Crestwood Shops, L.L.C. v. Hilkene
| Decision Date | 08 August 2006 |
| Docket Number | No. WD 65694.,WD 65694. |
| Citation | 197 S.W.3d 641 |
| Parties | CRESTWOOD SHOPS, L.L.C., Respondent, v. Sally HILKENE and Churchill in Crestwood, L.L.C., Appellants. |
| Court | Missouri Court of Appeals |
Lisa A. Padden Weixelman, Kansas City, MO, Attorney for Appellants.
Stephen J. Torline, Kansas City, MO, Attorney for Respondent.
Before JOSEPH M. ELLIS, P.J., ROBERT G. ULRICH, and RONALD R. HOLLIGER, JJ.
Sally Hilkene and Churchill in Crestwood, L.L.C. (Churchill), owned by Ms. Hilkene, appeal the "Partial Judgment for Declaratory Judgment and Injunction" entered by the Jackson County Circuit Court in favor of Crestwood Shops, L.L.C. (Crestwood). The judgment found that a lease between Churchill and Ms. Hilkene, lessees, and Crestwood, lessor, was validly terminated and no longer legally in effect. Five points are presented on appeal. First, Ms. Hilkene argues that Crestwood did not accept her offer to rescind a lease because the acceptance was not a mirror image of the offer.1 Second, she argues that Crestwood could not rescind the lease because it was in breach of the lease. Third, she argues that the offer to rescind the lease did not comply with the Statute of Frauds. Fourth, she argues that an offer to rescind the lease had not been made. Finally, she argues that Crestwood could not have accepted the offer to rescind the lease because the offer was made subject to a condition precedent, which the trial court failed to find had occurred prior to the purported acceptance. The judgment is affirmed.
Ms. Hilkene is the owner of Churchill, a store selling accessories, jewelry, handbags fashion clothing, interior design items, and home gifts. Churchill has operated a retail store since December 2003, in a shopping center owned by Crestwood. The shopping center is located in Kansas City, Missouri.
Churchill has been a successful business, and, as a result, outgrew its space and requested that Crestwood lease it any additional retail space when space became available. In December 2004, Crestwood offered to lease Churchill adjacent space in the same shopping center. The space was then occupied by a bookstore. Ms. Hilkene, as sole owner and officer of Churchill, executed a lease (Lease) with Crestwood for this additional space (Leased Space) on December 15, 2004, retained by Crestwood, unsigned by it.
Subsequently, the bookstore entered into a lease termination agreement with Crestwood. Pursuant to this agreement, the bookstore agreed to terminate its lease with Crestwood and surrender the space by February 28, 2005. Crestwood signed the Lease with Churchill on January 28, 2005. Churchill's Lease was to commence March 1, 2005.
Over a period of a couple months, the relationship between Ms. Hilkene and Crestwood deteriorated because of three primary sources of contention. Ms. Hilkene asserted to Crestwood that the condition of the newly leased premises was unsatisfactory because of the presence of mold, a faulty foundation due to leaking water, and a defective HVAC system. Prior to taking possession of the Leased Space, Ms. Hilkene discovered damage to the foundation in the basement because of a prior leak and the presence of mold in the basement. She also became aware that the HVAC system needed to be replaced. Ms. Hilkene had other complaints about the Leased Space, including, among other things, that the bookstore had permitted an adjacent tenant to partition off and use portions of the Leased Space, that the Leased Space did not have a restroom or fire escape, and that the awnings were removed from the exterior of the Leased Space. The primary issues, however, were the mold, foundation, and HVAC system. Ms. Hilkene informed Scott Padon, Crestwood's property manager, of these problems. When Ms. Hilkene took possession of the Lease Space on March 1, 2005, the problems had not yet been cured.
A series of conversations, emails, and letters between Ms. Hilkene, Mr. Padon, and other agents of Crestwood regarding the problems and their resolution commenced shortly after Ms. Hilkene discovered them. Ms. Hilkene desired to have the problems resolved quickly because she had a contractor waiting to renovate the interior of the Leased Space so that the second store location could open for business. Crestwood had a policy of requiring three bids if work would cost more than $2,500 and began the process of securing bids for the mold abatement. Crestwood also commenced steps to remedy the foundation damage and faulty HVAC system. In addition, Ms. Hilkene was required to submit to Crestwood her plans for renovating the Leased Space so that Crestwood could approve them. She failed to submit her plans to the satisfaction of Crestwood.
