Moore v. Weeks
| Decision Date | 17 September 2002 |
| Docket Number | No. WD 59801.,No. WD 59725.,WD 59725.,WD 59801. |
| Citation | 85 S.W.3d 709 |
| Parties | Richard E. MOORE and Mary Moore, Harold Offield, and Joyce N. Scott, Respondents-Appellants, v. Morris "Buzz" E. WEEKS and Cherri L. Weeks, Appellants-Respondents. |
| Court | Missouri Court of Appeals |
Thomas N. Chapman, Chillicothe, for defendant Mary Jones.
Timothy H. Bosler, Chillicothe, for appellant/respondent Morris and Cherri Weeks.
Before ULRICH, P.J., BRECKENRIDGE and HARDWICK, JJ.
Richard and Mary Moore, Harold Offield, and Joyce Scott (Plaintiffs) are neighboring property owners in the Merle Jones Addition subdivision located in Chillicothe, Missouri. Plaintiffs sued Morris and Cherri Weeks, also property owners in the subdivision, to enforce restrictive covenants prohibiting the Weeks' use of their land for business purposes and to recover damages for nuisance. The trial court entered judgment for the Plaintiffs and awarded damages of $3650 each to Plaintiffs Offield and Scott. Both parties appeal. We affirm.
Viewing the facts in a light most favorable to the verdict, the following evidence was presented at trial. The Merl Jones Addition was established as a residential subdivision by property owner Merl Jones in 1962. As recorded, the subdivision plat included the following covenant restrictions on all lots: 1) no use for manufacturing or commercial enterprise for profit; and 2) no buildings except for single-family residential purposes. The plat also included a thirty-five-foot strip of land reserved for development by Livingston County as "Maple Street," which ran along the eastern boundary of the subdivision.
Plaintiff Harold Offield purchased Lot 4 in the subdivision, built a house and moved into it in 1967. As part of a bankruptcy proceeding, he sold the house to his daughter in 1986, who then sold it to Plaintiffs Richard and Mary Moore in 1995. At the time of the trial, Offield continued to live in the home and was in the process of buying it back from the Moores. Plaintiff Joyce Scott lived next door to Offield on Lot 5, which she purchased in 1995.
Respondent Morris Weeks purchased Lot 14 in the subdivision in 1972. He married Respondent Cherri Weeks in 1990, and they have resided in their home on Lot 14 since that time. The Weeks' home is located on Harvest Drive, across the street from the Scott and Offield homes.1
Sometime in the 1970's, Livingston County relinquished its development rights for Maple Street, and the thirty-five-foot strip of land reverted back to the subdivision and its developer, Merl Jones. In 1977, Jones sold part of the strip of land to the Weeks, who did not realize the land was part of the subdivision and subject to the covenants prohibiting business use and non-residential construction.
The Weeks purchased the former Maple Street land because it was adjacent to other property they owned outside the subdivision. The Weeks thereafter constructed two metal buildings, the first in 1977 and a second larger one in 1997. Both buildings sat partly on the land the Weeks owned outside the subdivision and partly on the land formerly designated as "Maple Street" inside the subdivision perimeter. The Weeks used the buildings in connection with a trenching and excavation business they owned and operated.
In 1998, Plaintiffs filed a Petition against the Weeks, asserting an equitable claim for breach of the restrictive covenants and two nuisance claims. In Count I of the Second Amended Petition, Plaintiffs claimed the Weeks' non-residential buildings and business operations violated the subdivision's restrictive covenants and diminished the value of Plaintiffs' land by $30,000 to $40,000 for each of the two lots at issue. Plaintiffs sought to enjoin the Weeks' business operation and to require removal of the two metal buildings.
The Count III nuisance claim asserted the Weeks improperly drained sewage affluent from their property into a ditch that ran along Harvest Drive. The raw sewage visibly collected in the ditch and smelled so bad that Plaintiffs were required to leave their windows closed, run air conditioning, and were denied the use and enjoyment of the outside areas of their properties. Plaintiffs further claimed their property values declined as a result of the sewage problem.
