Boemler Chevrolet Co., Inc. v. Combs, 58057

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON
• Citation: Boemler Chevrolet Co., Inc. v. Combs, 808 S.W.2d 875 (Mo. App. 1991)
• Decision Date: 19 March 1991
• Docket Number: No. 58057,58057
• Parties: BOEMLER CHEVROLET CO., INC., Respondent, v. Albert COMBS and Ernestine Combs, Appellants.

Page 875

808 S.W.2d 875

BOEMLER CHEVROLET CO., INC., Respondent, v. Albert COMBS and Ernestine Combs, Appellants.

No. 58057.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 19, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 16, 1991.

Application to Transfer Denied June 11, 1991.

Roland A. Wegmann, Roya R. Hardee, Hillsboro, for respondent.

Rodolfo Rivera, Clayton, for appellants.

SIMON, Judge.

Albert and Ernestine Combs (appellants) appeal from a summary judgment making permanent a preliminary injunction enjoining them from picketing and displaying signs at Boemler Chevrolet, Inc. (respondent) in Arnold, Missouri. This is appellants' second appeal to our court. Previously, we dismissed without prejudice their appeal of a contempt citation, which had not been enforced, for violating the preliminary injunction. See Boemler Chevrolet Co., Inc. v. Combs, 764 S.W.2d 655 (Mo.App.1988).

On appeal, appellants assert that the trial court erred in restricting appellants' right to: 1) peacefully picket respondent's place of business because peaceful picketing is protected by the First Amendment to the United States Constitution and Article I, Section 8, of the Missouri Constitution; and 2) peacefully picket respondent's place of business because peaceful picketing for a lawful purpose is a constitutionally protected right. We affirm in part and reverse in part.

Appellant does not raise any issues as to the facts. Respondent is a Chevrolet dealership, located at 4040 Jeffco Blvd. in the City of Arnold, Jefferson County, Missouri. Its location appears to be at the intersection of Highway 61-67 (Jeffco Blvd.) and Highway 231. On or about July 17, 1986, appellants purchased a new 1986 Chevrolet Suburban vehicle from respondent. The same year appellants had purchased two other cars from respondent for a total of $40,000 and were satisfied with those cars; however, they were dissatisfied with the factory paint job on the Suburban and returned that vehicle. Appellants complained primarily about the paint job but also made complaints about a caved-in dashboard; misadjusted headlights; scratches on the back door; metallic brake rotors were replaced with nonmetallic brakes; a noise in the trunk; and nonfunctioning air-conditioning. Respondent repainted the entire vehicle and provided appellants with another vehicle while their Suburban was being painted.

Appellants were dissatisfied with the repainting of the vehicle and asked that respondent either repaint the vehicle or take it back. Mr. Combs complained of the following defects from the repainting: 1) the paint finish was rough, not sanded down, and had holes in it; 2) there was overspraying on the left door; 3) the striping was in a different place and torn; 4) improper placement of the door handle escutcheon; and 5) paint dripped down on the inside of the door. Respondent agreed to do some touch-up work on the vehicle but told appellants it would not repaint the entire vehicle a second time. Initially, appellants refused to accept the vehicle; however, they did accept it when respondent told them they had to return the loaned vehicle or respondent would report it stolen.

In October, 1986, appellants, in prison-type uniforms, began picketing, carrying signs and demonstrating in front of respondent's place of business on the 10-foot wide parking lane of the right-of-way of Highway 61-67 and back and forth across respondent's driveways. The signs stated: "I was taken for $25,000"; "[t]o take money by deceit is stealing"; "# 1" in a yellow, lemon-shaped configuration; " '[l]ousy' repaint job on my '86 done here"; "[w]hat kind of a deal did we get?"; and "[c]heck it over good while it's still theirs".

Appellants picketed on Saturdays between 10 a.m. and 5 p.m. They placed a rotating yellow beacon on top of the Suburban which they parked on the highway right-of-way in front of the dealership. Steve Boemler, respondent's vice president, asked appellants to move their truck because "they were creating a hazard for our customers pulling in and out off the highway, pulling in and out of our dealership." One of respondent's salesmen called the police after he almost had an accident pulling out of the dealership.

The police came out twice while appellants picketed. One officer drove around the lot with respondent's salesman and then told Mr. Combs he was obstructing traffic by ten percent. The police officer did not tell appellants to leave, appellants did not receive a summons for blocking traffic and a police officer said Mr. Combs was not breaking any laws. Appellants were doing dances and jigs in the traffic lanes.

