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Bare v. Carroll Electric Cooperative Corp.

Court of Appeals of Missouri, Southern District, First Division

April 11, 2017

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,
v.
CARROLL ELECTRIC COOPERATIVE CORPORATION, Defendant-Appellant/Cross-Respondent, and

         APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Robert J. Foulke, Associate Circuit Judge

          OPINION

          JEFFREY W. BATES, P.J

         A jury 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.

         The 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).[1] "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.

         The 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).[2] 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 trial.
(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 appeal.
(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 the evidence.

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 additur).[3]

         The 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 ...


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