Engel v. Stone

798 S.W.2d 517, 1990 Mo. App. LEXIS 1640, 1990 WL 172687
CourtMissouri Court of Appeals
DecidedNovember 8, 1990
DocketNo. 16631
StatusPublished
Cited by2 cases

This text of 798 S.W.2d 517 (Engel v. Stone) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Engel v. Stone, 798 S.W.2d 517, 1990 Mo. App. LEXIS 1640, 1990 WL 172687 (Mo. Ct. App. 1990).

Opinion

FLANIGAN, Chief Judge.

Plaintiffs Jack Engel and Dyann Engel, husband and wife, brought this injunction action against defendants William Stone and Sharon Stone, husband and wife, seeking an order restraining defendants “from continuing to park trucks, except lk ton or less, on the property described as Lot 33 Fremont Hills Subdivision, Christian County, Missouri, or any part thereof.”

Plaintiffs are residents of Fremont Hills Subdivision in Christian County. In 1970 plaintiff Jack Engel, the owner of all the land comprising the subdivision, recorded a plat showing the land as it was subdivided. Plaintiffs own several lots in the subdivision. Defendants own and reside on Lot 33. The lots were sold subject to certain restrictions, including the one involved here, which provided, in pertinent part: “No trucks permitted, except ½ ton or less.”

After an evidentiary hearing the trial court entered its order that “defendants are and shall be permanently enjoined from parking the Snap-on Tools truck within Fremont Hills Subdivision.” Defendants appeal.1

Defendants’ point is that the trial court’s order was not supported by substantial evidence and was against the weight of the evidence for the following reasons: (1) “The meaning of the term ‘truck’ within the restrictive covenants of the subdivision is unclear and was not defined at trial,” and any doubt as to the interpretation of the restrictive covenants should be resolved in favor of defendants; (2) plaintiffs presented no competent evidence that defendants’ vehicle was a truck within the meaning of the restrictive covenants; (3) the term “½ ton” is not defined in the restrictive covenants and if that term means the vehicle’s pay load, plaintiffs offered no evidence that the pay load of defendants’ vehicle was, or could be, more than ½ ton.2

“The questions for decision on appeal are those stated in the points relied on, and a question not there presented will be considered abandoned on appeal and no longer an issue in the case.” Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3] (Mo.1964). Matters which could have been raised, but were not, are neither mentioned nor considered. Conway v. Judd, 723 S.W.2d 905, 906 (Mo.App.1987).

Appellate review of this court-tried case is governed by Rule 73.01(e), V.A.M.R. This court must give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. The judgment of the trial court will be sustained unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

In Brasher v. Grove, 551 S.W.2d 302, 303 (Mo.App.1977), this court said:

“Restrictive covenants are not favorites of the law. Where their meaning is properly open to construction, they will be strictly construed. They will not be extended by implication and any reasonable doubt as to their meaning will be resolved in favor of free use of the land. If the language of the governing instrument is plain, no construction is necessary. The intention of the parties may be gathered not only from the specific clause under scrutiny but in light of all other provisions. Unless it appears that [519]*519the words of the restriction are intended to be used in a technical or limited sense, the language is to be read and applied according to the plain, everyday or popular meaning of the words. However, the principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain purpose of the restriction.”

Plaintiffs’ witnesses were plaintiff Jack Engel, Martin Erwin and Robert Carroll.

Engel testified that the purpose of the restrictions was to “maintain a standard” in the subdivision as a “first class neighborhood.” He said the reason for the restriction pertaining to trucks was “the larger the truck, the less desirability of the appearance.” Photographs of defendants’ vehicle, (hereinafter called “the vehicle”), were introduced.

Engel said that the vehicle was parked in front of defendants’ house “possibly every night.... It’s there on a fairly regular basis.” Engel was familiar with the type of vehicle shown in the photographs because he has owned one. “It is a working vehicle or truck. The one I used to own I used for catering.” Engel is a member of the subdivision’s “architectural committee” and in that capacity he had received many complaints “about the truck.”

Martin Erwin testified that he was employed by Ryder Truck Rental in Springfield. He knew defendant Stone “by buying tools from him.” Stone sells hand tools of the Snap-on brand. Stone also sold tools to other persons at Ryder. Stone called on Ryder usually once a week and came in a truck. Photographs of the vehicle were shown to Erwin and he said the photographs showed a vehicle similar to the one Stone drove to Ryder. When Erwin bought tools from Stone, “Stone would go out to his truck and get the tools for me.” Erwin had been inside the truck which “had shelves on both sides with tools on it.... I guess you would call that Stone’s inventory.” On the back of the vehicle was a lift used to lift heavy objects.

Erwin also testified that Ryder "has anything from cars all the way up to heavy duty trucks, cars, vans and pickups.... I know what a ½ ton is. It is a truck large enough it’s classified as ton gross weight_ That means light duty. Stone’s vehicle is bigger than a ½ ton truck. I would say it’s probably like a 1½ ton.”

Robert Carroll testified he was a truck mechanic at Saraan Truck Center and that he bought tools from Stone. “Stone would come to Saraan once a week to see if we needed anything. Stone carries tools on his truck. When somebody purchased something, Stone would just walk outside and get it. Last week I stepped right inside the door of Stone’s truck. I saw shelves in the truck and drawers and tools. He has a lift on the back of it. You use a lift to get things from the ground to the truck, heavy things. Stone’s vehicle appears to be a one-ton chassis. A ton truck means it’s designed to carry a ¾⅛ ton pay load.” Carroll said photographs of the vehicle showed it to be greater than V2 ton.

Photographs of the vehicle showed it parked in defendants’ driveway in the subdivision. On each side is a large painted legend reading, “Snap-On.” The letters appear to be at least a foot high and the legend itself is at least seven feet wide. The front of the vehicle has a legend reading, “Snap-on Tools.” This sign stretches across at least 80 percent of the width of the front. The vehicle has dual wheels in the rear.

Testifying in his own behalf, defendant Stone said that he was a Snap-on distributor and owned the vehicle which he used in his business. “It is a class A Dodge motor home chassis — a display van. I use it to display Snap-on and (sic) merchandise, display items. I have tools inside the vehicle. The tools are sent to me in display packs. Wrenches can be laid on the shelving in different arrangements to display them.

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Related

McCoo v. State
844 S.W.2d 565 (Missouri Court of Appeals, 1992)
Wilson v. Brewster
809 S.W.2d 183 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
798 S.W.2d 517, 1990 Mo. App. LEXIS 1640, 1990 WL 172687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engel-v-stone-moctapp-1990.