Reproductive Health Services, Inc. v. Lee

• Decision Date: 27 September 1983
• Docket Number: No. 43720,43720
• Citation: 660 S.W.2d 330
• Parties: REPRODUCTIVE HEALTH SERVICES, INC., et al., Plaintiffs-Respondents, v. Sam H. LEE, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 330

660 S.W.2d 330

REPRODUCTIVE HEALTH SERVICES, INC., et al., Plaintiffs-Respondents, v. Sam H. LEE, et al., Defendants-Appellants.

No. 43720.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 27, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 15, 1983.

Application to Transfer Denied

Dec. 20, 1983.

James F. Malone, Andrew F. Puzder, St. Louis, for defendants-appellants.

Frank Susman, Clayton, for plaintiffs-respondents.

KELLY, Judge.

Sam H. Lee and twelve co-defendants ¹ have appealed from the judgment of the Circuit Court of St. Louis County enjoining them from trespassing on plaintiff's premises, The Doctors Building, for the purpose or result of interfering, disturbing, disrupting, confronting, undermining or disuading the operation, activities or conduct of the plaintiffs' normal and ordinary business, or of the business of its employees, patients and/or business invitees, or from engaging in any other unlawful acts with those intents, purposes or results.

The plaintiffs are the Reproductive Health Services, a non-profit corporation organized under the laws of Missouri, and conducts medical abortion services for its patients in a portion of the Doctors Building which it has leased from its fellow plaintiffs, Werner Kugler and Gerda Kugler, the owners of the building. The defendants are individuals opposed to abortions and allegedly members of People Expressing A Concern for Everyone (PEACE).

On May 21, 1980, the plaintiffs instituted the action against the defendants, individually and as a class, seeking a temporary restraining order, a preliminary injunction, a permanent injunction and money damages. ² A temporary restraining order was entered the day the petition was filed and defendants were ordered to show cause why a preliminary injunction should not be issued. On June 27, 1980, an evidentiary hearing was held and after extensive testimony from the parties to the action a preliminary injunction was issued enjoining all of the defendants then properly before the trial court, and the temporary restraining order was continued as to those defendants not then properly before the court.

Subsequently, on July 7, 1980, the trial court entered an order complementing its order of June 27, 1980, and scheduled a hearing on the merits of plaintiffs' petition for September 18, 1980. On July 29, 1980, Valerie Volk, one of the named defendants before the trial court, filed an application for change of judge pursuant to Rule 51.05. ³ Copies of this application were mailed to the attorneys of record for all parties upon whom service was had. The trial judge, without explanation, denied the application on September 17, 1980, and the cause proceeded to trial on the merits the following day, September 18, 1980. On October 30, 1980, the judgment from which this appeal is taken was entered and a timely notice of appeal was filed.

At the trial on the merits the plaintiffs' evidence was that Gerda and Werner Kugler, husband and wife, were partners in "West Pine Partnership" and owner of the Doctors Office Building at 100 North Euclid Avenue in the City of St. Louis, since July, 1979. Reproductive Health Services, a not-for-profit tax-exempt Corporation, leased the entire second floor of the building, including the hallways. Access to the second floor is via elevators and the two doors on the floor are constantly locked to prevent people who had no business on that floor from entering.

On July 5, 1979, defendants Klocker, Lee and Peterson gained access to the premises occupied by Reproductive Health Services, and blocked access to the clinic portion of the premises leased by Reproductive Health Services from the waiting room by sitting on the floor. When asked to leave each responded that they would not leave. The police were summoned and the defendants were removed from the premises--"carried out." Formal trespass charges were filed against each of these defendants.

On September 15, 1979, defendants Klocker, Lee, Peterson and Hatch again entered the premises, went to the same location on the second floor and blocked the premises so that it was impossible for patients to go through the door into the general facility area. When requested to leave, the defendants refused and again the police were summoned, and when they refused the request of the police that they leave, they were forcibly removed from the premises by the police officers.

Similar incidents occurred on December 8, 1979, April 5, 1980, and May 15, 1980. Defendants Bland, Hannegan, Finnegan, Danis, Kidwell, the two Andrews sisters, Volk, Hatch, Klocker, Lee, Peterson and Gibson participated in the December 8, 1979 incident. The Andrews sisters, Finnegan, Koterski, and Klocker participated in the April 5, 1980 incident. Bland, the Armstrong sisters, the Andrews sisters, and Lee participated in the May 15, 1980 incident.

