Cook v. McElwain, No. WD 76288.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtALOK AHUJA
Citation432 S.W.3d 286
PartiesGary COOK and Michael A. Cook, Respondents, v. William D. McELWAIN and Sharon E. McElwain, Husband and Wife, Appellants.
Docket NumberNo. WD 76288.
Decision Date03 June 2014

432 S.W.3d 286

Gary COOK and Michael A. Cook, Respondents,
v.
William D. McELWAIN and Sharon E. McElwain, Husband and Wife, Appellants.

No. WD 76288.

Missouri Court of Appeals,
Western District.

June 3, 2014.


[432 S.W.3d 288]


Eric M. Landoll, Nevada, MO and Joseph D. Baker, Osceola, MO, for appellant.

William N. Marshall, II, Kansas City, MO, for respondent.


Before Division Two: VICTOR C. HOWARD, P.J., and ALOK AHUJA and GARY D. WITT, JJ.

ALOK AHUJA, Judge.

The Circuit Court of Bates County issued permanent injunctive relief prohibiting a contemplated lease of farmland owned by the Millard J. Cook Trust and the Laverne K. Cook Trust. William and Sharon McElwain, the intended lessees of the property, appeal. Because the circuit court erroneously denied the McElwains a trial on the merits of the request for a permanent injunction, we reverse and remand the case to the circuit court for further proceedings.

Factual Background

In May 1998, Millard Cook and his wife Laverne established two revocable trusts, the Millard J. Cook Trust and the Laverne K. Cook Trust (collectively the “Trusts”). Both Trusts own undivided one-half interests in land in Bates County.

The beneficiaries of the Trusts are the lineal descendants of Millard and Laverne Cook. The couple's children have been identified as Gary Cook, Michael Cook, Marilyn Wheatley, Thomas Cook, David Cook, Delbert Cook, and Judy Cook Transue. David Cook is presumed to be deceased but has a daughter, Janette.

Laverne Cook passed away in 1999. At the time of the events underlying this lawsuit, Millard Cook and his children Thomas Cook and Marilyn Wheatley acted as co-trustees of both Trusts.

Sharon McElwain is Millard Cook's niece, but is not a beneficiary of either Trust. In the Fall of 2010, one or more of the Trustees agreed to sell a fifteen-acre parcel of the land owned by the Trusts, on which a house was located, to the McElwains, and to lease the remaining trust property to the McElwains with a right of first refusal to purchase the leased property.

Other beneficiaries of the Trusts objected to these sale and lease transactions, arguing among other things that they had not been offered the right to purchase or lease the property on the same terms as the McElwains, and that the terms of the sale and lease transactions were not in the best interests of the Trusts or the Trusts' beneficiaries. On December 3, 2010, beneficiaries Gary Cook and Michael Cook filed suit, seeking a temporary restraining order, and preliminary and permanent injunctive relief, to prevent the real-estate transactions from being consummated.

[432 S.W.3d 289]

The circuit court initially entered a temporary restraining order against both the sale and lease transactions, conditioned on the posting of a $15,000 bond. The court conducted a hearing on Gary and Michael Cook's request for a preliminary injunction on February 8, 2011. On February 24, 2011, the circuit court entered a preliminary injunction against the performance of the lease agreement, but refused to enjoin the property sale. The court retained the bond Gary and Michael Cook had previously posted.

On December 28, 2011, Gary and Michael Cook filed a one-sentence Motion for Permanent Injunction, which “request[ed] that the Preliminary Injunction previously entered herein on February [24], 2011, be made a Permanent Injunction and that the bond previously posted by Plaintiffs be released forthwith.” At a hearing on April 2, 2012, counsel for the McElwains objected to the entry of a permanent injunction without a further hearing. Despite the McElwains' objections, and without conducting any further evidentiary hearing, the circuit court entered a judgment permanently enjoining the lease of Trust property to the McElwains on the terms previously agreed, and releasing the $15,000 injunction bond.

After the resolution of other claims on April 1, 2013, the McElwains filed this appeal.

Standard of Review

An action seeking injunction is an action in equity. The standard of review in a court-tried equity action is the same as for any court-tried case; the trial court's judgment will be sustained 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.
City of Greenwood v. Marietta Materials, Inc., 311 S.W.3d 258, 263 (Mo.App.W.D.2010).
Questions of law are reviewed de novo. Id.

Discussion

The McElwains assert six Points on appeal. Their first Point argues that the circuit court erred in granting a permanent injunction against the performance of the lease agreement without holding a trial on the merits. Because we agree that the circuit court erroneously denied the McElwains a trial on Gary and Michael Cook's demand for a permanent injunction, we reverse without addressing the McElwain's remaining arguments.

