Case Information
*1 Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Keller Farms appeals the district court’s [1] directed verdict and the jury’s verdict in favor of appellees the Stewarts. We affirm.
I.
Keller Farms operates a farm in southeast Missouri, where it grows various crops and maintains a number of both windbreak and ornamental trees. The Stewarts also operate a farm in southeast Missouri, to the north and east of Keller Farms’ property. Other farms border, or are in close proximity to, Keller Farms’ property.
In April and May 2015, Keller Farms, the Stewarts, and some operators of neighboring farms applied herbicides to their fields. The Stewarts hired Dennis McGarity to apply herbicides via airplane to their fields, which he did on April 23, 2015. In early May 2015, Keller Farms first detected herbicidal damage to some of its crops. Around this time, Keller Farms also noticed damage to some of its trees.
Keller Farms suspected that herbicide drift caused this damage and submitted a complaint to the Missouri Department of Agriculture (“Department”), which assigned Yvonne Barr to investigate the matter. Based on Barr’s investigation, the Department issued a warning letter to McGarity in February 2016, finding that it was more likely than not that chemicals he applied to the Stewarts’ field had drifted onto Keller Farms’ property. Although Missouri law empowers the Director of the Department to order restitution in such circumstances, see Mo. Rev. Stat. § 281.060.2, the Department opted only to issue McGarity this warning letter.
Keller Farms subsequently sued McGarity and Michael Pemberton (who applied herbicides to a different field farmed by the Hulshofs around the same time *3 McGarity applied herbicides to the Stewarts’ field), alleging negligence, negligence per se , and statutory trespass under Missouri law for applying herbicides in a manner that allowed them to drift onto Keller Farms’ property and cause damage to its crops and trees. Keller Farms later amended its complaint to add the Stewarts and the Hulshofs to hold them vicariously liable for the herbicide drift. The district court dismissed Pemberton from the action after he went bankrupt and dismissed McGarity and the Hulshofs after Keller Farms settled with them. The action thus proceeded against the Stewarts alone.
In a pretrial order, the district court limited Keller Farms’ statutory trespass count to tree damage, concluding that Keller Farms could not recover for crop damage under the plain language of the statute. In a pretrial conference, the district court also excluded two sets of evidence Keller Farms proffered: (1) the February 2016 warning letter issued to McGarity by the Department as well as testimony regarding the findings and conclusions in the letter from Darryl Slade, who was at that time the Enforcement Program Coordinator for the Department; and (2) two warning letters the Department issued to McGarity regarding other instances where it found he likely caused herbicide drift. During trial but before submitting the case to the jury, the district court directed a verdict for the Stewarts on the statutory trespass claim because Keller Farms failed to present sufficient evidence of tree damage. The district court allowed the negligence and negligence per se claims to go to the jury, which returned a verdict in favor of the Stewarts on both counts.
The district court then entered final judgment in favor of the Stewarts on all counts. Keller Farms moved for a new trial, challenging the district court’s directed verdict on the statutory trespass count, its exclusion of evidence, and the jury’s verdict on the negligence and negligence per se counts. The district court denied the motion. Keller Farms appeals.
II.
This is a diversity case arising out of Missouri. As such, “we apply state
substantive law and federal procedural law.”
Barkley, Inc. v. Gabriel Bros., Inc.
,
A.
Keller Farms asserts that the district court erred in two ways in directing a
verdict against it on its statutory trespass count. We review
de novo
both a district
court’s grant of judgment as a matter of law and a district court’s interpretation of
state law.
Wurster v. Plastics Grp., Inc.
, 917 F.3d 608, 617 (8th Cir. 2019);
Klingenberg v. Vulcan Ladder USA, LLC
,
First, Keller Farms argues that the district court read the Missouri trespass statute in an “overly-technical” manner to exclude Keller Farms’ claim for crop damage. The statute under which Keller Farms brought this trespass claim provides:
If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament . . . or shall dig up, quarry or carry away . . . any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which such person has no interest or right . . . the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs.
Mo. Rev. Stat. § 537.340.1. The district court reasoned that only Keller Farms’ claim for tree damage was actionable under the statute because it makes “injury” to trees compensable but requires crops to be dug up, cut down, or carried away, which did not take place in this case. The district court was correct.
In Missouri, when a statute is unambiguous, “[t]here is no room for
construction,” and “[c]ourts are without authority to read into a statute a legislative
intent contrary to the intent made evident by the plain language.”
