P & J Ventures, LLC v. Yi Yu Zheng

• Decision Date: 12 January 2016
• Docket Number: No. ED 101532,ED 101532
• Court: Missouri Court of Appeals
• Parties: P & J Ventures, LLC, Respondent/Cross–Appellant, v. Yi Yu Zheng, Qui Feng, and Ling Zing Zheng, Appellants/Cross–Respondents.

479 S.W.3d 748

P & J Ventures, LLC, Respondent/Cross–Appellant,
v.
Yi Yu Zheng, Qui Feng, and Ling Zing Zheng, Appellants/Cross–Respondents.

No. ED 101532

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: January 12, 2016

Willard D. McCarter, Elizabeth V. Grana (Co–Counsel), 7777 Bonhomme Avenue, Suite 1400, Clayton, MO 63105, for Respondent.

Danieal H. Miller, 720 West Sexton Road, Columbia, MO 65203, for Appellant.

Angela T. Quigless, Judge

I. INTRODUCTION

Defendants Yi Yu Zheng ("Defendant Zheng"), Qui Feng ("Defendant Feng") and Ling Xing Zheng ("Defendant Leon") appeal the judgment of the Circuit Court in favor of Plaintiff P & J Ventures, LLC, ("P & J"), on Counts I through V against

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Defendant Leon; and in favor of P & J on Count III against Defendants Zheng and Feng. P & J cross-appeals the judgment of the Circuit Court in favor of Defendants Zheng and Feng on Count I against P & J. Defendants assert five points on appeal. In Points I through IV, Defendants claim the trial court erred in entering judgment in favor of P & J on Count III (fraudulent misrepresentation). In Point V, Defendants maintain the court erred in striking Defendant Leon's pleadings and entering a default judgment against him on all five counts of P & J's petition. In its cross-appeal, P & J contends the trial court erred in entering judgment in favor of Defendants Zheng and Feng on Count I (breach of contract). P & J has also filed a motion to strike Defendants' brief and dismiss Defendants' appeal, alleging Defendants failed to comply with Missouri Rule of Civil Procedure 84.04. We ordered the motion to be taken with the case. We dismiss Defendants' appeal, reverse the judgment in part, and remand for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2010, James and Patricia Bovier (the "Boviers") entered into a residential lease agreement with Defendants Zheng and Feng for the rental of the Boviers' real property located in St. Charles County, Missouri (the "Property"). In the lease agreement (the "Lease"), the Boviers were identified as the "Lessor" and Defendants Zheng and Feng were identified as the "Lessee." The Lease specified that the premises were to be occupied solely by the Lessee and the Lessee's immediate family.

The Lease's term began on November 8, 2010, and ended on October 31, 2011. Paragraph 4 of the Lease stated, "This Lease is not assignable, and said Premises, or any part thereof may not be sublet without the written consent of the Lessor." The Boviers subsequently formed P & J Ventures, LLC, and served as its sole members. On July 6, 2011, the Boviers conveyed their interest in the Property to P & J through a General Warranty Deed. The General Warranty Deed specifically indicated "all rights and appurtenances" belonging to the Boviers were transferred to P & J.

During the term of the lease, the Boviers inspected the Property and found it in poor condition and that additional, unknown people were occupying the home. The Boviers sent a letter to Defendants in September notifying them the Lease would not be renewed at the end of October. In October, Defendants paid their rent check to P & J.

In 2012, P & J filed suit against Defendants Zheng, Feng, and Leon. P & J's Petition contained the following claims: breach of the lease (Count I), unlawful detainer (Count II), fraudulent misrepresentation (Count III), unjust enrichment (Count IV), and waste (Count V). Counts I, II, III, and V of the Petition were asserted against each Defendant. Count IV was asserted against Defendant Leon only.

Defendants filed a motion to dismiss, claiming P & J lacked standing to assert a cause of action because the Lease was not assignable. The court heard and overruled Defendants' motion based upon P & J's representation that the Boviers, quitclaimed their interest in the Property to P & J by recorded deed. The court requested P & J confirm the real estate recording status; P & J filed the General Warranty Deed with the court.

The case was bench-tried. Defendant Leon was served with a subpoena, but failed to appear at trial. P & J filed a Motion to Strike Defendant Leon's pleadings and enter a judgment by default

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against him. After trial, the court entered judgment by default against Defendant Leon on all five counts of P & J's Petition. The trial court also entered judgment against the remaining Defendants and in favor of P & J on Counts II (unlawful detainer) and III (fraudulent misconduct). In that same judgment, the trial court found in favor of Defendants Zheng and Feng as to Count I (breach of contract). The court found the Lease by its terms was not assignable; therefore, P & J had no standing to assert a cause of action based on breach of contract. As to Count V (waste), the court entered judgment in favor of Defendants. This appeal follows.

III. STANDARD OF REVIEW

"In a court-tried case, we will affirm the judgment below if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." Reppy v. Winters, 351 S.W.3d 717, 720 (Mo.App.W.D.2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ). We view the evidence in the light most favorable to the trial court's judgment, disregarding all contrary inferences and evidence. Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 458 (Mo.App.S.D.2006). This Court will defer to the trial court's findings of fact where the evidence is conflicting but not to its determinations of law. Empire Dist. Elec. Co. v. Gaar, 26 S.W.3d 370, 373 (Mo.App.S.D.2000).

IV. DISCUSSION

A. P & J's Motion to Dismiss Appeal

Before considering the merits of the claims of error on appeal, we will address P & J's motion to strike Defendants' brief and dismiss Defendants' appeal. P & J contends Defendants' brief fails to comply with the requirements of Rule 84.04.¹ We agree.

The failure to substantially comply with the briefing requirements of Rule 84.04 preserves nothing for review. In re Marriage of Shumpert, 144 S.W.3d 317, 321 (Mo.App.E.D.2004). Failure to comply with Rule 84.04 merits dismissal. Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 459 (Mo.App.W.D.2004).

First, we note Defendants' brief violates Rule 84.04(b), which requires the jurisdictional statement in a brief to "set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution whereon jurisdiction is sought to be predicated." "Bare recitals that jurisdiction is invoked ‘on the ground that the construction of the Constitution of the United States or of this state is involved’ or similar statements or conclusions are insufficient as jurisdictional statements." Rule 84.04(b). A deficient jurisdictional statement merits dismissing an appeal. Anderson v. Am. Family Mut. Ins., 173 S.W.3d 356, 357–58 (Mo.App.W.D.2005).

Here, Defendants' jurisdictional statement contains no facts that indicate jurisdiction is proper in this court. Defendants' complete jurisdictional statement reads:

This case is an appeal from a judgment entered in the Circuit Court of St. Charles County, Missouri in favor of P & J and against Defendants, following a bench trial. A Notice of Appeal was filed in a timely manner and the case does not involve any of the categories reserved for the exclusive jurisdiction of the Missouri Supreme Court. Therefore, jurisdiction lies in this Court pursuant

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to Article V, Section 3, of the Missouri Constitution.

The requirements of Rule 84.04(b) are not satisfied as Defendants' jurisdictional statement merely concludes jurisdiction is proper. This violates Rule 84.04(b)'s prohibition against bare recitals and conclusory statements.See Anderson, 173 S.W.3d at 358. In addition, Defendants' jurisdictional statement does not...