66 Terminal, Inc. v. Roberts

• Decision Date: 16 December 1969
• Docket Number: No. 33463,33463
• Citation: 448 S.W.2d 938
• Parties: 66 TERMINAL, INC. d/b/a St. Louis Truck Port, Plaintiff-Respondent, v. W. E. ROBERTS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 938

448 S.W.2d 938

66 TERMINAL, INC. d/b/a St. Louis Truck Port, Plaintiff-Respondent, v.W. E. ROBERTS, Defendant-Appellant.

No. 33463.

St. Louis Court of Appeals, Missouri.

Dec. 16, 1969.

Garnholz, Roesel & Scher, Isadore Scher, Clayton, for defendant-appellant.

Ziercher, Tzinberg, Human & Michenfelder, Richard A. Roth, Clayton, Lee Young, Union, for plaintiff-respondent.

SMITH, Commissioner.

Plaintiff-respondent was awarded a summary judgment on its petition for ejectment against defendant-appellant.This appeal followed.We affirm.

Midwest Petroleum Company(Midwest) entered into a commercial lease with Harry Halsey(Halsey) on August 1, 1961, covering certain real estate in St. Louis County, plus improvements thereon 'consisting of service station, with second floor sleeping rooms, and restaurant now under construction.'The term of the lease was five years commencing November 1, 1961, and provided an option in lessee to renew for five additional years at the same rental, terms and conditions.The lease contained a printed provision that it could not be assigned and the premises could not be sublet without written consent of the lessor.It also contained a typewritten provision, 'Lessor hereby consents to the subletting of the restaurant portion of the demised premises by Lessee to W. E. Roberts.'

On December 20, 1961, Halsey and Roberts, (defendant herein), executed a document entitled 'Sublease.'That document leased to defendant a 'portion of said premises (under the commercial lease) comprising the present restaurant portion thereof approximately 65 feet by approximately 42 feet in dimensions including therewith the right to utilize such portions of the whole tract for customer parking and delivery parking as is reasonable * * *.'The sublease term was to commence January 1, 1962, and to 'continue for and during the term of the said commercial lease, terminating October 31, 1966.'The sublease contained an option to renew provision in the following terms: 'The sublessor hereby grants to the sublessee the right and option, if the sublessor should exercise his option to renew the said commercial lease to renew this sublease for an additional term of five years at the same rental terms and conditions of this sublease; * * *.'

The execution of both the commercial lease and the sublease were admitted by defendant's answer.Plaintiff alleged and defendant admitted by his answer, that Halsey assigned the commercial lease to Midwest in November, 1962, and Midwest notified defendant of this assignment.Plaintiff acquired the property covered by the commercial lease from Midwest in April, 1966, by deed, a fact also admitted in defendant's answer.On October 7, 1966, defendant purported to exercise his option under the commercial lease and the sublease.It was established by plaintiff's uncontroverted affidavit that by letter from its attorney, dated October 14, 1966, plaintiff advised defendant that his sublease expired October 31, 1966, and that no option to renew existed.On October 27, 1967, plaintiff served on defendant a notice of termination of month to month tenancy and demand that defendant vacate the premises on or before December 1, 1967.Defendant did not vacate and this suit followed.Plaintiff's motion for summary judgment was granted; judgment was entered giving plaintiff possession of the premises and nominal damages of $1 and costs.

Plaintiff has moved to dismiss the appeal for failure to comply with Rules 83.05(a) and (e) V.A.M.R.This motion has much to commend it, for defendant's brief is, at best, a borderline compliance with the Rules.We do prefer to dispose of appeals on the merits, where possible, and here we can determine, with some effort, defendant's theory.The motion to dismiss is therefore denied.

Defendant's points and authorities are thirteen in number but they raise only two questions worded in a variety of ways.One is that the court erroneously determined that no material facts were in dispute.Of course, summary judgment may not be granted if there are material facts in dispute, and the burden of showing no such dispute is upon the party moving for the summary judgment.Nelson v. Browning, Mo., 391 S.W.2d 873.On the other hand, merely saying material facts...