Francis v. Richardson

• Decision Date: 28 October 1998
• Docket Number: No. 22037,22037
• Citation: 978 S.W.2d 70
• Parties: John and Joan FRANCIS, Plaintiffs-Respondents, v. Charles and Echo RICHARDSON, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 70

978 S.W.2d 70

John and Joan FRANCIS, Plaintiffs-Respondents, v. Charles and Echo RICHARDSON, Defendants-Appellants.

No. 22037.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 28, 1998.

Robert L. Smith, Smith & Miller, Poplar Bluff, for Appellants.

Matthew S. Edmundson, Edmundson, Trando, Hopkins & Henson, Poplar Bluff, for Respondents.

BARNEY, Judge.

In this court-tried case, a judge granted John Francis and Joan Francis (Plaintiffs) judgment against Charles and Echo Richardson (Defendants) for $5,018.45. The damage award represented the value of one month's rent ($500.00) and damages ($4,518.45) resulting from an alleged failure by Defendants to maintain rental property pursuant to a lease. Defendants appeal, presenting two points of trial court error. Their first point is directed at the sufficiency of the evidence to support a monetary award for damages to the demised property; they also argue trial court error in awarding one month's rent to Plaintiffs because Plaintiffs did not seek such an award at trial. In their second point, Defendants aver that the trial court erred in entering a judgment for the Plaintiffs because the circuit court entered its judgment more than thirty days after submission of the case for final decision and that therefore the circuit court was divested of jurisdiction and its judgment remains void.

This is the second opportunity this Court has had to review this matter. See Francis v. Richardson, 951 S.W.2d 365 (Mo.App.1997). We dismissed the earlier appeal for lack of jurisdiction and remanded the matter to the trial court with directions because the trial court's first judgment was void in that it was entered more than thirty days after submission of the case to the trial court for final decision. See Id. at 366; § 517.111.2, RSMo 1994. ¹ We directed the trial court to "enter an order setting aside all entries made on or about October 9, 1996, and treat the case as finally submitted on that new date." Id. The trial court followed this Court's mandate and subsequently entered a new judgment on October 20, 1997.

"The trial court's judgment must be affirmed unless there is no substantial evidence to support it, unless it is against the manifest weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Klinckman v. Pharris, 969 S.W.2d 769, 770 (Mo.App.1998).

We review the facts in the light most favorable to the trial court's judgment. Id. "[A]ll fact issues upon which the trial court made no specific findings shall be considered as having been found in accordance with the result reached." Id.

I.

On May 13, 1985, Defendants entered into a written lease agreement with Eldred C. Russell and Ruth Ann Russell. The lease was for commercial property located at 3001 South Westwood Boulevard, Poplar Bluff, Butler County, Missouri. The term of the lease was for five years, expiring July 1, 1990, with an option to renew for an additional five-year term expiring July 1, 1995. The lease provided, inter alia, that Defendants "shall make all necessary repairs to the building during the term of this lease and shall keep the premises in good repair and working condition during the term of the lease." Defendants exercised their option to renew for the second five-year term after the expiration of the first five-year term.

In June 1995, Eldred C. Russell and Ruth Ann Russell sold the leased property to John and Joan Francis, Plaintiffs herein. Plaintiffs requested that Defendants surrender the premises to them on the expiration of the lease, July 1, 1995. Defendants refused. Plaintiffs filed the instant suit and Defendants counterclaimed for damages. Defendants relinquished the property to Plaintiffs on or about August 1, 1995. The trial court found all claims in favor of Plaintiffs and awarded total damages in the amount of $5,018.45.

II.

We address Defendants' second assignment of error first. Defendants assert that "the court of appeals was without jurisdiction and authority in remanding this case to the associate circuit court ... and ordering that court to reenter a judgment, therefore the subsequent reentry of the judgment by the associate court on October 20, 1997, is void." We determine that this assignment of error is without merit.

When this appeal was previously before this Court, we remanded the matter to the circuit court and directed the associate circuit judge to do the following:

The associate circuit judge who entered this judgment shall on his own initiative, or on the motion of either party, as soon as possible after timely notice to all parties, set a date at which time he shall enter an order setting aside all entries made on or after October 9, 1996, and treat the case as finally submitted on that new date. The associate circuit judge shall then enter a judgment within the time period mandated by § 517.111.2, RSMo 1994.

