Brizendine v. Conrad
| Decision Date | 09 April 2002 |
| Docket Number | No. SC 83719.,SC 83719. |
| Citation | 71 S.W.3d 587 |
| Parties | David BRIZENDINE, Respondent, v. Nora Lee CONRAD, Appellant. |
| Court | Missouri Supreme Court |
Lee R. Hardee, III, F. Russell Peterson, Overland Park, Kansas, for Appellant.
Timothy T. Stewart, Dale T. Smith, Jefferson City, for Respondent.
David Brizendine brought suit for treble damages under Missouri's anti-waste statute, section 537.420, RSMo 2000, against Nora Lee Conrad, his former tenant under a written lease-purchase agreement ("Agreement"). Ms. Conrad appeals the trial court's $33,760.35 judgment in favor of Mr. Brizendine, alleging that a $15,000 liquidated damages clause in the Agreement was his only remedy and that it waived Mr. Brizendine's right to sue for waste under the statute.
This Court affirms the judgment for Mr. Brizendine. Section 537.420 provides for treble damages for waste committed by a tenant for a term of years, such as Ms. Conrad, unless the tenant is given a special license in writing to commit waste. Neither the liquidated damages provision nor other provisions of the Agreement constituted a special license to commit waste. To the contrary, the Agreement required Ms. Conrad to return the property in good condition, absent ordinary wear and tear, and did not permit improvements or changes to the property by Ms. Conrad. Consequently, Mr. Brizendine was entitled to sue under the statute for treble damages for waste. Ms. Conrad was not entitled to a set-off of the $15,000 deposit she made with the Agreement because she did not plead set-off below, include it in her motion for new trial, or ask for such relief in her point relied on, and cannot request such relief for the first time on appeal.
Ms. Conrad and Mr. Brizendine entered into the Agreement by which he leased to her, for 12 months, a low-income apartment-office-storage complex building in the central business district of Jefferson City beginning on October 1, 1997, and expiring on September 30, 1998. The sale of the property was to be concluded at the end of the lease. Paragraph 5 of the Agreement required Ms. Conrad to pay $15,000 at the execution of the Agreement, which would be credited against the purchase price when the sale was completed and all conditions under the Agreement were satisfied.
The Agreement obligated Ms. Conrad to assume several duties, such as to manage the property by collecting rents, to provide all trash pickup for the premises, to use the property as residential and commercial property unless otherwise authorized by the written consent of Mr. Brizendine, to keep the grass "neatly mowed," to maintain the premises in good condition and to surrender it "in the same condition as received," and to arrange for and pay for all utilities.
In paragraphs 3(c) and (f) of the Agreement, Ms. Conrad also covenanted and agreed to maintain and repair the property as follows:
(c) To maintain in good condition all interior and exterior surfaces and to do all interior decorating and maintenance at her own expense. It is agreed that all costs for maintenance and repair of the premises and mechanical apparatus located thereon (including replacement) shall be borne by the Lessee during the term of this Agreement. After execution, all costs of maintenance shall be at the Lessee's expense.
....
(f) If for any reason Lessee fails to purchase the property, she agrees to surrender it to Lessor in the same condition as received, ordinary wear and tear excepted.
Paragraph 14 of the Agreement provided that the $15,000 that Ms. Conrad gave to Mr. Brizendine at the beginning of the lease term would be retained as liquidated damages if Ms. Conrad failed to fulfill her obligations under the Agreement:
14. In the event Lessor shall perform his part of this agreement or shall tender performance thereof, and Lessee fail to perform her part, then the sum of Fifteen Thousand Dollars ($15,000) paid herewith shall be retained by Lessor as liquidated damages, it being agreed that actual damages are difficult, if not impossible, to ascertain. However, Lessor reserves the right to seek specific performance of this agreement.
At the end of the lease term, Ms. Conrad advised Mr. Brizendine that she had decided not to purchase the property because it was "too much maintenance, too much upkeep." Mr. Brizendine informed Ms. Conrad that the property was not in acceptable condition under the Agreement because it had extensive damage, not merely normal wear and tear.1 While Ms. Conrad contested Mr. Brizendine's claims about the condition of the property, he presented evidence of a dozen instances of damage, ranging from damage to the floors, walls, and ceilings to damage to heating units, plumbing, and common ways. He also discovered that many units were infested with roaches.
