This is an appeal from a judgment of the Circuit Court of Jackson County, Missouri (“trial court”), granting a permanent injunction to the City of Greenwood, Missouri (“Greenwood”), prohibiting trucks transporting rock from a quarry run by Appellants Martin Marietta Materials and Hunt Martin Materials (collectively, “Quarry”)
1
from using a particular road
Factual and Procedural Background 2
Greenwood is a fourth-class city of approximately 4,000 residents located in southern Jackson County, Missouri. Quarry has been in operation just south of Greenwood for more than fifty years. There are two routes available for trucks transporting rock from Quarry to Highway 150, the main east-west route in the area. The route in dispute in this case runs from 150 Highway south along Second Avenue and a few other side streets to Quarry. This route, known as the Second-Avenue route, is a narrow country road that passes through a residential area and a commercial area on the eastern edge of Greenwood. Prior to June of 2006, Greenwood designated Second Avenue as its only permitted truck route.
In June of 2006, due to concern over high-volume truck traffic, Greenwood enacted an ordinance that limited the weight of trucks that could use Second Avenue. On January 26, 2007, the ordinance was declared to be inconsistent with Missouri law and thus invalid by the United States District Court for the Western District of Missouri (“federal court”).
3
Martin Marietta Materials, Inc. v. City of Greenwood,
No. 06-0697-CV-W-DW,
In February of 2007, Greenwood passed another ordinance that prohibited all commercial vehicles from using Greenwood streets unless a street had been designated a “Commercial Use Route” (“new ordinance”). At that point, no Greenwood street was designated as a Commercial Use Route. Quarry brought an action in federal court seeking to enjoin enforcement of the new ordinance alleging that Greenwood, in enacting the ordinance, breached a 1991 contract between Quarry and Greenwood and violated the Commerce Clause of the United States Constitution.
Greenwood brought its own action in the Circuit Court of Jackson County for declaratory judgment, seeking a declaration that the new ordinance was valid under Missouri law. Quarry removed Greenwood’s state case to federal court, but it was remanded because the federal court found that, while asserting a defense to a federal action in a parallel state court case normally supports removal, a simple declaratory judgment action brought by a state entity to uphold the state constitutionality of its actions is not within the federal question jurisdiction of the federal court. Thus, based on the limited relief sought in the initial petition, the federal court remanded this case to the state court.
City of Greenwood v. Martin Marietta Materials, Inc.,
Greenwood subsequently amended its state court pleading to add two counts for public nuisance (based on the high volume of truck traffic on Second Avenue); a count for trespass; and a count for negligence (based on Quarry’s prior attempts to
On June 26, 2007, the federal court granted Quarry a preliminary injunction against enforcement of the new ordinance on the grounds that it violated the Commerce Clause of the United States Constitution. Quarry trucks began using Second Avenue again on July 1, 2007.
On March 5, 2008, a jury trial commenced in state court on Greenwood’s negligent repair, nuisance, and trespass claims. On March 14, 2008, the jury returned verdicts for Greenwood for $1.9 million in compensatory damages and $10 million in punitive damages on the claims of negligent repair and public nuisance. The jury found for Quarry on the trespass claim. The trial court entered judgment on counts II through V on March 17, 2008, in accordance with the jury verdicts. Quarry filed motions for judgment notwithstanding the verdict or for new trial, which were denied in two documents also denominated as judgments on May 6, 2008. On May 16, 2008, Quarry filed a notice of appeal of the May 6 judgment.
Meanwhile, on April 1, 2008, Greenwood filed a motion for a permanent injunction in the state case, asking the trial court to prohibit Quarry truck traffic on Second Avenue.
On June 13, 2008, count I (seeking declaratory judgment) was tried to the court, and on June 16, 2008, the trial court entered a judgment declaring that Greenwood’s revised quarry ordinance was valid under Missouri law. On June 80, 2008, Quarry filed a notice of appeal of the trial court’s declaratory judgment on count I and all documents the trial court had denominated as judgments. 4
A hearing on Greenwood’s motion for injunctive relief was initially set for July 11, 2008. Before the hearing, Greenwood sought clarification from the federal court of whether the previously granted federal preliminary injunction preventing enforcement of the new ordinance prohibited Greenwood from seeking a state court injunction regarding the same ordinance. The federal court refused to grant Greenwood an “advisory opinion” on whether proceeding with the state court injunction action would place Greenwood in contempt of the previous federal order.
In its order, the federal court indicated that it was “disturbed by the state of affairs in this dispute and increasingly frustrated by the conduct of [Greenwood].”
Martin Marietta Materials, Inc. v. City of Greenwood,
No. 06-0697-CV-W-DW,
Although this court had an opportunity to consolidate these cases when the state court action was removed, remand was required based on the record before it at the time of removal. The Court is of the opinion that if all issues and claims had been honestly presented during the early phases of this dispute, either here or in state court, the present predicament would have been avoided.
Id. The July 11 hearing in state court was continued.