In December, 1986, respondent filed its amended petition, essentially alleging that: 1) appellants waved signs in front of vehicles traveling on the highway; 2) the picketing, slogans and activities were slanderous and libelous in fact in law per se and were defamatory, degrading and unlawful; 3) the picketing was carried out and continues to be carried out with an intent to harm respondent and its business, to interfere with its contracts and to impede the carrying on of respondent's business; 4) the picketing obstructs and interferes with the carrying out of respondent's business; 5) appellants have adequate remedies at law; 6) as a result of the picketing, demonstration, defamation, libel, slander and business interference, respondent sustained irreparable injury to its business; 7) the conduct of appellants constitutes the prima facie tort of wrongful or tortious interference with respondent's business and contracts with members of the public; 8) respondent attempted to resolve appellants' claims to no avail, expects the picketing to continue absent restraint by the court and will thereby suffer harm. Respondent sought injunctive relief, actual damages in the amount of $50,000 and punitive damages of $100,000, contending appellants' actions were willful, wanton and malicious.

On December 19, 1986, a hearing on the petition for a preliminary injunction was held. At the hearing, Mr. Combs testified appellants picketed to "[i]nform the people. Informational picketing." He also testified he offered to cease picketing if respondent would take the car back and return appellants' money. Appellants refused respondent's offer of factory arbitration with Chevrolet.

At the close of the evidence, the trial court stated: (1) "I was taken for $25,000" and "[t]aking money by deceit is stealing" is "clearly improper" and should be enjoined (2) "[l]ook at it while it's still theirs" is "an innocuous statement" which should not be enjoined in any way with respect to any protest of respondent; (3) "[w]hat kind of deal would we get" is a question "somewhat unrelated ... not slander or libel" and should not be enjoined; (4) "[o]ne lousy paint job on a new '86 done here" is an expression of opinion which should not be enjoined as long as the statement appears on the vehicle itself because "the public can decide for themselves as to whether or not it's a good paint job." The trial court stated it would enjoin picketing on respondent's property and that appellants were not to enter, cross or obstruct respondent's driveways. As to whether appellants could picket on the highways which intersect at respondent's business, the trial court stated:

... I cannot condone it or permit them to do so, but there is nobody in this suit that has standing to raise an objection to it ... [I]t might be a violation of law if they have signs in their hands because there are provisions of law in the State with misdemeanor sanctions regulating the use of advertising signs along highways. And without a special permit from the State Highway Department of Transportation Commission ... I'm going to enjoin them from using any part of U.S. Highway 61-67 or the shoulder thereof. Now if they can find some other public place to do their demonstrating they are free to do so, but they can't use "I was taken for $25,000.00. Taking money by deceit is stealing", they cannot use that ... [Highway] 231 would be just as dangerous as 61-67. I'm going to enjoin any walking on the highway right-of-way itself, that is the lanes of traffic or the shoulders. I'm not going to permit any picketing along state or U.S. highways. That's just too dangerous in that area and I would be remiss in permitting that.

As to displaying the lemon figure, the court stated that a lemon is generally associated with "mechanical rather than cosmetic problems" and in this case the lemon was "somewhat of a misstatement". Nonetheless, the trial court determined the lemon figure is an expression of opinion and should not be enjoined as long as it appears on the vehicle. Appellants orally agreed in court to abide by the trial court's decision.

On January 6, 1987, the trial court issued its preliminary injunction, enjoining appellants from:

1. Picketing, demonstrating, sign carrying or engaging in any similar activity on any real property owned or occupied by plaintiff Boemler Chevrolet Company including real property of Boemler Chevrolet Company at or near its place of business at 4040 Jeffco Boulevard, Arnold, Jefferson County, Missouri.

2. Picketing, demonstrating, sign carrying or engaging in any similar activity as a pedestrian on the right of way of any public highway.

3. Picketing, demonstrating, sign carrying or engaging in any similar activity at places other than on Boemler Chevrolet Company owned or occupied real property and public highway rights of way in such a manner as to obstruct or restrict existing driveways and entrances to the business place of Boemler Chevrolet Company or in any manner designed or intended to impede or interfere with free flow of pedestrian or vehicular traffic to said business place.

4. Parking or permitting the standing of any motor vehicle or other vehicle on the real property or public highway rights of way as identified or described in paragraphs...