Pallme v. Rott

Decision Date15 April 1969
Docket NumberNo. 33153,33153
Citation440 S.W.2d 184
PartiesNorman W. PALLME and Lenore Pallme, his wife, John Charles Moeslein and Angelein Moeslein, his wife, Plaintiffs-Respondents, v. Ervin G. ROTT and Charise L. Rott, his wife, Defendants-Appellants.
CourtMissouri Court of Appeals

Edward C. Schneider, Harry A. Frank, St. Lous, J. W. Thurman, Hillsboro, for defendants-appellants.

Anderson, Anderson & Brooking, Hillsboro, for plaintiffs-respondents.

BRADY, Judge.

This appeal presents two issues for our ruling: First, is this a proper case for summary judgment? If our answer is in the affirmative we reach the second issue; i.e., whether the judgment on the law rendered by the trial court was erroneous. We will refer to the parties by their designation in the trial court.

Plaintiffs, alleging ownership of Lots 9 and 10 in Block Two of Arnold Terrace Subdivision, filed a petition for an injunction seeking to permanently enjoin and restrain defendants from '* * * using or permitting their property to be used for purposes other than residential purposes as set out in the restrictions' and requiring defendants to tear down and remove a sign which they had erected on their premises in the subdivision. The allegations of the petition were that defendants, who owned a part of Lot 8 in Block Two of the subdivision, had purchased a portion of Lot 7 in that block and on the latter property had erected a 'large commercial sign reading: 'Hy. 141 Exit Maxville Meadows Brick Homes Hy. 141 Maxville Ervin G. Rott, Inc. VI 2 0790 ". It was further alleged that the restrictions of said subdivision had been recorded in the office of the Recorder of Deeds for the county in which the subdivision was located and a copy was attached to the petition as plaintiffs' Exhibit A; that the restrictions originally stated: "All lots in the subdivision are restricted for private residential purposes only"; that these restrictions have been changed in the manner provided therein for such changes to be made, that such changes were recorded in the office of the Recorder of Deeds for the applicable county so that this provision in the restriction now reads: "All lots in this subdivision are restricted for private residential purposes only, except Lots 1, 11, 12 and 13 which said lots may be used either for residential or commerical purposes" (a copy of these changes was attached to the petition as plaintiffs' Exhibit B); that the restrictions also provide that any lot owner 'shall have the right to prevent or stop a violation of any section of said restrictions by injunction or other lawful procedure and to recover any damages awarded as a result of such violation'; that irreparable harm, damage and injury will be suffered by plaintiffs unless defendants' acts are enjoined and defendants be required to remove the sign; and that plaintiffs have no adequate remedy at law.

The answer admitted the ownership of the respective lots as alleged in the petition by plaintiffs and by defendants and that the restrictions were as set out in the petition. The answer denied the allegations in the petition dealing with plaintiffs' adequate remedy at law and that unless defendants are enjoined and required to remove the sign plaintiffs will suffer irreparable injury. By way of further answer defendants admitted that the sign alleged in the petition was erected but deny that it is a 'large commercial sign' and also deny any portion of that lot has been converted to commercial use. Defendants' answer also alleges the sign is not a commercial sign but is a temporary directional signal for highway traffic which does not violate the restriction. In this portion of their answer defendants refer to the 'remaining portion of Lot 7' and state: '* * * the balance of lot 7 was taken for highway purposes.'

Plaintiffs then filed a 'Request for Admissions' and by defendants' answer thereto it was agreed the sign shown in a photograph attached to the Request for Admissions was a fair and accurate representation of the sign involved and that the wording shown in that photograph was the wording that did in fact appear on the sign.

