Peters v. Contigroup

• Citation: 292 S.W.3d 380
• Decision Date: 07 July 2009
• Docket Number: No. WD 69647.,No. WD 69614.,WD 69614.,WD 69647.
• Parties: Everett PETERS, Cindy Peters and Rachel Kunz Hall, Appellant-Respondents, v. CONTIGROUP, et al., Respondent-Appellants.
• Court: Court of Appeal of Missouri (US)

292 S.W.3d 380

Everett PETERS, Cindy Peters and Rachel Kunz Hall, Appellant-Respondents, v. CONTIGROUP, et al., Respondent-Appellants.

No. WD 69614.

No. WD 69647.

Missouri Court of Appeals, Western District.

July 7, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 1, 2009.

Application for Transfer Denied October 6, 2009.

Charles F. Speer, Kansas City, MO, and Richard Middleton, Savannah, GA, for appellant.

Jean Paul Bradshaw, Kansas City, MO, and Duncan Getchell, Jr., Richmond, VA, for respondent.

Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and JAMES E. WELSH, JJ.

JAMES M. SMART, JR., Judge.

Rachel Hall appeals the trial court's grant of partial summary judgment in favor of the ContiGroup Companies, Inc., et al., on certain of her nuisance claims. Everett and Cindy Peters, co-plaintiffs with Rachel Hall, also contest two of the trial court's evidentiary rulings in the jury trial of their nuisance claims. The ContiGroup Companies have filed a cross-appeal that is contingent on any reversal based on the appeal of Ms. Hall and the Peters. The judgment is affirmed in part and reversed in part.

Background

Plaintiffs Everett and Cindy Peters are a married couple who reside in Gentry County, Missouri. Mrs. Peters's daughter, Rachel Hall, lived with the Peters during her childhood. She went on active duty with the military in June 2002. The Defendants ContiGroup Companies, Inc., Premium Standard Farms, Inc., and PSF Group Holdings, Inc., (hereinafter collectively referred to as "the ContiGroup defendants") operate several hog farm facilities in various northwestern Missouri counties, including Gentry County.

In 1996, 108 residents of northwest Missouri, including Everett and Cindy Peters, filed a nuisance lawsuit against Continental Grain Company, Inc., and two other defendants in St. Louis County Circuit Court. See Hanes v. Cont'l Grain Co., 58 S.W.3d 1, 2-3 (Mo.App.2001). Cindy Peters's daughter, Rachel Hall, was a minor at that time and was not a plaintiff in that lawsuit. The Hanes plaintiffs alleged that Continental's hog farm operations at four different locations were a nuisance because of odors, flies, and contaminated water emanating from the facilities that unreasonably impaired the plaintiffs' use and enjoyment of their own properties. After three months of trial, the jury found in favor of fifty-two of those plaintiffs, including Everett and Cindy Peters. On May 17, 1999, the trial court entered judgment, finding an abatable, temporary nuisance and awarding $100,000 in damages to each of the prevailing plaintiffs. Mr. and Mrs. Peters each received $100,000 in damages. Id. at 2, 4.

On August 5, 2002, Mr. and Mrs. Peters and thirty-four other former Hanes plaintiffs filed another nuisance lawsuit against ContiGroup (or Continental)¹ and two other companies in Jackson County Circuit Court. That lawsuit was the genesis of the case we consider here. The petition alleged that despite the finding of a temporary nuisance in Hanes three years earlier, the defendants "continue to maintain a nuisance in close proximity to the plaintiff's property" in that "ill-smelling odors and/or contaminated wastewater continue to escape" onto the plaintiffs' property.

On that same date, a group of twenty-three spouses and children of the former Hanes plaintiffs also brought a nuisance lawsuit against the same group of defendants. Rachel Hall was a plaintiff in that lawsuit. The petition alleged that "[t]hough the plaintiffs herein were not parties to the Hanes case, they are nonetheless adversely affected by the defendants' actions and are similarly situated to [those plaintiffs who were compensated by an award]." The petition also alleged that the defendants have failed to materially abate the nuisance even though over three years have elapsed since the Hanes judgment. Specific to Ms. Hall, the petition alleged that "[u]ntil enlisting in the Armed Forces ... Rachel Hall resided at her parents' residence located in Gentry County ... and retains her place of residence at their address ... in close proximity to the defendants' [facilities]."

