Relaxation, Inc. v. RIS, Inc.

• Decision Date: 20 January 2015
• Docket Number: WD 76792
• Citation: 452 S.W.3d 743
• Parties: Relaxation, Inc., Respondent, v. RIS, Inc., Appellant.
• Court: Missouri Court of Appeals

452 S.W.3d 743

Relaxation, Inc., Respondent

v.RIS, Inc., Appellant.

WD 76792

Missouri Court of Appeals, Western District.

OPINION FILED: January 20, 2015

Matthew Phillip Hamner, Camdenton, MO, for respondent.

Melissa A. Hoag Sherman, Overland Park, KS, for appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Opinion

Gary D. Witt, Judge

This action arises from a dispute over rights in a parking lot easement that is shared between Appellant RIS, Inc. (“RIS”), and Respondent Relaxation, Inc. (“Relaxation”). RIS appeals from a Judgment and Third Order of Contempt in the Circuit Court of Miller County. Because we do not have jurisdiction, the appeal is dismissed.

Factual and Procedural History¹

In 1983, a Parking Lot Dedication (“Dedication” or “easement”) was formed between the predecessors in interest of the parties and was recorded in Miller County. RIS owns property that is adjacent to property owned by Relaxation. Both parties' tracts are commercial. Pursuant to the Dedication, the parties dedicated the two common parking lots between their properties for use as common customer parking. There are various restrictions about the maintenance and the usage of the lots, including a requirement that an existing twenty-five foot wide driveway shall always remain open.

In 1997, an amendment to the Dedication (“Amendment”) was executed and recorded in the county. It states that the lots were to be used solely for ingress and egress and for parking by customers, employees, and invitees of the businesses operating from a building that has at least seventy-five percent of its frontage abutting the common customer parking lots. The Amendment additionally placed numerous restrictions on the lots regarding the storage of any vehicles, fixtures, and any other property.

RIS, with Gary Prewitt (“Prewitt”) as the principal, began construction on a new shopping center on its property on or around July 2011. The development includes several “big box” stores as future tenants, including Menard's, Kohl's, and CVS. As part of its construction, RIS altered or destroyed portions of the two parking areas, barricaded and restricted access to portions of the parking areas, stored construction vehicles, supplies, and other equipment on the areas, destroyed or altered the existing driveway, and ran power lines and other utilities across the areas without Relaxation's permission.

Michael Craig (“Craig”) is a principal of Relaxation.² Craig discovered the excavation in August 2011 and contacted an attorney who tried to enter into an agreement with RIS, but that attorney died unexpectedly. Craig hired new counsel, and on October 6, 2011, Relaxation filed a petition against RIS, seeking a temporary restraining order (“TRO”), a preliminary injunction, a permanent injunction, and damages.

From that point on, RIS and Relaxation engaged in extensive litigation. By way of overview, over the next two years, the trial court (at least four separate trial judges have been assigned to this case) issued numerous TROs and contempt orders against RIS, all of which RIS basically ignored. On April 13, 2012, the court issued a preliminary injunction against RIS. Key to this appeal, after the preliminary injunction, the trial court issued two additional orders of contempt against RIS, and then issued two stays.

On October 20, 2011, the trial court, Hon. Stanley Moore, ordered the parties in a docket entry to agree on a location for the common parking area and ordered RIS to open the driveway off of the parking lot and restore the parking area to its agreed dimensions and grade within ten days. The court stated that it would issue a TRO if those conditions were not met.

The next day, Relaxation contacted RIS, stating that a surveyor would mark the corners of the common parking area pursuant to the legal descriptions in the Dedication and stated that if RIS had any disagreement with the boundaries, it should contact Relaxation's counsel. The surveyor marked the corners on the ground that day. RIS did not respond to that letter and took no attempts to restore the common parking area.

Instead, on October 28, 2011, RIS answered the petition, and filed a motion for a change of judge and a motion for reconsideration prior to the issuance of any TRO. Inter alia, RIS stated that the relocated entrance could not realistically be moved, that additional parties should be added, including Menard's, Kohl's, and CVS, and that Relaxation should be required to post a bond.³ RIS requested that the motions be heard on the date of the deadline given for compliance with the October 20, 2011 order. On October 31, 2011, the court took up the case and noted in the docket that “work continues on the driveway across [Relaxation's] parking lot in spite of the above order.” The court had visited the construction site twice at RIS's request and noted that it had found that work was continuing on the locations “that both parties agree infringes on parking lot and concrete is being laid this morning .” (Emphasis added.) The court concluded that it “can entertain absolutely no reason for defendant's contemptuous behavior.” The court then sustained the motion for a change of judge, and the cause was reassigned to Judge Donald Barnes.