The defendants' conduct disrupted the ordinary surgery scheduled to be performed, caused some patients who witnessed the occurrences to cry, created stress on staff members, and caused some patients to go to another abortion clinic. Some employees of the clinic were unable to enter the clinic premises, and the business could not be conducted in a normal manner. Doors which had not previously been locked now had to be locked and security had to be stepped-up.

These incidents also made other tenants of the building very unhappy.

Appellants initially contend that the trial court erred in permanently enjoining them from going on or entering the premises owned or occupied by the plaintiffs in that there was no showing that the defendants (1) had committed repeated trespasses on the premises; (2) had caused irreparable injury to plaintiffs; or (3) plaintiffs did not have an adequate remedy at law. We disagree.

The standard of review in this case is that set forth in Rule 73.01 and more fully declared in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), and therefore we shall only reverse on the grounds espoused by appellants if the judgment of the trial court is not supported by substantial evidence, is against the weight of the evidence, or is an erroneous application of the law. Chicago Title Insurance Company et al. v First Missouri Bank of Jefferson County, et al., 622 S.W.2d 706, 707 (Mo.App.1981). Substantial evidence is evidence which, if true, has probative force upon the issues, i.e. evidence favoring facts which are such that reasonable men may differ as to whether it establishes them. It is evidence from which the trier or triers of fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts to establish which the evidence was introduced. Terminal Warehouses of St. Joseph, Inc. v. Reiners, 371 S.W.2d 311, 317 (Mo.1963); Smoot et al. v. Marks, et al., 564 S.W.2d 231, 236 (Mo.App. banc 1978).

Where a trespass is recurring and would involve a multiplicity of suits an injunction will lie to restrain it. State ex rel. Janus v. Ferriss, 344 S.W.2d 656, 660 (Mo.App.1961); Nelson v. Kelley, 145 Mo.App. 110, 128 S.W. 832, 834 (Mo.App.1910). The evidence in this case is that the trespasses were recurring and there were threats that they would be continued into the future so long as abortions were performed on the premises.

The issuance of injunctive relief and the terms and provisions thereof are, in a proper case, matters resting within the sound discretion of the trial court and said court is vested with a broad discretionary power to shape and fashion the relief it grants to fit particular facts, circumstances and equities of the case before it. May Department Stores Company v. County of St. Louis, Missouri, 607 S.W.2d 857, 870 (Mo.App.1980).

We believe the trial court, under the facts, did not abuse its discretion and the granting of the permanent injunction was supported by substantial evidence, was not against the weight of the evidence, and applied the law correctly. We therefore rule this point against appellants.

Appellants also contend that the trial court erred in allowing a witness for plaintiffs to testify from a list prepared by said witness and plaintiffs' counsel as to the identity of the defendants when she had not testified that her recollection needed to be refreshed and when there was no showing that such writings were made at or about the time of the event they described.

The witness, Vivian Diener, Clinic Administrator of Reproductive Health Services, is responsible for the day-to-day activities of the clinic--"basically the person in charge." She was present on the premises on each and every occasion when the defendants trespassed. The number of the defendants participating in these sit-ins varied on each occasion from three to thirteen. During the course of her testimony she was permitted to use a list containing the dates of the several occasions when the offices of Reproductive Health Services were entered and the names of the defendants who came into the offices on each occasion to refresh her recollection.

We have not been favored by the parties with a copy of this list but have discerned its form from a verbal description in the transcript of the record on appeal. ⁴

Generally, however, the question whether a witness may be allowed to refresh his recollection is a matter reposing in the discretion of the trial court and is reviewable only for abuse. State ex rel. Williams v. Williams, 609 S.W.2d 456, 459 (Mo.App.1980), State v. Couch, 567 S.W.2d 360 (Mo.App.1978). A witness who does not recall or is uncertain about matters which he is called upon to testify may, under certain circumstances and conditions, be permitted to refresh his memory by referring to a memorandum or writing. Watson v. Meredith Development Company, 410 S.W.2d 338, 34[1-3] (Mo.App.1966). Whether a witness should be permitted to refresh his memory by referring to a...