On motion of the ContiGroup defendants, the court severed the plaintiffs' claims on the basis that they did not arise out of the same series of transactions or occurrences and because joinder would result in prejudice to the defendants. The court then joined the plaintiffs' claims into groups by household (i.e., the spouses' and children's claims were joined with those of their respective spouse or parents). The first of those lawsuits to go to trial was the one brought by Mr. and Mrs. Peters, which had been joined with Rachel Hall's. The Peters's specific allegations were that the defendants' farming operations at their Homan facility in Gentry County constituted an abatable, temporary nuisance in that odors emanating from it substantially interfered with the Peters's use and enjoyment of their property. The Peters sought actual and punitive damages.

Prior to trial, the ContiGroup defendants moved for partial summary judgment as to Rachel Hall's nuisance claims that arose prior to May 17, 1999, on the basis that such damage claims had already been litigated by Mr. and Mrs. Peters in the earlier Hanes lawsuit and were barred from the new action. Following a hearing, the court granted the motion, finding that Rachel's pre-1999 claims were barred by res judicata. The court allowed Rachel's post-Hanes claims to go forward, finding that she retained her legal residence in Missouri and occupied the home from time to time even after joining the Navy.

The trial proceeded over a period of three weeks. At the close of all the evidence, the ContiGroup defendants moved for directed verdict claiming that the plaintiffs failed to make a submissible case either as to liability or punitive damages. The court denied the defendants' motions. The jury returned a verdict in favor of ContiGroup, and the court entered judgment accordingly.

Mr. and Mr. Peters and Rachel Hall (collectively "the plaintiffs") appeal. The ContiGroup defendants cross-appeal.

Motion to Dismiss Cross-Appeal Denied

The Peters have filed a motion to dismiss the ContiGroup defendants' cross-appeal, alleging that the notice was not timely filed and that the cross-appeal was barred because the defendants failed to seek post-trial relief. The defendants respond that the plaintiffs' calculation of the filing deadline failed to take into account a State holiday and that Missouri law permits a prevailing party to take a conditional cross-appeal without first moving for post-trial relief. This court notified the parties of our intent to take that motion with the case. Because our rulings in this case make it unnecessary to consider the cross-appeal, the motion to dismiss is denied.

Legal Framework: Nuisance

"An action for private nuisance rests on tort liability...." Vermillion v. Pioneer Gun Club, 918 S.W.2d 827, 831 (Mo.App.1996). "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 property." Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876, 880 (Mo. banc 1985). The focus is on the defendant's unreasonable interference with the plaintiff's use and enjoyment of his land. Id. The law of nuisance recognizes the inherent conflict between the rights of neighboring property owners. Id. The unreasonable use element seeks to balance those rights. Id.

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." Hanes, 58 S.W.3d at 3. 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. The classification of a nuisance as temporary or permanent determines the measure of damages. Vermillion, 918 S.W.2d at 831. For a temporary nuisance, the measure of damages is the decrease in the property's rental value during the duration of the nuisance. Id. at 831-32. It also includes other incidents of damage such as loss of comfort and health. Id. at 832. Damages for a permanent nuisance are measured by the change in the property's fair market value as a result of the injury. King v. City of Independence, 64 S.W.3d 335, 340 (Mo.App.2002) (overruled on other grounds).

Point I: Rachel Hall's Pre-1999 Claims

In the first point, Rachel Hall argues that the trial court erred in granting defendants a partial summary judgment on Rachel Hall's claims prior to May 17, 1999, on the basis that they were litigated in the earlier Hanes case and, thus, were barred under the doctrine of res judicata.

Standard of Review

The propriety of a summary judgment is a question of law that we review de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the nonmovant. Id. We apply the same criteria on appeal as those the trial court uses to determine the propriety of sustaining the motion initially. Id. Summary judgment is appropriate where no genuine issue of material fact exists and the moving party establishes a right to judgment as a matter of law. Id. at 380.

Discussion

The common-law doctrine of res judicata precludes the same parties or their privities from relitigating a claim formerly made. Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002); Am. Polled Hereford Ass'n v. City of Kansas City, 626 S.W.2d 237, 241 (Mo.1982). For res judicata to attach, the following factors must be the same in both cases: (1) identity of the thing sued for; (2) identity of the cause of action; (3)...