On November 2, 2011, Relaxation filed a motion for contempt based on the October 20, 2011 order. Relaxation requested that the trial court order RIS to restore the parking area to its prior condition, issue monetary sanctions, and incarcerate the owner, Prewitt, until RIS comes into compliance.

On or about November 22, 2011, the parties appeared before Judge Barnes for another hearing concerning a TRO. The court gave RIS thirty days to resolve an issue with a utility company and with the engineering of a potential road, and the court gave the parties the same thirty days to reach a settlement. The court advised that if there was no settlement, it would enter a TRO and set a bond without further hearing. Additionally, the court ordered RIS not to perform any additional construction work on any property in which Relaxation claims an interest during those thirty days.

Over the next thirty days, however, RIS continued performing construction work on and around the property in which Relaxation claims an interest. The trial court issued a TRO, which was filed with the clerk in Miller County⁴ on December 30, 2011.⁵ Relaxation posted a $3,500 cash bond per the terms of the order. RIS was served a copy of the TRO. Pursuant to the order, RIS had ninety-six hours to take the following steps: restore the two parking easement areas in the underlying suit, restore the driveway, remove any utility poles, construction materials, or other items or structures that had been placed in the parking easement areas. Many of RIS's complaints in this appeal stem from this December 30, 2011 order.

On or about January 5, 2012, Relaxation filed an amended motion for contempt, moving the court to find RIS in contempt of the December 30, 2011 TRO and asking for daily fines and the incarceration of Prewitt pending compliance. On January 11, 2012, the court issued an “Extended Temporary Restraining Order,” in which it extended the TRO issued December 30, 2011. The trial court found that RIS had altered and destroyed portions of the two lots, that Relaxation was likely to succeed on the merits of its claim at trial, that Relaxation lacked an adequate remedy at law, and that there will be irreparable harm to Relaxation unless an order is issued. The court again ordered RIS to restore the parking easement areas to their original grade and dimension or to cover the restored areas with gravel as a temporary solution pending the outcome of the preliminary injunction. The court also ordered RIS to remove utility poles, construction materials, and any other items or structures that RIS had stored in the easement areas. That order was effective for fifteen days. The court requested the parties to work with the court to schedule a hearing on the preliminary injunction. Judge Barnes then recused himself from the case. On January 12, 2012, Judge William Hass was assigned to the case.

On January 26, 2012, February 8, 2012, February 24, 2012, and March 7, 2012, the trial court issued additional extended TROs at Relaxation's request. They were each effective for fifteen days.

On March 9, 2012, Relaxation filed a Second Amended Motion for Contempt based on RIS's failure to comply with the December 30, 2011 order. Among other relief, Relaxation requested daily fines and the incarceration of Prewitt until compliance with the court order. That same day, the court issued a show-cause order, ordering RIS to appear and show cause on March 20, 2012 why an order of contempt should not be entered against it. RIS answered the request for a preliminary injunction and motion for contempt on March 15, 2012. Meanwhile, on March 20, 2012, the trial court issued an additional extended TRO and an additional show-cause order, requiring that RIS appear on March 29, 2012 to show cause as to why an order of contempt should not be issued.

On March 29, 2012, the court held a hearing on the action for a preliminary injunction. Prewitt testified that he did not even bother to read the December 30, 2011 court order and that his company took no steps to comply with it. He also testified that he made no effort between November 9, 2010 and October 2011 to seek condemnation proceedings because he “thought there was no reason for it” and that there would “still be a door open for negotiations.” RIS's construction manager, Joe Vernaci (“Vernaci”) testified that additional construction work occurred in the disputed areas during the thirty-day moratorium that the trial court imposed on November 22, 2011. RIS additionally constructed a large commercial sign partially within one of the lots just weeks before the March 29, 2012 hearing. According to a surveyor, the two parking areas and the driveway...