Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc.

CourtCourt of Appeal of Missouri (US)
Citation388 S.W.2d 495
Docket NumberNo. 31387,31387
PartiesGASEN'S DRUG STORES, INC., Plaintiff-Appellant, v. JONES ENTERPRISES, INC., et al., Defendants-Respondents.
Decision Date16 March 1965

Alfred W. Petchaft, Robert J. Schaap, St. Louis, for plaintiff-appellant.

Murphy & Roche, John T. Murphy, Jr., St. Louis, Ziercher, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, for defendants-respondents.

G. DERK GREEN, Special Commissioner.

This is an appeal from a Summary Judgment rendered in favor of defendants. For a proper consideration of the questions raised by the parties, it is necessary to set out in some detail the allegations of the pleadings and the contents of the affidavits, depositions and exhibits submitted in the presentation of the Motions for Summary Judgment.

Plaintiff's Second Amended Petition attempts to state three causes of action and is divided into four sections designated by Roman Numerals I, II, III and IV. Section I sets out the corporate character of plaintiff, defendant Jones Enterprises, Inc., defendant Jones Development, Inc., defendant Metro Construction, Inc., and defendant Katz Drug Company; that Adam Henry Jones, Jr., Kendrick A. Jones, Richard F Jones and Kathleen M. Jones are the officers and stockholders of all the outstanding capital stock in Jones Enterprises, Inc., and Jones Development, Inc.; that defendants Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, are officers and stockholders of all the outstanding capital stock of Metro Construction, Inc. and that all are residents of the County of St. Louis.

In Section II, in what appears to be the first count or first cause of action, it is alleged that in June, 1955, Plaintiff entered into a lease with Jones Enterprises for use of a storeroom '* * * to form a part of the Shopping Center to be known as FLORISSANT MEADOWS SHOPPING CENTER, located at the intersection of Lindsay Lane and Highway #140, in the County of St. Louis, State of Missouri, more particularly described and designated by its legal description as follows: * * *' with the tract described by metes and bounds, which tract will hereinafter be referred to as Tract No. 1. The lease provided that it was for '* * * the purpose of dispensing, selling, storing and displaying drugs and other items commonly sold in a Gasen Drug Store.' The lease provided for the maintenance of a parking lot '* * * for the benefit of the SHOPPING CENTER generally and for the benefit of the lessee * * *.'

The clause that affords the primary basis for the cause of action here attempted to be stated is as follows: 'Lessor agrees that it will not lease or permit to be used any property owned or controlled by it, directly or indirectly in the SHOPPING CENTER described above, for the purpose of operation of a pharmacy or 'Drug Store' as that term is commonly understood.'

Plaintiff alleges that although the stock of defendant Metro Construction Company, Inc. is in the name of Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, said corporation is '* * * managed and directed by Adam Henry Jones, Jr. as a part of and in conjunction with the real estate and related business operations of Jones Enterprises, Inc. and Jones Development, Inc. Said defendant Metro Construction Co., Inc., is in reality a part of the family business enterprises of the said Adam Henry Jones, Jr. and his brothers and sister, Kendrick A. Jones, Richard F. Jones, and Kathleen M. Jones, and is operated by Adam Henry Jones, Jr. for the benefit of said family enterprise * * *.' It is alleged that these individual defendants, acting for themselves and the defendant corporations, Jones Enterprises and Jones Development, and with knowledge of the terms of plaintiff's lease, caused Metro Construction Company to be formed and to take title to an additional tract of real estate directly adjacent to and in extension of said FLORISSANT MEADOWS SHOPPING CENTER, which tract will hereinafter be referred to as Tract No. 2; that the additional tract was developed as a continuous and inseparable part of the aforesaid FLORISSANT MEADOWS SHOPPING CENTER with common continuous frontage. It is alleged that the defendants '* * * acting individually and through said Metro Construction Co., Inc. * * *' entered into a lease with defendant Katz Drug Company for the operation of a drug store in Tract No. 2 in violation of the contract with plaintiff. Plaintiff alleges that defendant Katz Drug Company had actual knowledge of plaintiff's lease and of its terms prior to the making of the lease between Katz and Metro Construction Company.

In Section III of the petition, plaintiff '[f]or its second cause of action * * *' refers to and incorporates therein allegations contained in the preceding part of the petition, alleging further that if it should be required to proceed by an action of law, the plaintiff would be forced to file a multiplicity of suits and plaintiff is therefore entitled to invoke the aid of the Court of Equity to avoid the multiplicity of suits.