Francis, 951 S.W.2d at 366.

These same, if not identical, directions were issued to circuit courts on remand in at least four other cases previously before the appellate courts of Missouri. See Kamp v. Grantham, 937 S.W.2d 258, 259-60 (Mo.App.1996); French v. Davidson, 936 S.W.2d 225, 226 (Mo.App.1996); Larimer v. Robertson, 800 S.W.2d 154, 156 (Mo.App.1990); Stellwagen v. Gates, 758 S.W.2d 195, 197 (Mo.App.1988). Defendants have directed us to no authority that holds this Court did not have the authority to remand this matter to the circuit court to set aside its previous judgment and enter a new judgment, as set forth above. Appellants are obliged to cite appropriate and available precedent if they expect to prevail. See Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978); see also Shiyr v. Pinckney, 896 S.W.2d 69, 71 (Mo.App.1995). "Failure to cite relevant authority where available, or to set forth why such authority is not available, constitutes an abandonment of the point under Rule 84.04(d)." Williams v. Belgrade State Bank, 953 S.W.2d 187, 190 (Mo.App.1997). Point denied.

III.

In their first point of error, Defendants assail the integrity of the judgment, alleging three deficiencies. They assert that: (1) Plaintiffs did not request any damages for rent at trial yet the trial court awarded Plaintiffs $500.00 for rent; (2) they contend that Plaintiffs were not competent to testify about what repairs the leased property needed to restore it to its original condition because they did not know what condition the property was in when Defendants took possession in 1985; and (3) they allege that the damages award based upon Plaintiffs' Exhibits 16 and 17 was not based on any evidence, was speculative and excessive; and that the damages awarded to Plaintiffs based upon Exhibit 18 was primarily for the removal of "trade fixtures," which Defendants contend they had a right to remove from the leased property when they surrendered it.

In review of Defendants' first subpoint, we observe that during the course of the proceedings Plaintiffs' attorney stated: "Judge, we're not making claim for rent...." Despite this pronouncement, in its judgment the trial court found:

a. [O]n the original Petition for Eviction as to rent, the Defendants were not entitled to retain possession of the property during the month of July, 1995, and the Court assesses rent at Five Hundred and NO/100 Dollars ($500.00) due to the Plaintiffs....

We conclude that the trial court erred in awarding $500.00 in damages to Plaintiffs for rent. Plaintiffs' counsel's statements constituted a judicial admission that Plaintiffs were not requesting a judgment for rent. A judicial admission is "a more or less formal act done in the course of judicial proceedings which waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true." Hewitt v. Masters, 406 S.W.2d 60, 64 (Mo.1966). It can be made by a party or his attorney. Mitchell Engineering Co. v. Summit Realty Co., Inc., 647 S.W.2d 130, 140 (Mo.App.1982). "It removes the proposition in question from the field of disputed issues in the particular case wherein it is made." Id. at 141. Subpoint granted.

In their second subpoint, Defendants' contend that Plaintiffs were not competent to testify as to what repairs were needed to restore the leased property to its original condition because they did not know what condition the property was in when Defendants took possession in 1985.

The general rule is that "[t]he testimony of a witness must be based upon [personal] knowledge." Cummings v. Tepsco Tennessee Pipe & Supply Corp., 632 S.W.2d 498, 500 (Mo.App.1982); see also Anderton v. Gage, 726 S.W.2d 859, 866 (Mo.App.1987). It is also a general rule of law that the trier of fact has the discretion to determine the weight and value to be given to the testimony of any witness. Cummings, 632 S.W.2d at 501.

In the instant matter, Plaintiff John Francis testified only as to the present condition of the demised property at the time he took possession, some thirty days after Defendants relinquished the property. He testified that he had been in the construction business for some 45 years and had built approximately 25 commercial apartment buildings. He testified in detail as to the condition of the building at issue when he took possession of the demised property. He related that the electrical wiring had been "cut off" and "just pushed back in the hole in the wall." He testified concerning overhead posts and lighting which had been removed, broken water lines, holes in walls made by Defendants to permit water drainage from their automobile washing operation, nine broken windows, damage to doors and door jambs, damage to cabinets, insulation which had been removed by Defendants, and four barrels of oil that Defendants left on the property after vacating it. He stated that an office inside the building had been totally demolished and removed from the building, together with another addition or building...