344 S.W.3d 804
Mo. Ct. App.2011Background
- NRM operates a cement mixing plant in Pleasant Valley, Missouri and expanded operations with pits, a fence, a concrete wall, a 12-inch curb, a washout pit and a slag pit to manage runoff.
- A drainage chute and culvert from NRM's property routed water under McGinnis's driveway and into a creek behind her property, with runoff allegedly containing cement and particulates.
- McGinnis owns two adjacent parcels (Schell Road residential and 69 Highway light industrial) where she conducts cabinet-making and residential use; the 69 Highway property is directly south of NRM's plant and zoned light industrial.
- McGinnis alleged repeated overflow of water with sediment from NRM onto her property, causing erosion, wet conditions, mud, sediment on driveways, and damage to carpets and rental income.
- McGinnis asserted damages for temporary nuisance; the jury awarded $50,000 for water overflow but found no temporary nuisance for dust/noise; trespass claim was dismissed.
- The trial court denied NRM's directed verdict and JNOV motions; NRM appealed raising four principal points, including foundation of expert testimony and improper closing arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was McGinnis's temporary nuisance proof substantial? | McGinnis showed unreasonable water runoff causing interference. | McGinnis failed to prove unreasonableness given zoning and use; runoff evidence insufficient. | Sufficient evidence supported unreasonableness; Point I denied. |
| Did McGinnis prove damages for temporary nuisance? | Marx testified to market-based rental loss during the nuisance period and additional incidental damages. | Market value damages are for permanent nuisance; no actual rent losses shown during the nuisance period. | Evidence supported damages; Point II denied. |
| Was Marx's testimony properly foundationed and admissible? | Marx relied on data and methodology adequately; no timely objection required to preserve issue. | Marx lacked proper foundation; objection was waived due to timing. | Waiver and no plain error; Point III denied. |
| Did McGinnis's counsel's closing argument improperly urge a punitive-like "send a message" theme warranting reversal? | No reversible error since no punitive damages were sought and trial court could control prejudice. | "Send a message" arguments are improper and prejudicial when no punitive damages exist. | No abuse of discretion; Point IV denied. |
Key Cases Cited
- Williams v. Monsanto Corp., 856 S.W.2d 338 (Mo.App.1993) (nuisance factors; locality and enjoyment of life)
- Peters v. ContiGroup, 292 S.W.3d 380 (Mo.App.2009) (unreasonableness factors; nuisance analysis)
- Stevinson v. Deffenbaugh Indus., Inc., 870 S.W.2d 851 (Mo.App.1993) (permanent damages not recoverable in temporary nuisance)
- Byrom v. Little Blue Valley Sewer Dist., 16 S.W.3d 573 (Mo.banc 2000) (damages for inconvenience and discomfort; temporary nuisance)
- Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14 (Mo.App.2009) (non-economic damages in nuisance cases)
- Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876 (Mo.banc 1985) (damages for temporary nuisance include decrease in rental value during injury)
- Bollinger v. Am. Asphalt Roof Corp., 224 Mo.App. 98, 19 S.W.2d 544 (Mo.App.1929) (damages in nuisance; early guide on temporary damages)
- Pierce v. Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769 (Mo.banc 1989) (disapproving improper closing arguments; punitive message concerns)
- Amador v. Lea's Auto Sales & Leasing, Inc., 916 S.W.2d 845 (Mo.App.1996) (limits on closing argument; waiver and preservation of error)