## In the



# Missouri Court of Appeals Western District

UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI ,

Respondent ,
v. A.P. READ HOMES, LLC ,

Appellant
.            WD 78624 OPINION FILED : March 22, 2016

Appeal from the Circuit Court of Adair County, Missouri The Honorable Kristie Jean Swaim , Judge

Before Division Three : Joseph M. Ellis, Sr. J. Presiding 1 , Thomas H. Newton, and James Edward Welsh, JJ.

A

. P. Read Homes appeals the circuit court ' s judgment finding it liable for damages to a utility line owned by Union Electric Company (referred to herein as " Ameren " )

. We affirm. Background In August 2014, Ameren filed a two

- count petition against Read Homes for damages to
its utility line located on property owned by Read Homes on Jamison St reet in Kirksville (in Count II) and for damages to another utility line on neighboring property also owned by Read

1 Judge Ellis retired as an active member of the court on March 1, 2016, after oral argument in this case. He has been assigned by the Chief Justice to participate in this decision as a Senior Judge.2

Homes (in Count I). 2 Ameren alleged that Read Homes " failed to request the location of
Ameren ' s underground utility equipment and/or failed to perfo rm said excavation in a careful and prudent manner , " thereby causing damage to Ameren ' s underground utility equipment , citing the Underground Facility Safety and Damages Prevention Act, §§ 319.010

- .050 , RSMo. 3
At a bench trial , Adam Read testified that , during 2009, his construction company built three single

- family residences on property it owned on Jamison Street. Read stated that Read
Homes excavated trench es in which to bury electric lines so that Ameren could feed electricity to
the residences. Read testified that h ome builders ordinarily dig a trench two feet short of the
transformer , and then Ameren finishes digging the trench to the transformer and connects the
electric line . In this cas e, however, Read claimed that his company dug trench es that stopped eight to twelve feet short of the transformer due to pre

- existing phone lines buried near the
transformer and that Ameren dug the trench es the rest of the way and connected the electric line s

to its transformer

. Read stated that a ll exterior construction on the Jamison Street residences, including all excavation for utilities, was complete by the fall of 2009 and that Read Homes did
not excavate on the property after th at

. In September 2 010, Read saw an exposed electric line protruding out of the ground at the Jamison Street property and notified Ameren about it

. Ameren employee Patrick McCarty
testified that he went to the property to view the damage and to assess what repair work was

n eeded. McCarty took photographs of the damaged utility line at that time

. Of the t wo

2 Because Read Homes prevailed in its defense on Count I , we limit our discussion to Count II.

3 That Act provides : " A n excavator shall serve notice of intent to excavate to the notification center .

. . at least two working days, but not more than ten working days, before the expected date of commencing the excavation activity. " § 319.026.1 , RSMo Cum. Supp. 2009

. At the time of the excavation in this case , the Act provided that "[t] he failure of any exc avator to give notice of proposed excavation activities as required by this chapter shall be a rebuttable presumption of negligence on his part in the event that such failure shall cause injury, loss or damage. " § 319.040, RSMo 2000, repealed by L.2014, H.B. no. 1867, § A, eff. Aug. 28, 2014

.3

photographs introduced at trial , one showed a pile of PVC conduit pipe s of the type used to bury utility lines stacked near the transformer

. A bucket from some type of digging equipment is partially visible in that same photograph. McCarty stated that , while Ameren did eventually
br ing a skid loader with a backhoe arm to the Jamison Street property to rebur y the line , the equipment in the photograph did no t belong to Ameren. He also testified that the exposed line was not caused by natural causes , and it was his opinion that Read Homes caused th e damage
because " t his is the property of A.P. Read Homes under his development and direction. This is his machine at the site, so it seems it would be his responsibility [for] the damages that would have incurred on that project. " Ameren introduced evidence , via McCarty , that the cost to repair that damaged utility line totaled $1,897.59.
Read t estified that Read Homes did not have any reason to, and did not, excavate on the Jamison Street property after the fall of 2009 ; nor did it dig up or otherwise damage Ameren ' s utility line on the property. Read claimed that Read Homes did not have any excavation equipment at the Jamison Street property when Ameren ' s utility line became exposed. When specifically asked i f the skid

- loader bucket depicted in the photograph belonged to him , he replied , " Not that I am aware of. " Read hypothesized that the utility line became exposed
because Ameren dug their portion of the trench too shallow and that, o ver the winter months , the ground froze and thawed causing the shallow line to " frost heave " to the surface.
O n January 28, 2015, the circuit court entered ju dgment in favor of Read Homes on
Count I and in favor of Ameren on Count II. The court granted Ameren damages in the amount of $1,897.59, along with court costs, service fees, and post

