D.E. Properties Corp. v. Food for Less, Inc., No. 62605
| Citation | 859 S.W.2d 197 |
| Decision Date | 10 August 1993 |
| Docket Number | No. 62605 |
| Parties | D.E. PROPERTIES CORPORATION, Plaintiff/Appellant, v. FOOD FOR LESS, INC., Defendant/Respondent, and David G. O'Neil, Defendant, and Perry N. Browne, d/b/a Browne & Sons, Inc., Defendant. |
| Court | Court of Appeal of Missouri (US) |
Carl Michael Bakewell, Barken & Bakewell, Clayton, for plaintiff, appellant.
David Gerard Ott, Dean R. Gallego, Brinker, Doyen & Kovacs, Clayton, for defendant, respondent.
Defendant, Food For Less, Inc. (Lessee), filed a counterclaim against plaintiff, D.E. Properties Corporation (Lessor), seeking to recover rent paid pursuant to a lease during the time the premises were untenantable. The circuit court granted Lessee's motion for summary judgment and entered judgment in favor of Lessee in the amount of $22,499.19. We affirm.
On September 1, 1983 Fenton Plaza Shopping Center/Diversified Equities (FPSC/DE) and Lessee executed a five-year lease (Primary Lease) for approximately 17,500 square feet at # 60 Fenton Plaza Shopping Center beginning October 15, 1983 with an option to renew for two additional five-year terms. The Primary Lease bound an assignee of FPSC/DE's leasehold interest to the Primary Lease terms. FPSC/DE subsequently assigned the Primary Lease to Lessor.
The Primary Lease expressly permitted Lessee to sublet the eastern portion of the leased premises for use as a restaurant. In November, 1983 Browne & Sons, Inc. and Perry N. Browne (Sublessee) executed a five-year sublease (Sublease) with Lessee for approximately 2,383.5 square feet in the eastern portion of the leased premises for a restaurant. The Sublease term began on October 1, 1983 and ended on October 31, 1988.
On September 24, 1986 a fire substantially damaged the restaurant in the subleased premises. The subleased premises were rendered untenantable and remained so until the Primary Lease term expired. The Primary Lease addressed the event of partial destruction of the leased premises by fire as follows:
7.1 PARTIAL DESTRUCTION: In the event of the partial destruction of the building or improvements located on the demised premises by fire or any other casualty, [Lessor] shall restore or repair said building and improvements with reasonable diligence. [Lessor] shall expend such sums as required to repair or restore improvements to the condition they were in immediately prior to the date of the destruction. A just and proportionate part of the rent payable by [Lessee] to the extent that such damage or destruction renders the demised premises untenatable [sic] shall abate from the date of such damage or destruction until such premises are repaired or restored.
Section 9.1 of the Primary Lease governed Lessee's duty to pay rent:
9.1 [LESSEE'S] DEFAULT: Failure on the part of [Lessee] to pay rent within fifteen (15) days after same shall become due ... shall, at the option of [Lessor], cause the forfeiture of this lease, without, however, releasing [Lessee] from liability, as hereinafter provided, and if such default shall not be corrected within the applicable period aforesaid, possession of the demised premises and all improvements thereon shall be delivered to [Lessor] and thereupon [Lessor] shall be entitled to and may take immediate possession of the premises, any other notice or demand being hereby waived....
Lessee continued to pay the full monthly rental rate until the Primary Lease term expired. Sublessee paid Lessee the full Sublease rental rate for six to eight months after the fire. The Primary Lease was not renewed.
Lessor filed a petition against Lessee and O'Neil for damages resulting from the fire which was alleged to have been caused by one or both defendants' negligence. Lessee filed a counterclaim against Lessor alleging the premises were untenantable from September 24, 1986 through October 14, 1988 and sought a return of rental payments for that period pursuant to the abatement clause. In its reply Lessor asserted the affirmative defenses of waiver and estoppel, alleged substantial performance, and claimed a right to a set-off of rent paid under the Sublease.
Lessee filed a motion for summary judgment on its counterclaim. As grounds for its motion Lessee stated that a fire on September 24, 1986 rendered the subleased premises untenantable, that the Primary Lease required Lessor to repair the fire damaged premises and allowed Lessee an abatement of rent while the premises remained untenantable, and that Lessee paid rent on the damaged premises for the remainder of the Primary Lease term in the amount of $22,499.18, which was the reasonable rental value. In support of its motion, Lessee filed the affidavit of its President, David O'Neil, and copies of the Primary Lease and the Sublease. O'Neil attested that Lessee complied with all the terms of the Primary Lease, that a fire on September 24, 1986 rendered the subleased premises untenantable, and that Lessee paid reasonable rent of $22,499.18 for the untenantable subleased premises during the remainder of the Primary Lease term.
In opposition to the motion, Lessor filed the affidavit of its attorney, C. Michael Bakewell. Bakewell attested to the accuracy of several exhibits submitted with his affidavit: Lessee's counterclaim, Sublessee's answers to Lessor's interrogatories, and portions of a deposition of Jonathan Browne.
The trial court granted Lessee's motion for summary judgment and entered judgment in favor of Lessee for $22,499.19. Lessor subsequently dismissed its negligence action against both defendants. Lessor appeals the entry of summary judgment, asserting that the trial court erred in granting the motion because 1) matters raised by its affirmative defenses precluded judgment as a matter of law and 2) there were disputed issues of fact concerning prior breach and the amount of damages.
Summary judgment shall be entered where the moving party has demonstrated, through the...
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