Owens v. Contigroup Companies Inc.

• Decision Date: 29 March 2011
• Docket Number: No. WD 72560.,WD 72560.
• Citation: 344 S.W.3d 717
• Parties: John OWENS, et al., Respondents,v.CONTIGROUP COMPANIES, INC., et al., Appellants.
• Court: Missouri Court of Appeals

344 S.W.3d 717

John OWENS, et al., Respondents,

v.CONTIGROUP COMPANIES, INC., et al., Appellants.

No. WD 72560.

Missouri Court of Appeals, Western District.

March 29, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 2011.

Application for Transfer

Denied Aug. 30, 2011.

Jean P. Bradshaw II, Mara H. Cohara, and William G. Beck, Kansas City, MO, for appellants.Charles F. Speer, Tammy R. Dodson, and Peter B. Bieri, Kansas City, MO; Gerald L. Cross, Jr., Overland Park, KS; Edward D. Robertson, Jr. and Anthony L. DeWitt, Jefferson City, MO, for respondents.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.GARY D. WITT, Judge.

ContiGroup Companies Inc., Premium Standard Farms, LLC, and KC2 Real Estate, LLC (collectively “PSF”), appeal following a jury trial on claims of temporary nuisance which resulted in a judgment for damages in favor of Respondents. We affirm.

Factual Background

PSF, operate large scale hog farms in, as pertinent to this appeal, three Missouri counties (Gentry, Daviess, and Grundy counties). The Respondents in this case are fifteen individuals ¹ who filed suit against PSF claiming the hog farming operation in Gentry County constituted a temporary nuisance.

As originally filed, the Respondents were part of a larger class of sixty-one plaintiffs who sued PSF on August 5, 2002, in two actions.² These actions asserted a temporary nuisance related to the three hog farms operated by PSF in Gentry, Daviess, and Grundy Counties. On March 1, 2007, the Circuit Court granted PSF's motion to sever the plaintiffs' claims in the two actions, and consolidated the individual cases for discovery and trial by household.

On July 8, 2008, the Circuit Court modified its March 1, 2007 Order reconsolidating the individual cases into three groups for trial based on proximity of the plaintiffs to each hog farming operation. Respondents' claims here pertain to PSF's hog farming operation in Gentry County for the years 1999 to 2010.

After a four week trial, the jury returned a verdict in favor of the Respondents. The jury awarded compensatory damages to thirteen of the Respondents in the amount of $825,000 each. In addition, Phyllis Owens received an award of $250,000 and Billie Sue Miller received an award of $75,000. The Circuit Court entered its Amended Judgment on March 22, 2010, which became final following the denial of PSF's post-trial motions on May 24, 2010. PSF now appeals. Further details will be outlined as relevant in the analysis section herein.

Analysis

In Point One, PSF argues the Circuit Court erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict with respect to all claims arising from Respondents' farms because Respondents failed to make submissible cases on the essential element of damages in that Respondents offered no evidence of any economic damages with respect to such business properties. The question presented then, is whether Missouri law allows a plaintiff to recover compensatory damages for the loss of the use or enjoyment of property that is not a residence but rather a “business.”

This is a purely legal question and, therefore, the standard of review is de novo. Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 464 (Mo.App. W.D.2007).

At trial, Respondents proceeded exclusively on the theory that the temporary nuisance was detrimental to the use and enjoyment of their property (both residences and the surrounding farmland). Accordingly, they made no claim and presented no evidence as to any diminution in value of their property as a result of the nuisance created by the hog farm.

The measure of damages for a temporary nuisance is the decrease in the property's rental value during the duration of the nuisance and incidents of damage, including, for example, loss of comfort and health. Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo.App. W.D.2009) (citing Vermillion v. Pioneer Gun Club, 918 S.W.2d 827, 831–32 (Mo.App. W.D.1996)). Compensatory damages can also be granted for inconvenience and discomfort caused by the nuisance. Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo.App. W.D.2009) (citing Moore v. Weeks, 85 S.W.3d 709, 716 (Mo.App. W.D.2002)). “In computing compensatory damages, there is no precise formula or bright line test to determine non-economic losses. 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.” Brown, 298 S.W.3d at 21 (citing Moore, 85 S.W.3d at 716).