- judgment interest on Count II.
Read Homes filed an after

- trial motion seeking reversal of the judgment on the basis that Ameren failed to prove its case or, alternatively , for the court to reopen the case to receive4

additional evidence

. At arguments on the motion, c ounsel asked to present additio nal t estimony
from Read to refute or clarify cert ain evidence that was presented at trial and to " make a better
record " on other issues

. T he motion was overruled by operation of law on April 29, 2015.
Point I
Read Homes first argues that the circuit court erred in finding in favor of Ameren on Count II because there was insufficient evidence to support such a finding , " in that there was no competent evidence Read Homes excavated and/or caused any damage to Ameren ' s utility line. "
On review of a court

- tried case , we will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W

. 2d 30 , 32 (Mo. banc 1976 ). We review issues of
law de novo. John Knox Vill. v. Fortis Const. Co., LLC , 449 S.W.3d 68, 74 (Mo. App. 2014).
Where the circuit court d oes not enter findings of fact or conclusions of law , as here, we consider
all fact issues " as having been found in accordance with the result reached. " Rule 73.01(c).
Read Homes ' argument under Point I simply reiterates the evidence and arguments that it presented at trial . The following is represent ative of the entire argument : No one saw Adam Read excavate on the property. No one saw an agent of Read Homes excavating on the property. No one saw any excavation on the property. Ameren ' s case is exclusively circumstantial.
The circumstantial evidence shows there was no excavation. All utility lines were laid nearly a year before the exposed line was discovered. All exterior construction on the residences had concluded in 2009. [Thus] , there was no reason for Read Homes to be excavating in 2010.

. . . . Even if there was credible evidence of excavation , Ameren would still have to prove who excavated. There was no evidence Read Homes excavated. Ameren argues that merely because Read Homes built the Jamison Street resi dences, Read Homes must have caused the damage.

. . . . Plaintiff has the burden of proving5

what happened. Under any burden of proof or standard of review, there was no competent evidence of any excavation.
Read Homes concludes , based on th e se restated arguments, that there was no competent evidence to support the circuit court ' s ruling in favor of Ameren

. We disagree. There was competent evidence to support the court ' s ruling. Ameren ' s witness, McCarty, testified that he was a customer service specialist who had worked for Ameren for ten years . He stated that his job duties involve going to the site of a damaged line, documenting the damage, and " relay[ing] " the needed repair work onto Ameren ' s crews or contractors to fix the damage. He further testified: Q. Can you describe to the Court what those photographs depict? A. Again, that ' s three

- inch PVC conduit. Inside of that conduit is a secondary voltage cable that ' s going from a ground transformer, I believe, to another pedestal, which splits off to serve two houses. Q. Okay. Was that particular conduit and line in stalled by A.P. Read Homes several months previously?
A. Yes. Ameren provided the conduit for A.P. Read Homes to install. Q. Okay. Based on your experience, especially dealing

-- from examining and investigating damages such as this, can you tell the Court how this pipe

-- how this line would have been exposed out of the ground? A. The line is exposed. As you can see a picture of a Bobcat bucket in there, so there ' s been excavation, and then it looks like run over which the tire tracks seem to indicate running over the pipe. Q. Could this damage have been caused by natural causes?
A. No. Q. And is it Ameren ' s position that A.P. Read Homes caused this particular da mage?
A. Yes.6

Q. Okay. And what ' s the basis for that belief? A. Once again, this is the property of A.P. Read Homes under his development and direction. This is his machine at the site, so it seems it would be his responsibility and the damages that would have incurred on that project. When considering a challenge based on the sufficie ncy of the evidence, we accept all evidence and inferences favorable to the judgment as true , and we disregard all contrary
evidence and inferences. John Knox Vill. , 449 S.W.3d at 74. " We defer to the circuit court ' s determination as to the credibility o f witnesses and recognize that the court was free to believe or disbelieve all, part, or none of the testimony of any witness. " Id

. Here, the circuit court was presented with conflicting evidence as to which party was the owner of the bobcat or skid

- load er in the photograph and conflicting evidence as to which party was responsible for the excavation
and damage to the line. The court wa s free to, and evidently did, find that McCarty ' s testimony

w as more credible than Read ' s
. Read Homes complains that Ameren ' s only evidence was circumstantial, but a plaintiff

may prove his case by circumstantial evidence where , as here, " the facts proved and the
conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fai rly inferred. " Doe Run Res. Corp. v. Certain Underwriters at Lloyd ' s London , 400 S.W.3d 463, 470 (Mo. App. 2013)

. W hile m ere speculation or conjecture is not sufficient
evidence to prove causation, the law does not require direct proof , and the plaintiff may prove causation by " reasonable inferences from proven fact or by circumstantial evidence. " S w. Bell
Tel

