McGuire v. Kenoma, LLC, WD 74022.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY D. WITT
Citation375 S.W.3d 157
PartiesZach McGUIRE, et al., Respondents, v. KENOMA, LLC, et al., Appellants.
Docket NumberNo. WD 74022.,WD 74022.
Decision Date31 July 2012

375 S.W.3d 157

Zach McGUIRE, et al., Respondents,
KENOMA, LLC, et al., Appellants.

No. WD 74022.

Missouri Court of Appeals,
Western District.

June 26, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied July 31, 2012.

Application for Transfer Denied Sept. 25, 2012.

[375 S.W.3d 162]

Charles F. Speer, Kansas City, MO and Edward D. Robertson, Jr. and Anthony L. Dewitt, Jefferson City, MO, for respondents.

Mark W. Comley, Jefferson City, MO, for appellants.

Before Division Three: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Synergy, LLC and Kenoma, LLC (collectively “Synergy”), appeal following a jury trial on claims of temporary nuisance which resulted in a judgment for damages in favor of Respondents. We affirm in part, and reverse in part.

Factual Background

Synergy operates large scale hog farms in Barton County, Missouri. The Respondents/Plaintiffs in this case are twelve individuals who filed suit against Synergy claiming that its confined animal farming operations (“CAFO”), in this case hog farming operations, in Barton County constituted

[375 S.W.3d 163]

a temporary nuisance beginning in 2007.1

As outlined by Synergy in its appellate brief, this hog farming operation was structured in the following manner:

Kenoma operates a sow farrowing barn in Barton County, Missouri. The hogs located in the barn, and the pigs born to those hogs, are owned by Synergy. After the piglets are weaned from the sows in the Kenoma facility they are transferred to nurseries. Two of the nurseries to which the piglets are transferred are owned and operated by Wayne Nichols and Marcel Fischbacher. Wayne Nichols and Marcel Fischbacher operated nurseries under contracts with Synergy.... Paul Stefan owns the land and an irrigation system on that land where the effluent from the Kenoma wastewater lagoon is applied.

Br, pg. 8.2

Plaintiffs claimed that these CAFO's emitted foul smelling odors, other emissions and flies onto their individual farms and/or homes and substantially impaired the Plaintiffs' ability to use and enjoy their respective properties.

After a two week trial in April and May of 2011, the jury returned a verdict in favor of Plaintiffs.3 The jury awarded compensatory damages to twelve of the Plaintiffs, as outlined below:

The trial court denied Synergy's post-

[375 S.W.3d 164]

trial motions, and Synergy filed its Notice of Appeal.

Further details will be outlined as relevant in the analysis section herein.


Synergy's first two points are interrelated, and accordingly we analyze them collectively. In Point One, Synergy argues that the trial court “erred by admitting evidence of the Respondents' damages that were purportedly sustained after filing of suit because such evidence as a matter of law was inadmissible in that in a cause of action for temporary nuisance, such as the case at bar, recovery for damages (and any evidence thereof) is limited to those actually sustained up to the filing of the suit, which in this case was November 18, 2008.” We disagree.

We outlined our applicable standard of review regarding this issue in Secrist v. Treadstone, LLC:

The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court's decision will be reversed only if it constitutes an abuse of discretion. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. We review for prejudice, not mere error, and will reverse only if the error was so prejudicial that the defendant was deprived of a fair trial. Elliott v. State, 215 S.W.3d 88, 93 (Mo. banc 2007).

356 S.W.3d 276, 280 (Mo.App. W.D.2011).

Here, Plaintiffs' allegations at trial were that the alleged nuisance, CAFO, was temporary. This distinction is important because:

A nuisance can be temporary or permanent. Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 106 (Mo.App.2005). “A nuisance is temporary if it may be abated, and it is permanent if abatement is impracticable or impossible.” Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo.App. W.D.2009). If a nuisance is found to be temporary, the defendant is legally obligated to terminate the injury. Cook, 169 S.W.3d at 107. Each day it continues is “considered a repetition of the original wrong, and successive actions accrue as to each injury [.]” Id. Whether a nuisance is classified as temporary or permanent determines the proper measure of damages. Peters, 292 S.W.3d at 385.

McGinnis v. Northland Ready Mix, Inc., 344 S.W.3d 804, 812 (Mo.App. W.D.2011).