Thereafter plaintiffs filed their motion for a summary judgment giving notice to counsel in the motion. Defendants filed a motion and notice of cross-motion for summary judgment which was in the identical language with the proper changes necessitated by the different position of the parties. This 'Motion and Notice of Cross-Motion for Summary Judgment' was supported by the affidavit of Mr. Rott, one of the defendants. That affidavit recited he was one of the defendants and was the owner of the lot involved; 'that the Missouri Highway Commission has taken for highway purposes all of the Lots in Block Two of said subdivision, except part of Lot 8, all of 9 and 10 on the West side of said Highway; that said Highway I--55 was opened for traffic purposes to State Highway 141 since about December of 1966; that on the portion of the property owned by the affiant, he has erected a directional sign as shown on the picture exhibit and that said directional sign is directed to the traffic and motorists operating southward on Highway I--55; that the sign abuts the relief road connecting with State Highway 141 and runs along the West side of Highway I--55; that said sign is a directional sign and is not a commercial sign board and that said covenants and restrictions filed of record contain no inhibitions against the use of land for signs and bill boards; that the use of said sign is not for business or commercial purposes and causes no inconvenience in the immediate area and is of a beneficial nature, in that it directs the highway traffic on I--55 to the intersection of State Highway 141. (SIGNATURES OMITTED)'

The trial court overruled defendants' motion for summary judgment and sustained plaintiffs' motion therefor and issued its 'Permanent Injunction Decree'. By that decree the defendants were ordered to 'immediately tear down and remove the sign'; they are 'perpetually enjoined and restraine from using or permitting their Property of Lot 7, Block Two to be used for purposes other than residential purposes as set out in the restrictions in Block Two of Arnold Terrace Subdivision as recorded in the Office of the Recorder of Deeds for Jefferson County, State of Missouri in Book 258, page 135'; and defendants and all persons claiming under them or acting under their direction or authority 'are hereby perpetually enjoined and restrained from erecting, causing or permitting the erection or maintenance of any sign on their property in Block Two of Arnold Terrace Subdivision.'

Two of the allegations of error contained in defendants' brief go to the issue of whether or not this is a proper case for summary judgment. The first allegation of prejudicial error reads as follows: '(A) The form and substance of plaintiffs' combined notice-motion for summary judgment; (B) That the procedure for summary judgment by Rule 74.04 is entirely inappropriate and should not be used in an equitable action for restraining or mandatory court order and injunction.' A further and more elaborate development of Points A and B follows but neither refers to any action of the trial court. See Civil Rule 83.05(e), V.A.M.R. The transcript discloses this contention was never presented to the trial court in any form. It is not even contained within the memorandum filed by defendants in support of their motion for summary judgment. Since the contentions found in this allegation of error are first raised on appeal without giving plaintiffs any opportunity to rebut them in the trial court, and the trial court had no opportunity to rule upon them, they are not properly preserved for our ruling in this appeal. Wood v. James B. Nutter & Company, Mo., 416 S.W.2d 635, l.c. 639(4). In addition, it is obvious this allegation of error is so worded as to be in...

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4 cases
  • Weber v. Les Petite Academies, Inc.
    • United States
    • Missouri Court of Appeals
    • January 9, 1973
    ... ... Civil Rule 74.04, V.A.M.R.; Cooper v. Finke, supra; Brown v. Prudential Ins. Co. of America, supra; Pallme" v. Rott, Mo.App., 440 S.W.2d 184. Therefore, we affirm the trial court's ruling of a summary judgment on Count I of plaintiffs' petition ...    \xC2" ... ...
  • Porter v. Georgia Cas. & Sur. Co., 35097
    • United States
    • Missouri Court of Appeals
    • February 19, 1974
    ...490 S.W.2d 278, 279 (Mo.App.1973); Brown v. Prudential Insurance Company of America, 375 S.W.2d 623, 629 (Mo.App.1964); Pallme v. Rott, 440 S.W.2d 184, 197 (Mo.App.1969). When appeal of a summary judgment is made, the duty of an appellate court is to review the record in the light most favo......
  • Harbaugh v. Harbaugh
    • United States
    • Missouri Court of Appeals
    • October 13, 1971
  • Dierberg v. Wills
    • United States
    • Missouri Court of Appeals
    • September 17, 1985
    ... ... We disagree. In Pallme v. Rott, 440 S.W.2d 184, 188 (Mo.App.1969), this court considered whether the State Highway Commission's taking of part of a subdivision for highway ... ...

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