PSF argues a rigid distinction exists between property used as a residence and land used for business purposes. Whereas one can recover damages in temporary nuisance arising out of a deprivation of the use and enjoyment of residential property, PSF argues that the only measure of damages available for a temporary nuisance to business property is the loss of value of that property and/or business during the period of the nuisance.

PSF cites to no Missouri cases that have held that the owner of a business cannot recover for the loss of the use or enjoyment of the property constituting that business. Rather, PSF cites tangential propositions that limit the damages that a business can recover for torts. See e.g., Restatement (Second) of Torts 561(a) cmt. B (1997). PSF also cites cases from other jurisdictions also limiting the types of harm a business can suffer from a tort. See e.g., FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir.1994). However, this authority does not answer the question posed here—whether an individual property owner can recover damages for the loss of use and enjoyment of the part of his property used for business purposes.

PSF argues that the Missouri Supreme Court's case McCracken v. Swift & Co., recognized that the owner of a business affected by a nuisance may recover only the decrease in value of the business property. 265 S.W. 91, 91–92 (Mo.1924). However, that was not the holding of McCracken and it cannot be read to extend as far as PSF suggests. McCracken held that while a business owner can recover the loss of rental value of business property resulting from a temporary nuisance, one can recover as well for the loss of the use and enjoyment of one's residence. Id.

Missouri cases consistently refer to plaintiffs being able to recover for the loss and use of enjoyment of one's “land” or “property.” See e.g., Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo.App. S.D.2008) (quoting Byrom v. Little Blue Valley Sewer Dist., 16 S.W.3d 573, 576 (Mo. banc 2000) (“Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his [or her] property. The focus is defendant's unreasonable interference with the use of and enjoyment of [another's] land”)); Moore v. Weeks, 85 S.W.3d 709, 716 (Mo.App. W.D.2002); Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo.App. W.D.2009). While the character of the use of the land would likely have an impact on the proper amount of compensatory damages based on one's expected use of such property, there is no persuasive reason that land used for business purposes could not support an award for the loss of the use and enjoyment of such property by the business owner.

Prior decisions have made it clear, that the basis for a claim for a temporary nuisance is not the fact of ownership of the land in fee simple, but some sort of entitlement to rightful possession of the land and interference with the right to use and enjoy the land. Hanes v. Cont'l Grain Co., 58 S.W.3d 1, 5 (Mo.App. E.D.2001). Some of the land in question is unoccupied farmland. We refuse to say as a matter of law that the owners of farmland are not entitled to the reasonable use and enjoyment of that land merely because business activities are conducted upon it.

Therefore, Respondents did make a submissible case for damages for temporary nuisance with evidence of non-economic injury, which is not contested by PSF.

Points One is denied.

In Point Two, PSF argues the Circuit Court erred in modifying MAI 22.06 to include the term “farm” because it erroneously stated the law by inviting the jury to award an improper measure of damages (non-economic damages) for the farms which are “business” properties.

“Whether a jury is properly instructed is a matter of law subject to de novo review by this court.” Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.App. W.D.2006) (citing Boggs, ex rel. Boggs v. Lay, 164 S.W.3d 4, 20 (Mo.App.W.D.2005)).

As discussed in Point One, the inclusion of the word “farm” in MAI 22.06 did not erroneously state the law because non-economic damages are allowed for business properties. Modification of the MAI instructions is permissible to reflect the particular facts and circumstances of a given case so long as they accurately set forth the substantive law. PSF does not contest that the addition of the word “farm” did not reflect the particular facts and circumstances of each case but only argue that the addition did not accurately set forth the substantive law. See MAI, How to Use This Book, p. XLVII (6th ed.2002). As was addressed in Point One, this modification of the MAI did accurately set forth the substantive law.

Accordingly, Point Two is denied.

In Point Three, PSF argues the Circuit Court erred in modifying the third paragraph of the verdict director, MAI 22.06, to include the phrase “other emissions” because there was no evidence at trial of other emissions upon which a temporary nuisance verdict could be found.

Whether a jury was properly instructed is a question of law this Court reviews de novo. Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). This Court reviews the record in the light most favorable to submission of the instruction. Id. Any issue submitted to the jury in an instruction must be supported by substantial...