. Co. v. Ahrens Contracting, Inc. , 366 S.W.3d 602, 608 (Mo. App. 2012) (citation omitted) (held that s ubstantial circumstantial e vidence existed to support finding that subcontractor damaged telephone provider ' s underground cable , in negligence action brought pursuant to the Underground Facility Safety and Damage Prevention Act)

.7

Deferring to the circuit court's resolution of conflicting evidence and its ass essment of witness credibility, we find that the judgment was supported by substantial evidence, and, thus,
the circuit court did not err in ruling in favor of Ameren on this claim. The point is denied.
Point II
Read Homes also contends that the circuit court erred in overruling it s motion for new
trial " because that part of said motion requesting [that] additional evidence be received should
have been sustained , in that the p roffered additional evidence was criti cally material to the merits
of Read Homes ' defense and there was no prejudice to Ameren. "
Read Homes specifically co ntests the circuit court ' s denial of its request to reopen the
evidence to receive additional testimony from Read. Under Rule 78.01 , " [o]n a motion for a new
trial in an action tried w ithout a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment. " A circuit court has wide discretion in deciding whether to grant a motion to reopen a case for the admission of additional evidence. City of Riverside v. Progressive Inv. Club of Kansas City, Inc. , 45 S.W.3d 905, 910 (Mo. App. 2001)

. Absent an abuse of discretion,
this Cour t will not interfere with a trial court ' s decision to reject such a motion. Forney v. M o. Bridge & Concrete, Inc. , 112 S.W.3d 471, 475 (Mo. App. 2003).
Here , Read Homes sought to introduce additional testimony from Read , first, to show that he did not own the PVC conduit pipe that was piled up at the base of the transformer

. Read
Homes asserts that th is testimony would have established that the pipes were the same type that
Ameren would use to fix a broken line and , thus, the conduit obvious ly belonged to Ameren

. Read Homes contends that this evidence was important because:8

[It] supports Read Homes ' position that the photographs were taken at the same time Ameren was repairing the line and had their materials and equipment on site for repairs. That evidence would strongly support Read Homes ' position that the excavator depicted in [the photograph] belonged to Ameren and not Read Homes. Read Homes also sought to introduce additional testimony from Read to establish that electric

serv ice was never interrupted at the Jamison Street residence . This, Read proposes, proves that he had no ulterior motive for reporting the exposed line because " i f Read Homes excavated and dug up the line, it could have just reburied the whole line [without reporting it] and no one would
have known , since there was never an interruption in service

. " Finally , Read Homes wished to present additional testimony from Read " to make a better record " on certain specific issues , such

as " the condition of the back portion of the lot where the ground was bare

. "
Read Homes cites Metro Insurance Agency v. Mannino , for the proposition that, when
there is no inconvenience to the court , nor unfair advantage to the offering party , it is an abuse of
discretion to refuse t o reopen the case for additional evidence that might substantially affect the merits of the case. 856 S.W.2d 81, 83 (Mo. App. 199 3 ). Read Homes contends that th e additional testimony it sought to introduce " was critically material to the merits of the c ase " and
would not have caused " any material inconvenience to the Court or Ameren , " nor " any unfairness to Ameren , " and, thus, its motion to reopen the evidence and take additional testimony
should have been sustained. We disagree. In Forney , this Court rejected a similar argument on the basis that " Forney had ample opportunity during trial " to present the evidence that he sought to present in his after

trial motion and " did not ask the trial court to reopen the evidence until after the court entered its judgment concluding that no probative evidence was produced " on the issue in question . 112
S.W.3d at 475

- 76. This Court explained that " [c] ourts cannot reopen cases merely because a9

party has had a change of heart regarding the importance of evidence it chose not to introduce when it first had the opportunity to do so. " Id

. The same is true here. Read Homes does not claim that this additional evidence should
have been admitted because it was " newly discovered evidence , " as discussed by this Court in
Hall v. Utl ey , 443 S.W.3d 696, 701

- 02 (Mo. App. 2014). Rather, a s was the case in Forney , Read Homes merely sought to present evidence that could have, and should have , been presented
at trial. See 112 S.W.3d at 475

. Thus, we find no abuse of discretion in the circuit court ' s reject ion of the request to introduce additional evidence , and we decline to interfere with the

court ' s denial of the motion for new trial

. This point also is denied.
Conclusion Based on the foregoing, we affirm the circuit court ' s judgment of liability against Read
Homes as to Count II and its denial of Read Homes ' after

- trial motion.

/s/ JAMES EDWARD WELSH James Edward Welsh, Judge

All concur.