Mcginnis v. Northland Ready Mix Inc.

• Decision Date: 24 May 2011
• Docket Number: No. WD 71317.,WD 71317.
• Citation: 344 S.W.3d 804
• Parties: Rhonda McGINNIS, Respondent,v.NORTHLAND READY MIX, INC., Appellant.
• Court: Missouri Court of Appeals

344 S.W.3d 804

Rhonda McGINNIS, Respondent,

v.NORTHLAND READY MIX, INC., Appellant.

No. WD 71317.

Missouri Court of Appeals, Western District.

May 24, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied July 5, 2011.

Application for Transfer

Denied Aug. 30, 2011.

Mark Edward Kelly and Kristi Lanae Pittman, Liberty, MO, for appellant.James Charles Wirken, Kansas City, MO, for respondent.Before Division One: THOMAS E. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.JAMES M. SMART, JR., Judge.

Northland Ready–Mix, Inc. (“NRM”) appeals following a jury trial on claims of temporary nuisance which resulted in a judgment for damages in favor of the Respondent, Rhonda McGinnis. NRM contends the trial court erred in failing to grant its motion for directed verdict or judgment notwithstanding the verdict because McGinnis failed to prove the elements of her claim for temporary nuisance. In addition, NRM claims the court erred by allowing the jury to consider appraiser Robin Marx's testimony without a proper foundation and allowing McGinnis's trial counsel's “send a message” argument in closing. We affirm.

Statement of Facts

NRM is a family-owned and operated cement mixing plant located in Pleasant Valley, Missouri. NRM was started in 1975 by Myrtle Halley and her husband as a u-cart cement business. The u-cart business allowed customers to come and pick up carts filled with a yard of concrete to take home for personal use. NRM also had trailers that could be filled with 5,000 pounds of concrete for customers to take home. In 1986, the Halleys expanded their business, purchasing their first cement truck, and began converting the u-cart business into a cement mixing plant. NRM also purchased additional adjacent property to allocate for the expansion. By 1991, NRM had grown to include additional parking, three concrete trucks and a silo. NRM's business continued to gradually expand, and by 2009 NRM owned eight trucks and had seven to eight employees.

McGinnis owns two parcels of land which abut NRM's property. In 1985, she purchased the property located at 8603 Schell Road (“Schell Road property”), directly west of NRM and zoned residential. McGinnis briefly lived in this property before using it as a rental property. She then became the legal owner of property located at 6410 N.E. 69 Highway (“69 Highway property”), in 1988, after purchasing that property from her parents. It is located directly south of NRM and zoned “light industrial.” McGinnis owns and operates a cabinet-making business on the 69 Highway property and also uses this property as a residential duplex.¹

To accommodate for the expansion and change to a cement mixing plant, NRM made several changes to its property beginning in the late 1980s. NRM placed a fence around the property, constructed a concrete wall on two sides of the property, and a twelve-inch curb was placed around the parking lot to prevent water from running over the side. A “washout” pit was constructed in the southeast corner of the property to be used when washing out the tumblers on the concrete trucks, and a “sediment” or “slag” ² pit also was placed on the southwest corner of the property to collect rainwater containing concrete particulates. A chute was also placed in the northwest corner of NRM's property which drained water into a culvert that ran under McGinnis's driveway and into the creek behind her property.

The washout pit was constructed to catch any water runoff from the cleaning of the trucks, including any rock, sand, or sludge. Supposedly, NRM monitored the water from the washout pit and hauled the water off when the pit filled or prior to rain to prevent overflow problems. The slag pit, on the other hand, was designed to catch any water runoff and sediment that may flow downhill from the concrete plant before being discharged into the creek on McGinnis's property. Particulates in the water were supposed to settle in the pit and the remaining water would run out of an upper pipe, presumably containing less slag, to the creek.

The upper pipe originally ran underground across McGinnis's property to drain the water into the creek. However, McGinnis sealed the pipe on two separate occasions after indicating to NRM that she had not given permission for the pipe and no longer wanted NRM dumping its runoff onto her property. Because the drain pipe was blocked, the water collected in the slag pit began to overflow out the top of the pit. As a result, NRM was required to use a water pump to pump the water from the sediment pit back up into the washout pit. Despite NRM's claims that it carefully monitored both the washout and slag pits, and that both were drained when necessary to prevent any type of overflow, McGinnis experienced several occasions of water overflow onto her property, beginning in 1994 and continuing through the 2009 trial, which was confirmed by McGinnis's tenants and employees.

