Lee v. Rolla Speedway, Inc., No. 10012

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

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.

Page 628

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

Page 629

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...