McCombs v. Joplin 66 Fairgrounds, Inc.

Decision Date24 June 1996
Docket NumberNo. 20094,20094
Citation925 S.W.2d 946
PartiesRobert McCOMBS, et al., Appellants, v. JOPLIN 66 FAIRGROUNDS, INC., d/b/a Joplin 66 Speedway, Respondent.
CourtMissouri Court of Appeals

Bruce N. Secrist, Joplin, for appellants.

Ron E. Mitchell, John Mollenkamp of Blanchard, Robertson, Mitchell & Carter, P.C., Joplin, for respondent.

MONTGOMERY, Presiding Judge.

Plaintiffs filed suit against Defendant for abatement of a nuisance. According to Plaintiffs' First Amended Petition, the noise, dust, dirt, fumes, and light from Defendant's three-eighths mile clay/dirt automobile racetrack penetrates their property and homes. Plaintiffs alleged that Defendant's operation of the racetrack is a nuisance and eliminates their right to peaceful enjoyment of their property. Plaintiffs prayed for a permanent injunction restraining Defendant from operating a racetrack on its premises. Following a bench trial, the trial court found that Defendant's operation of the racetrack significantly affected Plaintiffs' enjoyment of their property. Nevertheless, the trial court permitted Defendants to continue in operation but with certain restrictions. The amended judgment recites that "[a]bsent compliance [with] these restrictions, the Defendants are hereby permanently enjoined and restrained from operation of an automobile race track/speedway ...." The five restrictions deal with reducing noise, dust, the number of yearly races, and the ending time and the length of each race program. Plaintiffs appeal. 1

Plaintiffs contend on appeal the trial court erred in (1) amending the original judgment based on Defendant's untimely after-trial motion, (2) granting a limited injunction instead of a complete injunction, and (3) finding, without substantial evidence, that the federal highway standard of 67 dBA applied to the determination of appropriate relief by restricting Defendant from conducting activities which exceed 67 dBA.

Defendant's racetrack was constructed on a 100-acre tract outside the city limits of Joplin, Missouri. No zoning regulations apply to this tract. The property surrounding the racetrack is used for residential, commercial, and light manufacturing purposes. North and east of the racetrack the property use is commercial and industrial, while on the south and west the property use is primarily residential.

The area in which the twenty-eight Plaintiffs live (a two-mile radius of the racetrack) contains 2762 residents. Forty-six residences are located within a one-half mile radius of the racetrack, while 301 residences are found within a one-mile radius.

At trial both sides offered expert testimony regarding measurement and analysis of sound. Plaintiffs' expert witness, Dr. William Gatley, explained that sound is measured in decibels (dB) and also in A-weighted decibels (dBA). Decibel measurements are logarithmic. For example, a sound of 60 dBA is only half as loud as a sound of 70 dBA. In addition, sound measured over time is called an Leq. Other sound-related measurements are L10 (a description of the level that is exceeded only 10 percent of the time) and Ldn (a 24-hour Leq with a correction of 10 dBA for nighttime hours).

The expert witnesses for both sides measured various sound levels emanating from the racetrack at different locations. Dr. Gatley agreed that no universally accepted criteria exists for the variability in the subjective response of people to noise. However, numerous federal agencies have set guidelines and limits for sound levels. One such agency, the Federal Highway Administration, suggests that 67 dBA is compatible with churches, libraries, parks, and hospitals. During a racing session, Dr. Gatley measured the sound level in Plaintiff McCombs' yard at 73 dBA. Inside the home of Plaintiff McCombs, with the window open and the television on, the nonrace level was 54 dBA and the race level was 58 dBA.

Dr. Gatley agreed that the following sound levels are emitted from certain familiar machines such as a washing machine (above 70 dBA), a food blender (80 dBA), a power lawn mower (95 dBA), and a motorcycle (110 dBA under maximum acceleration). Evidence was also admitted on the sound levels experienced by drivers of various automobiles cruising at 70 miles per hour, e.g., Lexus SC300 (67 dBA); Chevrolet Impala SS (72 dBA); and Chrysler LHS (71 dBA).

The trial court also heard lay testimony from some of the Plaintiffs and from others living near the racetrack or attending the races. As might be expected, these witnesses gave differing views on the amount of noise created by the races.

