Blackwelder v. Blissett, 18479

• Decision Date: 15 September 1993
• Docket Number: No. 18479,18479
• Citation: 861 S.W.2d 343
• Parties: Wilson L. BLACKWELDER and Edna Blackwelder, Appellants, v. Michael T. BLISSETT and Leisa M. Blissett, Respondents.
• Court: Missouri Court of Appeals

Page 343

861 S.W.2d 343

Wilson L. BLACKWELDER and Edna Blackwelder, Appellants, v. Michael T. BLISSETT and Leisa M. Blissett, Respondents.

No. 18479.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 15, 1993.

Francis J. Siebert, Scott City, for appellants.

Marcia A. Mulcahy, Limbaugh, Russell, Payne & Howard, Cape Girardeau, for respondents.

CROW, Judge.

Appellants, Wilson L. Blackwelder and Edna Blackwelder, leased premises to Respondents, Michael T. Blissett and Leisa M. Blissett, for a term beginning January 18, 1989, and ending January 19, 1992. Respondents operated a day care center on the premises. When the term expired, Respondents surrendered possession to Appellants.

A few months later, Appellants sued Respondents for $9,000, averring Respondents failed to return the premises to Appellants in as good condition as when Respondents received possession, and Respondents committed waste on the premises. A non-jury trial resulted in a judgment for Respondents. This appeal followed.

Appellants' two points relied on read:

I.

The court erred as a matter of law in granting judgment for the Respondents because the undisputed testimony was that Respondents failed to restore the leased premises to the condition in which they were prior to the time the Respondents entered into possession, as required by the lease agreement.

II.

The trial court erred in granting judgment in favor of Respondent [sic] in that said judgment was not supported by sufficient evidence.

Rule 84.04(d) ¹ reads:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....

The purpose of the rule and the necessity of obeying it are set forth in the venerable case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Appellants' point II presents the unadorned assertion that the judgment was not supported by sufficient evidence. The point supplies no clue as to wherein and why the evidence was insufficient. A point relied on stating there was insufficient evidence to support a judgment, without setting forth wherein and why that is so, presents nothing for appellate review. Phillips v. Phillips, 819 S.W.2d 413, 416 (Mo.App.S.D.1991); Best v. Culhane, 677 S.W.2d 390, 394 (Mo.App.E.D.1984); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.S.D.1981).

Furthermore, the burden was on Appellants to prove their claim against Respondents. Chandler v. New Moon Homes, Inc., 418 S.W.2d 130, 135 (Mo. banc 1967); Show-Me Restoration Services v. Harlan, 778 S.W.2d 350, 351 (Mo.App.E.D.1989). As explained in Phillips v. Phillips, 443 S.W.2d 144, 145-46 (Mo. banc 1969), because a defendant does not have the burden of proof, he need not present evidence to prevail. Therefore, a contention that a judgment for a defendant on a plaintiff's claim is not supported by sufficient evidence presents no reason for reversal.

Turning to Appellants' point I, we observe it is afflicted with the same infirmity as point II in that it fails to satisfy the "wherein and why" requirement of Rule 84.04(d). Nowhere in point I do we find any hint as to wherein and why the testimony demonstrated Respondents failed to restore the leased premises to the condition in which they were prior to the time Respondents entered into possession. Moreover, the point provides no inkling as to what that condition was.

Endeavoring to extract the import of the point from the argument portion of the brief, we espy complaints about (a) holes in the walls, (b) doors torn out and thrown outside, (c) front door torn up, (d) interior doors missing, (e) a hole through a wall between the living room and a hallway, (f) a storage shed that was unusable and had to be removed, (g) missing kitchen cabinets, (h) broken windows, (i) crayon marks on walls, (j) a missing air conditioner, and (k) a roof leak in a bathroom.

Regarding complaint "a," Respondent Leisa Blissett testified that when Respondents vacated the premises, the walls were in good condition with no dents or scratches. Regarding complaint "b," Leisa testified Respondents left two doors outside, against the building, because they had been stored in the shed and her children washed them off in preparation for rehanging. Regarding complaint "c," Respondent Michael Blissett testified that to meet state requirements, entry doors had to swing from the outside. The storm door that was there when Respondents took possession swung from the inside. Michael took it down and got rid of it. He added that when the lease expired, he bought a new storm door for Appellants to install.

Regarding complaint "d," the doors to which it pertains are apparently those referred to in complaint "b." Regarding complaint "e," Respondent Leisa Blissett testified she obtained permission from Appellant Edna Blackwelder to alter a wall by cutting out a portion to create a rectangular opening. We infer from Leisa's testimony that the purpose was to enable day care personnel to see the children when they were on the opposite side. A photograph shows a rectangular opening neatly trimmed with painted molding, not an irregular "hole."

Regarding complaint "f," Leisa testified that when Respondents took possession, Appellant Edna Blackwelder showed her the storage building and said it was old and worn. It had a wood floor on the surface of the ground, and "the wood had started to get soft." According to Leisa, wind would blow the doors off and she would have to put them back on.

Regarding complaint "g," Leisa testified there were three cabinets in the kitchen when Respondents took possession. Leisa recounted that Appellant Edna Blackwelder gave her one of the cabinets, an antique, but Leisa left it on the premises when Respondents surrendered possession. Leisa also left one of the other cabinets when Respondents departed. She gave away the third cabinet.

Regarding complaint "h," Respondents presented testimony by an insurance agent who sold them the policy for the day care center. The agent testified he was on the premises between eight and ten times during the term of the lease. His last visit was in January, 1992, the final month of Respondents' occupancy. He saw no broken windows. Pertinent to complaints "a" and "k," the agent testified he noticed no wall holes or roof leaks. Neither of the Respondents testified specifically about windows; however, Leisa Blissett testified that the day Respondents surrendered possession, Appellants' son, Jim Jackson, who handles Appellants' business affairs, walked through the premises and "was real happy and pleased with the condition."

Regarding complaint "i," the insurance agent testified he saw no "markings" on the walls. A realtor testified she was on the premises shortly before Respondents moved out and saw no damage to the walls.

Regarding complaint "j," Respondent Leisa Blissett testified that when Respondents leased the premises there were two air conditioners, one in the east wall and one in the west wall. One later caught fire. Leisa had it repaired. In June, 1991, the compressor on the other one failed. Leisa testified she talked with Appellant Edna Blackwelder, who expressed surprise that the air conditioners had lasted that long. According to Leisa, Edna said that if she wanted an air conditioner, she (Leisa) would have to get one. Leisa testified she purchased an air conditioner for $600 or $700, which she took with her when Respondents surrendered possession of the premises. Respondents left the inoperable air conditioner on the premises.

Regarding complaint "k," Leisa testified she once noticed a "little orange spot" on the ceiling in the girls bathroom. Leisa notified the realtor and "someone came and patched the hole--or whatever it is." Leisa avowed there was no roof leak at the time Respondents surrendered possession.

Appellants presented evidence that it was necessary to purchase materials totaling approximately $3,000 to repair the premises after Respondents departed. However, some $1,000 of that was for replacement carpet.

Respondents presented evidence that the carpet was worn when the lease commenced. The realtor testified that any deterioration in the condition of the carpet during Respondents' occupancy was "just from normal wear." Another witness for Respondents, a woman with experience with day care centers and rental property, was on the premises January...