Hurwitz v. Kohm, No. 35496

CourtMissouri Court of Appeals
Writing for the CourtSIMEONE
Citation516 S.W.2d 33
PartiesJeanette F. HURWITZ and Evelyn Floret, Plaintiffs-Respondents, v. William KOHM, d/b/a Advertising Matrix Co., Defendant-Appellant. . Louis District, Division Three
Docket NumberNo. 35496
Decision Date12 November 1974

Page 33

516 S.W.2d 33
Jeanette F. HURWITZ and Evelyn Floret, Plaintiffs-Respondents,
v.
William KOHM, d/b/a Advertising Matrix Co., Defendant-Appellant.
No. 35496.
Missouri Court of Appeals, St. Louis District, Division Three.
Nov. 12, 1974.

Page 34

Wolff & Todt, Charles P. Todt, Clayton, for defendant-appellant.

Lewis, Rice, Tucker, Allen & Chubb, Richard T. Ciottone, St. Louis, for plaintiffs-respondents.

SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, William Kohm d/b/a Advertising Matrix Co., lessee, from a summary judgment entered on June 5, 1973, in favor of plaintiffs-respondents, Jeanette F. Hurwitz and Evelyn Floret, lessors, in the total amount of $6,369.75 for unpaid rent under a lease entered into by the parties. The issue is whether the trial court erred in granting summary judgment for the plaintiffs. We hold that it did not and affirm.

On August 30, 1970, the parties entered into a commercial lease whereby the lessors--Jeanette F. Hurwitz and Evelyn Floret--leased premises at 1907 Locust Street in the City of St. Louis to William Kohm, d/b/a Advertising Matrix Company, for a period of five years ending August 31, 1975. Rental was $408.33 per month. From the date of the lease and until April 11, 1972, defendant did business in that location. On May 3, 1972, the lessors, Hurwitz and Floret, received notice from defendant's attorney that Kohm intended to vacate and quit the premises on May 10, 1972.

On May 5, 1972, plaintiffs filed a 'Petition for Attachment of Rent' under § 441.240, RSMo, V.A.M.S., alleging inter alia that they were the owners of the property, the execution of the lease and that they received notice that the defendant intended to vacate and quit the premises on May 10, 1972. Plaintiffs alleged they believed that unless an attachment issue, they would lose the rent due. They prayed the court pursuant to § 441.240, RSMo, V.A.M.S., to issue its order attaching the property of defendant for payment of delinquent rent plus the amount of rent due within one year thereafter plus costs. The defendant filed an answer admitting certain allegations and denying others. No affirmative defense was pleaded.

On January 17, 1973, and prior to filing a later amended petition, plaintiffs filed their motion for summary judgment under Rule 74.04, V.A.M.R., alleging that the proceedings heretofore had and certain supporting affidavits and exhibits show 'there is no general (genuine?) issue as to any material fact and that the plaintiff (sic) is entitled to a summary judgment as

Page 35

a matter of law.' A memorandum in support thereof revealed the above facts and that in July, 1972, the firm of Martin and Associates was employed to solicit a lessee or buyer for the purpose of re-leasing or selling the premises 'in a good faith attempt to mitigate defendant's (?) damages and to enable plaintiffs to compromise the existing Lease with Defendant.' An affidavit attached to the motion for summary judgment by J. Ben Miller, agent, stated that in his capacity as an employee of Martin and Associates, he took several steps to sell or lease the premises, but they were unsuccessful.

Then on February 6, 1973, plaintiffs filed an amended petition alleging similar facts and prayed the court to continue the attachment issued in response to the original petition, added a request for judgment for rent delinquent from March, 1972, to February, 1973, and an allegation that no payment of rent had yet been received. Kohm filed an answer on February 27, 1973, the date that the motion for summary judgment was argued, and alleged an affirmative defense that 'plaintiff has failed and refused to take appropriate action to release the premises to reduce the damages as required by law.' When the motion was called and argued on February 27, the parties, by order, were given time to file briefs. At the argument, defendant's position was that his amended answer raised the issue of mitigation of damages, hence an issue of fact existed so that the court could not properly grant summary judgment. The defendant's memorandum argued that summary judgment is a drastic remedy and that mitigation 'is always an issue in a rent suit. There is no way an affidavit can eliminate that question of fact. The jury must decide if the plaintiff mitigated the damages.'

