Barfield et al v. Sho-Me Power Electric Cooperative et al

Filing 883

ORDER entered by Judge Nanette K. Laughrey. Pursuant to Fed. R. Civ. Pro. 59(d), the Court now vacates the judgment entered on September 5, 2017 and sua sponte orders a new trial. Signed on 9/29/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CHASE BARFIELD, et al.,
Plaintiffs,
v.
SHO-ME POWER ELECTRIC
COOPERATIVE, et al.,
Defendants.

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Case No. 2:11-cv-04321-NKL

ORDER
On September 5, 2017, a Clerk’s Judgment was entered in this case following a six-day
jury trial. The jury awarded $129,211,337.00 in actual damages and $1,300,000.00 in punitive
damages. Neither party has moved for a new trial.
Pursuant to Fed. R. Civ. Pro. 59(d), the Court now vacates the judgment entered on
September 5, 2017 and sua sponte orders a new trial. Rule 59(d) provides, “No later than 28
days after the entry of judgment, the court, on its own, may order a new trial for any reason that
would justify granting one on a party’s motion…. [T]he court must specify the reasons in its
order.” See also Peterman v. Chicago R.I. & P.R. Co., 493 F.2d 88, 91 (8th Cir. 1974) (the time
in which a court has the power to order a new trial on its own initiative is restricted to the time
specified in Rule 59(d)). Generally, a district court may grant a new trial when the first trial
resulted in a miscarriage of justice, through a verdict against the weight of the evidence, an
excessive damage award, or legal errors at trial. Trickey v. Kaman Indus. Techs. Corp., 705 F.3d
788, 807 (8th Cir. 2013). The Court concludes that the amount of damages awarded by the jury is
against the weight of the evidence.
Jury Instruction 14 directed the jury as follows:

You must award Plaintiffs such sum as you may find to be the fair
market rental value Plaintiffs could have obtained from third
parties for a commercial telecommunications easement on the
Plaintiffs’ property from January 21, 2005 until the date of this
trial.
The phrase “fair market rental value” as used in this instruction
means the price which a commercial telecommunications easement
would bring when offered for rent by one willing but not obliged to
rent and when rented by one willing or desirous to rent but who is
not compelled to do so.
In determining the fair market rental value of a commercial
telecommunications easement on Plaintiffs’ property, you may
consider evidence of the value of a commercial
telecommunications easement, including comparable rentals, the
highest and best use to which the Plaintiffs’ property may be
applied or adapted, the value of the property if freely rented on the
open market, and generally accepted appraisal practices.
You may give all evidence the weight and credibility you believe
are appropriate under the circumstances.
Thus, the jury was required to determine the fair market rental value of the easement that
Plaintiffs could obtain from a third party. Plaintiffs’ expert, Dr. Kilpatrick, presented evidence
that the fair market rental value of such an easement would be $129,211,337.00. The jury
obviously relied on that evidence to reach a verdict in exactly the same amount.

However,

Defendants presented evidence, including their actual records, to show costs the Defendants
incurred to operate their commercial telecommunications company. Those costs were nearly
equal to the income purportedly earned by the Defendants. While the Court is aware that there
could be a dispute about the allocation of costs between the two Defendants and the actual
amount of profits the Defendants in fact earned, even when viewed in the light most favorable to
the verdict, the record does not support a finding that a third party or Defendants would be
willing to rent an easement from the Plaintiffs in excess of $129 million, absent a profit
sufficiently clear to offset not only the $129 million in rent (much less the amount to actually
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purchase the easement, as calculated by dividing rental by Dr. Kilpatrick’s seven percent
conversion factor, see Doc. 867, p. 91), but also to offset the reasonable operating costs of their
telecommunications company.
The Court’s finding that the verdict is against the weight of the evidence is further
justified by its conclusion that it erred in admitting evidence of revenue estimates for the
Defendants from the 1990s. At a minimum, the revenue numbers admitted should have been
limited to the time period of Plaintiffs’ claim. Further, for purposes of actual damages, it should
have been limited to actual revenue generated, not projected revenue. Also, it is possible that the
jury was confused by the admission of all the revenue of the Defendants’ commercial
telecommunications company rather than revenue limited to or closely related to the trespass at
issue in this case. Finally, the Court concludes in hindsight that it erred by not including in
Instruction 14, a direction to the jury to consider commercial viability when determining what a
willing buyer would pay for such an easement.
To be clear, both the actual and punitive damages awards reflected in the Clerk’s
Judgment of September 5, 2017 are hereby vacated. Instruction 20 directed the jury to consider
“[w]hat amount of punitive damages, in addition to the other damages already awarded,” was
needed to punish and deter the Defendants. Because the actual and punitive damages awards
were related, and the amount of actual damages awarded by the jury was against the weight of
the evidence, both must be vacated.
The Court is aware of the resources that have been invested in this case by the parties and
the judicial system. Nonetheless, the jury’s award simply makes no sense in light of the record
as a whole. The Court reached that conclusion at the close of trial and having now carefully

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reviewed the transcript of trial, remains convinced the verdict cannot stand. The Court vacates
the Clerk’s Judgment of September 5, 2017 and orders a new trial.
Defendants’ Motion for Judgment as a Matter of Law, Doc. 846, remains pending and
will be addressed in due course as appropriate. See Goldsmith v. Diamond Shamrock Corp., 767
F.2d 411, 415 (8th Cir. 1985) (the pendency of a motion for judgment notwithstanding the verdict
does not toll the running of the period specified under Rule 59(d) in which a court can order a
new trial sua sponte) (citing Tarlton v. Exxon, 688 F.2d 973, 978-79 (5th Cir. 1982)).

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 29, 2017
Jefferson City, Missouri

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