The Count III nuisance claim asserted that dust problems in the subdivision increased as a result of the Weeks' business use of their property. Harvest Drive was a gravel road the Weeks routinely traveled with a large dump truck and other equipment in connection with their excavation business. The movement of these heavy vehicles and machinery stirred up additional gravel dust that adversely affected Plaintiffs' enjoyment and use of their property, by forcing them to give up outdoor activities and keep their windows closed with the air conditioning running. Plaintiffs also claimed their property values declined due to exacerbation of the dust problems.
The Second Amended Petition sought abatement of the nuisances, damages, and attorney's fees. During pendency of the case, all of the subdivision properties were connected to the city sewer system and Harvest Drive was paved, thereby abating the odor and dust problems. At the time of trial, damages for past loss and enjoyment of Plaintiffs' properties were still at issue on the nuisance claims.
Trial was held on August 23 and 24, 2000. Upon evidence heard, the court entered judgment for the Plaintiffs, finding the Weeks liable for violation of the restrictive covenants and on both nuisance claims. The court did not require removal of the metal buildings but prohibited the Weeks from placing any additional commercial structures on the property or expanding the existing buildings beyond their current use. Plaintiffs Offield and Scott were each awarded $3,150 in damages on the sewer nuisance claim and $500 on the dust nuisance claim. No damages were awarded to the Moores, who owned Lot 4 but did not reside in the subdivision.
On appeal, the Weeks challenge the sufficiency of the evidence to support the judgment on the nuisance claims and assert the judgment for breach of restrictive covenants was against the weight of the evidence. The Weeks also contend the trial court abused its discretion in excluding the testimony of a witness whose identity was not disclosed in pretrial discovery. Plaintiffs cross-appeal, claiming the trial court's refusal to award full legal and equitable relief was against the weight of the evidence.
This judge-tried case will be reviewed under the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). We must affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence or erroneously declares or applies the law. King v. City of Independence, 64 S.W.3d 335, 338 (Mo.App. W.D.2002). Because of the trial court's superior ability to determine the credibility of witnesses, we must defer to the trial court's findings of fact. Id. We view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's judgment, while disregarding all contrary evidence and inferences. Wildflower Cmty. Ass'n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App. W.D.2000).
The Weeks challenge the sufficiency of the evidence to support the trial court's finding of liability and award of damages on the nuisance claims. The Weeks contend: 1) their actions were not "unreasonable" as compared to other factors that adversely affected the Plaintiffs' use and enjoyment of their properties; and 2) Plaintiffs were not entitled to damages because there was no proof that "but for" the Weeks' conduct, the dust and odors in the subdivision would have been significantly reduced.
The tort of nuisance arises when a defendant's use of his or her property is so "unreasonable, unusual, or unnatural" that it substantially impairs the rights of another to enjoy his or her property. Rosenfeld v. Thoele, 28 S.W.3d 446, 450 (Mo. App. E.D.2000). Although the strict definition of "nuisance" refers to the defendant's unreasonable use of his property, the prime focus is on the defendant's unreasonable interference with the use and enjoyment of Plaintiffs' land. Id. There is no exact formula to determine the existence of a nuisance, but the relevant factual considerations include: the locality, character of the neighborhood, nature of the use, extent and frequency of the injury, and the effect of the defendant's conduct upon the enjoyment of life, health, and property of those affected. City of Fredericktown v. Osborn, 429 S.W.2d 17, 22 (Mo.App. E.D.1968). Given the fact-specific nature of this inquiry, we must defer to the trial court's determination of reasonableness, absent a firm impression the judgment is wrong. Wildflower, 25 S.W.3d at 534.
Upon proof of nuisance, a plaintiff can recover any diminished property value and compensatory damages "for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment ... of his home, as well as any actual injury to his health or property caused by the nuisance." Byrom v. Little Blue Valley Sewer Dist., 16 S.W.3d 573, 576 (Mo.banc 2000) (citing McCracken v. Swift & Co., 265 S.W. 91, 92 (Mo.1924)). In computing compensatory damages, there is no precise formula or bright line test to determine noneconomic losses. Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 250 (Mo.banc 2001). Each case must be considered on its own facts, with the ultimate test being whether the award fairly and reasonably compensates the plaintiff for the injuries sustained. Id.
On appeal, a damages award is entitled to deference based on the fact finder's superior position to assess the...
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