Coach House of Ward Parkway, Inc. v. Ward Parkway Shops, Inc.

• Decision Date: 11 October 1971
• Docket Number: No. 1,No. 54402,54402,1
• Citation: 471 S.W.2d 464
• Parties: COACH HOUSE OF WARD PARKWAY, INC., a Corporation, Plaintiff-Appellant, v. WARD PARKWAY SHOPS, INC., a Corporation, Defendant-Respondent and Third-Party Plaintiff, v. Virginia JACQUES, Executrix of the Estate of Horton Jacques, Deceased, Respondent and Third-Party Defendant
• Court: Missouri Supreme Court

Page 464

471 S.W.2d 464

COACH HOUSE OF WARD PARKWAY, INC., a Corporation, Plaintiff-Appellant, v. WARD PARKWAY SHOPS, INC., a Corporation, Defendant-Respondent and Third-Party Plaintiff, v. Virginia JACQUES, Executrix of the Estate of Horton Jacques, Deceased, Respondent and Third-Party Defendant.

No. 54402.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1971.

George M. Winger, William G. Levi, Kansas City, for appellant; Smith, Schwegler, Swartzman & Winger, Kansas City, of counsel.

Morrison, Hecker, Cozad, Morrison & Curtis, Byron J. Beck, W. A. Feiock, Kansas City, for respondent Ward Parkway Shops, Inc.

Margolin & Kirwan, Robert A. Goodman, Kansas City, for respondent Virginia Jacques.

BARDGETT, Judge.

This case comes to the writer on reassignment. This is an action on contract brought by plaintiff-appellant (herein referred to as 'Coach House'), a lessee against its lessor, defendant-respondent Ward Parkway Shops, Inc. (herein referred to as 'Ward Parkway') seeking damages consisting of loss of profits resulting from alleged breach of a covenant contained in Article 9 of the lease between the parties whereby Ward Parkway agreed not to lease or permit the use of premises within a specified area to others 'as a store handling female sportswear as a principal part of its business.'

The cause was tried to the court without a jury. At the conclusion of plaintiff's evidence, the court sustained Ward Parkway's motion for directed verdict which, in a nonjury case, is more appropriately termed a motion to dismiss. S.Ct.Rule 67.02, V.A.M.R.; Moser v. Williams, Mo.App., 443 S.W.2d 212, 215.

The issues presented on this appeal involve only plaintiff and defendant and do not involve the issues in the indemnity action between defendant as third-party plaintiff against Virginia Jacques, executrix of the estate of Horton Jacques, deceased, third-party defendant. Horton Jacques was the exclusive leasing agent for defendant.

Ward Parkway offered no evidence and the record does not indicate whether it had evidence to offer in the event its motion to dismiss had not been sustained. Since this is a court-tried case, we are to review the case upon the law and the evidence as in suits of an equitable nature. S.Ct.Rule 73.01, V.A.M.R. However, in view of the manner in which this case terminated in the trial court, we cannot review the case on its merits and can do no more than determine whether the trial court correctly dismissed plaintiff's petition and entered judgment for defendant at the close of plaintiff's evidence. Jones v. Garden Park Homes Corp., Mo., 393 S.W.2d 501, 503.

Prior to sustaining Ward Parkway's motion to dismiss and entering judgment for defendant, the court sustained defendant's objection to certain evidence offered by plaintiff as to the fact of damage and the amount of damages. The record reflects that plaintiff made extensive offers of proof on these issues, which offers were rejected by the court. We therefore must decide whether the court properly rejected the proffered evidence and, if erroneously rejected, whether the proffered evidence was sufficient to make a prima facie case. Thus the scope of this review is limited to the question of whether plaintiff made a prima facie case, and for this purpose only we view the admissible evidence in the light most favorable to plaintiff.

In connection with the court's ruling sustaining defendant's objection to damage evidence and in conjunction with sustaining defendant's motion to dismiss, the court stated that defendant's motion for directed verdict 'is sustained on the basic ground that the plaintiff has no competent evidence showing damages in any amount suffered by the plaintiff from the actions of defendant, even assuming that Article 9 of the lease between the plaintiff and the defendant has been breached. The Court believes that from the evidence introduced into the case by the plaintiff, there is substantial competent testimony and evidence as to breach. The motion of the defendant * * * is not sustained on the ground that there is no competent evidence as to breach. The Court feels that the evidence offered and refused as to damages, is too remote, speculative and conjectural to constitute competent testimony or proof. The Court makes this ruling on the assumption that the hypothesized matters submitted in the hypothetical question to Mr. Nelson, and which presumably would also be submitted to the other witnesses, offered by the plaintiff on the question of damages, could be supported by some competent evidence and that the admitted gaps in some of the propositions offered could be construed so that any damage witness could consider the various items and elements raised in the hypothetical question, as all being grounded in some evidence. * * *'

