Gittemeier v. Contractors Roofing & Supply Co.

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON; RHODES, RUSSELL, P.J., and KAROHL
• Citation: Gittemeier v. Contractors Roofing & Supply Co., 932 S.W.2d 865 (Mo. App. 1996)
• Decision Date: 22 October 1996
• Docket Number: No. 69846,69846
• Parties: Charlie GITTEMEIER, Appellant, v. CONTRACTORS ROOFING & SUPPLY CO., et al., Respondents, Tamko Roofing Products, Inc., Respondent.

Page 865

932 S.W.2d 865

Charlie GITTEMEIER, Appellant, v. CONTRACTORS ROOFING & SUPPLY CO., et al., Respondents Tamko Roofing Products, Inc., Respondent.

No. 69846.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 22, 1996.

Ronald A. Norwood and Yvette M. Guerra, Lewis, Rice & Fingersh, L.C., St. Louis, for appellant.

E. Darrell Davis, Davis & Schroeder, St. Charles, Gerard T. Noce and Steven D. Jenson, Evans & Dixon, St. Louis, for respondents.

SIMON, Judge.

Charlie Gittemeier (Gittemeier) appeals from summary judgments granted in favor of Stephen Schulte and his wife, Jerry, (Schultes), Contractors Roofing and Supply Co. (Contractors), a Missouri corporation, and Tamko Roofing Products, Inc. (Tamko), also a Missouri corporation, on four counts of Gittemeier's seven count petition.

On appeal Gittemeier contends that the trial court erred in sustaining the motions for summary judgment as to his claims for: (1) nuisance and (2) trespass against Contractors and Schultes because they have allowed, directed and permitted numerous semi-trailer trucks to block a common driveway; (3) breach of contract and declaratory judgment against Contractors and Schultes because the mutual reciprocal easement expressly limits the use of the common driveway to ingress and egress and they have used the drive for other uses; and (4) nuisance and trespass against Tamko because the contracts between Tamko and its carriers gives Tamko the express right to direct and control the manner and method of its deliveries. Schultes and Contractors filed a motion to dismiss the appeal as moot and Gittemeier filed a motion for sanctions against Contractors and Schultes for filing a frivolous motion to dismiss the appeal. These motions were ordered taken with the case. We deny the motions and affirm the judgment in part and reverse and remand in part.

It is well settled that when considering an appeal from summary judgment, we review the record in a light most favorable to the party against whom judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376[1-3] (Mo. banc 1993). Our review is essentially de novo. Id.[4-6]. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. at 387.

A "defending" party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's element facts; (2) that the non-movant has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defense. ITT, 854 S.W.2d at 381.

The non-movant must show--by affidavit, depositions, answers to interrogatories, or admissions on file--that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. ITT, 854 S.W.2d at 381. Where, as here, the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the summary judgment if it is appropriate on any theory. Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 369 (Mo.App.E.D.1993).

The record indicates that Gittemeier Properties was the owner of two adjacent plots of land, lots 1 and 2. Charlie Gittemeier is a partner in Gittemeier Properties. Gittemeier Properties agreed to convey to Schultes property adjoining Lot 1, hereinafter referred to as Lot 2. As part of this sale, the parties agreed that a common driveway would be needed to provide a means of access to the lots once the properties were developed. The grant of the mutual, reciprocal easement reads in pertinent part:

1. First Party (Gittemeier Properties) and Second Party (Schultes) hereby reserve unto themselves and grant unto each other an easement of ingress and egress over the property ... being the Eastern 15 feet of the tract of land described in Exhibit A (Lot 1) ... and the Western 15 feet of the tract of land described in Exhibit B (Lot 2) ...

2. The land hereby conveyed shall be used as a common driveway for the benefit of both properties described.

5. This easement and the covenants herein contained shall run with the land and inure to and be binding upon the successors in title of the respective parties hereto.