On April 18, 1973, the trial court on its own motion, set aside its order of February 27, 1973, and reinstated plaintiff's motion upon application and notice.

Thereafter another motion for summary judgment was filed, notice being given to the defendant of the calling of the motion.

On May 30, 1973, the motion was heard and on June 5, 1973 the motion was sustained. The court decreed that the plaintiffs recover unpaid rent for the months of April, 1972, through and including June, 1973 (fifteen months) in the total amount of $6,124.75, and that plaintiffs' attachment remain effective.

This appeal by the defendant-lessee followed. The appellant contends that...

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28 practice notes
  • Y.G. v. Jewish Hosp. of St. Louis, No. 57675
    • United States
    • Court of Appeal of Missouri (US)
    • July 12, 1990
    ...as a motion for summary judgment, the court properly treated the motion as one for summary judgment. Rule 55.27(a); Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); Grus v. Patton, 790 S.W.2d 936 When matters outside the pleadings are presented with a motion to dismiss, the court must noti......
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...v. Schultz, 7 Cal.App.3d 786, 86 Cal.Rptr. 760 (App.1970) (dictum); Carpenter v. Riddle, 527 P.2d 592 (Okl.Sup.Ct.1974); Hurwitz v. Kohm, 516 S.W.2d 33 The majority rule is based on principles of property law which equate a lease with a transfer of a property interest in the owner's estate.......
  • Protective Cas. Ins. Co. v. Cook, No. 52094
    • United States
    • Court of Appeal of Missouri (US)
    • June 30, 1987
    ...to the burden and expense of a trial. Such a judgment may be rendered where no genuine issue of material fact is shown. Hurwitz v. Kohm, 516 S.W.2d 33, 36 Third, our function is not to rewrite a contract of insurance. It is our duty to interpret and enforce it as written. Brugioni v. Maryla......
  • Cherry v. City of Hayti Heights, No. 59950
    • United States
    • United States State Supreme Court of Missouri
    • March 13, 1978
    ...a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' " Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); See Waltz v. Cameron Mutual Ins. Co., 526 S.W.2d 340, 343 (Mo.App.1975). The foregoing applies in the case before us. Ad......
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28 cases
  • Y.G. v. Jewish Hosp. of St. Louis, No. 57675
    • United States
    • Court of Appeal of Missouri (US)
    • July 12, 1990
    ...as a motion for summary judgment, the court properly treated the motion as one for summary judgment. Rule 55.27(a); Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); Grus v. Patton, 790 S.W.2d 936 When matters outside the pleadings are presented with a motion to dismiss, the court must noti......
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...v. Schultz, 7 Cal.App.3d 786, 86 Cal.Rptr. 760 (App.1970) (dictum); Carpenter v. Riddle, 527 P.2d 592 (Okl.Sup.Ct.1974); Hurwitz v. Kohm, 516 S.W.2d 33 The majority rule is based on principles of property law which equate a lease with a transfer of a property interest in the owner's estate.......
  • Protective Cas. Ins. Co. v. Cook, No. 52094
    • United States
    • Court of Appeal of Missouri (US)
    • June 30, 1987
    ...to the burden and expense of a trial. Such a judgment may be rendered where no genuine issue of material fact is shown. Hurwitz v. Kohm, 516 S.W.2d 33, 36 Third, our function is not to rewrite a contract of insurance. It is our duty to interpret and enforce it as written. Brugioni v. Maryla......
  • Cherry v. City of Hayti Heights, No. 59950
    • United States
    • United States State Supreme Court of Missouri
    • March 13, 1978
    ...a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' " Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); See Waltz v. Cameron Mutual Ins. Co., 526 S.W.2d 340, 343 (Mo.App.1975). The foregoing applies in the case before us. Ad......
  • Request a trial to view additional results

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