Kaech v. Lewis County PUD, 22947-1-II.
| Court | Court of Appeals of Washington |
| Citation | 23 P.3d 529,106 Wash.App. 260 |
| Docket Number | No. 22947-1-II.,22947-1-II. |
| Parties | John T. and Margaret L. KAECH, husband and wife, and the marital community comprised thereof, d/b/a Klaber Valley Farm, Respondent/Cross-Appellant, v. LEWIS COUNTY PUBLIC UTILITY DISTRICT NO. 1, Appellant/Respondent. |
| Decision Date | 18 May 2001 |
Craig P. Campbell, Mark Robert Johnsen, Barbara J. Brady, Karr Tuttle Campbell, Seattle, for Appellants.
Paul David Doumit, Doumit & Doumit, Olympia, for Respondents.
John and Margaret Kaech sued the Lewis County Public Utility District, No. 1 (PUD), claiming "stray voltage" harmed their dairy cows. The jury awarded Kaech $1,089,000. The PUD filed a notice of appeal and also moved for judgment notwithstanding the verdict (NOV) and for a new trial. The trial court denied the motion for judgment NOV, but granted the motion for a new trial ruling that the evidence did not support the jury's damage award.
Kaech appeals the order granting a new trial. The PUD argues that the trial court erred in (1) allowing Kaech's liability expert to testify to a theory of stray voltage not supported in the scientific community, (2) allowing Kaech's damages expert to project business losses for a new business, and (3) allowing John Kaech to testify to a reduced value of the farm when there was no evidence that any stray voltage damaged the real property. Kaech argues that the trial court lacked jurisdiction to grant a new trial because the PUD did not timely serve the motion and that the court erred in dismissing his claims for nuisance, trespass, and negligent misrepresentation. We find no error in the court's rulings on the scope of the expert testimony, but we hold that the court erred in granting the new trial because the PUD did not timely serve the motion. We also hold that the evidence did not support the claim for damage to the real property. Accordingly, we reverse the order granting a new trial and the judgment. We remand for a new trial limited to the issue of damages.
John Kaech grew up on his family's dairy farm near Centralia. In 1990, John and his wife, Margaret, purchased a dairy farm in Lewis County. In August 1991, Kaech began operating the dairy farm with a herd of 150 cows.1
In the spring of 1992, Kaech noticed problems with the herd. The cows were nervous during milking, often kicked at the milking machines, and were not breeding. They were not drinking a normal amount of water and their milk production dropped off. They also did not want to go into the barn. Kaech checked the cows' water and milking procedures, but he found nothing unusual.
In June 1992, Kaech discovered unexplained voltage readings in the barn. He turned off all the power on the farm and still found voltage in the barn.2 Kaech called the PUD, who sent Ken Powell to investigate. Powell found two volts in the barn, but he could not explain the cause.
On July 6, 1992, David Muller, the PUD's chief engineer, visited Kaech's farm. After Kaech showed Muller some dark spots on an insulator, Muller said that they might be causing the voltage problem. Muller said he would check into it and report back. During this time, Kaech continued to check the water, feed, and milking procedures, hoping to pinpoint the problem. He also contacted the Bonneville Power Administration (BPA) to see if they had any explanation. The BPA set up meters on the farm to measure voltage.
From July to August 1992, the cows' milk production continued to decline, prompting Kaech to contact Gary Kalich, the PUD's manager. Kalich told Kaech: "[W]e're either going to fix your problem or convince you you don't have one." RP at 985. The PUD wrote Kaech telling him he did not have a "stray voltage"3 problem, however, the problems continued throughout 1993. In October 1994, Rick Snelson, an employee with the PUD, visited Kaech's farm to repair "the secondary neutral between the barn and the transformer pole." RP at 997. Kaech showed Snelson the insulators on the transformer pole and asked if this might be the problem. Snelson said that the insulators looked bad and could be the source of the problem. He said he would notify the PUD to replace the insulators. Kaech waited for the PUD to send a repair crew but nobody showed up.