In our review of a court-tried case the judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Lee v. Rolla Speedway, Inc., 668 S.W.2d 200, 205 (Mo.App.1984). In determining whether the evidence is sufficient to support the judgment, we accept as true the evidence, with permissible inferences therefrom, favorable to the prevailing party and disregard contradictory testimony. Id.

Plaintiffs' first point claims the trial court erred in amending the original judgment in response to Defendant's untimely after-trial motion. We agree.

The trial court entered judgment on December 12, 1994. On January 11, 1995, thirty days following entry of judgment, Plaintiffs filed a "Motion to Amend Judgement," asking the court to completely enjoin the racetrack's operation rather than restricting its operation. Alternatively, the motion requested more severe restrictions than those imposed by the original judgment.

On January 12, 1995, thirty-one days following entry of the judgment, Defendant filed a "Motion for New Trial, Motion to Reconsider and Amend Judgment," requesting the court to amend the judgment as follows:

1. To change the cut-off time from 11:00 P.M. to 12:00 P.M.

2. To allow the cut-off time to be 12:00 P.M. on nights before national holidays.

3. To order costs to be paid by plaintiffs.

4. To eliminate the five hour maximum for races.

A hearing was held on both motions. On February 15, 1995, the trial court amended its judgment in a manner which granted some of the relief requested by each party. 2

The only relief requested by Defendant's motion and granted in the amended judgment pertained to court costs. The original judgment taxed the costs against Defendant, but the amended judgment only taxed filing fee costs against Defendant. Clearly, the trial court granted partial relief to Defendant based on its after-trial motion.

A trial court retains control over a final judgment for thirty days after entry and during that time period may vacate, correct, amend, or modify its judgment. Rule 75.01. 3 However, upon the filing of a timely after-trial motion, the time period within which the court may exercise jurisdiction over the judgment extends to ninety days. Rule 81.05; In Interest of C.J.E., 878 S.W.2d 845, 848 (Mo.App.1994). "Once the thirty day period in Rule 75.01 expires, a trial court's authority to grant relief is constrained by and limited to the grounds raised in a timely filed, authorized after-trial motion." Massman Constr. Co. v. Highway & Transp. Comm'n, 914 S.W.2d 801, 802 (Mo. banc 1996).

Therefore, under Rule 75.01 the trial court lost jurisdiction of this case thirty days after its December 12, 1994, judgment, except for matters raised by Plaintiffs' motion to amend the judgment. See Antonacci v. Antonacci, 892 S.W.2d 365, 368 (Mo.App.1995).

In Antonacci, the appellate court upheld father's contention that the trial court had no jurisdiction to award mother attorney fees in its final judgment of January 19, 1994, after the original judgment of November 23, 1993, failed to award her any attorney fees. Only father had filed a timely motion to amend the judgment or for a new trial. His motion made no reference to attorney fees. Father's motion was overruled, but the trial court amended the judgment by awarding mother attorney fees. The appellate court held that "the portion of the January 19, 1994 judgment regarding attorney's fees exceeded the court's jurisdiction and is void." Id. at 368.

In the instant case, Plaintiffs' after-trial motion made no mention of court costs. Defendant's after-trial motion was not timely filed under Rule 75.01. Consequently, the trial court only had authority to grant relief in response to the grounds raised in Plaintiffs' motion. Based on Antonacci, the portion of the February 15, 1995, judgment regarding court costs exceeded the court's jurisdiction and is void. That portion of the judgment must be reversed. 4

In Point II Plaintiffs claim the trial court erroneously failed to grant a complete injunction after finding that Plaintiffs' enjoyment of their property was significantly affected by Defendant's operation of the racetrack. Plaintiffs assert that no evidence indicated restrictions on the racetrack's operation would abate the nuisance.

Plaintiffs appear to rest their complaints only on the noise levels created by the racetrack. They say that "[t]he question litigated at this trial was whether the race track was too loud so as to be a nuisance to neighboring property owners and if it was too loud, whether or not the benefits it affords outweigh the interference with Plaintiffs' use of their property." Accordingly, in resolving this point, we view the trial court's judgment only in light of the noise restrictions.

Plaintiffs carried the burden of proving that Defendant's use of its property created a nuisance. "A private nuisance is the unreasonable, unusual, or unnatural use of one's property which substantially impairs the right of another to enjoy his property." 44 Plaza Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 578 (Mo.App.1992).

However, the law does not concern itself with trifles, and there is liability for nuisance only to those whom it causes significant harm, of a kind that would be...

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