Wood v. Wood

Wood v. Wood  (95-089); 166 Vt. 608; 693 A.2d 673

[Filed 18-Feb-1997]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-089

                            NOVEMBER TERM, 1996


Michael and Nancy Wood, et al.       }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Windsor Superior Court
                                     }
Marc Wood                            }
                                     }     DOCKET NO. S226-91WrC


       In the above-entitled cause, the Clerk will enter:

       In this nuisance action, plaintiffs Michael and Nancy Wood, Richard
  White, Richelle, Sandra and Todd McKenney and Andrew Campbell appeal from a
  jury verdict in favor of defendant Marc Wood.  Plaintiffs contend the jury
  was improperly instructed on the elements of nuisance.  In addition
  plaintiff Michael Wood appeals a jury award against him for $1000 actual
  damages and $20,000 punitive damages on defendant's counterclaim for
  slander, alleging there was no evidence of actual harm.  Defendant
  cross-appeals an order granting plaintiffs injunctive relief.  We affirm
  the nuisance judgment, reverse the slander award, and vacate the order for
  injunctive relief.

       Defendant owns a pig farm on property adjacent to plaintiffs Michael
  and Nancy Wood and Richard White.  The McKenneys and Andrew Campbell were
  all tenants on defendant's farm at one time or another.  Plaintiffs brought
  a nuisance action against defendant, claiming that the odor, flies, and
  vermin emanating from defendant's farm unreasonably interfered with the use
  and enjoyment of their property.  Defendant filed a counterclaim alleging
  slander against Michael Wood for driving away business.  The jury returned
  special verdicts, finding that the pig farm was not a nuisance to
  plaintiffs, and that Michael Wood had slandered defendant.  At the
  conclusion of the trial, the court issued an injunction ordering that
  defendant limit the number of breeding sows he could have on the farm to
  seventy-five.  The order also required defendant to renovate his barn and
  landscape his property within a reasonable amount of time so that the barn
  could house all the livestock, ventilate odor out the top of the barn,
  remove manure every ten days, and control waste water runoff.

                           I. Nuisance Instruction

       Plaintiffs contend the court erred in instructing that nuisance must
  be intentional, that is, that plaintiff must have intended to interfere
  with the use and enjoyment of plaintiffs' property. Although plaintiffs'
  counsel objected to the instruction prior to the court's charge to the
  jury, he failed to renew the objection at the conclusion of the charge. 
  Accordingly, the issue was not properly preserved for review on appeal.

       The law on this point is clear.  This Court has explicitly held that
  an objection following jury instructions is necessary to preserve the issue
  for appeal.  Winey v. William E. Dailey, Inc., 161 Vt. 129, 137-38, 636 A.2d 744, 749-50 (1993); State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24,
  26 (1993).  We recently reaffirmed this rule, holding that an objection to
  an intent instruction is not properly preserved unless specifically renewed
  after the jury charge. State v.

 

  Bacon, 163 Vt. 279, 284, 658 A.2d 54, 59 (1995).  Furthermore, V.R.C.P.
  51(b) provides, "[n]o party may assign as error the giving or the failure
  to give an instruction unless that party objects thereto before the jury
  retires to consider its verdict, stating distinctly the matter objected to
  and the grounds of the objection."

                              II. Slander Award

       The jury returned a verdict against plaintiff Michael Wood for $1000
  in actual damages and $20,000 in punitive damages for slander.  He contends
  there is insufficient evidence to support the award.

       To recover general damages in an action for slander, a party must show
  some actual harm.  Solomon v. Atlantis Dev., Inc., 147 Vt. 349, 359, 516 A.2d 132, 138 (1986); Lent v. Huntoon, 143 Vt. 539, 549, 470 A.2d 1162,
  1170 (1983).  In this case, defendant had the burden of producing credible
  evidence of actual injury caused by Michael Wood's alleged slander.  See
  Crump v. P & C Food Markets, Inc., 154 Vt. 284, 295, 576 A.2d 441, 448
  (1990).  In Crump we held that evidence of sleeping problems, loss of
  appetite, development of a temporary drinking problem, and deteriorating
  family relationships demonstrated actual harm. Id.  We have also recognized
  that proof of "embarrassment and temporary injury to reputation" would be
  sufficient to support an award of general damages.  Solomon, 147 Vt. at
  359, 516 A.2d  at 138.

       Defendant in this case adduced no credible evidence of actual harm. 
  The only mention of harm comes from defendant's deposition where he stated
  that he was "100 percent sure [he had] lost a lot of customers" and his
  assertion at trial that his reputation had been injured and that he had
  lost sales.  Defendant produced no evidence, however, to substantiate the
  claim. Indeed, defendant further stated that his demand for pork exceeded
  his supply and that his customers praised his pork despite plaintiff's
  alleged slanderous remarks.  This statement confirms that no injury to
  reputation occurred.  The slander award must therefore be reversed.

                           III.  Injunctive Relief

       Defendant appeals from the order for injunctive relief issued after
  the trial.  Defendant argues that the trial court had no basis to enjoin
  him after the jury had returned its verdict that the pig farm did not
  constitute a nuisance.

       Generally, legal claims should be decided by the jury before the judge
  proceeds to decide any equitable claims.  See Beacon Theatres, Inc. v.
  Westover, 359 U.S. 500, 510-11 (1959) (preservation of right to jury trial
  on legal issues may not "be lost through prior determination of equitable
  claims."); Ritter v. Mount St. Mary's College, 814 F.2d 986, 990 (4th Cir.
  1987) ("where legal and equitable claims are contained in the same set of
  facts, the right to a jury trial, which the legal claims permit, should
  predominate, precluding the prior determination of the factual issues by a
  court sitting in equity.").  Issues resolved by the jury are binding on the
  court.  "Indeed . . . when common issues are simultaneously tried to both a
  judge and a jury, the jury's findings with respect to those common issues
  are binding upon the judge."  Snider v. Consolidation Coal Co., 973 F.2d 555, 559 (7th Cir. 1992).

       Here, there were common issues between the legal and equitable claims. 
  In both plaintiffs' case-in-chief and defendant's case-in-chief there was
  testimony detailing defendant's future plans for his pig farm, which
  included a five-year plan whereby the farm would consist of a refurbished
  barn that could house and feed 500 breeding sows.  The special jury
  verdicts

 

  posed the specific question whether defendant's plans for the future use of
  his property would create a permanent nuisance to plaintiffs.  The jury
  found that it would not pose a nuisance. Nevertheless the judge, after the
  jury verdict, limited defendant's future use of his land to seventy-five
  breeding sows and placed other limits on defendant's use of his farm that
  conflicted with the jury verdict finding no nuisance.  Accordingly, the
  order was improper and must be vacated.

       That portion of the judgment awarding damages to defendant for slander
  is reversed.  The order granting injunctive relief against defendant is
  reversed.  In all other aspects, the judgment is affirmed.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice