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"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

When Pigs Fly (or Stink)

Posted: March 30, 2011 Filed under: Case Law, Commentary, Law-Related News

There is a legal rule in Florida known as the “tipsy coachman doctrine.” In some states, the rule is known by the plainer name, the “right for the wrong reason” doctrine. Because trial court decisions carry a presumption of correctness and an appellate court’s job is to affirm the lower court whenever possible, outcomes are usually affirmed if they are ultimately correct, even if the lower court got to the correct result by an erroneous or circuitous means. Hence the name “right for the wrong reason.”

In this opinion, the Missouri Court of Appeals, Western District, affirmed an $11 million verdict in favor of landowners who endured “intense odor” and “ill odors” emanating from three, nearby hog farms. It has nothing to do with the tipsy coachman, or right for the wrong reason, doctrine, but it reminded me of a different case in neighboring Kansas. There, the Kansas Supreme Court upheld the outcome of a referendum election in which local voters, by a dubious margin of 22 votes, rejected corporate hog farming in Hodgeman County. (Coincidentally, Clint Eastwood’s Unforgiven begins on a farm in Hodgeman County).

So, where does the tipsy coachman doctrine come into play? It doesn’t. It just crossed my mind as I chuckled at the idea that the Kansas court may have been right to affirm the election results for a different reason – one borne out more than a decade later by the experience of landowners in neighboring Missouri.

The Missouri opinion is noteworthy, however, for a different issue appellate lawyers often see – waiver. Waiver results from the failure to properly “preserve” error in the lower court. One of the hog farms’ arguments on appeal was that the jury’s verdict was excessive. But, as noted by the court of appeals, “at trial they failed to even address the issue of damages in argument to the jury.” Instead, they chose simply “to argue that the odor emanating from the hog operation did not substantially impair the Respondents’ use and enjoyment of their property.” Such strategies are common and valid, but they are not without risk. As the court of appeals observed, “[w]hile it may be a perfectly valid trial strategy to argue the issue of liability solely and not address damages to the jury, we reject [the hog farms’] attempt now to litigate for the first time what they failed to do at trial.”

Postscript: The name “tipsy coachman” comes from a poem found in an 1879 opinion by the Georgia Supreme Court, Lee v. Porter, 63 Ga. 345 (1879). It goes like this:

The pupil of impulse, it fore’d him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home;….

Admitted: Florida, Kansas, New Mexico (inactive)