Kearney Special
*5
Road Dist. v. Cty. of Clay
, 863 S.W.2d 841, 842 (Mo. 1993). Here, the statute
permits an action against a person who “injure[s]” another’s trees but only permits
an action against a person who “dig[s] up,” “carr[ies] away,” or “cut[s] down”
another’s “plants” such as “grass” or “grain.” Mo. Rev. Stat. § 537.340.1. The
“express mention” of injury with respect to trees “coupled with [the] obvious
omission” of injury with respect to crops indicates that only injury to trees is
actionable under the statute.
Cf. Mo. Chamber of Commerce & Indus. v. Mo. Ethics
Comm’n
,
This reading of section 537.340 is supported by the terms of a related Missouri
statute.
See Disalvo Props., LLC v. Bluff View Commercial, LLC
,
Second, Keller Farms argues that it proffered sufficient evidence to make a submissible case for its statutory trespass claim concerning damage to its windbreak and ornamental trees. We disagree.
In Missouri, the measure of damages under section 537.340 for injury to trees
that “have no substantial market value” if cut down—such as “trees used for a
windbreak, and ornamental or shade trees”—is the diminution in value of the
*6
underlying real estate caused by the injury.
Barnes v. Ark.-Mo. Power Co.
, 281 S.W.
93, 95-96 (Mo. Ct. App. 1926);
accord Ridgway v. TTnT Dev. Corp.
, 126 S.W.3d
807, 815 (Mo. Ct. App. 2004);
Brand v. Mathis & Assocs.
,
That being said, in
Tong v. Kincaid
, the Missouri Court of Appeals suggested
the measure of damages under section 537.340 was not diminution in value alone
but rather the lesser of “the cost of restoring the property” and “the difference in fair
market value” of the property “before and after the injury.”
Keller Farms argues that it produced evidence showing that its trees “had no
value in their hypothetical severed state.” We accept this claim for purposes of this
appeal.
See Barnes
,
Keller Farms nevertheless argues that section 537.340 “provides for recovery
of ‘the value of the things so injured’ as the measure of damages” rather than the
diminution-in-value measure. But the
Barnes
court rejected this exact argument,
holding that “notwithstanding the use of the word ‘thing’ in the statute,” the measure
of damages for injury to trees without substantial market value in a case brought
under section 537.340 “is the difference in value of the premises immediately before
and after the trespass.”
Keller Farms also argues that “replacement cost” is the appropriate measure of damages for injury to its windbreak trees because damages to those trees were “relatively insignificant compared to the overall value of the property” and Missouri caselaw suggests “replacement cost” is the proper measure of damages in such circumstances. But none of the authorities cited by Keller Farms for this proposition involve a claim for tree damage under the trespass statute. These cases do acknowledge, however, that “[t]he particular facts and circumstances of each case dictate” the applicable measure of damages. Dubinsky v. U.S. Elevator Corp. , 22 S.W.3d 747, 751 (Mo. Ct. App. 2000). In cases involving claims under section 537.340 for damage to windbreak or ornamental trees, Missouri courts have instructed that the applicable measure of damages “must be distinguished” from the measure of damages applicable in other situations. See Beaty v. N.W. Elec. Power Coop., Inc. , 312 S.W.2d 369, 371 (Mo. Ct. App. 1958); see, e.g. , Ridgway , 126 S.W.3d at 815. The authorities on which Keller Farms relies are thus inapposite.
Additionally, Keller Farms argues that the “trunk formula method”—a
method its expert used to determine “the value of each tree” in order to come up with
a damages figure—provides the proper measure of damages for injury to its
ornamental trees. As it admits, however, “no Missouri court has specifically
authorized the use of this method of computing damage to ornamental trees . . . .”
*8
For good reason, it seems: cases discussing the trunk formula method suggest it is
a different measure of damages than the diminution-in-value measure Missouri
courts apply in this context.
See Rover Pipeline, LLC v. 1.23 Acres of Land
, C.A.
No. 17-cv-10365,
Similarly here, “the difference in the fair market value of the real estate” is
the exclusive measure of damages involving injury to trees on that real estate that do
not have substantial market value on their own.
Ridgway
,
B.
Keller Farms also takes issue with the district court’s exclusion of two
different sets of evidence: (1) the Department’s February 2016 warning letter to
McGarity and Slade’s testimony about the conclusions in that letter; and (2) two
other warning letters issued to McGarity finding him likely responsible for herbicide
drift in other incidents. Whether evidence is admissible is a question of federal law,
Clark v. Martinez
,
The district court excluded the February 2016 warning letter as well as Slade’s testimony about it under Federal Rule of Evidence 403 after finding that this evidence “would be unfairly prejudicial because it would suggest to the jury that an official fact-finding body had already decided whether McGarity” was responsible for Keller Farms’ damages, thereby invading the province of the jury. This decision was not an abuse of discretion.
