Keller Farms, Inc. v. McGarity Flying Serv., LLC

• Decision Date: 11 December 2019
• Docket Number: No. 18-3755,18-3755
• Citation: 944 F.3d 975
• Parties: KELLER FARMS, INC., Plaintiff - Appellant v. MCGARITY FLYING SERVICE, LLC ; Dennis E. McGarity; Michael C. Pemberton; John Doe; John Doe Corporation, Defendants Colin V. Stewart, individually and as a Partner of Joint Venturer in Stewco Farms; Brandon G. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms; Faron B. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms, Defendants - Appellees Kenny Hulshof; Renee L. Hulshof, Defendants
• Court: U.S. Court of Appeals — Eighth Circuit

944 F.3d 975

KELLER FARMS, INC., Plaintiff - Appellant

v. MCGARITY FLYING SERVICE, LLC ; Dennis E. McGarity; Michael C. Pemberton; John Doe; John Doe Corporation, DefendantsColin V. Stewart, individually and as a Partner of Joint Venturer in Stewco Farms; Brandon G. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms; Faron B. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms, Defendants - AppelleesKenny Hulshof; Renee L. Hulshof, Defendants

No. 18-3755

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2019

Filed: December 11, 2019

Joseph C. Blanton, Jr., Thomas W. Collins, III, Shaun D. Hanschen, Diedre Abigail Peters, BLANTON & NICKELL, Sikeston, MO, for Plaintiff - Appellant.

Matthew Brian Lee, Samuel P. Spain, SPAIN & MILLER, Poplar Bluff, MO, for Defendant - Appellee.

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

Keller Farms appeals the district court’s¹ directed verdict and the jury’s verdict in favor of appellees the Stewarts. We affirm.

I.

Keller Farms operates a farm in southeast Missouri, where it grows various crops and maintains a number of both windbreak and ornamental trees. The Stewarts also operate a farm in southeast Missouri, to the north and east of Keller Farms’ property. Other farms border, or are in close proximity to, Keller Farms’ property.

In April and May 2015, Keller Farms, the Stewarts, and some operators of neighboring farms applied herbicides to their fields. The Stewarts hired Dennis McGarity to apply herbicides via airplane to their fields, which he did on April 23, 2015. In early May 2015, Keller Farms first detected herbicidal damage to some of its crops. Around this time, Keller Farms also noticed damage to some of its trees.

Keller Farms suspected that herbicide drift caused this damage and submitted a complaint to the Missouri Department of Agriculture ("Department"), which assigned Yvonne Barr to investigate the matter. Based on Barr’s investigation, the Department issued a warning letter to McGarity in February 2016, finding that it was more likely than not that chemicals he applied to the Stewarts’ field had drifted onto Keller Farms’ property. Although Missouri law empowers the Director of the Department to order restitution in such circumstances, see Mo. Rev. Stat. § 281.060.2, the Department opted only to issue McGarity this warning letter.

Keller Farms subsequently sued McGarity and Michael Pemberton (who applied herbicides to a different field farmed by the Hulshofs around the same time McGarity applied herbicides to the Stewarts’ field), alleging negligence, negligence per se , and statutory trespass under Missouri law for applying herbicides in a manner that allowed them to drift onto Keller Farms’ property and cause damage to its crops and trees. Keller Farms later amended its complaint to add the Stewarts and the Hulshofs to hold them vicariously liable for the herbicide drift. The district court dismissed Pemberton from the action after he went bankrupt and dismissed McGarity and the Hulshofs after Keller Farms settled with them. The action thus proceeded against the Stewarts alone.

In a pretrial order, the district court limited Keller Farms’ statutory trespass count to tree damage, concluding that Keller Farms could not recover for crop damage under the plain language of the statute. In a pretrial conference, the district court also excluded two sets of evidence Keller Farms proffered: (1) the February 2016 warning letter issued to McGarity by the Department as well as testimony regarding the findings and conclusions in the letter from Darryl Slade, who was at that time the Enforcement Program Coordinator for the Department; and (2) two warning letters the Department issued to McGarity regarding other instances where it found he likely caused herbicide drift. During trial but before submitting the case to the jury, the district court directed a verdict for the Stewarts on the statutory trespass claim because Keller Farms failed to present sufficient evidence of tree damage. The district court allowed the negligence and negligence per se claims to go to the jury, which returned a verdict in favor of the Stewarts on both counts.

The district court then entered final judgment in favor of the Stewarts on all counts. Keller Farms moved for a new trial, challenging the district court’s directed verdict on the statutory trespass count, its exclusion of evidence, and the jury’s verdict on the negligence and negligence per se counts. The district court denied the motion. Keller Farms appeals.

II.