On September 3, 2008, while the appeal of the state court action was pending in this court, the trial court held a status conference. At that time, Greenwood still wanted the trial court to rule on its motion for injunctive relief filed April 1, 2008. Quarry argued at the status conference that the trial court no longer had jurisdiction to offer any further relief, as judgment had been entered on each count in the amended petition and the matter was pending on appeal. In response to Quarry’s concerns, the trial court recommended that Greenwood file a new petition seeking injunctive relief. Greenwood did so on September 4, 2008. On the same day, the federal court entered a permanent injunction barring Greenwood from taking any action that prohibits all through truck traffic through the city.
Martin Marietta Materials, Inc. v. City of Greenwood,
No. 06-697-CV-W-DW,
On September 23, 2008, Quarry removed the newly filed state injunctive action to federal court. The next day, Greenwood voluntarily dismissed that action and filed a notice of hearing on its April 1, 2008 motion for injunctive relief under the number of the state-court case pending appeal. The state trial court held a hearing on Greenwood’s motion for injunction on November 12, 2008. Quarry again objected to the trial court’s jurisdiction to decide the matter since the case was pending on appeal. On November 17, 2008, 154 days after entering judgment on the last pleaded count in Greenwood’s petition, the trial court entered judgment giving Greenwood an injunction prohibiting quarry trucks, and only quarry trucks, from using Second Avenue. This appeal follows.
Standard of Review
An action seeking injunction is an action in equity. The standard of review in a court-tried equity action is the same as for any court-tried case; the trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.
Murphy v. Carrón,
To the extent that a trial court’s grant of injunctive relief involves weighing the evidence presented, determining the credibility of witnesses, and formulating an injunction of the appropriate scope, this court reviews for abuse of discretion.
Doe v. Phillips,
Legal Analysis
A. Sufficiency of the claim for in-junctive relief
Quarry’s first points on appeal
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are that the trial court erred in granting
i. The relief sought
Quarry claims that Greenwood’s prayer for relief, which does not specifically request an injunction but does generally request other relief that is “just and proper” is insufficient to support the trial court’s grant of injunctive relief. As Greenwood notes, this court has stated that a general prayer for relief, such as Greenwood’s request for “such other relief this court deems just and proper,” is elastic enough to encompass other equitable relief, including an injunction.
See City of Kansas City v. Mary Don Co.,
ii. Facts pleaded or tried by consent
Generally, the prayer for relief is not considered part of the petition.
City of Kansas City v. N.Y.-Kan. Bldg. Assocs., L.P.,
Greenwood maintains that the grant of an injunction in this case is supported by facts pleaded and tried to establish its public nuisance claim. However, a party cannot plead an action in law and recover in equity.
Carlton v. Wilson,
Even if Greenwood’s cause of action for public nuisance could support the grant of injunctive relief, each element of a claim for injunctive relief must be supported by facts that were either pleaded or tried by consent. The elements of a claim for permanent injunction include: (1) irreparable harm, and (2) lack of adequate remedy at law.
N.Y.-Kan. Bldg. Assocs., L.P.,
In this case there is no question that the issue of irreparable harm was not tried by
express
consent. Quarry objected to the injection into this case of issues pertaining to injunctive relief at every step of the way. Nor can the presentation of evidence in support of Greenwood’s public nuisance claim be the basis for a finding of
implied
consent to the litigation of irreparable harm. Application of the implied consent rule is limited to when the evidence bears
only
on the un-pleaded issue and not upon issues already in the case.
Residential & Resort Assocs., Inc.,
We also find that the evidence presented in support of Greenwood’s public nuisance claim is insufficient to support the grant of injunctive relief because it does not demonstrate that Greenwood had no adequate remedy at law.
N.Y.-Kan. Bldg.
Assocs.,
L.P.,
An injunction is an extraordinary and harsh remedy and should not be granted when there is an adequate remedy at law. Generally, the phrase ‘adequate remedy at law1 means that damages will not adequately compensate the plaintifffor the injury or threatened injury. Irreparable harm can be found when pecuniary remedies fail to provide adequate reimbursement for improper behavior.
Id. (internal citations omitted). In this case, the jury awarded Greenwood $1.9 million in compensatory damages and $10 million in punitive damages. At trial Greenwood argued that the abatement of the nuisance would be a new road for Second Avenue. 8 A new road would presumably alleviate the traffic and safety concerns which currently exist because of the road’s narrow width and poor condition. Greenwood did not even attempt to complete the abatement it sought and received from the jury before it sought in-junctive relief from the court. Greenwood’s monetary compensatory damage award and punitive damage award indicate that an adequate legal remedy exists. Accordingly, Greenwood neither pleaded nor tried the issues of irreparable harm and inadequate remedy at law and, therefore, injunctive relief at the time it was entered by the trial court was not proper.
B. The trial court’s jurisdiction to address Greenwood’s motion for permanent injunction
Quarry’s next point on appeal is that the trial court was without jurisdiction to grant the motion for injunctive relief because final judgment on all counts had been entered and the appeal was pending before this court when the judgment granting injunction was entered. Historically, it has been said that a trial court loses jurisdiction to take any further action in a case when the judgment becomes final.
