Waldorf Inv. Co. v. Farris, 20273

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation918 S.W.2d 915
PartiesWALDORF INVESTMENT COMPANY and Wendy's of Missouri, Inc., Plaintiffs-Appellants, v. Victor J. FARRIS, Jeanette Louise Farris, and Fabros, Inc., Defendants-Respondents.
Docket NumberNo. 20273,20273
Decision Date14 February 1996

Page 915

918 S.W.2d 915
WALDORF INVESTMENT COMPANY and Wendy's of Missouri, Inc.,
Victor J. FARRIS, Jeanette Louise Farris, and Fabros, Inc.,
No. 20273.
Missouri Court of Appeals,
Southern District,
Division One.
Feb. 14, 1996.
Motion for Rehearing or Transfer
Denied March 6, 1996.
Application to Transfer Denied
April 23, 1996.

Page 916

Appeal from Pulaski County; John D. Wiggins, Judge.

Donald W. Jones, Timothy E. Gammon, Springfield, for plaintiffs-appellants.

Tyce S. Smith, Sr., Smith and Dunbar, Waynesville, for defendants-respondents.


This case was initiated by a three-count petition filed in 1985 by Waldorf Investment Company (Waldorf) and Wendy's of Missouri, Inc. (Wendy's) (sometimes collectively referred to as Plaintiffs) against Defendants in which they sought an injunction and damages. On this appeal, they contend that the trial court erred in denying an injunction, in excluding testimony given in the trial of the injunction count, and in dismissing the remaining two counts for failure to prosecute.

In 1981, Waldorf purchased property (the subject property) in St. Robert, Missouri from Defendants (collectively referred to as

Page 917

the Farrises) and the estate of William J. Farris, deceased, for the purpose of constructing a "Wendy's Old Fashioned Hamburger" restaurant. That property is located on the south side of I-44, which runs in a generally east-west direction, and is apparently just east of an interchange and overpass over the highway. 1 The Farrises retained ownership of other property between the subject property and I-44.

A Wendy's restaurant was constructed on the subject property in early 1982. In March, 1985, Plaintiffs filed this suit alleging that Defendants 2 had begun construction of a building (a Western Sizzlin Steakhouse) in front of Plaintiffs' property which "significantly and substantially interferes with the Plaintiffs visibility from Interstate 44 of the Plaintiff's premises" in violation of paragraph 17 of the purchase contract. That paragraph read:

17. Visibility: Sellers agree that they will make every effort to prevent any obstruction being located in front of the property described in paragraph 1 of this Agreement that would in any way obstruct visibility from Interstate 44 to the said property.

Count I sought injunctive relief against continued construction of the steakhouse and to require that it be reconstructed "so that it does not interfere with the Plaintiffs right of visibility." Counts II and III sought actual and punitive damages respectively.

The issues under Count I were tried on April 4, 1985. On April 22, 1985, the trial court made findings of fact and conclusions of law and entered a judgment denying injunctive relief. 3 Plaintiffs filed a notice of appeal from that ruling, but for reasons not apparent from the record before us, the appeal was dismissed. We note, however, that Counts II and III were still pending and unresolved.

Later, the Farrises apparently filed a declaratory judgment action against "Wendy's of Missouri, Inc., Sam F. Hamra, Jr. and Sam F. Hamra, Jr. d/b/a Waldorf Investment Company, Spike E. Ehrhardt and Steve Ehrhardt" to declare that construction on another portion of the Farrises' land would not violate the contract provisions. 4 On March 3, 1995, Plaintiffs in the instant case filed a motion to consolidate this case with the declaratory judgment action filed by the Farrises. Six days later, Defendants in the instant case filed a motion to dismiss Counts II and III of the original petition for failure to prosecute, which the court sustained on May 3, 1995.

Plaintiffs appeal the orders of April 22, 1985 denying them injunctive relief, and of May 3, 1995 dismissing Counts II and III of their original petition for failure to prosecute. We affirm.

In their first point relied on, Plaintiffs contend that the trial court erred in denying injunctive relief "and specifically by holding the contract provision regarding visibility was not violated by the steakhouse ... for the reason the clear meaning of the contract language was that Farris agreed not to block the view of Wendy's from I-44, and the steakhouse did at least partially obstruct visibility from I-44 to Wendy's."

The trial court, however, did not purport to hold that the steakhouse did not violate the visibility provisions of the Agreement. Rather, the court concluded that it was not necessary to determine whether the steakhouse was located in "front" of the property by defining what that term meant (either 180 degrees as argued by Plaintiffs or within parallel lines drawn from the east and west edges of the property to I-44 as argued by Defendants), because "under either definition plaintiff is not entitled to injunctive relief."

That conclusion was preceded by findings that from the first time both the steakhouse and Wendy's are visible to eastbound traffic

Page 918

on I-44, a car would then have to travel two miles in order to exit and return to Wendy's (this was apparently because visibility of Wendy's for eastbound traffic was blocked by the overpass until after traffic had passed the exit ramp and proceeded under the overpass); if the eastern and western boundaries of the tract were extended north to I-44, no part of the steakhouse would be within the extended lines; westbound traffic would be past Wendy's and looking backward before the steakhouse would interfere with the view of Wendy's; Plaintiffs' president had previously indicated approval of the construction as long as the steakhouse was built in accordance with plans reviewed by him; in an effort to provide as much visibility as possible, Defendants had lowered the floor of the steakhouse at a cost of $22,000, reduced the height of the roof from 8 to 4 feet, placed black roofing on it to reduce glare, and moved heating and cooling units inside the building resulting in a loss of floor space; and removing the roof of the steakhouse in its entirety as requested by Plaintiffs would cost over $140,000.

In the trial court's conclusions of law, it noted that the elements of an injunction are: (1) irreparable harm must be likely to result if the injunction is not granted; (2) there is no adequate remedy at law; and (3) the right to be protected is a substantial one and the injury is not a small or technical one. It also noted that a plaintiff has a heavy burden of proof when seeking an injunction; an injunction should be granted only if the right to relief is clear; and the court has a duty to consider the effect of an injunction on the parties.

The trial court, therefore, rather than denying an injunction based on a finding that the steakhouse did not violate the visibility requirement of the Agreement, held that Plaintiffs had not demonstrated an entitlement to injunctive relief under the above principles. Plaintiffs admitted as much in suggestions filed in the trial court in which they said that "all Defendants had to do...

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