Speedie Food Mart, Inc. v. Taylor, U-G
| Decision Date | 09 April 1991 |
| Docket Number | 57913,U-G,Nos. 57912 |
| Citation | 809 S.W.2d 126 |
| Parties | SPEEDIE FOOD MART, INC., et al., Plaintiffs-Appellants, v. Paul L. TAYLOR, Elizabeth G. Taylor andas, Inc., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Isidore Ireland Lamke, Robin E. King, Washington, for plaintiffs-appellants.
Floyd Terral Norrick, Hillsboro, for defendants-respondents.
This is an appeal from the trial court's order denying appellants' petition for permanent injunction and declaratory judgment. Appellants, Speedie Food Mart, Inc., Robert Schneider, Beverly Schneider, Ronald Schneider, Cleon Schneider, Rhonda Schneider, Dennis Schneider and JoAnn Schneider, sought to have the trial court declare that respondents, Paul and Elizabeth Taylor and U-Gas, Inc., were in violation of a restrictive agreement. The trial court found that there was a restrictive aspect to the agreement, but that respondents were not in violation of it. Both parties appeal; we affirm.
Pursuant to the will of Spencer Irwin Groff, approximately ten acres of real estate, located near Highway I-44 in Gray Summit, Missouri, was placed in a testamentary trust (the "Trust"). Missouri Baptist Foundation was designated trustee of the Trust. On September 28, 1968, the Trust leased part of the estate (Tract I) to Phillips Petroleum Company. The lease contained the following provision:
[S]aid premises and property to be used for the purpose of storing, selling and distributing gasoline, oil, oil products, petrochemicals, automobile tires and accessories, and any other goods, wares and merchandise, and at Lessee's option may be used for the conduct of any other lawful business thereon, subject to the Lessors approval.
Phillips' rights and interests in the lease were subsequently assigned to Hatcher Oil Company. In July 1982, Hatcher Oil's interest was assigned to U-Gas, Inc.
From 1968 until the present, the location has been used as a gasoline service station for the sale of gasoline, other petroleum products and automotive supplies. In the beginning, there was also the sale of snacks, candy, chips, beverages and cigarettes, primarily from vending machines. In addition, two service bays were leased to a third party and used for automotive repairs.
Following the assignment to U-Gas, changes were made to increase the volume of business. Starting in 1983 respondents made some interior modifications to increase the floor space. They also installed refrigeration units and gondola shelves for grocery items.
On March 15, 1982, the Trust sold a different part of the trust estate (Tract II) to appellants. Pursuant to the sale the parties, appellants and the Trust, entered into a separate agreement which was duly recorded. This agreement, which affected the property then being leased by respondents, stated:
Now Therefore, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, and the mutual covenants to be made and performed by and between the Parties hereto, [the Trust] hereby covenants and agrees with [Speedie Food Mart, Inc.], and its successors and assigns, that the above described Tract I shall not for a period of Twenty (20) years from the date hereof be used for a grocery store, supermarket or convenience store.
This agreement was made subject to certain prior existing leases; one being the lease to Phillips, subsequently assigned to U-Gas.
By letter dated March 17, 1983, Missouri Baptist Foundation, as trustee, notified respondents that it had received complaints regarding their remodeling. Respondents answered that they felt the expansion was "within the purpose provision of the lease" and did not require lessor's prior approval. Respondents did not change their operation because of this complaint and the record indicates there was no further communication between the parties.
On October 15, 1987, the Trust sold Tract I of the estate to the Taylors. At or near that time, respondents terminated the sublease with the third party for the service bays, and decided to completely remodel the existing facility. A new modern canopy was installed, the exterior of the building was remodeled, new tanks and pumps were installed and some landscaping was added. The interior of the building was extensively remodeled: the service bays were eliminated, a new floor, a drop ceiling and new lighting were all installed. Further, a bakery-deli, along with some booths and tables, was added. The changes cost respondents approximately $325,000 to $350,000. The purpose was to make U-Gas a one-stop service center for travelers on the highway.
Appellants argue that the 1968 lease only allows respondents to sell gas, oil and automotive products, and that any other use of the premises requires the lessor's prior approval. They further argue that the lessors cannot give their approval because of the 1982 restrictive agreement.
We first consider a motion taken with the case. Respondents moved that we strike appellants' prayer and argument in the conclusion of their brief because they pray for damages and costs, including attorneys' fees. Appellants did not include this issue in their statement of issues expected to be raised on appeal pursuant to Local Rule A.01, nor did they assert trial court error for failing to award damages in their points relied on. Issues not presented in the points to be argued in the appellate brief are deemed abandoned and will not be considered. Jones v. Eagan, 715 S.W.2d 596, 596 (Mo.App.1986). Respondents' motion to strike appellants' prayer for damages and costs is sustained.
The standard of review in a court-tried action in equity is well established. The trial court's judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A judgment involving the construction or enforcement of restrictive covenants is accorded the deference granted to other court-tried actions. Thomas v. DePaoli, 778 S.W.2d 745, 747 (Mo.App.1989).
The primary rule in the interpretation of a contract is to ascertain the intention of the parties and to give effect to that intention. Edgewater Health Care, Inc. v. Health Sys. Mgmt., Inc., 752 S.W.2d 860, 865 (Mo.App.1988). A contract which is clear and unambiguous on its face is not open to judicial construction. Thomas, 778 S.W.2d at 747. The initial question to be determined is whether an ambiguity exists. Id.
An ambiguity exists in a written instrument when the wording is reasonably susceptible of different interpretations. Edgewater Health Care, 752 S.W.2d at 865. The test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible of more than one construction giving the words their plain meaning as understood by a reasonable average person. Jim Carlson Const., Inc. v. Bailey, 769 S.W.2d 480, 482 (Mo.App.1989). A contract is not rendered ambiguous by the fact that the parties differ as to the proper construction to be given it. Edgewater Health Care, 752 S.W.2d at 865.
We find nothing ambiguous in the covenants before us. We, therefore, will construe them by attempting to ascertain the original intention of the parties, and by applying the rules relating to restrictive covenants.
Restrictions upon the free use of land are not favorites of the law. Simcox v. Obertz, 791 S.W.2d 440, 442 (Mo.App.1990). They are, therefore, narrowly construed and are not extended to include anything not clearly expressed within the document. Id. Doubts regarding application of a restriction are resolved in favor of the free use of land. Id. Regardless, this principle should never be applied in a manner that would defeat the plain and obvious purpose and intent of the restriction. Lake Saint Louis Community Ass'n v. Ravenwood...
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