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Bare v. Carroll Electric Cooperative Corp.

Court of Appeals of Missouri, Southern District, First Division

March 13, 2018

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,


          DON E. BURRELL, J.

         Carroll Electric Cooperative Corporation ("Carroll Electric") appeals a judgment[1]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 verdict[4] and 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 523.283.4[5] 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.

         The 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 that 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"). The Seven Valleys contract stated that Seven Valleys would "perform the work as an independent contractor, not as a subcontractor, agent, or employee of [Carroll Electric, ]" but it also reserved to Carroll Electric "the right to require the removal from the project of any employee of [Seven Valleys] if in the judgment of [Carroll Electric] such removal shall be necessary in order to protect the interest of [Carroll Electric]." It also compelled Seven Valleys to increase the number of its employees on the project. Carroll Electric could also require Seven Valleys to increase or change its tools or equipment.

         The engineer employed by Carroll Electric ("the engineer") was the authority to "designate all danger trees which shall be removed or topped at option of [Carroll Electric]." Seven Valleys could "not suspend work [pursuant to the recommendation of the engineer] without written authority from [Carroll Electric to do so]." Carroll Electric was entitled to Seven Valleys' records and other information concerning the project and Seven Valleys.

         Mr. Allen inspected Seven Valleys' work on the project. Mr. Allen "had the ability to correct [Seven Valleys'] work if it was being done incorrectly, " and he could talk to Seven Valleys' foreman if there was a problem. Mr. Allen could stop something like "putting logs off of the right-of-way" if he "felt that was wrong[.]" As he inspected the clearing work, he made "sure [that] they wasn't [sic] leaving stumps real high, making sure they was [sic] cutting it to the width. If there was [sic] any danger trees, [he] made sure they . . . was [sic] getting them, making sure they was [sic], you know, following what we would want."

         Portions of deposition testimony given by the president of Seven Valleys, Robert D. Ennes, were read to the jury. Mr. Ennes said that the project was about 10 miles long, and there was never a "reason or occasion for [Seven Valleys] to go -- for [its] crew to go outside the 100-foot easement[.]" Inspectors from Carroll Electric "made sure [Seven Valleys] was in the right place" and oversaw the "daily progress" on the project. It was Carroll Electric's "job" to determine whether there were any danger trees that should be removed by Seven Valleys.

         Carroll Electric's supervisor could tell Seven Valleys' supervisor, Gary Hendrix, not to chop down a particular tree, and Mr. Ennes felt that employees of Seven Valleys were "under the control of" the Carroll Electric supervisor. Mr. Ennes was never on Landowner's property while the clearing work was being performed. Seven Valleys tried to accommodate Landowner in where they placed the cleared trees and brush, but if it was up to Mr. Ennes, he "would probably put them on the right-of-way on the edge" because he would not "want to get off the right-of-way."

         Mr. Hendrix recalled that he spoke with Mr. Allen "every day or every other day" during work on the project. Before Seven Valleys began clearing the right-of-way, but while they were clearing part of a neighboring property, Mr. Hendrix told Mr. Bare that Seven Valleys would not be clearing anything wider than 100 feet across Landowner's property. As the clearing work got closer to Landowner's property, Mr. Bare again asked Mr. Hendrix "if we were still good for the 100 foot wide all the way through my property and not any wider anywhere." Mr. Hendrix replied "no, " and that Mr. "Allen had told him to take mature trees 20 foot wide on each side of the north and the south boundary." Mr. Bare asked Mr. Hendrix for "the definition of a mature tree[, ]" and Mr. Hendrix could not define it.

         Mr. Bare told Mr. Hendrix "not to clear anything wider than 100 feet" and said he would provide a copy of the easement to Mr. Hendrix. Mr. Hendrix stated, "'Well, we don't work off easements.'" Mr. Bare provided a copy of the easement to Mr. Hendrix. Mr. Hendrix said he would discuss the situation with Seven Valleys' owner. Mr. Hendrix reported the next day that he spoke with Seven Valleys' "owner[, ]" and they "would not be clearing wider than 100 feet anywhere on [Landowner's] property."

