,19774
• Parties: Hubert FRIEND and Delora Friend, Personally and as Co-Trustees of the Hubert Friend Family Trust, Plaintiffs-Appellants, v. YOKOHAMA TIRE CORPORATION, f/k/a Mohawk Rubber Co. and Friend Tire Service, Inc., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 575

904 S.W.2d 575

Hubert FRIEND and Delora Friend, Personally and as Co-Trustees of the Hubert Friend Family Trust, Plaintiffs-Appellants, v. YOKOHAMA TIRE CORPORATION, f/k/a Mohawk Rubber Co. and Friend Tire Service, Inc., Defendant-Respondent.

No. 19774.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 4, 1995.

Henry S. Clapper, Monett, W. Patrick Betterman, Daniel P. Bracht, Betterman, Katelman & Holtz, Omaha, Neb., for appellant.

Carr L. Woods, Monett, for respondent.

PREWITT, Presiding Judge.

Plaintiffs' petition stated Defendant leased property from Plaintiffs and breached the lease by damaging the property, including "environmental damage", and committing waste upon it. Other claims joined with these were dismissed, either voluntarily or by court order. Except for the directed verdict on two counts hereinafter discussed, those claims are not relevant to the issues raised here.

On Count I, for breach of the lease, the jury found damages of $15,000.00 related to the parking lot, and no damages for environmental claims. For Count II, the jury awarded damages of $1.00 for waste. Judgment was entered in accordance with the verdict. Plaintiffs appeal.

Plaintiffs, by their first point, contend that the trial court erred in overruling their motion for judgment notwithstanding the verdict "because appellant's motion for directed verdict at the close of all the evidence was well-founded and should have been granted as to both counts submitted to the jury; there was no issue upon which reasonable minds could differ relating to the damages proven by appellants and the accord and satisfaction defense failed as a matter of law."

Entering a judgment notwithstanding the verdict "is the equivalent of directing a verdict at the close of the evidence." Schnatzmeyer v. Nat'l. Life Ins. Co., 791 S.W.2d 815, 820 (Mo.App.1990). Generally a court should not direct a verdict for the party having the burden of proof when the evidence relied on consists of oral testimony. Strang v. Deere & Co., 796 S.W.2d 908, 913 (Mo.App.1990). This should be done only where the opposing party, by pleading, by counsel in open court, or by the opposing party's evidence, establishes plaintiff's claim, or where there is no real dispute of the basic facts. Id.

Even though a party does not supply the court with expert testimony contrary to the plaintiff's, the plaintiff would not ordinarily be entitled to a directed verdict as the weight and believability of the expert testimony is for the jury. Strang, 796 S.W.2d at 913; Harper v. NAMCO, Inc., 765 S.W.2d 634, 639 (Mo.App.1989).

Plaintiffs had the burden of proof and there were disputed, relevant facts on whether there was damage caused by Defendant and the extent of it. Plaintiffs were not entitled to a directed verdict or judgment notwithstanding the verdict. Point I is denied.

Plaintiffs in their second point contend that the trial court erred in allowing a witness for Defendant, Raymond Forrester, to testify "without any foundation, relating to negotiating with the Missouri Department of Natural Resources and the possible response of the Missouri Department of Natural Resources because the testimony was speculative and lacked proper foundation."

Forrester testified that remediation in regard to water contamination was "completely unnecessary". He said this was because "the levels found in their water samples would not require cleanup if the site were handled by the standard methods for negotiating a cleanup used by the Missouri Department of Natural Resources." The transcript further reveals the following from his testimony during direct examination:

Q [Counsel for Defendant] Mr. Forrester, do you have experience dealing with the Missouri Department of Natural Resources and the Environmental Protection Agency of the United States?

A Yes, I have.

Q And what is that--what has your experience been with those agencies?

A My experience has been that when you present them with information that is based on sound data, that you follow their guidelines and recommendations which in this case allow for a site specific establishment of cleanup levels for both the soil and water, that they will be very reasonable in that regard.

Q In your opinion, under a worst case scenario, what remedial actions might either of those agencies require at this site?

A My opinion is, under the--a worst case scenario--

MR. BETTERMAN: Same objection as before, Your Honor, as to speculation.

THE COURT: Overruled.