As the interaction between Ms. Hilkene and Crestwood became more contentious, both parties manifested a desire to communicate with the other party only in writing. In a certified letter addressed to Ms. Hilkene and dated March 15, 2005, Mr. Scott Padon, acting for Crestwood, addressed several issues, including Ms. Hilkene's planned improvements to the Leased Space, installation of a fire exit door, demising walls, and various outdoor design details. The letter did not address the mold, foundation, or HVAC system.
Ms. Hilkene received the certified letter from Mr. Padon on March 17, 2005. She became frustrated from the delay that resulted from sending the letter certified and from the letter's failure to address the mold, foundation, or HVAC system. Ms. Hilkene conveyed her frustration by making numerous handwritten notes on the letter and faxing the letter, with the notes, to Mr. Padon. One of the handwritten notes was the following:
IF THERE ARE CONTINUED DELAYS & IGNORING IMP. FACTS IN THESE LETTERS I CAN RELEASE MYSELF FROM THIS LEASE AS OF 3-22-05.
Also on March 17, 2005, Ms. Hilkene exchanged a series of email with Todd Miller, a friend and Churchill employee. Mr. Miller is also the son of Kaye Miller, one of the owners of Crestwood. The first email, at 12:45 p.m., reported that Churchill was closed because of her brother's death.2 Mr. Miller responded at 12:56 p.m. and inquired if he could be of assistance. Ms. Hilkene responded at 3:24 p.m. as follows:
You can help me by killing scott padon and the landlords.
I want out of that f. . . . .g lease.
I received a certified letter that was so unprofessional and missing important issues that should have been in the letter. Just wasting time. The owners are idiots because they will lose the best builder in town to improve their space. They've dicked us around for almost a month. He can't do the job if he can't start on Monday. So I will get out of the lease if he's not doing it. Hell, the things they let shawver3 get away with, like selling erotica in th [sic] basement!
I feel they are harassing me over petty stuff. They know what Churchill is. The new space will be a better one, but I don't want to be there anymore. It's petty and unprofessional they way the have treated me and Andy.4
Luckily, I have enough legal ways to leave.
Let them find someone else who will put the money into crestwood like I have. Good luck finding someone that stupid.
At 3:50 p.m. on March 17, 2005, Ms. Hilkene sent the following email to Mr. Padon:
Dear Scott,
I have faxed to you at 3:14 p.m. Today [sic] a response to your certified letter. We have wasted 2 days due to your sending a certified letter. And the letter did not address the most pertinent points, mold, water, and hvac. How could I sign such an incomplete letter? Please rewrite the letter, being thorough and specific How will mold and water be addressed and eradicated? Are they doing what you said they would do on the hvac? While they are resolving these issues, they should excuse me of all rent expenses.
I wish to release myself from the lease by March 24th, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers. More specifically the stachybotris5 present in the space. Also, Andy's schedule will not permit him to do the space after April 1. I would not have leased the space without his involvement.
Also, my exterior signage will be like Bloomsday.6 Where he had his logo, I will have mine. I can get you a drawing next week, but this is petty to hold up the construction inside. Also, an awning to match aixois7 with "churchill" on it. Please include in the letter that any improvements, approved by owners, but paid for by me will be my property to take upon leaving.
The exterior lanterns are a safety hazard for people walking to aixois. I liked Jim's idea to have a hanging lantern, similar to george's bracket, that would be high enough to not hurt anyone.
The door stain that is existing is what I thought the space would have. New door would match it.
This entire process should have been reviewed with me prior to March 1. This has been an ordeal for both myself and andy fritzel. It is unfortunate that the owners and leasing agents couldn't have been more professional in these specifics prior to the commencement of this lease.
I will be on email only. I will be at the store briefly on Friday, but have family commitments through the weekend and monday.
If you send another certified letter, please copy on email so more time is not wasted,
(emphasis added).
Ms. Hilkene emailed Mr. Padon again on March 18, 2005. In this email, she inquired whether he received her fax and advised him that he could contact her through email if he had questions. That same day, Crestwood, though its attorneys, wrote the following letter to Ms. Hilkene:
Dear Sally:
Crestwood Shops, LLC is in receipt of your email correspondence to Scott Padon, Senior Property Manager and Agent for Crestwood Shops, LLC, dated March 17, 2005 (sent at 3:50 p.m.) wherein you indicate your request to be...
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