Bare v. Carroll Elec. Coop. Corp.

558 S.W.3d 35
CourtMissouri Court of Appeals
DecidedMarch 13, 2018
DocketNo. SD 34975
StatusPublished
Cited by3 cases

This text of 558 S.W.3d 35 (Bare v. Carroll Elec. Coop. Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bare v. Carroll Elec. Coop. Corp., 558 S.W.3d 35 (Mo. Ct. App. 2018).

Opinion

DON E. BURRELL, J.

Carroll Electric Cooperative Corporation ("Carroll Electric") appeals a judgment1 in favor of Steven M. Bare and Suzanne M. Bare, Co-Trustees of the Steven M. Bare and Suzanne M. Bare Joint Revocable Trust Agreement Dated January 12, 2005 ("Landowner"), for common-law trespass in connection with the manner and extent of the clearing of a right-of-way easement Carroll Electric acquired from Landowner.2 The judgment awarded Landowner $12,224.47 in actual damages (plus court costs), $75,000 in punitive damages, and $59,455.55 in attorney fees.

The judgment also awarded actual damages and court costs (but not punitive damages) in favor of Landowner against a second defendant, Seven Valleys Construction Company ("Seven Valleys"), the entity Carroll Electric retained to clear the right-of-way and pile the resulting severed trees and brush on Landowner's land.3 Landowner claimed, inter alia , that Seven Valleys acted as Carroll Electric's agent in trespassing beyond the right-of-way they ceded to Carroll Electric and that the conduct of both defendants was "outrageous" due to "evil motive or reckless indifference to the rights of others."

Carroll Electric's first two points claim the trial court erred in denying Carroll Electric's motions for directed verdict4 *40and judgment notwithstanding the verdict, or alternatively, a new trial ("JNOV motion"), because Landowner failed to make a submissible case that: (1) Seven Valleys was an agent of Carroll Electric in that there was no substantial evidence "that Carroll Electric controlled or had the right to control the physical conduct of Seven Valleys in the clearing of the" right-of-way; and (2) Landowner's "evidence failed to identify any conduct of Carroll Electric that was outrageous or reckless[.]" Point 2 also claims the trial court erred as a matter of law in submitting punitive damages to the jury "based upon the conduct of employees of Seven Valleys[.]"

Point 3 claims "[t]he trial court erred by giving Instruction No. 15[,] submitting the issue of punitive damages" ("the punitive damages verdict director"), when "there was no substantial evidence that" Carroll Electric's conduct was outrageous due to an "evil motive or reckless indifference to the rights of others." Point 4 claims the trial court erred in denying "Carroll Electric's motion for remittitur [ ("the remittitur motion") ] to set aside the punitive damage award ... in its entirety" because "the jury did not find Seven Valleys liable for punitive damages" and the "entire theory of liability against Carroll Electric was based upon respondeat superior liability[.]"

Point 5 challenges the judgment's award of attorney fees to Landowner on the ground that section 523.283.45 does not allow such fees in cases of common law trespass and Landowner did not claim that there had been an " 'expanded use' as defined by that statute." Finally, Point 6 presents the alternative claim that if the punitive damages award is not otherwise set aside, the trial court abused its discretion in denying the remittitur motion because the amount of the award ($75,000) is excessive based upon the totality of the surrounding circumstances and thereby violated Carroll Electric's due-process rights.

Finding no merit in any of Carroll Electric's points, we affirm the judgment. We also grant in part Landowner's "MOTION FOR ATTORNEY'S FEES ON APPEAL " ("attorney fees motion"), and the matter is remanded to the trial court to enter such an award.

*41The Relevant Evidence

Before the easement was executed, Landowner met with representatives from Carroll Electric on a few occasions, and their discussions included what would happen to the trees and brush cleared from the right-of-way and whether Carroll Electric would need to go beyond the boundaries of the right-of-way in clearing trees. The easement "granted to [Carroll Electric] the perpetual right to clear and keep clear" the right-of-way, and it also permitted the removal of trees and "all other obstacles outside of the [right-of-way] that are tall enough to strike the transmission line[.]"

Landowner was concerned that this language seemed vague, and Carroll Electric's field service supervisor, Michael Allen,6 told Landowner that the language was in the easement so that Carroll Electric could " 'take danger trees[.]' " Mrs. Bare asked if Carroll Electric "would just take that [danger tree provision] out since it was so vague[.]" Representatives from Carroll Electric "said no, but they said, " 'You have nothing to worry about.' " Carroll Electric's design engineer, Bryce Barton, had walked the portions of the right-of-way where the trees were located and the lay-of-the-land was visible. Both Mr. Barton and Mr. Allen "assured [Landowner] that they could do the project in 100 feet" (the width of the right-of-way). Mr. Allen indicated that there would be no exception requiring the right-of-way to be wider than 100 feet. Mr. Allen told Landowner that Carroll Electric would only need to go beyond the right-of-way "in case of an emergency, an ice-storm-type situation[.]"

Mr. Allen also said that if damage occurred to Landowner's property outside of the right-of-way, then Landowner should "make a written claim to Carroll Electric and they would take care of restoring or repairing the damage." Mrs. Bare testified that she would not have signed the "Agreement for Compensation" ("the easement contract") if these promises had not been made by Carroll Electric.

The easement contract did not address where the trees and brush cleared from the right-of-way would be placed. Mr. Allen told Landowner that Carroll Electric would " 'just leave the timber on the edge of our right-of[-]way.' " Landowner clarified that this meant that the cleared trees and brush would be " '[o]n the edge of your right-of-way, not the edge of our [Landowner's] land?' and [Mr. Allen] said, 'Yes[.]' "

The easement contract consisted of a single page. It guaranteed payment of $9,060 to Landowner for the easement, and it included typewritten language at the bottom of the page: "Note: Logs shall be left on the edge of right-of-way for landowner" ("the typed-note").7 Mrs. Bare recalled *42that someone from Carroll Electric said that the typed-note "satisfied what we had discussed about [the cleared trees and brush] being left on the edge of" the right-of-way.

In September 2010, Landowner executed the easement contract. The version of the easement contract introduced at trial contained a hand-written note that stated: " 'Brush also to be left pushed off edge of right-of-way.' " Mrs. Bare did not recognize the handwriting, and she was sure that the hand-written note was not on the easement contract when she signed it. If it had been, she would have "done something about it" when she was about to sign it. Mr. Allen testified that he had added the hand-written note to the easement contract.8

Carroll Electric also had a contract with Seven Valleys ("the Seven Valleys contract") for clearing the right-of-way and certain areas of other parties' lands to make way for the electric transmission line ("the project").

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Bluebook (online)
558 S.W.3d 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bare-v-carroll-elec-coop-corp-moctapp-2018.