At the time the parties entered into the Agreement, the purchase price agreed to was $140,000. When the property was tendered back to Mr. Brizendine, the cost to repair the damage done to it was $30,335. Mr. Brizendine indicated that rather than investing this sum of money to repair the property, and then trying to sell it again, he took an offer of $90,000 for the property from a new buyer and then filed suit against Ms. Conrad under a variety of theories of damage. Ultimately, he dismissed all claims except the one for statutory waste. Ms. Conrad filed a counterclaim.
At trial, Mr. Brizendine presented evidence that Ms. Conrad mismanaged the property by failing to screen tenants, failing to repair the property and keep it clean, and otherwise failing to actively manage the property. The trial court heard all the evidence, found in favor of Mr. Brizendine and awarded damages for waste in the amount of $11,253.45, based on the cost of repair, which the court then trebled to $33,760.35 pursuant to section 537.420. The court also ruled in favor of Mr. Brizendine on Ms. Conrad's counterclaim for damages she alleged due to Mr. Brizendine's refusal to immediately accept her tender of the property. Following opinion by the Court of Appeals, this Court granted transfer. Mo. Const. article V, section 10.
The decision of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Searcy v. Seedorff, 8 S.W.3d 113, 115-116 (Mo. banc 1999); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court "defers to the trial court as the finder of fact in determinations as to whether there is substantial evidence to support the judgment and whether that judgment is against the weight of the evidence, even where those facts are derived from pleadings, stipulations, exhibits and depositions." Business Men's Assur. Co. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999).
"The power to set aside a trial court's judgment on the ground that it is against the weight of the evidence should be exercised with caution and with a firm belief that the decree or judgment is wrong. .... In reviewing a contention that the evidence is insufficient, the evidence is viewed in the light most favorable to the verdict, and deference is accorded to the trial court's assessment of credibility." Seedorff, 8 S.W.3d at 116 (internal citations omitted).
Mr. Brizendine submitted his case under section 537.420, which states:
If any tenant, for life or years, shall commit waste during his estate or term, of anything belonging to the tenement so held, without special license in writing so to do, he shall be subject to a civil action for such waste, and shall lose the thing wasted and pay treble the amount at which the waste shall be assessed.
Section 537.420 thus "mandates the trebling of damages for waste when a tenant for life or years commits waste to the tenement." Greeson v. Ace Pipe Cleaning, Inc., 830 S.W.2d 444, 448 (Mo.App. W.D. 1992). "[T]he measure of damages is generally the difference between the fair market value of the realty at the end of the lease, had no waste occurred, and the fair market value of the property in its damaged condition." Brown v. Midwest Petroleum Co., 828 S.W.2d 686, 687 (Mo.App. E.D.1992). See also MAI 4.02.
A tenant is not liable for waste under the statute, however, if the tenant has been given a "special license" in writing to commit waste. Sec. 537.420. Ms. Conrad does not contend that she was specifically given a special license to commit waste, but rather contends that the existence of a special license can be implied from the presence in the lease of the $15,000 liquidated damages clause. As noted earlier, that clause states, "[i]n the event Lessor shall perform his part of this agreement .... and Lessee fail to perform her part, then the sum of [$15,000].... shall be retained by the Lessor as liquidated damages, it being agreed that actual damages are difficult, if not impossible, to ascertain."
Ms. Conrad argues that this clause constituted a waiver of the right to sue for statutory treble damages for waste.2 Alternatively, she argues, by electing to retain the $15,000 she deposited with him at the beginning of the lease period, Mr. Brizendine elected to enforce his right to liquidated damages, and that he cannot be permitted to recover again for the same wrong by suing for damages for waste under the statute. In support, she cites Warstler v. Cibrian, 859 S.W.2d 162 (Mo. App. W.D.1993), for the point that "[l]iquidated and actual damages generally may not be awarded as compensation for the same injury." Id. at 165. Moreover, she argues, had Mr. Brizendine desired to exclude waste damages from the operation of the liquidated damages clause he could have simply included language in the Agreement to that effect.
The terms of the Agreement do not support Ms. Conrad's position. The...
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