Waldorf Inv. Co. v. Farris

• Decision Date: 14 February 1996
• Docket Number: No. 20273,20273
• Citation: 918 S.W.2d 915
• Parties: WALDORF INVESTMENT COMPANY and Wendy's of Missouri, Inc., Plaintiffs-Appellants, v. Victor J. FARRIS, Jeanette Louise Farris, and Fabros, Inc., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 915

918 S.W.2d 915

WALDORF INVESTMENT COMPANY and Wendy's of Missouri, Inc. Plaintiffs-Appellants, v. Victor J. FARRIS, Jeanette Louise Farris, and Fabros, Inc. Defendants-Respondents.

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.

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.

PER CURIAM.

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 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 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 to defeat the injunction claim was to show Plaintiffs had an adequate remedy at law (which evidently the court found they did have in Counts II and III of the Petition)."

The issue presented on appeal is that which is stated in the point relied on. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo.1964); Woodfill v. Shelter Mut. Ins. Co., 878 S.W.2d 101, 102 (Mo.App.S.D.1994). The basis of Plaintiffs' point relied on in this case is an issue which was not expressly decided by the trial court. An appellate court will not review such a proposition. Crown Center Redevelopment Corp. v. Occidental Fire & Casualty Co., 716 S.W.2d 348, 357 (Mo.App.W.D.1986). Plaintiffs do not attack, on this appeal, any of the findings or conclusions of law actually made by the trial court in support of its judgment on Count I. Issues concerning other findings, by not being raised in a point relied on, are abandoned. Dycus v. Dycus, 806 S.W.2d 750, 752 (Mo.App.S.D.1991). Plaintiffs' first point is, therefore, denied.

In their second point on appeal, Plaintiffs contend that the trial court erred in striking testimony of Sam F. Hamra, Jr., the president of both Plaintiff corporations. The testimony in question was given at the hearing on the permanent injunction. On direct examination, the witness was asked about discussions he had with Mr. Farris concerning the property remaining between the subject property and I-44. The objection of Defendants' attorney that any such conversations would violate the parol evidence rule was overruled. Mr. Hamra answered that he had told Mr. Farris where he would like to locate the Wendy's restaurant, and that Mr. Farris said he owned the property in front of that location and would someday be developing it. Mr. Hamra continued:

So part of the discussions prior to our signing that agreement centered around that I wanted to be assured from him that on any development that took place on that property that at no time or no construction would be of any building or any other thing that he might have in mind would ever be built there that would anyway obstruct visibility of my Wendy's restaurant from Interstate 44.

The trial court, sua sponte, announced that it was sustaining the objection as it related to the italicized part of the testimony "because it does, as best I can tell, vary, alter or contradict the terms of paragraph 17. It's in evidence but I'll order it stricken and the Court will not consider it."

The parol evidence rule prohibits extrinsic evidence which would vary or contradict an unambiguous and complete contract. CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d 865, 868 (Mo.App.E.D.1995); Union Elec. Co. v. Fundways, Ltd., 886 S.W.2d 169, 170 (Mo.App.E.D.1994). The question of whether a contract is ambiguous is one of law for the court to decide. Smith v. Lockwood, 907 S.W.2d 306, 310 (Mo.App.W.D.1995); CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d at 868. That question is also one of law on appeal, the standard for...