Subsequent to the conveyance of Lot 2 to Schultes, Gittemeier Properties conveyed Lot 1 to Gittemeier. Schultes built certain buildings on the property and leased it to Contractors. Stephen and Jerry Schulte are officers and owners of Contractors. Crafton Drive is the common driveway easement for use by Gittemeier's and Schultes' properties.

Gittemeier filed his seven count Third Amended Petition seeking recovery against Schultes, individually, and Contractors for declaratory relief (Count I), preliminary and permanent injunction (Count II), breach of contract (Count III), trespass (Counts IV and V) and nuisance (Counts VI and VII). In his complaint against Tamko, he sought declaratory relief (Count I), preliminary and permanent injunction (Count II), trespass (Count IV) and nuisance (Count VI).

Part of Contractors' operations consist of selling roofing supply materials and appliances to its customers. These materials and appliances are delivered to it by way of semi-trailer delivery trucks from differing manufacturers which arrive during the morning hours and enter into Schultes' facility through a door located to the east of Crafton Drive. Gittemeier alleges, depending upon the number of trucks arriving at the facility, the semi-trailer trucks park on Crafton Drive, clog the drive for hours, and block his vehicles and those of his tenants and their customers. When multiple trucks arrive at the facility at the same time the trucks park on Crafton Drive and allegedly on Gittemeier's property while waiting for other trucks already in the facility to exit so they can unload. He also alleges that the trucks drive onto, park on, and destroy curbing located on his property. In addition, Gittemeier alleges that, by and through its employees, Contractors park its fleet of trucks upon Crafton Drive, use its trucks to block ingress and egress to Lot 1, and allow these trucks to travel onto and park upon his property without his consent.

Tamko is a manufacturer of roofing materials which delivers materials to Contractors by semi-trailer trucks. Gittemeier contends that trucks, under the direction and control of Tamko, park on Crafton Drive, clog the drive for hours, block his vehicles and those of his tenants and their customers, and drive onto, park on, and destroy curbing located on his property. Contractors, Schultes, and Tamko filed answers essentially denying Gittemeier's allegations.

Later, Contractors, Schultes, and Tamko moved for summary judgment as to all counts. In their motion for summary judgment, Schultes, individually, and Contractors contend they are entitled to a judgment as a matter of law because the uncontroverted facts demonstrate that the adjoining properties are encumbered with a thirty-foot common driveway easement to be used for ingress and egress over the property. In addition, delivery trucks block part of the driveway while waiting to unload, however, blockage of the easement is for short periods and the drivers are asked to block only the Schultes' side of the drive or park offsite until they can unload. Furthermore, the delivery truck drivers are not Contractors' or Schultes' employees, agents, or servants. Finally, the parties called the court's attention to its prior order establishing that washing, parking, and driving vehicles upon a driveway easement are acceptable and intended uses.

In support of their motion, Contractors and Schultes presented affidavits of Jerry and Stephen Schulte. Jerry and Stephen Schulte state that a common driveway was established between Gittemeier's and Schultes' properties for use by the customers of both parties, and that all deliveries are made by persons not employed or controlled by Contractors or the Schultes. Finally, Contractors' employees are instructed to tell delivery truck drivers not to block the driveway and a sign is posted to that effect.

Responding to Contractors' and Schultes' motion for summary judgment, Gittemeier filed an answer to the motion and his affidavit in support. In his answer, Gittemeier contends that Schultes and Contractors have control over the manner in which deliveries are made because they could give the delivery carriers instructions, for example "do not park on Gittemeier's property." In his affidavit, Gittemeier states that the terms of the easement were intended by the parties to be limited to ingress and egress only. Further, delivery trucks have parked on the common driveway for up to an hour and on his property while making deliveries.

In its motion for summary judgment, Tamko contends that it is in the business of manufacturing roofing products and contracts with independent motor carriers to transport and deliver its products to its customers. In addition, it intended to create an independent contractor relationship and at no time intended to create an agency, employer-employee, or master-servant relationship with the carriers it uses. Moreover,...