Cusumano v. Outdoors Today, Inc.

Decision Date12 November 1980
Docket NumberNo. 41766.,41766.
Citation608 S.W.2d 136
PartiesMark CUSUMANO, Plaintiff-Respondent, v. OUTDOORS TODAY, INC., Defendant-Appellant.
CourtMissouri Court of Appeals

Alan J. Baker, Clayton, for defendant-appellant.

Robert Adler, Clayton, for plaintiff-respondent.

DOWD, Presiding Judge.

Plaintiff, the owner of an apartment unit located in Clayton, Missouri, brought this unlawful detainer action to regain possession of the apartment from defendant, Outdoors Today, Inc. The parties entered into a written lease agreement whereby defendant was entitled to possession of the apartment unit from June 1, 1978 through December 31, 1978, with rent fixed at three hundred dollars per month. Outdoors Today, Inc. continued to occupy the unit through May 18, 1979, which was the date of trial for this action. According to the terms of the written lease, defendant was required to pay twenty-one hundred dollars in rental payments for the seven month period ending December 31, 1978. Both parties agreed that defendant paid a total of twenty-four hundred dollars. However, during trial the parties were in disagreement as to the characterization and effect of the additional three hundred dollar payment.

Defendant gave plaintiff a six hundred dollar check when the parties executed their lease agreement. The lease provided that this payment constituted the June and December, 1978 rents which are the first and last months of the lease. Plaintiff's part-time bookkeeper testified that she recorded twenty-one hundred dollars in rental payments by defendant. The bookkeeper's records indicated that three hundred dollars for the June rent was received, but the bookkeeper did not recall who tendered this amount. The bookkeeper testified that if rent payments were made directly to the plaintiff, she would record that amount plaintiff forwarded to her. The records indicated that defendant paid the rent for July, August, September and October. In November, defendant sent the bookkeeper a check for six hundred dollars. The bookkeeper assumed this check represented payment for the November and December rents and recorded it as such, even though defendant had already paid the December rent when the lease was executed.

Plaintiff testified that while he received the initial six hundred dollar check upon execution of the lease, he did not know how this payment was recorded in his bookkeeper's records. Plaintiff acknowledged receipt of a total of twenty-four hundred dollars from defendant, but stated that three hundred dollars of this amount was an overpayment of rent caused by defendant's six hundred dollar payment in November rather than the three hundred dollars he was required to pay pursuant to the terms of the lease. Plaintiff also testified that he attempted to return the three hundred dollars on several occasions in December and never accepted any rental payments from defendant after the November, 1978 payment. Furthermore, plaintiff stated that he asked defendant to leave the premises in December and January, and employed an attorney during December for the purpose of having defendant removed.

Mr. John Tuchschmidt, president of the defendant corporation, testified that the six hundred dollar check in November was for the November and January, 1979 rents, although he did not believe the check specified on its face that it was for the January rent. Mr. Tuchschmidt testified that he was never offered a refund of the three hundred dollars and was never told to vacate the premises during 1978. Defendant's attorney also introduced evidence that plaintiff had instituted a prior action in January of 1979, in which defendant was identified as a month to month tenant during January. That action apparently was dismissed.

The trial judge, after amending his initial order, found that plaintiff was entitled to restitution of the premises and twelve hundred dollars damages. The trial judge's findings of controverted fact issues included finding that defendant did not pay rent for January, 1979, that defendant was not a month to month tenant during January and that no landlord-tenant relationship existed between the parties in January.

Before reaching defendant's arguments we are presented with a motion to dismiss this appeal filed by plaintiff-respondent. Plaintiff has filed an affidavit with this court stating that on June 5, 1979 defendant agreed to vacate the premises in dispute and plaintiff agreed to stay execution of his judgment. Plaintiff now contends that any judgment rendered by this court would have no practical effect upon any existing controversy, and therefore, this appeal is moot. We disagree. This court cannot, under the circumstances of this case, accept one party's contention that a dispute which was carried to trial no longer exists. We hold the appeal is not moot. Therefore, we address the issues raised by defendant on this appeal.

This unlawful detainer action was brought under that portion of Section 534.030 RSMo 1978, relating to persons holding over property after termination of the time that property was let to them. In order to maintain such an action a landlord-tenant relationship must have existed between the parties prior to any holding over. Conley v. Dee, 246 S.W.2d 385, 386 (Mo.App.1952). Defendant contends that the trial court erred because it found that no landlord-tenant relationship existed. However, examination of the record indicates that no such finding...

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29 cases
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • October 6, 1982
    ...testimony in part or as a whole. State ex rel. Reynolds County v. Riden, 621 S.W.2d 366, 368 (Mo.App.1981); Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139 (Mo.App.1980); Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975). Moreover, the trial court may draw all reasonable and legitima......
  • Phipps v. School Dist. of Kansas City
    • United States
    • Missouri Court of Appeals
    • November 23, 1982 That is simply because the court of appeals does not hear witnesses or assess credibility. Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139[4, 5] (Mo.App.1980). contested case and protect against judicial incursion of those separated The judgment the circuit court renders under §......
  • L. v. D., 12222
    • United States
    • Missouri Court of Appeals
    • March 1, 1982
    ...trial court had the authority to find, and did find, this evidence presented by the appellant was not credible. Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136 (Mo.App.1980). Moreover, the respondent presented the testimony of a clinical psychologist that it would be detrimental to the wel......
  • State ex rel. Reynolds County v. Riden
    • United States
    • Missouri Court of Appeals
    • August 27, 1981
    ...judge determines the credibility of the witnesses and may accept or reject their testimony in part or as a whole. Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139(4) Mo.App.1980); Prudential Property & Cas. Ins. v. Cole, 586 S.W.2d 433, 434(3) (Mo.App.1979); Gover v. Empire Bank, 574 S......
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