Court of Appeals of Missouri, Southern District, First Division
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, Plaintiffs-Respondents/Cross-Appellants,
CARROLL ELECTRIC COOPERATIVE CORPORATION, Defendant-Appellant/Cross-Respondent, and
FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Robert J.
Foulke, Associate Circuit Judge
JEFFREY W. BATES, P.J
found for Steven and Suzanne Bare (the Bares) and against
defendant Carroll Electric Cooperative Corporation (Carroll
Electric) and defendant Seven Valleys Construction Company
(Seven Valleys) on the Bares' claim for common law
trespass. The jury assessed actual damages against Carroll
Electric and Seven Valleys in the amount of $6, 560. In
addition, Carroll Electric was found liable for $75, 000 in
punitive damages. Carroll Electric filed a motion for new
trial challenging the award of punitive damages as excessive
and an alternative motion requesting "[r]emittitur
pursuant to Rule 78.10" of the amount of punitive
damages on the same ground. The trial court denied the motion
for new trial, granted the motion for remittitur and reduced
the award of punitive damages against Carroll Electric to
$35, 000. Because the trial court failed to follow the
remittitur procedure established by Rule 78.10, however, the
court did not resolve all of the issues relating to the
jury's award of punitive damages. Therefore, we dismiss
the appeal for lack of a final judgment.
statutory basis for the appeal in this case is §
512.020, which authorizes an appeal from a "[f]inal
judgment in the case …." § 512.020(5). This
Court is obligated to determine, sua sponte if
necessary, whether a final judgment exists so as to provide
statutory authority to hear the appeal. First National
Bank of Dieterich, f/k/a First State Bank Of Red Bud v.
Pointe Royale Property Owners' Association, Inc.,
No. SC95865, 2017 WL 1228807, at *2 (Mo. banc Apr. 4,
2017). "A final judgment is a prerequisite
to appellate review. If the circuit court's judgment was
not a final judgment, then the appeal must be
dismissed." Ndegwa v. KSSO, LLC, 371 S.W.3d
798, 801 (Mo. banc 2012) (internal citations omitted);
see also Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo.
Banc 2011); Gibson v. Brewer, 952 S.W.2d 239, 244
(Mo. banc 1997); City of St. Louis v.
Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997). A final
judgment resolves all issues in a case, leaving nothing for
future determination. Ndegwa, 371 S.W.3d at 801;
Gibson, 952 S.W.2d at 244.
practice of common law remittitur was abolished by our
Supreme Court in Firestone v. Crown Center Redevelopment
Corp., 693 S.W.2d 99, 110 (Mo. banc 1985). It was
legislatively revived in 1987 by statute:
A court may enter a remittitur order if, after reviewing the
evidence in support of the jury's verdict, the court
finds that the jury's verdict is excessive because the
amount of the verdict exceeds fair and reasonable
compensation for plaintiff's injuries and damages. A
court may increase the size of a jury's award if the
court finds that the jury's verdict is inadequate because
the amount of the verdict is less than fair and reasonable
compensation for plaintiff's injuries and damages.
§ 537.068 RSMo (2000). Another 1987 statute, §
510.263, authorized remittitur of punitive damages as well.
"The doctrines of remittitur and additur, based on the
trial judge's assessment of the totality of the
surrounding circumstances, shall apply to punitive damage
awards." § 510.263.6. Thus, a trial court has broad
discretion to remit a punitive damage award if, after
reviewing the evidence supporting the jury's award, the
court finds the verdict is excessive because the amount
exceeds fair and reasonable compensation for the
plaintiff's damages. Ellison v. O'Reilly Auto.
Stores, Inc., 463 S.W.3d 426, 440-41 (Mo. App. 2015);
Blanks v. Fluor Corp., 450 S.W.3d 308, 412 (Mo. App.
2014); § 537.068 RSMo (2000). The requirement to
evaluate punitive damages awards case-by-case using a
multi-factor analysis is generally sufficient to satisfy the
requirements of due process. Call v. Heard, 925
S.W.2d 840, 849 (Mo. banc 1996); Mansfield v.
Horner, 443 S.W.3d 627, 643-44 (Mo. App. 2014) (the
legislature effectively codified the obligation to consider
due process implication in § 510.263); Smith v.
Brown & Williamson Tobacco Corp., 275 S.W.3d 748,
810-11 (Mo. App. 2008). The statutory remittitur provisions
are further refined by Rule 78.10, which states:
(a) Any party requesting additur or
remittitur shall file a motion for such relief within the
time prescribed by Rule 78.04 for filing a motion for new
(b) If the court sustains the motion in
whole or in part, the court's order shall afford each
party opposing such relief the option to file an election of
a new trial. The election of a new trial shall be filed
within 30 days of the date of the order. The order sustaining
the motion shall specify whether the new trial will be on
damages or on all issues. Absent timely election, each party
opposing such relief shall be deemed to have accepted the
additur or remittitur. If additur or remittitur is accepted,
the trial court shall promptly amend the judgment to conform
to the additur or remittitur.
(c)A party that requested additur or
remittitur in the trial court and received less than the full
relief requested may renew the request in the appellate
court. If the appellate court grants additional relief, in
whole or in part, it shall afford each party opposing such
relief the option to file in the circuit court an election of
a new trial. The election shall be filed within 30 days of
the date of the mandate. The decision granting additional
relief shall specify whether the new trial will be on damages
or on all issues. Absent timely election, each party opposing
such relief shall be deemed to have accepted the additur or
remittitur. If additur or remittitur is accepted, the trial
court shall promptly amend the judgment to conform to the
additur or remittitur.
(d) Consent to any additur or remittitur
that the trial court awards in lieu of a new trial does not
preclude the consenting party from arguing on appeal that the
amount of the verdict was proper or that the amount of the
additur or remittitur is excessive. A party consenting to
additur or remittitur may not initiate the appeal on that
ground but may raise the issue on the other party's
(e) Neither the trial court nor the
appellate court may award additur or remittitur more than
once on the ground that the damages are against the weight of
Id. (italics added). As Rule 78.10(b) makes clear,
the remittitur procedure requires the trial court's order
to: (1) grant the motion in whole or in part; (2) give the
opposing party the option to file an election for a new
trial; and (3) specify whether the new trial will be on
damages or on all issues. Id. As our Supreme Court
explained in Badahman v. Catering St.
Louis, 395 S.W.3d 29 (Mo. banc 2013), a trial court must
find grounds for, and conditionally grant, a new trial when
sustaining a motion for remittitur. "The circuit court
should not sustain a motion for additur or remittitur under
§ 537.068 without having determined that the verdict is
against the weight of the evidence and that the party moving
for additur or remittitur is entitled to a new trial."
Id. at 38 (citation and footnote omitted); see
Stewart v. Partamian, 465 S.W.3d 51, 59 (Mo. banc 2015)
(trial court's decision to grant remittitur constitutes a
ruling on the weight of the evidence); Emery v.
Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo.
banc 1998) (same holding); see also Bishop v.
Cummines, 870 S.W.2d 922, 924 n.2 (Mo. App. 1994)
(remittitur and additur are premised on the idea that the
party against whom the new trial will be granted be given the
option of agreeing to the remittitur or
procedures set out in Rule 78.10(b) specify how the case
progresses once the trial court decides to grant the
remittitur motion. If the opposing party consents to the
remittitur and thereby waives the right to a jury trial on
the damages issue, then the trial court has the authority to
enter an amended judgment conforming to the remitted amount.
Rule 78.10(b); see Badahman, 395 ...