Green v. Plaza in Clayton Condo. Ass'n

• Decision Date: 01 October 2013
• Docket Number: No. ED 98887.,ED 98887.
• Parties: Thomas GREEN and Karole Green, Appellants, v. The PLAZA IN CLAYTON CONDOMINIUM ASSOCIATION, Respondent/Cross–Appellant, THF Plaza Condominium, LLC, et al., Respondents.
• Court: Missouri Court of Appeals

410 S.W.3d 272

Thomas GREEN and Karole Green, Appellants,

v. The PLAZA IN CLAYTON CONDOMINIUM ASSOCIATION, Respondent/Cross–Appellant,THF Plaza Condominium, LLC, et al., Respondents.

No. ED 98887.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 1, 2013.

Gary M. Siegel, Gary M. Siegel, LLC, St. Louis, MO, for appellants.

Joseph R. Swift, T. Michael Ward, Scott H. Morgan, Brown & James, P.C., St. Louis, MO, for respondent/cross-appellant The Plaza in Clayton, Condominium Association.

David T. Ahlheim, Justin C. Wilson, Childress Ahlheim Cary LLC, St. Louis, MO, for respondents THF Plaza Condominium, LLC., et al.

KURT S. ODENWALD, Judge.

Introduction

Thomas and Karole Green appeal from the trial court's judgment following a jury verdict in favor of their res ipsa loquitur negligence claim and against the Greens on their specific negligence claim. The jury found that the Greens' damages were caused by the Plaza in Clayton Condominium Association's (“the Association”) general negligence. This litigation arose from a plumbing leak that damaged the Greens' condominium unit and artwork. The Greens named multiple defendants in their petition, three of whom were the THF Plaza Condominium, LLC, the builder of the condominium tower where the Greens' unit was located, and the builder's agents, THF Carondelet Development, LLC, and THF Carondelet Investors, LLC, (collectively, “the THF Defendants”). The THF Defendants moved for a directed verdict on the Greens' res ipsa loquitur negligence claim, and the trial court granted the THF Defendants' motion. After trial, the Greens filed a motion for an evidentiary hearing on the issue of attorneys' fees. The trial court denied the Greens' motion.

On appeal, the Greens argue in their first point that the trial court erred in denying their request for an evidentiary hearing on their motion for attorneys' fees. In their second point, the Greens argue that the trial court erred in granting the THF Defendants' motion for a directed verdict because having invoked the doctrine of res ipsa loquitur, the relevant point-in-time for determining control over the instrumentality at issue is the time the negligent act was committed, not the time when the injury occurred. In their third point, the Greens argue that the trial court erred in taxing costs against the Greens and in favor of the THF Defendants. In their final point, the Greens request an award of attorneys' fees for this appeal. The Association cross-appeals and contends that the trial court erred in denying its motion for a directed verdict on the Greens' res ipsa loquitur negligence claim.

Because we find that the trial court did not abuse its discretion in denying the Greens an evidentiary hearing, that the relevant point in time at which control over the injury-causing instrumentality is the time of the injury, and that the THF Defendants, as the prevailing parties, are entitled to an award of costs, we affirm the trial court's judgment. Additionally, we affirm the trial court's judgment denying the Association's motion for a directed verdict because the Greens made a submissible case of negligence under the doctrine of res ipsa loquitur.

Factual and Procedural History

The relevant facts established at trial, viewed in the light most favorable to the trial court's judgment, are as follows. In 2002, THF Plaza Condominium, LLC (“THF”) erected a residential condominium tower known as the Plaza in Clayton, Missouri. The Plaza has thirty liveable floors and eighty-one units. That same year, THF filed an Amended and Restated Declaration of Condominium Ownership (“Declaration”) with the recorder of deeds. The Declaration created the Plaza's governing body, the Association. The Declaration also carved out a five-year period of developer control, which entitled THF to develop units and to control parts of the property. In May 2007, the five-year period of developer control ended. At that time, THF ceded control over the property to the Association.

Thomas and Karole Green, a married couple, purchased unit 1101 of the Plaza in 2002. In May 2004, the Greens moved into their unit, which is located on the eleventh floor. The Greens have been collecting art for approximately fifty years, and their artwork was displayed in their unit. In September 2007, Ki Hong and Eun Hee Ahn (“the Ahns”) purchased unit 1601 of the Plaza. Unit 1601 is located on the sixteenth floor.

