Cowden v. Sun Oil Co. of Pennsylvania, s. 39843

• Decision Date: 15 May 1979
• Docket Number: Nos. 39843,39844,s. 39843
• Citation: 583 S.W.2d 547
• Parties: Larry COWDEN, Plaintiff-Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 547

583 S.W.2d 547

Larry COWDEN, Plaintiff-Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, a corporation, Defendant-Respondent.

Nos. 39843, 39844.

Missouri Court of Appeals, Eastern District, Division Four.

May 15, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 15, 1979.

Gary H. Sokolik, Perry, for plaintiff-appellant.

Michael P. Riley, Carson, Monaco, Coil & Riley, Jefferson City, John W. Briscoe, New London, for defendant-respondent.

DOWD, Presiding Judge.

An action for alleged misrepresentation in the inducement of a lease and dealer's agreement. Plaintiff sought actual and punitive damages. A jury in the Circuit Court of Ralls County awarded plaintiff $5,000 for actual damages. The trial judge refused to submit the issue of punitive damages to the jury. Both sides appeal. We affirm.

In the present case, plaintiff, Larry Cowden, sought to purchase the inventory and assets of Mikes D-X Service Station, operated by Mr. Mike Berhager, and located at the juncture of Route C and Missouri Highway 19, in Center, Missouri. LeArCoe Corporation owned the station and leased it to defendant, Sun Oil Company of Pennsylvania. After Mr. Berhager expressed a desire to sell his interest in the station, plaintiff entered into negotiations with Park Gray, district manager for defendant.

At a meeting on March 1, 1975, Mr. Gray presented plaintiff with five or six documents, including a real estate lease, a dealer's agreement, and a disclosure statement. The disclosure statement was delivered to plaintiff before the lease and dealer's agreement were signed. All the documents were prepared by defendant. At this meeting, Mr. Gray, as agent for defendant, and Mr. Cowden, signed the lease and dealer's agreement. Plaintiff began operating the station two days later.

The disclosure statement requested: "Any legally binding commitments for the sale or demolition or other disposition of the location". Defendant's typed answer to this request was: "Sun Oil Company holds subject station by lease. Lease expires 10/1/91." Defendant actually had a lease for the subject property with LeArCoe Corporation from October 1, 1966 through October 1, 1976, with an option for three additional, separate, successive five year periods. Defendant's lease with LeArCoe would expire October 1, 1991 if it had exercised its options.

Plaintiff's lease with the defendant ran from March 1, 1975, through March 1, 1976, and from year to year thereafter unless either party gave 60 days notice to terminate. Either party could have terminated the lease as of August 31, 1975, with 60 days notice. The lease also contained a clause stating that if defendant's right to title or possession of the subject property ceased, for any reason, the lease automatically terminated.

In a letter dated September 1, 1976, defendant notified LeArCoe Corporation that it was not going to exercise its option on their lease. Plaintiff testified that it was approximately September 28 or 29, 1976 before he learned defendant's lease would expire on October 1, 1976. Plaintiff obtained a 30 day extension to sell his inventory and ceased doing business as of October 31, 1976.

Plaintiff instituted this action seeking actual damages of $135,537.93, for lost profits on inventory, interest expenses, and future profits. He also sought punitive damages of $250,000. Plaintiff alleges that the defendant induced him into entering the real estate lease and dealer's agreement by intentionally misrepresenting, in the disclosure statement, the length of its lease with LeArCoe Corporation.

During the trial, at the conclusion of plaintiff's case, defendant presented the court with two motions; one for a directed verdict generally and one for a directed verdict on the issue of punitive damages. The court denied defendant's directed verdict but granted the directed verdict on the issue of punitive damages.

The jury entered a verdict in favor of plaintiff in the sum of $5,000 actual damages and judgment was ordered in accordance.

After judgment was entered for plaintiff, defendant moved the court for a judgment notwithstanding the verdict and to order a verdict for the defendant. The trial court denied defendant's motion.

Both plaintiff and defendant filed notices of appeal. On court's own motion, the two appeals were consolidated under Cause No. 39843.

Defendant, Sun Oil Company, filed no brief in support of its appeal. Defendant only filed a respondent's brief in answer to the appellant's brief of plaintiff. Thus, defendant abandoned its appeal and its appeal is dismissed. Rule 84.04(j) VAMR. See, White v. Robertson-Drago Funeral Home, Inc., 552 S.W.2d 47(2) (Mo.App.1977).

At the trial, the court limited plaintiff to arguing future lost profits and interest expenses up to March 1, 1977, the day plaintiff's second year to year term would have expired if defendant had exercised its option. On appeal, plaintiff claims this limitation as error and argues that he is entitled to interest expenses up until the time of trial (September 8, 1977) and future profits until 1991, the date defendant represented that its lease expired. We disagree.

In the present case, the trial court did not err in limiting plaintiff to arguing lost profits and interest expenses incurred prior to March 1, 1977. Plaintiff had a year to year lease with defendant on the subject property. The lease which began March 1, 1975, would be renewed automatically for one year each March 1st, unless either plaintiff or defendant gave 60 days notice of termination. Thus on March 1, 1976, when neither plaintiff nor defendant had given prior notice of termination, plaintiff's legal interest in the station extended until March...