Green v. Study

• Court: Missouri Court of Appeals
• Writing for the Court: Robert S. Barney
• Citation: Green v. Study, 286 S.W.3d 236 (Mo. App. 2009)
• Decision Date: 19 March 2009
• Docket Number: No. SD 29286.,SD 29286.
• Parties: Travis GREEN and Darby Green, Respondents, v. Jerry Lee STUDY, Appellant.

286 S.W.3d 236

Travis GREEN and Darby Green, Respondents, v. Jerry Lee STUDY, Appellant.

No. SD 29286.

Missouri Court of Appeals, Southern District, Division One.

March 19, 2009.

Motion for Rehearing or Transfer Denied April 9, 2009.

Duane A. Cooper, Evenson, Carlin & Cooper, P.C., Pineville, for Appellant.

Jerry Lee Study, Stella, pro se.

ROBERT S. BARNEY, Judge.

Jerry Lee Study ("Appellant") appeals the trial court's "Judgment Entry" which found in favor of Travis Green ("Mr. Green") and Darby Green (collectively "Respondents"). In its judgment, the trial court granted Respondents' petition in replevin arising from the "wrongful retention" by Appellant of approximately sixteen head of cattle, but found that Respondents' claim for damages against Appellant were not proven; awarded nominal damages against Appellant in the amount of $1,000.00; awarded punitive damages against Appellant in the amount of $3,000.00; and awarded attorney fees to Respondents in the amount of $1,000.00. Appellant now raises three points asserting trial court error in awarding Respondents nominal damages in an excessive amount; in misapplying the law regarding amending the pleadings to conform to the evidence in awarding punitive damages to Respondents; and in misapplying the law regarding amending the pleadings to conform to the evidence by awarding attorney fees to Respondents.

Viewing the evidence in the light most favorable to the trial court's judgment, GMAC v. Crawford, 58 S.W.3d 529, 532 (Mo.App.2001), the record reveals Appellant and Respondents are adjoining landowners living on rural cattle farms in McDonald County, Missouri. Their properties are separated by a barbed wire fence which was constructed in 2002 or 2003 by Respondents. As best we discern from the record, each of the parties testified the fence had been breached on various occasions by livestock belonging to one party or the other. No prior demand for damages was made by either party against the other until one occasion in December of 2006. On that occasion, a cow belonging to Appellant got through the fence and apparently damaged a second fence on Respondents' property. Approximately two months later when Appellant sought to retrieve the cow, Respondents impounded the cow and refused to return it to Appellant unless he paid them $100.00 for damage to the barbed wire fence and $100.00 for "the yardage" or care of the cow for the time it was on their property. Appellant did not contest the fees, paid them, and retrieved his cow.

On March 25, 2007, approximately sixteen of Respondents' cattle breached the barbed wire fence, which had been damaged by an ice storm, and wandered onto Appellant's property. According to Appellant, his pasture had been newly seeded and the cattle began to graze on the young grass. Appellant then impounded Respondents' cattle. Appellant telephoned Respondents and demanded Respondents pay $200.00 per cow for a total of $3,000.00 for the return of the cattle. Respondents attempted to retrieve their cattle by calling out to them, but Appellant stopped the cattle from crossing the fence dividing the parties' property. Respondents then telephoned the McDonald County Sheriff's Office, which declined to intervene in a matter it considered to be a civil case.

The following day, on March 26, 2007, Respondents filed their "Petition in Replevin—Wrongful Detention." Respondents' petition sought judgment against Appellant for the possession of the cattle and damages for their unlawful retention along with costs and attorney fees. On March 30, 2007, a "Writ of Possession" was entered; Respondents posted a $6,000.00 bond; an "Order of Delivery in Replevin" was entered; and Respondents reclaimed their cattle several days later.

A bench trial was held on April 9, 2007.¹ Appellant appeared pro se. Appellant testified he never attempted to charge Respondents more for their cattle's trespass than they charged him when his cow got onto their property. The trial court then entered its judgment on June 25, 2007, and Appellant appealed to this Court.

In Green v. Study, 250 S.W.3d 799, 802 (Mo.App.2008), this Court found the first judgment entered in this matter was not a final judgment and dismissed the appeal. After this Court issued its mandate, Respondents filed a "Motion to Amend Judgment" with the trial court and a hearing was held. On July 31, 2008, the trial court entered its "Judgment Entry" which, among other things, denied Respondents' request for actual damages, but awarded Respondents $1,000.00 in nominal damages. Further, the trial court found "the pleadings were amended by the entry of evidence to which no objection was raised by [Appellant]. The [c]ourt finds this evidence supports a punitive damage claim." Accordingly, the trial court entered punitive "damages against [Appellant] in favor of [Respondents] in the amount of Three Thousand Dollars...." Additionally, regarding the issue of attorney fees, the trial court found "evidence supporting the claim was offered without objection and therefore amended the pleadings. It is clear to the [c]ourt that there is malicious action, oppression and a willful wrong" such that Respondents were entitled to attorney fees in the amount of $1,000.00. This appeal followed.

