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 reconsolidat-ing 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 sub-
This is a purely legal question and, therefore, the standard of review is
de novo. Townsend v. E. Chem. Waste Sys.,
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,
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,
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.
Missouri cases consistently refer to plaintiffs being able to recover for the loss
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.,
Therefore, Respondents did make a sub-missible 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,
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 evidence “from which the jury could reasonably find such issue.” Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254 , 258 (Mo. banc 1995). “Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case.” Powderly v. S. County Anesthesia Assocs. Ltd..,245 S.W.3d 267 , 276 (Mo.App.2008). If the instruction is not supported by substantial evidence, there is instructional error, which warrants reversal “only if the error resulted in prejudice that materially affects the merits of the action.” Bach,257 S.W.3d at 608 .
Hayes v. Price,
All the verdict directors in this case contained an alteration to the third paragraph of MAI 22.06 which allowed the jury to find that the nuisance caused by PSF’s hog operation was the result of either “ill-smelling odors or other emissions.” “Emissions” is not separately defined in the verdict directors. Words in the verdict director that are undefined are given their plain and ordinary meaning. “The dictionary may be used to derive the plain and ordinary meaning of a term.”
State ex rel. Proctor v. Messina,
At trial, there was substantial evidence admitted that PSF’s hog operations emitted numerous gases and chemicals. Experts from both sides testified to such. For example, Robert Brundage in his video deposition admitted that PSF emits such things as hydrogen sulfide, ammonia. He also agreed that it made sense that “gaseous material, chemical compounds [ ... ] that create odor, such as hydrogen sulfide and ammonia, can attach themselves to particulate matter, dust particles [... ] and be moved by the wind.” These gases and chemicals were only one of the sources of the ill odor that came from PSF’s property.
There was also substantial evidence that land application of swine effluent caused an intense odor. Expert Ron Sheffield testified that hog operations, including PSF, seal off lagoons full of hog effluent to prevent the escape of ammonia emissions. He also testified that PSF’s land application process was essentially digging up soil and applying the hog effluent in such a way that left a pool of effluent at the top of the soil which “releas[es] odorous compounds up into the air that could potentially go off-site.” There was also testimony that the “travelling gun” sprayed pig effluent up into the ah’ about 300 feet and travelled with the wind onto Respondents’ land. Further, several Respondents testified that the odor was worse when it rained. The inference from this testimony as to worsening smell at times of precipitation could be interpreted to mean that emissions escaped from PSF’s hog operation into the air that were less odorous or non-odorous until it rained. These “emissions” would not be ill odors until acted upon by an outside force. Therefore, the evidence supported the jury’s finding that PSF released “other emissions” that interfered with the Respondents’ use and enjoyment of their property by becoming an ill odor under certain environmental conditions.
There was substantial testimony that both ill odors from gasses and chemicals released from PSF’s hog operation and other emissions (such as hog effluent), which cause ill odors, traveled from PSF’s land onto the Respondents’ properties.
Point Three is denied.
In Point Four, PSF argues the Circuit Court erred in reconsolidating Respondents’ individual nuisance cases for trial by proximity to each PSF operation because the evidence before the court supported the original Severance Order but not reconsolidation in that the claims of each Respondent arose from unique factual circumstances and the consolidation of Respondents’ claims was likely to and did result in jury confusion and undue prejudice to PSF.
As originally filed, the Respondents were part of a larger class of sixty-one plaintiffs who sued PSF in two actions. 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. The Circuit Court later granted a Motion for Partial Reconsolidation, reconsolidating the individual cases into three groups for trial based on proximity of the Respondents’ property to each PSF hog farming operation. Respondents’ properties are all in close proximity to PSF’s hog farming operation in Gentry County.
Rule 66.01(b)
3
allows the circuit court to consolidate civil cases for trial if any or all matters in issue involve common questions of law or fact. “The decision whether to consolidate separate proceedings lies in the discretion of the trial court.”
In re Adoption of H.M.C.,
When reviewing for an “abuse of discretion” we presume the trial court’s finding is correct, and reverse only when the ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
Ziolkowski v. Heartland Reg’l Med. Ctr.,
In the instant case, all Respondents had the following questions of fact and law in common: (1) the same cause of action; (2) against the same defendant, (3) against the same hog operation in Gentry county; (4) identical claims that the odors from the hog operation were detrimental to the use and enjoyment of their property; and (5) the same time period, 1999 to 2010. Given the overwhelming overlap of the facts of the cases, we cannot say that the circuit court abused its discretion in ordering these cases consolidated. As originally filed, the Respondents consisted of sixty-one individuals in three separate counties filing suit against PSF for three separate hog operations. The Circuit Court’s decision to consolidate the cases based on proximity of the Respondents property to
PSF argues that the order to consolidate the cases was an abuse of the circuit court’s discretion. PSF’s cites
State ex rel. Rosen
for the proposition that after a court validly exercises its discretion to issue an order, it cannot immediately thereafter and on the same state of facts proceed to exercise its discretion and nullify the order.
See State ex rel. Rosen v. McLaughlin,
Point Four is denied.
In Point Five, PSF argues the Respondents were judicially estopped from offering the testimony of an expert witness, Dr. Lawrence, that flies traveled from PSF’s hog operation to Respondents’ properties and that PSF’s operation posed a risk of adverse health consequences for Respondents because Respondents had previously represented to the court that their nuisance claims did not include fly, health, or medical components when they argued successfully for reconsolidation of the actions.