On the morning of May 28, 2008, Thomas Green noticed water dripping from a light fixture in his kitchen. He notified Karole Green, and Karole contacted Steven Krueger, a member of the Plaza's maintenance crew. Krueger assembled a team of employees to locate the source of the leak. After approximately four or five hours, Krueger discovered that a hot water pipe in the bathroom of unit 1601, the Ahns' unit, had been leaking. The pipe was located behind the Ahns' vanity and was obscured by drywall.

The Greens observed signs of water damage on their floors, walls, baseboards, and artwork. After the leak, the Plaza informed the Greens that unit owners were responsible for repairing the interior of their units and for reimbursing the Plaza for the measures it took to mitigate the water damage. The Plaza instructed unit owners to file property damage claims with their insurance companies. The Greens did not reimburse the Plaza for clean-up costs, refused to file a property damage claim with their insurance company, and demanded $100,000 from the THF Defendants, the Association, and the Ahns. Two months after the Greens' demand, they filed this lawsuit.

In their Second Amended Petition, the Greens alleged nine counts against seven defendants: the THF Defendants; the Association; Plumbing Planning Corporation, the company that installed the Plaza's plumbing system; and the Ahns. Seven of the nine counts were disposed of before trial. The trial court held an eight-day jury trial on the remaining two counts: Count I, a claim of specific negligence against the Association for failing to turn off the water supply, and Count IX, a claim of general negligence brought under the doctrine of res ipsa loquitur against four defendants, the THF Defendants and the Association. At trial, the THF Defendants moved for a directed verdict on Count IX, which the trial court granted. Because the trial court granted the THF Defendants' motion for a directed verdict, the only party the jury was asked to hold liable for the Greens' loss was the Association.

After deliberating for two days, the jury returned a verdict. The jury found in favor of the Association on Count I (specific negligence) and against the Association on Count IX (general negligence). The jury awarded $65,553.00 in damages to the Greens. This appeal follows.

Points on Appeal

The Greens raise multiple points of error on appeal. In their first point, the Greens argue that the trial court erred in denying their request for an evidentiary hearing on their post-trial motion for attorneys' fees because an award of attorneys' fees is appropriate under Missouri's Uniform Condominium Act (“the Act”) and the common law. In their second point, they contend that the trial court erred in entering a directed verdict in favor of the THF Defendants on the Greens' general negligence claim because the Greens established that the THF Defendants and the Association shared exclusive and concurrent control over the pipe. In their third point, the Greens argue that the trial court abused its discretion in awarding costs in favor of the THF Defendants because the Greens prevailed in the underlying trial. In their final point, the Greens request an award of attorneys' fees for this appeal.

The Association filed a cross-appeal in which it argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because the Greens' general negligence claim should not have been submitted to the jury as a matter of law in that the Greens knew, pleaded, and attempted to offer evidence of specific negligence.

Discussion

I. The trial court did not err in denying the Greens' request for a post-trial evidentiary hearing on attorneys' fees because an evidentiary hearing was not required.

In their first point on appeal, the Greens argue that the trial court abused its discretion in denying their request for an evidentiary hearing on their motion for attorneys' fees. The Greens argue that their motion for attorneys' fees sets forth allegations of bad faith and intentional conduct, and under the common law and Section 448.4–117 of the Act, an award of attorneys' fees is appropriate when such conduct has been shown. We disagree.

As a preliminary matter, “Rule 84.04(e) limits the argument under each point to those errors included in the point relied on.” 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d 573, 584 (Mo.App.E.D.2003). Accordingly, our review is limited to only those issues set forth in the point on appeal. Id. We may, however, consider arguments that are fairly encompassed by each point. Id.

Here, the Greens' first point on appeal identifies as error the trial court's denial of their post-trial motion for an evidentiary hearing on attorneys' fees. The point does not expressly challenge the trial court's denial of attorneys' fees. However, in the argument section under this point, the Greens assert that trial court had multiple bases upon which it should have granted their motion for attorneys' fees. Although this contention does not appear in the point on appeal, the issue of the trial court's denial of the Greens' motion for attorneys' fees is fairly encompassed by the point relied on in that the propriety of an award of attorneys' fees would have been a threshold inquiry had an evidentiary hearing been held. Therefore, first, we will address the trial court's denial of the Green's request for an evidentiary hearing. Second, we will review the trial court's denial of the Greens' motion for attorneys'...