On October 17, 1994, Kaech called and told Kalich they could see the insulators leaking. In early November 1994, the PUD replaced the insulators and the transformer. After this, the cows entered the barn more regularly and began producing higher milk volumes; calf survival rates also improved.
Kaech sued the PUD for negligence, nuisance, trespass, inverse condemnation, and intentional and negligent misrepresentation, claiming the leaking insulators allowed "stray voltage" to affect the dairy herd. At the end of the plaintiff's case, the court granted the PUD's motion to dismiss the trespass, nuisance, and misrepresentation claims. The jury found the PUD negligent and awarded Kaech $1,089,000.
The trial court entered judgment on January 16, 1998. On January 26, 1998, the PUD filed a motion for judgment NOV and a motion for a new trial. On January 27, 1998, the PUD served the motions on Kaech. Within 30 days of the judgment, the PUD appealed. On February 27, 1998, Kaech cross-appealed the trial court's order dismissing the nuisance, trespass, and misrepresentation claims.4 The trial court denied the motion for judgment NOV but granted the motion for a new trial. Both sides appeal.
Kaech argues the trial court erred in granting the motion for a new trial because the PUD did not serve the motion within the 10-day period as required by CR 59(b).5 The PUD argues that if it failed to meet the service deadline for a motion for a new trial, a CR 50 motion allows the trial court "to reopen the judgment and grant a new trial." Br. of Resp't at 29.
When a party moves for a new trial, CR 59(b) requires that the "motion ... shall be served and filed not later than 10 days after the entry of the judgment." CR 59(b). The trial court may not extend the time for filing a CR 59(b) motion. CR 6(b)(2); Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wash.2d 366, 367-68, 849 P.2d 1225 (1993); Metz v. Sarandos, 91 Wash.App. 357, 360, 957 P.2d 795 (1998); Moore v. Wentz, 11 Wash.App. 796, 799, 525 P.2d 290 (1974). But CR 50(b) does not require a motion for judgment NOV to be served within 10 days, and it allows a CR 59 motion for a new trial to be joined with the motion for judgment NOV.
Here, the PUD did not serve its motions within 10 days of the judgment date. Kaech moved to strike the motions, but the trial court denied the motion, ruling that the CR 59 motion was timely because it was joined to the CR 50 motion. But nothing in either CR 59 or CR 50(b) excuses the 10-day service requirement of CR 59. The CR 59 service requirement is mandatory. Since the motion for a new trial was untimely, the trial court lacked authority to order a new trial. Metz, 91 Wash.App. at 360, 957 P.2d 795.
The PUD argues that Kaech improperly testified about his real property damage because the court had dismissed the trespass claim. The PUD also argues that Kaech's damage calculations were determined "without any formula, method or basis in fact." Br. of Resp't at 23. An owner of real property may testify as to the value of his or her property. Port of Seattle v. Equitable Capital Group, Inc., 127 Wash.2d 202, 211, 898 P.2d 275 (1995) (quoting Cunningham v. Tieton, 60 Wash.2d 434, 436, 374 P.2d 375 (1962)). Here, John testified about the decline in the farm's value as follows:
RP at 1014-15. But neither John nor any other witness testified that the stray electricity damaged his real property. Rather, the only evidence of damages was Dr. Behr's calculation based upon milk loss. This calculation included the diminished value of the cow herd because of young stock loss and "cull cow" loss. Br. of Appellant at 16, n. 4.
Yet the jury was instructed:
Although the PUD did not object to John's testimony about the loss in farm value, it objected to submitting the claim for loss based upon the decreased value of the farm to the jury. There was no evidence to support this claim. John testified that the farm decreased in value because of declining milk production and damage to the herd. But the jury was allowed to consider not only the loss from milk production but also other damage to property based upon "[t]he difference between the fair market value of any property damaged[.]" CP at 208. There was no evidence of property damage, other than what was included in the calculation of milk loss. The PUD is entitled to a new trial on damages.
The PUD contends, for several reasons, that it is entitled to judgment NOV. In reviewing a post-trial motion for judgment NOV, we review the...
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