“There are ‘three permissible phases' in an injunction proceeding: (1) a temporary restraining order granted against a defendant with or without notice or hearing; (2) a temporary injunction granted after notice and hearing; and (3) a permanent injunction granted after a final disposition on the merits of the case.” St. Louis Tele–Commc'ns, Inc. v. People's Choice TV of St. Louis, Inc., 955 S.W.2d 805, 807 (Mo.App.E.D.1997) ( quoting Jackes–Evans Mfg. Co. v. Christen, 848 S.W.2d 553, 556 (Mo.App.E.D.1993)); see also Pomirko v. Sayad, 693 S.W.2d 323, 324 (Mo.App.E.D.1985). Rule 92.02(c)(3) authorizes the court to order the consolidation of the hearings on preliminary and permanent injunctive relief. State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo.App.S.D.1997). 1Rule 92.02(c)(3) provides:

At any time the court may order the trial of the action on the merits to be

[432 S.W.3d 290]

advanced and consolidated with the hearing of the application for a preliminary injunction. Any evidence received upon an application for a preliminary injunction admissible at the trial on the merits becomes part of the trial record and need not be repeated at the trial. This Rule 92.02(c)(3) shall be so construed and applied to preserve any party's right to trial by jury.

The Missouri Supreme Court has made clear that “[g]enerally, a preliminary injunction hearing is not ... considered a ‘trial,’ meaning a trial on the merits.” State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999).

Although [Rule 92.02(c)(3) ] provides for the preliminary hearing to become part of the trial record, it does not, thereby, merge the two proceedings. To the contrary, the fact that the rule contemplates that evidence received at the hearing may (if it is admissible at the trial on the merits) be received into the trial...

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4 practice notes
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 2016
    ...evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Cook v. McElwain, 432 S.W.3d 286, 289 (Mo.App.W.D.2014) (quoting City of Greenwood v. Marietta Materials, Inc., 311 S.W.3d 258, 263 (Mo.App.W.D.2010) ).AnalysisIn addressing Int......
  • State ex rel. Koster v. Didion Land Project Ass'n, LLC, No. ED 101149
    • United States
    • Court of Appeal of Missouri (US)
    • September 15, 2015
    ...of the litigation—depends on the likelihood of success at trial and the threat of irreparable harm in the meantime. Cook v. McElwain, 432 S.W.3d 286, 292 (Mo.App.W.D. 2014). Whereas, at the permanent injunction stage, the trial court must finally determine the merits of the claims—not merel......
  • Dye v. Mo. Dep't of Soc. Servs., WD 78352
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 2015
    ...to Rule 67.02(a) when a preliminary (and not a permanent) injunction is the principle relief sought by a petition. Cf. Cook v. McElwain, 432 S.W.3d 286, 290 (Mo. banc 2014) (noting that "[g]enerally, a preliminary injunction hearing is not ... considered a ‘trial’, meaning a trial on the me......
  • Wagner v. Nolan, WD 80244
    • United States
    • Court of Appeal of Missouri (US)
    • March 13, 2018
    ...evidence and inferences.(Citations and quotes omitted.) The same standard applies to court-tried equity actions. Cook v. McElwain , 432 S.W.3d 286, 289 (Mo. App. 2014). THE WAGNERS' APPEAL Point I The Wagners argue the trial court erred in finding the restrictive covenants do not require No......
4 cases
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 2016
    ...evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Cook v. McElwain, 432 S.W.3d 286, 289 (Mo.App.W.D.2014) (quoting City of Greenwood v. Marietta Materials, Inc., 311 S.W.3d 258, 263 (Mo.App.W.D.2010) ).AnalysisIn addressing Int......
  • State ex rel. Koster v. Didion Land Project Ass'n, LLC, No. ED 101149
    • United States
    • Court of Appeal of Missouri (US)
    • September 15, 2015
    ...of the litigation—depends on the likelihood of success at trial and the threat of irreparable harm in the meantime. Cook v. McElwain, 432 S.W.3d 286, 292 (Mo.App.W.D. 2014). Whereas, at the permanent injunction stage, the trial court must finally determine the merits of the claims—not merel......
  • Dye v. Mo. Dep't of Soc. Servs., WD 78352
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 2015
    ...to Rule 67.02(a) when a preliminary (and not a permanent) injunction is the principle relief sought by a petition. Cf. Cook v. McElwain, 432 S.W.3d 286, 290 (Mo. banc 2014) (noting that "[g]enerally, a preliminary injunction hearing is not ... considered a ‘trial’, meaning a trial on the me......
  • Wagner v. Nolan, WD 80244
    • United States
    • Court of Appeal of Missouri (US)
    • March 13, 2018
    ...evidence and inferences.(Citations and quotes omitted.) The same standard applies to court-tried equity actions. Cook v. McElwain , 432 S.W.3d 286, 289 (Mo. App. 2014). THE WAGNERS' APPEAL Point I The Wagners argue the trial court erred in finding the restrictive covenants do not require No......

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