The gravamen of Synergy's argument on appeal is that “because Respondents made a claim for temporary nuisance, damages are properly allowable [only] up to the date the initial Petition was filed, i.e., November 18, 2008,” and that any evidence pertaining to the nuisance after the filing of the Petition was improperly admitted because the “controlling case law on this issue” holds that “in an action for temporary nuisance,” evidence pertaining to damages “should only be admitted from the time between the commencement of the liability and the date the lawsuit was filed.”

The problem with Synergy's argument is that no binding authority has ever held that this is in fact the law in Missouri. While it is true that this Court has outlined damage limitations after the lawsuit is filed in temporary nuisance claims, we have never addressed in this context how this rule specifically relates to the trial court's broad authority to allow amended

[375 S.W.3d 165]

/supplemented pleadings pursuant to Rule 55.33.4 In this case the trial court did allow Plaintiffs to amend their petition to include damages up to the deadline for completion of discovery in this matter. The propriety of this ruling is addressed under Point two.

Synergy primarily relies on two cases to support its proposition. “In suits for damages because of nuisances, damages may be allowed for injuries suffered up to the time of commencement of suit, or, if the suit be in equity for injunction with damages as an incident, up to the time of trial, that is, for damages already sustained.” Thompson v. Hodge, 348 S.W.2d 11, 15 (Mo.App.1961).5 “The recovery is for the damage actually sustained to the commencement of suit, but not for prospective injury.” Stevinson v. Deffenbaugh Industries, Inc., 870 S.W.2d 851, 855 (Mo.App. W.D.1993) (emphasis added).

But the thrust of these rulings is rooted in the principle that the “law assumes that a temporary nuisance will abate—if not by voluntary act of the tort-feasor then by judicial agency—and so confines recovery to injury already accrued. Stevinson, 870 S.W.2d at 855 (emphasis added) (quoting Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 793 (Mo.App. W.D.1980) (overruled on other grounds)). “The only instances ... where damages are awarded for injury which may be suffered in the future are those in which the nuisance is permanent and unabatable.” Thompson, 348 S.W.2d at 15 (emphasis added).

Here, there is no dispute that the only evidence allowed at trial pertained to damages already sustained by the Plaintiffs prior to trial 6, and thus no damages were awarded by the jury for “future” or “prospective” damages or damages that were not already “accrued.” Thus, the trial court did not violate the admonitions in the above caselaw, by somehow awarding prospective damages to plaintiffs.7 Synergy does not argue that the temporary nuisance abated at any time prior to the date through which the Plaintiff's were allowed to present evidence of damages. It was solely within Synergy's power and control to stop the accrual of damages at any time between the filing of the petition and the time of trial, simply by ceasing the operation of its CAFO's. To require Plaintiffs to bring a second lawsuit and to require Synergy to defend a second lawsuit regarding the damages that accrued between the date the petition was filed and the time of trial would be an extreme waste of judicial resources as well as a waste of legal fees and expenses for the parties, under the facts of this case.

In Point Two, Synergy argues that the trial court erred in allowing Plaintiffs to supplement their pleadings at the beginning of the trial, to include conduct that occurred up to the close of discovery, thereby making the evidence at issue in Point One relevant to the claims raised.

[375 S.W.3d 166]

Synergy argues that the trial court erred by allowing the supplemental petition because “pursuant to Rule 55.33(d) ... extending the damages period was not a transaction, occurrence, or event happening since the date when suit was filed.” The standard of review for whether a party will be allowed to supplement its pleadings is reviewed for an abuse of discretion. Sheehan v. Northwestern Mut. Life Ins. Co., 44 S.W.3d 389, 394 (Mo.App. E.D.2000).

Rule 55.33(d) deals with “Supplemental pleadings,” and states, in relevant part, the following:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit service of a supplemental pleading setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented.

Synergy argues that the trial court abused its discretion in allowing the supplemental pleading because “Rule 55.33(d) is intended to allow a party to supplement a pleading to include facts and events unknown at the time of the original filing.” (citing Miller v. Rothschild Mgmt. Group, 184 S.W.3d 575, 577 (Mo.App. E.D.2005)). Synergy further argues that “Respondents, through their amended and substituted petition, have failed to provide any additional facts, events or occurrences that they were not aware of and were not included when they filed the...

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