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,
CARROLL ELECTRIC COOPERATIVE CORPORATION, Defendant-Appellant, and SEVEN VALLEYS CONSTRUCTION COMPANY, Defendant.
FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Robert J.
Electric Cooperative Corporation ("Carroll
Electric") appeals a judgmentin 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. 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.
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. 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."
Electric's first two points claim the trial court erred
in denying Carroll Electric's motions for directed
verdict 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
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
challenges the judgment's award of attorney fees to
Landowner on the ground that section 523.283.4 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.
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 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[.]"
was concerned that this language seemed vague, and Carroll
Electric's field service supervisor, Michael Allen,
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
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
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[.]'"
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"). 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.
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.
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.
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.
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."
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
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
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.
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]
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."
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
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
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.
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.
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
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
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