According to McGinnis and her tenants, water containing sand, gravel, and cement overflowed from NRM's pits onto her property which dampened it, prevented her from using a lawn mower or driving a car onto the property, and caused the ground to sink when anyone attempted to walk on it. In addition, sediment collected outside her property on the driveway and in other areas. Because of the amount of sediment, sand, and dirt that was tracked into her property as a result, she also had to have her carpets cleaned at both properties on multiple occasions. Furthermore, McGinnis claimed she lost tenants, and subsequent rent, due to the water and sediment problems.

As a result of McGinnis's perceived problems, she filed a petition for damages against NRM for one count of nuisance and one count of trespassing on June 9, 2004. McGinnis then filed an amended petition on April 10, 2008, restructuring her claims to include Count I for nuisance due to water overflow, Count II for nuisance due to dust and noise, and Count III for trespass.

After a five-day jury trial, the jury awarded damages of $50,000 to McGinnis on her claim for temporary nuisance due to water overflow. The jury found in favor of NRM on claims of temporary nuisance due to dust and noise, and the judge granted NRM's Motion for Directed Verdict on McGinnis's claim for trespass. NRM filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for New Trial on Count I or Remittitur, which was denied by the trial court. NRM now appeals.

Point One

In Point One, NRM argues that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict (“JNOV”), because McGinnis failed to prove the elements of her claim for temporary nuisance. Specifically, she failed to show that NRM's use of its property was unreasonable given the zoning, location, character of the neighborhood, and nature of use. In addition, NRM contends that McGinnis did not submit evidence showing the water that ran on to her property was caused by it.

“We review the trial court's denial of motions for directed verdict and JNOV de novo to determine whether the plaintiff has made a submissible case.” U.S. Neurosurgical, Inc. v. Midwest Div.–RMC, LLC, 303 S.W.3d 660, 664 (Mo.App.2010). “To make a submissible case, a plaintiff must present substantial evidence that tends to prove the facts essential to plaintiff's recovery.” Id.; see Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997). Substantial evidence is evidence which, if true, has probative force upon the issues, and from which the jury can decide the case. Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010).

When determining whether the evidence was sufficient to support the jury's verdict, “the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict.” Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456–57 (Mo. banc 2006). “[W]e will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion.” Id. at 457. Thus, “[a] directed verdict is inappropriate unless reasonable minds could only find in favor of the defendants.” Guidry v. Charter Commc'ns, Inc., 269 S.W.3d 520, 527 (Mo.App.2008).

Nuisance requires an interference with the use and enjoyment of land. See Williams v. Monsanto Corp., 856 S.W.2d 338, 340 (Mo.App.1993). To prove a nuisance,³ a plaintiff must show that the defendant unreasonably uses his or her property such that it substantially impairs the plaintiff's right to peacefully use his or her property. Id. at 341. “Whether a use is unreasonable to the point of a nuisance depends on factors such as the locality, character of the neighborhood, nature of use, extent of injury, and effect upon enjoyment of life.” Id. Nuisance law recognizes the inherent conflict between the rights of neighboring property owners, and the unreasonable use element seeks to balance those rights. Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo.App.2009).

The jury found for the Plaintiff based on Instruction No. 8, which stated as follows:

Your verdict must be for plaintiff if you believe:

First, plaintiff used her property for a rental property, a residence and the operation of a cabinet making business, and

Second, defendant operated a concrete making plant operation in close proximity to plaintiff's rental property, residence, and cabinet making business, and

Third, the defendant allowed water containing cement, and/or sand, and/or gravel, and/or cement sludge to escape from defendant's premises onto the plaintiff's property and this substantially interfered with and impaired the plaintiff's use and right of enjoyment of her property, and

Fourth, such use by defendant of its property was unreasonable, unless you believe that plaintiff is not entitled to recover by reason of ...