This is a diversity case arising out of Missouri. As such, "we apply state substantive law and federal procedural law." Barkley, Inc. v. Gabriel Bros., Inc. , 829 F.3d 1030, 1038 (8th Cir. 2016).

A.

Keller Farms asserts that the district court erred in two ways in directing a verdict against it on its statutory trespass count. We review de novo both a district court’s grant of judgment as a matter of law and a district court’s interpretation of state law. Wurster v. Plastics Grp., Inc. , 917 F.3d 608, 617 (8th Cir. 2019) ; Klingenberg v. Vulcan Ladder USA, LLC , 936 F.3d 824, 831 (8th Cir. 2019).

First, Keller Farms argues that the district court read the Missouri trespass statute in an "overly-technical" manner to exclude Keller Farms’ claim for crop damage. The statute under which Keller Farms brought this trespass claim provides:

If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament ... or shall dig up, quarry or carry away ... any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which such person has no interest or right ... the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs.

Mo. Rev. Stat. § 537.340.1. The district court reasoned that only Keller Farms’ claim for tree damage was actionable under the statute because it makes "injury" to trees compensable but requires crops to be dug up, cut down, or carried away, which did not take place in this case. The district court was correct.

In Missouri, when a statute is unambiguous, "[t]here is no room for construction," and "[c]ourts are without authority to read into a statute a legislative intent contrary to the intent made evident by the plain language." Kearney Special Road Dist. v. Cty. of Clay , 863 S.W.2d 841, 842 (Mo. 1993). Here, the statute permits an action against a person who "injure[s]" another’s trees but only permits an action against a person who "dig[s] up," "carr[ies] away," or "cut[s] down" another’s "plants" such as "grass" or "grain." Mo. Rev. Stat. § 537.340.1. The "express mention" of injury with respect to trees "coupled with [the] obvious omission" of injury with respect to crops indicates that only injury to trees is actionable under the statute. Cf. Mo. Chamber of Commerce & Indus. v. Mo. Ethics Comm’n , 581 S.W.3d 89, 94 (Mo. Ct. App. 2019). Keller Farms does not allege McGarity dug up, carried away, or cut down its crops, but merely that he injured them, so its claim for crop damage is not actionable under this statute.

This reading of section 537.340 is supported by the terms of a related Missouri statute. See Disalvo Props., LLC v. Bluff View Commercial, LLC , 464 S.W.3d 243, 246 (Mo. Ct. App. 2015) ("[W]hen engaging in statutory interpretation, it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed ...." (internal quotation marks omitted)). Section 537.353.1 expressly imposes liability on one who "damages ... any field crop product ... grown for ... commercial purposes." Mo. Rev. Stat. § 537.353.1 (emphasis added). This provision indicates that "[t]he legislature knew how" to impose liability for generally injuring crops and "did so" in section 537.353 but did not do so in section 537.340. Cf. State ex rel. Jones v. Eighmy , 572 S.W.3d 503, 507 n.4 (Mo. 2019). Keller Farms was the master of its complaint and chose to proceed under only section 537.340. That choice limited it to pursuing only its tree-damage claim under the trespass statute.

Second, Keller Farms argues that it proffered sufficient evidence to make a submissible case for its statutory trespass claim concerning damage to its windbreak and ornamental trees. We disagree.

In Missouri, the measure of damages under section 537.340 for injury to trees that "have no substantial market value" if cut down—such as "trees used for a windbreak, and ornamental or shade trees"—is the diminution in value of the underlying real estate caused by the injury. Barnes v. Ark.-Mo. Power Co. , 220 Mo.App. 141, 281 S.W. 93, 95-96 (1926) ; accord Ridgway v. TTnT Dev. Corp. , 126 S.W.3d 807, 815 (Mo. Ct. App. 2004) ; Brand v. Mathis & Assocs. , 15 S.W.3d 403, 406 (Mo. Ct. App. 2000).

That being said, in Tong v. Kincaid , the Missouri Court of Appeals suggested the measure of damages under section 537.340 was not diminution in value alone but rather the lesser of "the cost of restoring the property" and "the difference in fair market value" of the property "before and after the injury." 47 S.W.3d 418, 421 (Mo. Ct. App. 2001). But then in Ridgway , that same court noted that the "rules" regarding "the potential measure of damage" "varied somewhat" depending on whether recovery was sought under a common-law or statutory trespass theory. 126 S.W.3d at 814 ; see Ridgway v. TTnT Dev. Corp. , 26 S.W.3d 428, 435-46 (Mo. Ct. App. 2000) (recognizing that "[a] cause of action brought under [ section 537.340 ] differs from a cause of action brought under common law trespass"). The Ridgway court then clarified that the Tong alternative applied in "common law trespass" cases, but "the measure of damages" under section 537.340 remained "the difference in the fair market...