“The trial court has broad discretion to admit or exclude evidence,” and “[w]e will affirm the trial court’s decision absent a clear abuse of discretion.”
Wiley v. Homfeld,
Judicial estoppel “in its basic form, applies to prevent litigants from taking a position in one judicial proceeding, thereby obtaining benefits from that position in that instance and later, in a second proceeding, taking a contrary position in order to obtain benefits from such a contrary position at that time.”
Shockley v. Dir., Div. of Child Support Enforcement,
Judicial estoppel in Missouri is a principle that has been utilized primarily to prevent litigants from deriving a benefit by taking contradictory positions at different judicial
proceedings.
In
Shockley,
the Division of Child Enforcement (“Division”) treated a judgment as a court order when it attempted to increase the father’s child support obligations.
PSF’s citation to Missouri cases in which it claims that judicial estoppel should apply in the same action before the same trial judge are unpersuasive. In
Jefferies v. Jeffries,
The trial judge is granted great discretion on the admission of evidence.
Wiley,
Point Five is denied.
In Point Six, PSF argues the Circuit Court erred in not setting aside the verdicts and ordering a new trial because the awards of compensatory damages were grossly excessive and were caused by passion and prejudice of the jury resulting from errors by the trial court in that the court improperly consolidated Respondents’ claims, admitted improper evidence, and gave erroneous instructions to the jury.
The jury awarded damages of $825,000 each to thirteen of the fifteen Respondents, $250,000 to Phyllis Owens, and $75,000 to Billie Sue Miller, for a total verdict of $11,050,000.00.
The assessment of damages is primarily a function of the jury. Emery v. Wal-Mart Stores, Inc.,976 S.W.2d 439 , 448 (Mo. banc 1998). A trial court has great discretion in approving a verdict or setting it aside as excessive. [Letz v. Turbomeca Engine Corp., 975 S.W.2d155, 174 (Mo.App. W.D.1997) ]. An appellate court, therefore, “will interfere only when the verdict is so grossly excessive that it shocks the conscience of the court and convinces the court that both the jury and the trial court abused their discretion.” Id. (quoting Fust v. Francois, 913 S.W.2d 38 , 49 (Mo.App. E.D.1995)).
Armon v. Griggs,
The alleged errors cited by PSF have already been discussed and rejected herein. PSF claims (1) the Circuit Court improperly reconsolidated Respondents’ claims for trial; (2) the Circuit Court permitted Respondents to introduce the testimony of Dr. Lawrence despite the fact that Respondents were judicially estopped from making the types of nuisance claims to which his testimony was relevant; (3) the Circuit Court altered the relevant MAI instruction to permit Respondents to recover noneconomic damages for properties on which they should have been limited to economic damages; and (4) included in the verdict directors for all Respondents, a basis to recover for “other emissions” that was not supported by the evidence. As each of these claims have already been discussed and rejected, PSF can point to no trial error upon which to base their claim of bias or prejudice of the jury that resulted in an excessive verdict.
See Giddens v. Kansas City Southern Ry. Co.,
PSF also fails to meet the showing under the second prong of the exces-siveness test that the verdict is so grossly excessive as to shock the conscience. While there is no precise formula, Missouri courts look to the following factors to determine whether a jury verdict for compensatory damages is excessive:
(1) loss of income, both present and future; (2) medical expenses; (3) plaintiffs age; (4) the nature and extent of plaintiffs injuries; (5) economic considerations; (6) awards approved in comparable cases; and (7) the superior opportunity for the jury and the trial court to evaluate plaintiffs injuries and other damage.
McCormack v. Capital Elec. Const. Co.,
PSF focuses a large amount of its attention in its argument on the property value of the homes and farms in question compared to the awards received by the Respondents. PSF states in its brief that “[a]ny award significantly exceeding the total value of the property is far more than necessary to compensate a plaintiff for the temporary impairment in the use of that property and is grossly excessive.” PSF, however, cites no authority to support this proposition. This was not a permanent nuisance case. “A nuisance is temporary if it may be abated, and it is permanent if abatement is impracticable or impossible.”
Peters v. ContiGroup,
Finally, while PSF on appeal argues that the verdict is excessive, at trial they failed to even address the issue of damages in argument to the jury. The Respondents argued damages in closing argument to the jury and asked for 2.8 million dollars per household. PSF chose to argue that the odor emanating from the hog operation did not substantially impair the Respondents’ use and enjoyment of their property. The jury found that the odor did, in fact, substantially impair the Respondents’ use and enjoyment of their properties and determined that each household should receive damages. While it may be a perfectly valid trial strategy to argue the issue of liability solely and not address damages to the jury, we reject PSF’s attempt now to litigate for the first time what they failed to do at trial.
Point Six is denied.
Conclusion
For the reasons set forth herein, the judgment of the trial court is hereby affirmed.
All concur.
Notes
. We will refer to these individuals collectively as ''Respondents,” and we will refer to them by name when addressing issues unique to an individual.
. The two actions were styled Adwell, et al. v. ContiGroup Companies, Inc., et al. Case Nos. 02-CV221554 and 02-221529 (Cir. Ct. Jackson County).
. All rule citations are to Missouri Supreme Court Rules (2010), unless otherwise indicated.
. All statutory references are to RSMo 2000, as updated through the 2010 cumulative supplement, unless otherwise indicated.