THE WITNESS: My opinion is that the State would not require groundwater remediation at this site at all and that the samples that are around S-1 and B-7, that possibly a couple of scoops full of--from a backhoe would remove the entirety of the contamination that was found. This would be in a shallow area, no more than about three feet deep around S-1 and in an area similar around B-7.

In closing argument, Defendant's attorney referred to Forrester's testimony as raising "many questions about the reliability and the validity of the report" of experts hired by Plaintiffs.

Admissibility of expert testimony is generally governed by § 490.065 RSMo 1994. Before and after the enactment of that statute, Missouri courts have held that the decision to admit or exclude such testimony is within the discretion of the trial court. Ryan v. Parker, 812 S.W.2d 190, 194 (Mo.App.1991); see also State ex rel. Missouri Highway and Transportation Com'n. v. Gannon, 898 S.W.2d 141, 143 (Mo.App.1995); Stucker v. Chitwood, 841 S.W.2d 816, 818-821 (Mo.App.1992).

Even if government agencies are "very reasonable", which may be saying they are lenient, such does not establish whether environmental damage has occurred or not, or the extent of it. What the governmental agencies would do in a specific case is highly speculative. In certain situations an expert may testify regarding what a governmental agency, such as a zoning board, may do if there are sufficiently-introduced facts which support the opinion. See, e.g., Gannon, 898 S.W.2d at 143. Certainly, rezoning may affect the value of the property taken in a condemnation action. Here, it was for the jury to determine not what a governmental agency may have done, but the extent of the damage, if such existed. This testimony should not have been introduced, but as we reverse and remand upon other points, its prejudicial effect is not discussed.

Plaintiffs' next two points are closely related and are considered together. These points assert the trial court erred in allowing Defendant's counsel to use illustrated material not admitted into evidence in his closing argument, and to comment upon purported facts shown on the materials.

During the evidentiary portion of the trial, Defendant offered as evidence illustrated sheets of paper marked Exhibits JJ, KK, LL, and MM. Those offers were refused. The trial court allowed these materials to be shown to the jury and discussed by Defendant's counsel in his closing argument. Defendant contends that the use of these materials was proper, "because the extent to which visual aids may be used rests within the sound discretion of the trial court", and "because Respondent's counsel's comments were proper and the trial court did not abuse its discretion in allowing same."

An offer of proof as to the exhibits was made without the jury present. Exhibit JJ was described by Defendant's expert, who either prepared it or supervised its preparation, as "a description of a dump truck and the amount of soil that would be contained in a dump truck, which would be about 9 to 10 cubic yards of soil per dump truck." The exhibit was offered and Plaintiffs' counsel objected "on the grounds of foundation, contains hearsay, exceeds the scope of rebuttal, is irrelevant, and that's all I can think of." The court refused the exhibit.

Defendant's exhibit KK was described by this witness as "a calculation of the number of dump trucks that would be required to remove 1,100 cubic yards of soil. And that would be approximately 122 dump trucks." It also shows a dump truck followed by "x 122". After the offer of exhibit KK, Plaintiffs' attorney made the same objection by reference, and the court refused the exhibit.

Defendant's exhibit LL was described by Defendant's expert as depicting "122 dump trucks, the number of dump trucks that would be required to remove 1,100 cubic yards of soil." At the bottom of the depictions of 122 dump trucks it states, "1100 cubic yards = 122 dump truck-loads." When this exhibit was offered, Plaintiffs' attorney made the same objection, and the court refused the exhibit.

Exhibit MM was described by the witness as depicting "the volume or the amount of benzene, toluene, ethyl benzene and xylene that would be removed by removing 1,100 cubic yards of soil, based upon the concentration of these materials that were found in the soil at the site." ¹

At the top of MM is stated: "Plaintiffs want Defendants to remove 1,100 cubic yards of soil, which is equivalent to 122 dump truck-loads". Near the center is shown a depiction of a dump truck then "x 122". Below the truck it states, "in order to remove ...". Below this phrase, moving from left to right, is what appears to be one measuring spoon, and under it, "1 teaspoon of Benzene". Next, three measuring spoons are shown with "3 teaspoons of Toluene" printed under them. Then to the right of that, six spoons are shown, with "6 teaspoons of Ethylbenzene" printed below. This is followed by another...