Article 9 of the lease provides in part:

'Lessee agrees to conduct on the leased premises a retail store merchandising quality female sportswear clothing, wearing apparel, specialty items, accessories and shoes or any other lines of merchandise generally carried by a quality female sportswear clothing store, including but not limited to merchandise and services handled or performed in other affiliated or associated Coach House stores. Lessor covenants and agrees that it will not lease to or permit the use of other premises in that part of the Shopping Center being developed in accordance with Exhibit 'A', except those areas marked thereon as 'future development,' and except for the tenants enumerated heretofore, as a store handling female sportswear as a principal part of its business. This restriction shall not apply, however, to a department store handling such items, above described, as an incidental, but not the primary, part of its business.' (Emphasis ours.)

Plaintiff's evidence was that in November 1959 defendant, Ward Parkway, entered into the written lease with Richard B. Mindlin, president of plaintiff company, who on August 1, 1962, assigned it to plaintiff Coach House. The lease was made prior to the building of defendant's Ward Parkway Shopping Center. The lease provided for the leasing of a storeroom at the Center for a period of ten years after completion of common facilities at the Center.

Coach House opened for business on August 16, 1962, at a time when the Center was still under construction. On January 29, 1963, Ward Parkway entered into a lease with Burton O. Lisman, d/b/a Lisman's. Lisman's shop opened on or about March 30 or 31, 1963. Lisman's store was located within the area described in exhibit A of plaintiff's lease (referred to in Article 9 of plaintiff's lease, supra), and approximately 130 feet from the Coach House store.

On April 4, 1963, defendant received a letter purporting to give notice to defendant that it had breached Article 9 of the lease by reason of the opening of the Lisman store on or about March 31, 1963.

Defendant asserts that plaintiff's evidence was insufficient to establish that Lisman's operation constituted a breach of the Coach House lease.

If the evidence was sufficient to permit the trial court to find that the premises leased by defendant to Lisman were used 'as a store handling female sportswear as a principal part of its business' then defendant's point must be overruled.

' Female Sportswear' is a term the parties used in Article 9 of the lease. The lease obligates plaintiff to conduct a retail store 'merchandising quality female sportswear clothing, wearing apparel, specialty items, accessories and shoes or any other lines of merchandise generally carried by a quality female sportswear clothing store, including but not limited to merchandise and services handled or performed in other, affiliated or associated Coach House stores.'

Richard Mindlin testified that he was president of plaintiff company; that he has been in the female clothing business since 1946; that he worked in executive positions in the female clothing departments of stores in New York, Houston, Texas, and Pittsburgh, Pennsylvania, and went into business for himself in 1955 under the Coach House name, opening a shop at 63rd and Brookside and thereafter two more Coach House shops. Coach House merchandise has been and is strictly women's sportswear, consisting of sweaters, blouses, shirts, casual dresses, swimwear, car coats, separates, knitwear, miscellaneous sportswear, and accessories limited to accessories that accentuate sportswear apparel. The Coach House store at defendant's Center consisted of basically the same merchandise. Eighty to ninety-five percent of plaintiff's merchandise is women's sportswear. Horton Jacques, defendant's exclusive leasing agent, visited plaintiff's other Coach House stores in the Kansas City area while they were working out the lease for the Ward Parkway shop.

Defendant made repeated objections to questions asked of witnesses Mindlin, Patricia Patzer, Winifred Schumacher and Richard Nelson, as to whether there is a category of merchandise recognized in the trade as 'female sportswear' and, if so, what it consisted of, on the grounds that the question called for a conclusion on an ultimate issue in the case, invaded the province of the court, and the witnesses were not qualified to answer. In most instances the objection was overruled and defendant asserts error.

' Female Sportswear' was a term used by the parties in Article 9 of the lease with relation to the type of store plaintiff was required to operate as well as the type of store defendant was prohibited from permitting others to operate within the area specified therein.

We cannot say that the definition of 'female sportswear' can be judicially noticed. It was proper for the trial court to permit the witnesses to testify as to the items or types of clothing encompassed by the trade term 'female sportswear'. The witnesses noted all testified to substantial experience in the field of women's clothing and knowledge of various clothing categories, including 'female...