In this court-tried case, we must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Rule 84.13(d).² "We view the evidence in the light most favorable to the prevailing party, giving that party the benefit of all reasonable inferences, disregarding the contrary evidence and inferences." GMAC, 58 S.W.3d at 532; White v. James, 848 S.W.2d 577, 579 (Mo.App.1993). "The trial court is entitled to believe all, part, or none of the testimony of any witness." Kickham v. Gardocki, 966 S.W.2d 361, 362 (Mo.App.1998). "The trial court judgment is presumed correct" and this Court affirms the judgment of the trial court "under any reasonable theory supported by the evidence." GMAC, 58 S.W.3d at 532.

"`Replevin is a possessory action to obtain from defendant property that he possesses, and such action relies upon a right to possession, not ownership.'" Ferrell Mobile Homes, Inc. v. Holloway, 954 S.W.2d 712, 714 (Mo.App.1997) (quoting Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 918 S.W.2d 390, 392 (Mo.App. 1996)). "It is a plaintiff's burden to `prove his right to immediate possession of the property at the time suit was filed, and that defendant was then wrongfully detaining the same.'" Id. (quoting Green Hills Prod. Credit Assoc. v. R & M Porter Farms, Inc., 716 S.W.2d 296, 298 (Mo.App. 1986)). Additionally, "`a plaintiff's right of recovery depends upon the strength of his own claim, and not on the weakness of the defendant's.'" Id. (quoting Olson v. Penrod, 493 S.W.2d 673, 676 (Mo.App.1973)). "[D]amages may be allowed in a replevin suit if demanded by the successful party in his petition." State v. American Surety Co., 74 S.W.2d 1094, 1095 (Mo.App.1934). "But even in a replevin suit, where the court and jury fail to assess damages, a suit may be maintained on the bond for damages." Id.

In his first point relied on, Appellant asserts the trial court erred in awarding nominal damages to Respondents because the amount awarded "exceeded the amount of actual damages sought;[³] was not a `trifling sum'; and ... [Appellant] had an absolute statutory right to impound the cattle in question" under section 272.030.⁴

In our review of Point One, we first take up Appellant's latter assertion of error regarding his "absolute statutory right to impound the cattle in question." Unfortunately, for Appellant, he did not plead this statute as an affirmative defense to the instant action. See Rule 55.08. "An affirmative defense is one that may defeat a plaintiff's cause of action because of facts which allow the defendant to avoid legal responsibility." Century Fire Sprinklers, Inc. v. CNA/Transportation Ins. Co., 23 S.W.3d 874, 877 (Mo.App.2000). "If a defendant intends to raise a defense based on facts not included in the allegations necessary to support the plaintiff's case, they must be pled under Rule 55.08." Shaw v. Burlington Northern, Inc., 617 S.W.2d 455, 457 (Mo.App.1981). Affirmative defenses "must be set forth in defendant's answer." Id. "Generally, failure to plead an affirmative defense results in waiver of that defense." Detling v. Edelbrock, 671 S.W.2d 265, 271 (Mo. banc 1984). Since appellant did not raise the statute in his pleadings, he is barred from raising this argument on appeal.⁵

Turning now to Appellant's complaint about the amount of the nominal damages awarded in this matter, we note that "[n]ominal damages are damages awarded merely as a recognition of some breach of a duty owed by defendant to plaintiff and not as a measure of compensation for loss or detriment suffered." Simpkins v. Ryder Freight System, Inc., 855 S.W.2d 416, 422 (Mo.App.1993); see Tindall v. Holder, 892 S.W.2d 314, 321 (Mo.App.1994). The principle of nominal damages stems from "the common law action for trespass.... For wrongs which are trespasses ... the rule remains that proof of the defendant's wrongdoing enables the plaintiff to recover nominal damages, though no loss or damages is shown beyond the invasion of right shown." Simpkins, 855 S.W.2d at 422 (internal citation omitted). Nominal damages "are allowed where a legal right has been invaded but no actual damages were suffered or proved, or when there is no evidence from which the value of the damages may be ascertained." Clark v. Beverly Enterprises-Missouri, Inc., 872 S.W.2d 522, 527 (Mo.App.1994). "In these instances, the law simply presumes that damage resulted. It is for the reason that these damages are not true damages at all, but imputed to vindicate an invasion of right that otherwise would go without redress, that they are in name only nominal." Simpkins, 855...