Brown v. Midwest Petroleum Co.
| Decision Date | 31 March 1992 |
| Docket Number | No. 60598,60598 |
| Citation | 828 S.W.2d 686 |
| Parties | David BROWN and Jo Ann Brown, Plaintiffs-Respondents, v. MIDWEST PETROLEUM COMPANY, a Missouri Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Ziercher & Hocker, P.C., George J. Bude, Margaret L. van Dijk, Clayton, for defendant-appellant.
Robert E. Morley & Associates, P.C., Robert E. Morley, O'Fallon, for plaintiffs-respondents.
Defendant, Midwest Petroleum Company, appeals from a judgment in favor of plaintiffs, David and Jo Ann Brown, for $75,000 1 following a jury trial, in an action for waste under a lease. We reverse and remand.
The evidence, viewed in a light most favorable to the verdict, shows that in January of 1984, defendant signed a lease to rent a commercial property from plaintiffs for use as a gas station, convenience store and video game room. Defendant operated the property from January of 1984 until May of 1987. Defendant continued to pay rent on the property until the end of the lease in January of 1989.
After retaking possession, plaintiffs found the property damaged and unfit for commercial use. Plaintiffs brought this action claiming defendant damaged the property by failing to maintain it as required by the lease.
In its sole point on appeal, defendant claims that there was no evidence presented from which the jury could ascertain damages. Specifically, defendant claims that plaintiffs failed to establish the diminution in fair market value attributable to waste committed by defendant's breach of the lease. We agree.
Waste is the failure of a tenant to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear. Lustig v. U.M.C. Industries, Inc., 637 S.W.2d 55, 59 (Mo.App.1982). In an action for waste, the 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. See Lipton Rlty. v. St. Louis Housing Authority, 705 S.W.2d 565, 569 (Mo.App.1986); See also MAI 4.02 [1980 Revision]. In contrast, the cost of repair is the proper measure of damages for waste only when the cost of repair is small in relationship to the property as a whole and when the amount of the repair is easily ascertained. Lipton Rlty., 705 S.W.2d at 569.
Here, Mr. Brown, the owner of the building, gave the following testimony regarding damages:
Q Let me ask you again. You've told us that you believe the reasonable market value of your property immediately prior to the beginning of this lease was three hundred and thirty-five thousand dollars; correct?
A Including land and building and everything, yes.
Q Yes, sir. Let me ask you what your opinion is as to the reasonable market value of the property immediately after the lease ended considering the damaged condition of the premises.
* * * * * *
A I'd say it was about two hundred and sixty thousand on January 15th, '89.
Q So there was a differences of about seventy-five thousand dollars?
A Yes, sir.
* * * * * *
Q What is your opinion as to the difference in the reasonable market value strictly attributable to the lease and the use of the property by Midwest Petroleum Company?
A To the damage, the physical damage to the building?
Q Yes.
A And the parking lot?
Q Yes.
A Yes.
Q And what's the dollar amount of that?
A Fifty thousand dollars, approximately.
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CROSS-EXAMINATION
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Q What theory of valuation did you utilize in determining that the property was worth two hundred and sixty thousand dollars?
A Well, it was a combination of appraised, what the property was appraised at.
Q Appraised by whom?
A An appraisal company.
Q Oh, you didn't do it yourself? You just looked at somebody else's appraisal?
A You're interrupting. I said it was a combination of looking at an appraisal, looking at how much material and time I put into it. I built the building. I know what I spent on it and I had a good idea of what it cost and what it would cost to redo what I had already done.
* * * * * *
Q Did you utilize any other evaluation or theory of evaluation for real estate values such as the income approach?
A No.
Q You indicated you did not use a comparable approach, either; did you?
A I'm not sure what a compare approach is.
Q Where you would go out and...
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Davidson v. Kenney
...the property beyond reasonable wear and tear. See Enchanted Hills, Inc. v. Medlin, 892 S.W.2d 722 (Mo.App.1994); Brown v. Midwest Petroleum Co., 828 S.W.2d 686 (Mo.App.1992). Because the Davidsons have shown facts which may entitle them to rent and damages for waste, we reverse and remand w......