In Section IV, the plaintiff '[f]or its third cause of action * * *' refers to and incorporates pertinent parts of the preceding portion of the petition and refers to the clause in plaintiff's lease providing for maintenance of a parking lot for the benefit of plaintiff and alleges that this clause has been violated by defendants having entered into an agreement referred to as 'a parking privilege agreement,' whereby it was provided that there should always be free interchange of parking privileges throughout the two tracts and that there should be no barriers or obstructions to interfere with free access by persons in either tract to the other.

Plaintiff alleges that thereafter, and notwithstanding the provision of his lease, defendants Metro Construction Company, Inc., Jones Enterprises, Inc., Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones, Kathleen M. Jones and Mary Catherine Jones, acting through defendant Metro Construction Company, Inc., executed an agreement by which they secured to the defendant Katz-Drug Company '* * * parking privileges on the portion of said Florissant Meadows Shopping Center to which plaintiff's leased premises are appurtenant * * *.' Plaintiff further alleges that the granting of this right to defendant Katz Drug Company is a wrongful and improper invasion of the customer-parking rights secured to plaintiff by the parking provision of plaintiff's lease.

Plaintiff asks that the defendants other than Katz Drug Company be restrained and enjoined from permitting any other person, firm or corporation other than plaintiff to engage in the dispensing, storing and displaying of drugs and other items commonly sold in drug stores within the premises owned and controlled by the defendants or any one of them in the property described as being in the two tracts of land herein referred to.

Plaintiff further asks that the lease between defendants Metro Construction Company, Inc., and Katz Drug Company be rescinded or modified to preclude said Katz Drug Company from conducting a retail drug business or retail drug department in this area; that the parking privilege agreement between defendants whereby parking rights in Tract No. 1 are given to and for the benefit of Katz Drug Company be rescinded and canceled and that the matter be referred to a master or referee for accounting.

This Second Amended Petition was filed on January 17, 1962. On January 25, 1962, defendants Jones Enterprises, Inc., Jones Development, Inc., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones refiled to plaintiff's Second Amended Petition their Motion for Summary Judgment, together with supporting affidavits and exhibits theretofore filed. Thereafter on January 26, 1962, defendants Metro Construction Company, Inc., Adam Henry Jones, Jr. and Mary Catherine Jones filed their Motion for Summary Judgment, with supporting affidavits. Thereafter on February 16, 1962, defendants Metro Construction Company, Inc., Adam Henry Jones, Jr. and Mary Catherine Jones filed additional affidavits in support of their Motion for Summary Judgment. On February 21, 1962, defendant Katz Drug Company filed its Motion for Summary Judgment, with supporting affidavit. On August 13, 1962, the court entered its order sustaining the separate motions of the defendants for summary judgment.

In order to sustain the trial court's judgment, it must appear from the pleadings, depositions, admissions and affidavits on file that there was no genuine issue as to any material fact and that the defendants were shown thereby by unassailable proof to be entitled to judgment as a matter of law. Supreme Court Rule 74.04, V.A.M.R.; Whitaker v. Coleman, 5 Cir., 115 F.2d 305; 5 B C.J.S. Appeal and Error Sec. 1794, Note 60.5; 4 C.J.S. Appeal and Error Sec. 226; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458; Cooper v. Finke, Mo., 376 S.W.2d 225.

Considering first the third cause of action, plaintiff alleges a violation of the lease on the theory that defendants have contracted for the use of the parking area for the benefit of third persons for a purpose prohibited by the lease. It would appear from consideration of the petition and attached exhibits that lessor defendants provided for the use of this property, concededly within the original tract described in plaintiff's lease, Tract No. 1, by defendant Katz Drug Company. This presents two issues: First, that this 'parking privilege' agreement violates plaintiff's lease by depriving plaintiff and its customers of full use of the parking area within Tract No. 1 and for which plaintiff contracted to pay upkeep and maintenance; second, that this 'parking privilege' agreement violates the restrictive covenant of plaintiff's lease by permitting a portion of the property described in Tract No. 1 to be used for the '* * * operation of a pharmacy or 'Drug Store' as that term is commonly understood.'

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6 cases
  • Pagan v. City of Kennett
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4). A summary judgment may be rendered where, but only where, the pleadings, depositions and admissions on fil......
  • Citizens State Bank of Nevada v. Wales, 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4).7 Rule 74.04(c); Stanturf v. Sipes, Mo., 447 S.W.2d 558, 560, 35 A.L.R.3d 834; E. O. Dorsch Elec. Co. v. Kn......
  • Spires v. Lawless, 9262
    • United States
    • Court of Appeal of Missouri (US)
    • February 12, 1973
    ...B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4). A summary judgment may be rendered where, but only where, the pleadings, depositions and admissions on fil......
  • O'Leary v. McCarty, 34562
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1973
    ...B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, The question that the court must address itself to is, ......
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