Trinity Lutheran Church v. Lipps

• Decision Date: 26 December 2001
• Docket Number: No. ED 79074.,ED 79074.
• Citation: 68 S.W.3d 552
• Parties: TRINITY LUTHERAN CHURCH, Plaintiff/Appellant, v. Jerry Lee LIPPS and James A. Turnbough d/b/a Highland Timber Company, Defendants/Respondents/ Cross-Appellants.
• Court: Missouri Court of Appeals

68 S.W.3d 552

TRINITY LUTHERAN CHURCH, Plaintiff/Appellant, v. Jerry Lee LIPPS and James A. Turnbough d/b/a Highland Timber Company, Defendants/Respondents/ Cross-Appellants.

No. ED 79074.

Missouri Court of Appeals, Eastern District, Southern Division.

December 26, 2001.

Rehearing Denied February 20, 2002.

Benjamin Lewis, Cape Girardeau, MO, for appellant Trinity Lutheran.

Albert C. Lowes, David J. Roth II, Cape Girardeau, for respondent Jerry Lee Lipps.

John L. Oliver, Cape Girardeau, MO, for respondent James A. Turnbough.

MARY R. RUSSELL, Judge.

A church sued for damages when a logger working under an agreement with one of the church's adjacent landowners cut and sold logs from the church's property. We find that the church did not make a submissible case of agency between the logger and the landowner whose timber the logger had agreed to cut, and that the trial court erroneously denied the landowner's motion for directed verdict or for judgment notwithstanding the verdict ("JNOV"). The judgment as to the landowner is reversed and remanded to the trial court with instructions that the trial court grant the landowner's motion for JNOV. The landowner's cross-appeal is dismissed. The remaining appeals are dismissed as moot.

Jerry Lee Lipps ("Landowner") owned wooded land in Cape Girardeau County, and in the fall of 1997 he sought someone who would fell the trees and split the proceeds with him from selling the logs. Landowner's son, Doug Lipps ("Son"), interviewed several loggers and showed them the property. Eventually, Landowner entered into an agreement with James A. Turnbough ("Logger"), doing business as Highland Timber Company. Their oral agreement was that Logger would harvest all trees greater than eighteen inches in diameter, Logger would obtain bidders for the logs, the purchaser would write separate checks to Landowner and Logger for their respective shares, and their shares would be based on the quality of the individual logs.

All the expenses involved in harvesting the logs were borne by Logger. He arranged for other persons to assist him in the process, and he provided all the equipment necessary for cutting and hauling the logs. Any liability or other insurance premiums necessary for the logging effort were paid by him. Additionally, he was charged with soliciting prospective buyers for the logs he had cut.

Prior to his cutting anything on Landowner's property, Son showed Logger the approximate boundaries of the property. One portion of Landowner's property abutted fifteen acres owned by the Trinity Lutheran Church ("Church"), bordering the Church's property on its southern and western edges.

A forester from the Missouri Department of Conservation testified that property owners customarily mark the boundary lines before cutting timber. Neither the Church nor Landowner had marked the property where the two parcels adjoined. Logger owned a plat book, but never consulted it. Landowner suggested that Logger inquire with Tommy Farrow ("Farrow"), a family member of the previous owners of the property who was familiar with its boundaries, but he never did. When Farrow offered to show Logger the boundaries, Logger told him he already knew the locations. He began cutting the property in April of 1998.

When the Church discovered that its trees had been harvested, it brought suit against Logger and Landowner for the resulting decrease in the value of its property. The Church alleged that Logger and Landowner did not have reasonable cause to believe the trees belonged to them and that Logger was acting as Landowner's agent when he removed the trees from its property. It also claimed that it should receive treble damages and costs pursuant to section 537.340 RSMo 2000.¹ Landowner cross-claimed against Logger alleging that Logger acted unilaterally and improperly in cutting the Church's trees and seeking to recover the entire amount of the judgment plus reasonable attorney's fees.

At trial, both the jury and the judge rendered findings. The trial court denied Landowner's motion for a directed verdict and submitted the issues of damages and agency to the jury. Based on the evidence at trial regarding the number and types of trees and the proceeds received for them, the jury found the Church's damages for the removed timber to be $23,900 against Landowner and $23,900 against Logger.

The trial court determined that the Church was entitled to treble damages, and it was therefore entitled to judgment against Logger for $71,700 and against Landowner for the same amount. The trial court also entered judgment for Landowner on his cross-claim.

After the entry of the judgment, Landowner learned that Logger and the Church had entered into a settlement prior to trial whereby Logger would pay the Church $8,000, regardless of the outcome of the trial. Neither the Church nor Logger informed the court or Landowner about their agreement until after the judgment, although the Church had called Logger as a witness at trial.

Upon learning about the settlement, Landowner moved for a directed verdict or JNOV and, alternatively, for a new trial and to amend the judgment. Landowner asserted that the trial court should grant its motion because the Church failed to show that Logger acted in any capacity other than independent contractor. He also claimed that the Church's and Logger's failure to disclose the agreement to the court prevented the court from determining whether and to what extent its terms should have been disclosed to the jury.

Logger and the Church appeal from the trial court's grant of Landowner's motion for a new trial. Landowner cross-appeals the denial of his motion for a directed verdict and for JNOV. We find that Church did not make a submissible case to establish that a master-servant relationship existed between Logger and Landowner. We find the trial court should have granted Landowner's motion for directed verdict or for JNOV.

On appeal, the three parties assert several claims of error. Logger asserts the trial court erred in: (1) finding that Landowner was entitled to indemnity from Logger on the treble damages award; (2) allocating only 60% of the sale proceeds and actual damages to Landowner and charging Logger with 40% of the actual damages because this calculation was based on gross proceeds and did not take into account Logger's net proceeds after he paid the full cost of harvesting the logs; (3) ordering that Landowner was entitled to indemnity from Logger and entering judgment in favor of Landowner on his cross-claim against Logger because Landowner's agent, Son, caused the trespass which resulted in the defendants' liability; and (4) trebling damages and finding that Logger did not have probable cause to believe he was authorized to harvest logs from the area delineated by Son. Logger asserts that the trial court properly granted Landowner's motion for new trial because the Church should have disclosed the settlement to the court.

In its points on appeal, the Church alleges that the trial court erroneously granted Landowner's motion for a new trial for two reasons. First, it claims that Landowner was not prejudiced by the agreement or its non-disclosure. Second, it asserts that there was no duty for the Church or Logger to disclose the agreement.

In his response to the Church's brief, Landowner asserts that the trial court did not err by granting his motion for a new trial based on the non-disclosure of the settlement between the Church and Logger. Landowner claims that the trial court erroneously denied his motion for a directed verdict or JNOV because the evidence was insufficient to establish the applicability of respondeat superior to Landowner based on his relationship with Logger.

In his response to Logger's brief, Landowner contends that if the jury correctly found that a master-servant relationship existed between him and Logger, then the trial court properly found that Landowner was entitled to indemnity from Logger as a matter of law because the jury's verdict against Landowner was based solely on its finding of a master-servant relationship between them. Landowner also claims that treble damages were inappropriate in this case because he and Logger had probable cause to believe that Logger was cutting trees from Landowner's land. Additionally, he asserts that the trial court's grant of his motion for a new trial was proper because of the failure of the other parties to disclose their settlement agreement to the court.

In Landowner's cross-appeal, he first claimed that the trial court erroneously denied his motion for a directed verdict and for JNOV because the evidence was insufficient to prove the applicability of respondeat superior to him based on Logger's actions. Landowner also alleged that the trial court erroneously denied his comparative fault defense against the Church, that the award of treble damages was inappropriate, and that the trial court's entry of a $71,700 judgment was erroneous because Logger's $8,000 settlement should have been subtracted from the jury award before its award was trebled.

We must first determine whether we have jurisdiction to consider Landowner's cross-appeal. The granting of his motion for a new trial erased the judgment against him. Therefore, there is neither a final appealable judgment nor is Landowner an aggrieved party with standing to appeal. Robbins v. Jewish Hosp., 663 S.W.2d 341, 344 (Mo.App.1983); Mrad v. Mo. Edison Co., 649 S.W.2d 936, 941-42 (Mo.App.1983). As a result, we must dismiss Landowner's cross-appeal.

Where a plaintiff, however, appeals asserting error by the trial court, the defendant may contest the issue of submissibility of plaintiff's case, an issue inherent in every appeal. Robbins, 663 S.W.2d at 344. In addition, the respondent need not file an appeal to raise other grounds asserted in the motion for a new trial. A respondent may seek to justify the granting of a new trial motion on other...