Cook v. McElwain, WD 76288.

Decision Date03 June 2014
Docket NumberNo. WD 76288.,WD 76288.
PartiesGary COOK and Michael A. Cook, Respondents, v. William D. McELWAIN and Sharon E. McElwain, Husband and Wife, Appellants.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

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.

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 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 record indicates that the two proceedings remain separate.

Id.

“An order accelerating the trial on the merits and consolidating it with the preliminary injunction hearing must be clear and unambiguous.” Cohen, 994 S.W.2d at 548. “Absent such order, a trial court may not adjudicate the merits of a claim for a permanent injunction on the evidence presented at a hearing on an application for a preliminary injunction unless the parties so agree.” Myers Mem'l Airport Comm., 951 S.W.2d at 350; accord, Pomirko, 693 S.W.2d at 325; Reprod. Health Servs., Inc. v. Lee, 660 S.W.2d 330, 339 (Mo.App.E.D.1983).

In this case, the trial court gave no indication that it intended to rule the merits of the case based solely on the evidence presented at the preliminary injunction hearing, until it actually entered its judgment permanently enjoining the lease transaction. Moreover, when Gary and Michael Cook's Motion for Permanent Injunction was argued, the McElwains' counsel expressly objected to deciding the request for a permanent injunction without a further evidentiary hearing. As part of his objection, the McElwains' counsel identified specific evidence, developed during discovery, which he desired to present at the trial on the merits.

Given the trial court's failure to provide the McElwains with any advance notice of its intent to deny them a further hearing, and their timely objection to the denial of a full trial, the permanent injunction entered by the circuit court must be reversed. We reversed a permanent injunction in similar circumstances in Nelson v. Brentwood Condominium Association, 742 S.W.2d 233 (Mo.App.W.D.1987). In Nelson, as here, the trial court entered a permanent injunction following a preliminary injunction hearing, with no notice to the parties that it intended to finally resolve the merits without a full trial. Nelson emphasized that the defendant was provided with “no notice of consolidation except that referenced in the [permanent injunction] order,” and that “there was no record which would indicate that the defendant did not plan to present a case.” Id. at 236. Nelson explained that reversal was required because, absent a consolidation order or agreement by the parties, “the cause may not be finally determined on the evidence submitted at the hearing on the application for temporary injunction.” Id.

We recognize that Rule 92.02(c)(3) states that a consolidation order may be entered [a]t any time.” The trial court's permanent injunction order had the effect of consolidating the trial with the preliminary injunction hearing, since the prayer for permanent injunctive relief was decided based solely on the evidence adduced during the preliminary injunction hearing. But even if the circuit court's permanent injunction order were considered a consolidation order, it came too late. Rule 92.02 is patterned after Federal Rule of Civil Procedure 65. Under Federal Rule 65, notice of the trial court's intent to consolidate the preliminary injunction hearing with the trial on the merits must be given in sufficient time to afford a litigant a reasonable opportunity to marshal, and present, its evidence. As explained in a leading treatise:

Since Rule 65(a)(2) provides that consolidation may be ordered “before or after beginning the hearing,” the trial court can...

To continue reading

Request your trial
7 cases
  • Estate of Hutchison v. Massood
    • United States
    • Missouri Court of Appeals
    • 28 Giugno 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......
  • Zoological Park Subdistrict of the Metro. Park Museum Dist. v. Smith, ED 105784
    • United States
    • Missouri Court of Appeals
    • 6 Novembre 2018
    ...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) (internal citation omitted).2 We note that in the present case, the Zoo did not adequately plead a separate underlying......
  • State ex rel. Koster v. Didion Land Project Ass'n, LLC
    • United States
    • Missouri Court of Appeals
    • 15 Settembre 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......
  • Wagner v. Nolan
    • United States
    • Missouri Court of Appeals
    • 13 Marzo 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT