Bayer v. Associated Underwriters, Inc., 32132

• Decision Date: 15 March 1966
• Docket Number: No. 32132,32132
• Citation: 402 S.W.2d 11
• Parties: Elmer V. A. BAYER, Plaintiff-Appellant, v. ASSOCIATED UNDERWRITERS, INC.And Roland A. Orf and Mary M. Orf, d/b/a Thirty-Nine Twenty Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 11

402 S.W.2d 11

Elmer V. A. BAYER, Plaintiff-Appellant, v. ASSOCIATED UNDERWRITERS, INC.And Roland A. Orf and Mary M.

Orf, d/b/a Thirty-Nine Twenty Company,

Defendants-Respondents.

No. 32132.

St. Louis Court of Appeals, Missouri.

March 15, 1966.

Rehearing Denied April 12, 1966.

Gray & Sommers, R. Michael Fischer, St. Louis, for appellant.

Michael D. O'Keefe and Daniel P. Reardon, St. Louis, for respondent, Associated Underwriters, Inc.

George E. Helfers, Clayton, for respondents Roland A. Orf and Mary M. Orf, d/b/a Thirty-Nine Twenty Co.

CLEMENS, Commissioner.

The plaintiff sued for both a temporary and a permanent injunction. When the prayer for the temporary injunction came on for hearing, the trial court not only denied that relief but also dismissed the petition. The plaintiff appeals, and the question here is whether the trial court exercised its jurisdiction prematurely.

The plaintiff had sued defendants to restrain and enjoin them from interfering with an easement granted him by separate, successive leases from each defendant. He further asked for damages and specific performance of the leases. The essence of the petition: The corporate defendant had owned a small office building and had its own offices at the rear of the building. It leased plaintiff the suite of offices at the front of the building and five parking spaces in back of the building, and it granted plaintiff the right of passage through its own retained office space. This arrangement enabled the plaintiff and his employees to pass directly to and from his offices and the parking lot. The next year, the corporate defendant sold the entire property to its president, Roland A. Orf, and his wife, the individual defendants. The Orfs then executed two new leases. Their lease to the plaintiff granted him the same easement through the rear of the building, but their lease to the corporate defendant imposed no easement for plaintiff's passage. Nonetheless, the plaintiff and his employees continued to use the easement for another year; but then the corporate defendant barred them from going through its offices. Consequently, plaintiff and his employees have had to walk a block and a half to and from the parking lot, to plaintiff's damage.

When this petition was filed, the trial court issued an order to show cause why the defendants should not be temporarily enjoined from interfering with the plaintiff's easement. At the hearing on this show cause order, the court entered a judgment which not only denied the prayer for temporary injunction but also dismissed the plaintiff's petition. Plaintiff appeals from the judgment, contending that the only justiciable issue then before the trial court was his prayer for a temporary injunction, and that the court erred in dismissing the petition. We agree.

There are three permissible phases in an injunction proceeding. First, a restraining order granted against the defendant, with or without notice or hearing. Second, a temporary injunction granted after notice and summary hearing. Third, a permanent injunction granted after the pleadings are made up and the evidence is fully developed. At a plaintiff's election he may forego the first or both the first and second phases, and proceed directly to the next phase. See Civil Rules 92.01 and 92.02, V.A.M.R.; 1 Missouri Practice, Volz et al., §§ 1471 and 1474; 4 Missouri Pleading & Practice, Houts, §§ 1011 and 1024.

Here, the plaintiff did forego a restraining order and he sought, in turn, a temporary injunction and a permanent injunction. When the petition was filed, the court responded to the first request and ordered the defendants to appear and show cause why the temporary injunction should not be granted. The defendants had not yet been ordered to, and did not, file answers to the petition. But on the day specified by the court each defendant filed a return to the order to show cause, appeared in person and with counsel, and submitted to the hearing. The plaintiff then offered the corporate defendant's vice-president as a witness, but had hardly proceeded beyond his indentification when the judge recessed the hearing and asked counsel into his chambers. There, the judge invited the corporate defendant to offer in evidence the new lease between...