Lee v. Rolla Speedway, Inc.

• Citation: 539 S.W.2d 627
• Decision Date: 23 June 1976
• Docket Number: No. 10012,10012
• Parties: Ralph E. LEE et al., Plaintiffs-Respondents, v. ROLLA SPEEDWAY, INCORPORATED, Defendant-Appellant, and Central Missouri Regional Fair, Incorporated, Defendant.
• Court: Court of Appeal of Missouri (US)

Page 627

539 S.W.2d 627

Ralph E. LEE et al., Plaintiffs-Respondents, v. ROLLA SPEEDWAY, INCORPORATED, Defendant-Appellant, and Central Missouri Regional Fair, Incorporated, Defendant.

No. 10012.

Missouri Court of Appeals, Springfield District.

June 23, 1976.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 9, 1976.

Application to Transfer Denied Sept. 13, 1976.

Melvin E. Carnahan, Rolla, for plaintiffs-respondents.

L. W. Hannah, Yates, Mauck, Robinett & Hannah, Springfield, for defendant-appellant.

Before STONE, P.J., and HOGAN and TITUS, JJ.

TITUS, Judge.

Defendant Central Missouri Regional Fair, Incorporated (Fair), as landlord, and defendant Rolla Speedway, Incorporated (Speedway), as tenant, entered into a lease in October 1968 whereby Speedway obligated itself to construct an automobile racetrack on the leased premises. After Speedway had partially performed clearing and grading work at the proposed track site, an attorney, representing some 45 residents in the vicinity of the track, wrote to Fair and Speedway in May 1969 demanding that construction of the track be halted for the avowed reason that its use would constitute a nuisance. When the demand went unheeded, a petition was filed in July 1969 by 21 residents living within a 3/8ths mile radius of the project to enjoin construction, maintenance and operation of the racetrack.

Upon conclusion of the first trial of the cause in August 1970, the circuit court denied the injunction and plaintiffs appealed to the Supreme Court. That tribunal, recognizing that the racetrack had been completed and had been in operation pending appeal, reversed and remanded the case for further proceedings because, inter alia, 'there is no necessity to adjudge 'the extent of the harm involved' on a theoretical basis. Evidence should now be available as to the actual effect of the track operation and the rights of the parties can much better be adjudged on that basis.' Lee v. Rolla Speedway, Incorporated, 494 S.W.2d 349, 355(4) (Mo.1973). ¹

Following the second trial, the circuit court prepared and filed a comprehensive memorandum containing extensive findings of facts and concluded: '(I)t is the Order, Judgment and Decree of this court that the defendants . . . and each of them, and their assigns or any person, association, partnership, corporation or entity whatsoever, acting by, through or under defendants, be and they are hereby permanently enjoined and restrained from operating an automobile racetrack or speedway on the lands of defendant Fair.' Only defendant Speedway has appealed.

Speedway's first point relied on is that 'On appeal from a cause tried before the trial judge both the evidence and the law applied thereto by the trial judge must be considered.' This is a poor start for any appellant's brief because mere abstract statements of what purports to be the law do not comply with the mandatory requirements of Rule 84.04(d), V.A.M.R. (M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470(1) (Mo.App.1974)) and save nothing for appellate review. Hines v. Sweet, 518 S.W.2d 710, 711(1) (Mo.App.1975). Nevertheless, before some unwary reader is misled by the abstraction, we iterate that injunction is distinctly an equitable remedy (State ex rel. Ellis v. Creech, 364 Mo. 92, 96, 259 S.W.2d 372, 374(3) (banc 1953); 42 Am.Jur.2d, Injunctions, § 2, at p. 727), and in reviewing court-tried causes, Rule 73.01--3(a), (b), V.A.M.R. constrains us to 'review the case upon both the law and the evidence as in suits of an equitable nature' giving due regard 'to the opportunity of the trial court to have judged the credibility of witnesses.' All of which 'is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.' Murphy v. Carron, 536 S.W.2d 30, 32(1, 2) (Mo. banc 1976).

Also in abstract fashion, Speedway claims trial court error (1) because the court failed to 'consider the nature of the area in which Speedway was located and that the grounds of Regional Fair was the proper location for Speedway'; (2) because the court found 'that the area where plaintiffs' (sic) lived was a 'quiet residential area"; (3) because the court 'improperly considered the traffic generated by Speedway's operation as a factor in granting the injunction'; and (4) because the injunction 'is too broad in that it curtails the lawful operations of Speedway more than is necessary to protect the rights of plaintiffs.'

The requirements of Rule 84.04[d] that 'The points relied on shall state . . . what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous,' are applicable to appellate review of court-tried cases. Boyd v. Boyd, 459 S.W.2d 8, 12(9) (Mo.App.1970). Merely asserting what the alleged errors are without stating 'wherein and why' they are errors neither states the rule nor preserves anything for appellate consideration. Chambers v. Kansas City, 446 S.W.2d 833, 841(14) (Mo.1969). An appellate court has no obligation to seek the meaning of points relied on which amount to nothing more than abstract assertions by searching the transcript or seining the argument portion of an appellant's brief. Dors v. Wulff, 522 S.W.2d 325, 327(5) (Mo.App.1975); In re Estate of Barks, 488 S.W.2d 928, 930(5) (Mo.App.1972). From a reading of the 'points' just noted, if the trial court did indeed fail to consider the nature of the involved area or that the fairgrounds was a proper place for the track, we are left to ponder 'why' such averred failure constituted error. 'Why' it was error to conclude the affected neighborhood was a quiet residential area is consigned to speculation. Likewise, no inkling is provided as to 'wherein and why' appellant contends it was error to consider the traffic generated by Speedway's operation, or 'wherein and why' the injunction is allegedly too broad or serves to curtail appellant's operations more than is necessary.

Speedway offers two similar points which we consider together. Although these points tend toward abstraction and are rather obtuse, the gist of them seems to be that because the trial court allegedly failed to consider Speedway's evidence that its operation could be conducted more quietly than shown by plaintiffs' evidence or that it was possible the sound level could be reduced to a tolerable level, the decree nisi 'has the effect of enjoining an anticipated act performed in a manner on which plaintiffs adduced no evidence.'

Of course, there is no evidence that the trial court failed to consider any evidence produced by Speedway and a statement to that effect appearing in an appellant's brief is no proof of the fact asserted. Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25(12) (Mo.App.1969). Also to be considered is that the trial court, as trier of the facts, may simply have declined to believe the testimony adduced by the defendant, which it has a perfect right to do. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 371(7) (Mo.App.1970).

Plaintiffs had testimony of a professor of mechanical engineering at the University of Missouri-Rolla whose specialty was in the area of noise control, acoustics and vibrations. The qualifications of that expert are not here challenged by Speedway. As found by the trial court, the witness 'had made a study of the area in which some of the plaintiffs resided; that he had used a sound level meter and a high quality recorder to reproduce sounds occuring (sic) at designated points; that such a process would accurately record and preserve the various sounds just as they were heard at the point where they were being recorded. Further that standards had been arrived at for maximum acceptable values in quiet residential areas which measured by decibels on the A scale were:

                       "Basic Noise Level  Frequent Peaks  Infrequent Peaks
                Night          45                55               65
                Day            55                65               70
                That community reaction to noise on the average was as follows
                                             Corrected Noise Rating
                No observed reaction              less than 40
                Sporadic complaints                  40-50
                Widespread complaints                45-55
                Threats of community action          50-60
                Vigorous community action            above 65
                

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