With respect to expert testimony regarding ultimate issues of fact, we have
warned that “courts must guard against invading the province of the jury on a
question which the jury was entirely capable of answering” on its own based on the
other evidence available.
Robertson v. Norton Co.
,
The same is true of its decision to exclude the February 2016 warning letter.
Generally, the admissibility of “administrative findings” of this sort is “left to the
sound discretion of the trial court.”
Johnson v. Yellow Freight Sys., Inc.
, 734 F.2d
1304, 1309 (8th Cir. 1984). A district court does not abuse its discretion in excluding
such evidence where such findings have “little probative value” due to their
“conclusory” nature and “substantial evidence” concerning the “matters summarized
in the report” is otherwise presented to the jury.
Id.
at 1309-10. This was precisely
the case here. The February 2016 warning letter was a conclusory two-page
document, and Keller Farms proffered evidence from “numerous other witnesses”
testifying in support of its contention that McGarity’s herbicide application drifted
onto Keller Farms’ land. The district court exercised “sound discretion” in
*10
excluding this letter, which we “decline to disturb.”
See Dindinger v. Allsteel, Inc.
,
The district court excluded the other two warning letters under Rule 403 after finding that the “probative value” of these two letters was “substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury.” The district court also noted that Keller Farms would “be able to question Mr. McGarity about what sort of precautions he takes when performing aerial spraying of herbicides.” The district court did not abuse its discretion in excluding these letters.
Generally, “[e]vidence of a . . . wrong . . . is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Keller Farms argues that this evidence should have been admitted to establish whether McGarity applied the herbicides “in such a way as to allow them to drift onto the Keller Farms property.” That is, Keller Farms proffered this evidence to show that McGarity acted in accordance with his purportedly negligent character when he crop dusted the Stewarts’ field. Rule 404 prohibits this.
To avoid Rule 404’s prohibition of propensity evidence, Keller Farms argues
that this evidence should have been admitted because it had “another purpose,” Fed.
R. Evid. 404(b)(2), namely, to show that McGarity had “notice of a dangerous
condition,”
see Hicks v. Six Flags over Mid-America
,
C.
Finally, Keller Farms argues that the district court should have set aside the
verdict and granted Keller Farms’ motion for a new trial both because the jury’s
verdict was against the weight of the evidence and because the Stewarts made an
improper closing argument resulting in jury nullification. We review the denial of a
motion for a new trial for an abuse of discretion, bearing in mind that such motions
“are generally disfavored and will be granted only where a serious miscarriage of
justice may have occurred.”
United States v. Petroske
,
First, the district court did not abuse its discretion in denying the motion for a
new trial on the ground that the verdict was against the weight of the evidence.
“Where the basis of the motion for a new trial is that the jury’s verdict is against the
weight of the evidence, the district court’s denial of the motion is virtually
unassailable on appeal,”
Keenan v. Computer Assocs. Int’l, Inc.
,
Second, the district court did not abuse its discretion in denying the motion
for a new trial on the ground that the Stewarts’ closing argument was improper.
“[W]hen a new trial motion is based on improper closing arguments, a new trial
should be granted only if the statements are plainly unwarranted and clearly injurious
and cause prejudice to the opposing party and unfairly influence a jury’s verdict.”
Harrison v. Purdy Bros. Trucking Co.
,
Keller Farms takes issue with comments made by the Stewarts’ counsel in
closing argument that Keller Farms argues suggested to the jury that it should
disregard the law and render a verdict for the Stewarts out of sympathy. But, even
assuming Keller Farms’ characterization of these comments is correct, any prejudice
Keller Farms ostensibly suffered was cured by the district court’s instructions and
Keller Farms’ closing argument. The district court instructed the jury at the start of
trial that attorneys’ statements and closing arguments were not evidence and that the
jury could not let its judgment be affected by sympathy, and the district court
reminded the jury before closing arguments that these instructions were still in
effect. Keller Farms then had a chance to rebut the Stewarts’ closing argument,
reminding the jury that it had to follow the law and could not be swayed by
sympathy. The district court’s admonition to the jury “at the beginning of trial . . .
that statements made by the attorneys are not evidence,” coupled with Keller Farms’
rejoinder to the Stewarts’ closing argument, “remedied any prejudice incurred” by
Keller Farms.
See Billingsley v. City of Omaha
,
III.
We affirm the district court’s entry of judgment in favor of the Stewarts on all counts in Keller Farms’ amended complaint, and we affirm its denial of Keller Farms’ motion for a new trial.
______________________________
Notes
[1] The Honorable Abbie Crites-Leoni, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).