G & J Holdings, LLC v. SM Props., LP

• Decision Date: 29 January 2013
• Docket Number: No. ED 98371.,ED 98371.
• Court: Missouri Court of Appeals
• Parties: G & J HOLDINGS, LLC, Appellant, v. SM PROPERTIES, LP, Respondent/Cross–Appellant.

391 S.W.3d 895

G & J HOLDINGS, LLC, Appellant,
v.
SM PROPERTIES, LP, Respondent/Cross–Appellant.

No. ED 98371.

Missouri Court of Appeals,
Eastern District,
Division Four.

Jan. 29, 2013.

[391 S.W.3d 898]

Gregory H. Wolk, St. Louis, MO, for appellant.

Daniel J. Welsh, St. Louis, MO, for respondent/cross-appellant.

PATRICIA L. COHEN, Judge.
Introduction

G & J Holdings, L.L.C. (Plaintiff) appeals the judgment entered by the Circuit Court of St. Louis County in favor of SM Properties, L.P. (Defendant) on three counts of Plaintiff's petition and in favor of Plaintiff on the remaining count. Plaintiff claims the trial court erred in: (1) granting Defendant's motion for summary judgment as to Plaintiff's claims for breach of lease and rescission; (2) denying Plaintiff's motion for summary judgment concerning its claims for breach of lease; and (3) awarding attorneys' fees to Defendant. In its cross-appeal, Defendant asserts that the trial court erred in awarding Defendant less than the full amount of attorneys' fees it incurred. We reverse the judgment in part, decline to address Defendant's cross-appeal, deny the motions for attorneys' fees on appeal, and remand the case for further proceedings.¹

Factual and Procedural Background

On December 3, 2007, Plaintiff and Defendant entered into a five-year lease for a

[391 S.W.3d 899]

retail store (Premises) at Des Peres Center (Center). Plaintiff leased the Premises from Defendant for operation of a printer cartridge refilling service.

On March 1, 2010, Defendant erected a construction fence in the parking lot of the Center. On May 3, 2010, Defendant began renovating the Center. Plaintiff vacated the Premises on or about June 23, 2010.

Plaintiff filed a four-count petition in the Circuit Court of St. Louis County. In Count I, Plaintiff claimed that Defendant breached the lease by committing the following acts, among others, prior to Plaintiff's departure: (1) closing “a large portion of” the parking area serving the Premises; (2) “board[ing] up” the storefront of the Premises; and (3) demolishing the sidewalk in front of the Premises. In Count II, Plaintiff asserted that Defendant's breaches of the lease as alleged in Count I constituted a breach of Defendant's covenant to allow Plaintiff's quiet enjoyment of the Premises. In Count III, Plaintiff sought rescission of the lease on the ground that Defendant materially breached the lease. In Count IV, Plaintiff claimed that Defendant converted Plaintiff's advertising sign.

Plaintiff filed a motion for partial summary judgment on the issue of Defendant's liability for breach of the lease as alleged in Counts I and II. Plaintiff also sought an award of its expenses and attorneys' fees.

Defendant moved for summary judgment in its favor on Plaintiff's petition. ² In its statement of uncontroverted material facts, Defendant relied on the deposition of Earle James Kennedy III, Plaintiff's co-owner and co-manager. Mr. Kennedy stated that Defendant erected a construction fence on March 1, 2010 that “cut off the parking lot” and that Defendant closed various portions of the parking lot from May 6 through June 18 in connection with the construction. According to Mr. Kennedy, photographs taken on May 25 showed “how [Defendant] boarded up the front” of the Premises and a May 27 photograph depicted “how the sidewalks were all torn up then.” Mr. Kennedy also stated that Defendant prohibited access to the sidewalk in front of the Premises from May 13 through June 18 and constructed “a tunnel [of boards] with a little light [through which] people [were] supposed to access my store.” In response, Plaintiff admitted these facts.

The trial court entered an order denying Plaintiff's motion for summary judgment and granting Defendant's motion for summary judgment as to Counts I, I, and III. The trial court did not provide a basis for its decision. Defendant moved the trial court to award it $115,496.08 in attorneys' fees and costs pursuant to section 28.10 of the lease.³

The trial court entered a final judgment in favor of Defendant on Counts I, II, and III and in Plaintiff's favor on Count IV in the amount of one dollar pursuant to Defendant's offer of judgment. The trial court awarded Defendant judgment in the amount of $25,000 for attorneys' fees and costs. Both parties appeal.

Standard of Review

We review the entry of summary judgment de novo.

[391 S.W.3d 900]

ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.” Id. Thus, “[t]he propriety of summary judgment is purely an issue of law.” Id. “Summary judgment is an extreme and drastic remedy and we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court.” Conrad v. Waffle House, Inc., 351 S.W.3d 813, 820 (Mo.App. S.D.2011).

“As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. “[I]f the trial court fails to specify the grounds upon which it granted summary judgment, we will affirm the grant of summary judgment if it is proper under any theory supported by the record and presented on appeal.” Conway v. St. Louis County, 254 S.W.3d 159, 164 (Mo.App. E.D.2008).

When reviewing a trial court's grant of summary judgment, this court views the record in the light most favorable to the party against whom summary judgment was entered. ITT Commercial Fin. Corp., 854 S.W.2d at 376. “Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion.” Id. “We accord the non-movant the benefit of all reasonable inferences from the record.” Id.

Discussion A. Defendant's Motion for Summary Judgment

A defendant moving for summary judgment must demonstrate: (1) facts negating one or more elements of the plaintiff's claim; or (2) that the plaintiff “cannot and will not be able to prove one or more elements of [its] claim.” Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. banc 2006). “Regardless of which of these ... means is employed by the [defendant], each establishes a right to judgment as a matter of law.” ITT Commercial Fin. Corp., 854 S.W.2d at 381. “Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.” Id. However, “if the movant requires an inference to establish his right to judgment as a matter of law, and the evidence reasonably supports any inference other than (or in addition to) the movant's inference, a genuine dispute exists and the movant's prima facie showing fails.” Id. at 382.

1. Breach of Lease

In its first point on appeal, Plaintiff argues the trial court erred in granting Defendant's motion for summary judgment as to Plaintiff's claims in Counts I and II that Defendant breached its obligations under the lease. Specifically, Plaintiff contends that Defendant failed to set forth undisputed facts negating any element of Plaintiff's claims. Defendant counters that the undisputed facts demonstrate that it did not breach the lease and that Plaintiff did not establish actual damages.

“A lease in Missouri acts as both a conveyance and a contract, and a damaged party has available the usual contract remedies in the event a provision of a lease is breached including damages, reformation

[391 S.W.3d 901]

and rescission of the contract.” Campus Lodge of Columbia, Ltd. v. Jacobson, 319 S.W.3d 549, 552 (Mo.App.W.D.2010) (quotation omitted). “To establish a prima facie case of breach of lease, a plaintiff must establish the existence of a valid lease, mutual obligations arising under the lease, that defendant did not perform, and that plaintiff was thereby damaged by the breach.” Id. (quotation omitted). Defendant contends that Plaintiff cannot prove that either Defendant failed to perform its obligations under the lease or that Plaintiff was damaged.

a. Liability

Plaintiff asserted in Count I that Defendant failed to perform its obligations under the lease by,...