         Mr. Bare also told Mr. Allen that he did not want Carroll Electric "to clear anything outside the 100-feet easement that [they] had agreed to[.]" Mr. Bare recalled that Mr. Allen responded that he "had a signed easement and that he would take any tree on [Landowner's] place that [Mr. Allen] wished."

         By March 2011, Seven Valleys had begun clearing the right-of-way. On March 3, 2011, Landowner met with Mr. Allen and a trimming crew supervisor for Carroll Electric. The trimming crew supervisor said that after the line was installed, "but before it was energized, he would" notify Landowner of any tree that could hit the line and they would try to trim and save the tree if possible. Landowner's telephone number was on the work plans. Mr. Allen said that they would mark such danger trees with red ribbons. Mr. Bare checked on the progress of the clearing most of the days that the crew worked on the right-of-way, and he looked for red ribbons. Some trees were marked with red ribbons as "danger trees" but "[t]hey were never taken out[, ] and at some point the ribbons were removed."

         Mr. Hendrix believed that the "brush and cut timber" from the right-of-way "had to go off the right-of-way, " and "[s]omehow or another" he received information that he was to stack the trees and brush on Landowner's property. The cleared trees and brush were placed outside of the right-of-way on Landowner's property. Mr. Hendrix believed that Seven Valleys could not "collect their money if the right-of-way [was] not clear." Mr. Bare saw that trees and logs cleared from the right-of-way were being placed outside of the right-of-way. Mr. Bare thought that this may have been necessary "to facilitate them being able to clear the hundred feet[, ]" but he also thought that the crew would later "bring the logs back on where they agreed to put them."

         On March 24, 2011, "the clearing crew [was] already past [Landowner's] property and [on to a neighbor's] property" when the Bares went on a trip. When they returned three days later, they discovered "a large area that had been bulldozed clear" on what had been a "fully wooded" area of the southeast corner of their property, and it extended into the neighbor's property. Landowner determined that 46 trees had been bulldozed in this area. Two stumps had been left in the ground, the corner post of a fence was broken, and the wire fencing was disconnected from the post. A "silt fence" had also been installed.

         Over the next two days, Mr. Bare tried unsuccessfully to reach Mr. Allen and another supervisor at Carroll Electric. Mr. Hendrix told Mr. Bare that Mr. "Allen had provided [Mr. Hendrix] with a plan that had that new area bulldozed, cleared out." Mr. Hendrix "acted a little sheepish[, ]" and he would not show Mr. Bare a copy of the plan. Mr. Bare called the sheriff's office.

         Mr. Allen came out to Landowner's property and said he would have the silt fence removed. Mr. Allen would not show Mr. Bare the plan that Mr. Allen said called for the area to be bulldozed. Mr. Allen said he would deliver Mr. Bare's demand that the cleared area be reforested to the appropriate people within Carroll Electric. Another Carroll Electric supervisor told Mr. Bare to send his letter documenting the damage to the supervisor, but Mr. Bare "never received a response from anyone within Carroll Electric or representing them."

         Mr. Bare learned in January 2012 from a "cleanup" contractor for Carroll Electric that the piles of trees and lumber would not be moved back onto the right-of-way. That same month, Mr. Bare also discovered that some of the piles of cleared trees had been placed on top of Landowner's fence that ran along the south boundary of its property, damaging that fence. At the end of March 2012, Mr. Bare discovered that other trees outside the boundary of the easement had been cut. The parties presented competing evidence regarding the amount of damages suffered by Landowner.

         Landowner's neighbor, Dennis Melancon, testified that he and his wife executed an easement with Carroll Electric ("the Melancon easement") that allowed Carroll Electric to clear a 100-wide strip of the Melancon's property ("the Melancon right-of-way") in furtherance of the project. Fourteen trees tied with orange ribbons were cut down outside the Melancon right-of-way. When the Melancon easement was executed, Carroll Electric told the Melancons that they would be notified about danger trees. Despite that assurance, Carroll Electric had not notified the Melancons about the trees that were cut down outside the Melancon right-of-way. Additional trees "tagged" the same way had not been cut down, and Ms. Melancon "tried to file a complaint" with Carroll Electric. The Melancons also hired a lawyer to ask Carroll Electric to stop taking ...

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