State ex rel. Wolfner v. Dalton,
Similarly, it was said that “an appeal cuts off trial court jurisdiction to exercise any judicial function in the case and vests jurisdiction in the appellate court.”
Top Craft, Inc. v. Int’l Collection Sens.,
However, in January of 2009, the Missouri Supreme Court decided
Webb v. Wyciskalla,
We find that Greenwood misapplies Webb. Webb and its contemporaries 9 all deal with the trial court’s original jurisdiction. They do not deal with appellate jurisdiction and whether a trial court and appellate court can have concurrent jurisdiction over the same case. In this case, the appeal of the trial court’s judgment, in which Greenwood acquiesced, was already pending in this court when the trial court purported to enter additional relief in the form of an injunction. Greenwood does not challenge this court’s authority over the first appeal. We do not find, as Greenwood evidently argues, that Webb supersedes the longstanding rule against simultaneous trial and appellate court jurisdiction, which takes its authority directly from the Missouri Constitution. Rather, the appellate court’s assumption of appellate jurisdiction removes the trial court’s jurisdiction over the subject matter of the case. See Mo. Const, art. V, §§ 3 and 14. 10 At some point a judgment must become final. At that point the trial court’s ability to act ceases and the appellate court’s ability to review commences. If that were not the case, continuing activity in a case appealed would make it unreviewable.
We find that the trial court’s jurisdiction ceased even though Greenwood’s motion for injunctive relief was filed while Greenwood’s equitable claim for declaratory judgment was still pending. In arguing that the trial court retained jurisdiction, Greenwood relies on
Custom Muffler & Shocks, Inc. v. Gordon Partnership,
Further,
Custom Muffler
is distinguishable because a pleaded equitable issue remained before the court throughout that litigation. In
Custom Muffler,
the plaintiffs brought an action seeking both a preliminary and permanent injunction prohibiting the barricading of a parking lot (equitable relief) and a prescriptive easement (legal relief). The trial court entered a preliminary injunction and then tried the issues of
Conclusion
Because we find that the trial court’s judgment granting injunctive relief was in error, we reverse the November 17, 2008 judgment of the trial court. Thus we need not decide Quarry’s other remaining points on appeal. 11 Of course, if Second Avenue is properly repaired and the quarry traffic continues to be a nuisance, Greenwood is welcome to seek injunctive relief at a later date. However, if Greenwood files a new petition in the state trial court, the court should consider thoroughly all previous rulings in state and federal court actions between these parties reflecting on the propriety of injunctive relief prohibiting through trucks in Greenwood, and earefully balance the interests of the parties in fashioning any injunctive relief it deems appropriate.
JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.
Notes
. Appellants are Martin Marietta Materials, Inc., a world-wide operator of quarries, and Hunt Martin Materials, LLC, a company formed in 1995 by Martin Marietta and Hunt Midwest Mining. Appellants each own fifty percent of the Greenwood quarry. The par
. The evidence is considered in a light most favorable to the decision of the trial court.
Edmunds
v.
Sigma Chapter of Alpha Kappa Lambda Fraternity, Inc.,
. Litigation regarding the Quarry’s use of Greenwood streets proceeded simultaneously in state and federal court. Because the issues in these cases are intertwined, in addressing the procedural background of this case, we will also address the collateral federal litigation.
. The appeals were consolidated by this court and were affirmed on August 11, 2009.
. Quarry asserts as point I on appeal that the trial court lacked authority to grant injunctive relief because Greenwood did not file a petition for injunction that pleaded facts supporting injunctive relief nor did it pray for injunc-tive relief. Point II was that Greenwood's prayer for “such other relief as may be deemed by this court to be just and appropriate” is insufficient to properly plead injunc-tive relief. Point IV is that Greenwood failed to allege irreparable harm as is required for an award of injunctive relief. Because all three of these points deal with the sufficiency
. Quarry argues that this was a calculated move on Greenwood’s part to avoid removal to the federal court.
. Greenwood asserts that Quarry did not preserve its point that Greenwood failed to allege irreparable harm. We disagree. Quarry did object at trial that Greenwood had not pled for an injunction, and Greewood insisted that it was not seeking injunction at that time. Quarry objected to the trial court taking up the motion for injunctive relief after all counts of the petition had been decided and were on appeal. When the trial court elected to address the motion for injunction at a separate hearing, despite Quarry’s numerous objections, Quarry argued in closing that Greenwood had not proven irreparable harm. We find this sufficient to preserve the issue for appeal.
. Although the witness for Greenwood mentioned the "new road," it appears that Greenwood intended only to repair and expand the existing road.
.
See In re Marriage of Hendrix,
. Article V, section 5 gives the Supreme Court the power to "establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law.” Supreme Court rules delineating the procedure for when and how trial court jurisdiction ends and appellate jurisdiction begins do not violate the Constitution or run afoul of the Supreme Court's holding in
Webb. See Webb,
. The above analysis addresses Quarry’s first four points on appeal. Its final two points are that the trial court’s grant of injunctive relief was erroneous in that it did not balance all applicable factors to find the least restrictive means of abatement of the public nuisance and that it violated the terms of the Commerce Clause of the United States Constitution as found by the federal court.