Jaron Corp. v. Pellet

• Decision Date: 22 November 1993
• Docket Number: No. 18506,18506
• Citation: 866 S.W.2d 897
• Parties: JARON CORPORATION, Plaintiff-Respondent, v. Glenn PELLET and Geraldine Pellet, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 897

866 S.W.2d 897

JARON CORPORATION, Plaintiff-Respondent, v.Glenn PELLET and Geraldine Pellet, Defendants-Appellants.

No. 18506.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 22, 1993.

Rehearing Denied Dec. 15, 1993.

Albert Crump, Jr., Rolla, for defendants-appellants.

Donald A. Hale, Steelville, for plaintiff-respondent.

GARRISON, Judge.

This is an appeal by Glenn and Geraldine Pellet(the Pellets) from a court-tried case in which the Jaron Corporation(Jaron) was awarded damages for breach of a lease.The Pellets contend there was insufficient evidence to support the judgment and that the trial court erred both in evidentiary rulings and in denying their request to amend a counterclaim and file a third-party petition.

Property described as "Lessors' bar and restaurant building known as 'The Long Branch' " was leased by the Pellets to Jaron in a written lease dated April 29, 1979.It provided that Jaron was "to have the power to use said leased premises for the purposes of operating a restaurant, bar, together with related uses...."The stated term was for one year commencing May 25, 1979 with options to renew, but the lease also provided that it was "contingent upon the Lessee obtaining the proper liquor and other licenses to operate a bar and restaurant on the leased premises," and that if the licenses were not obtained by June 15, 1979, then "this Lease, at the option of the Lessee, shall be null and void."

Simultaneously with the execution of the lease, Jaron began to remodel and renovate the building, and its president, Jim Schmitt, contacted the local liquor control agent and obtained an application for a liquor license.Before the application was submitted, however, the liquor control agent contacted Mr. Schmitt, telling him that a church was located in another building owned by the Pellets which was within fifteen feet of the Long Branch.Mr. Schmitt was informed that he would need to obtain consent from the church pursuant to § 311.080 RSMo ¹ before the license could be issued.²

Mr. Schmitt then found that there was a sign on the front of the adjoining building saying "Bibleway Fellowship" which had not been present when the lease was signed.Evidence was introduced indicating that the Pellets, at some point after Jaron began renovating the Long Branch, made an arrangement with the church group whereby they would be permitted to use the adjoining building rent free, with that donation being valued at $400 per month.

Mr. Schmitt asked the church's leader, Mr. Moses, if they would consent to liquor being sold at the Long Branch and the evidence indicated he received a negative response, including the statement that under no circumstances would Jaron be permitted to sell "liquor to the drunks of Crawford County."According to the testimony, Mr. Schmitt also talked with Mrs. Pellet, who contended that the religious group was not a church and that it should not be an impediment to obtaining the liquor license.She also refused to ask the group to vacate the adjoining building.

Mr. Moses testified that his congregation was totally against the consumption of alcoholic beverages, he would not have consented to the licensing of the Long Branch for the sale of those beverages, and in his opinion the congregation also would have refused to consent.The liquor control agent testified that it would have been useless to submit an application under these circumstances because it would have been rejected.

Jaron terminated its renovation activities and did not proceed with the lease, leaving tables, chairs and other articles of personal property on the premises as well as the completed permanent renovations.It filed suit on December 15, 1980, claiming damages on the theory that the Pellets breached their obligations under the lease by permitting the adjoining building to be used for religious worship, thereby preventing it from obtaining a liquor license.Thereafter, its petition was amended in January 1984 to also allege intentional interference with Jaron's business purpose by authorizing use of the adjoining building by the church which, under the circumstances, amounted to an eviction and ouster of Jaron.Following a trial in May 1992, the court entered a judgment on October 19 of that year, finding that the Pellets breached the lease and awarding $5,437.87 to Jaron as actual damages.The Pellets appeal from that judgment.

As in any court-tried case, we review the case upon both the evidence and the law, giving due regard to the opportunity of the trial court to judge the credibility of witnesses.Rule 73.01(c)(1) and (2).³The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).

The first point raised by the Pellets is:

The trial court erred in overruling appellants' motion to dismiss at the close of respondent's evidence, in overruling appellants' motion to dismiss at the close of all evidence and in entering judgment in favor of respondent for the reason that respondent does not have a cause of action.

Rule 84.04(d) requires that a point relied on "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...."The requirements of that Rule are explained in the leading case of Thummel v. King, 570 S.W.2d 679(Mo. banc 1978).In the instant case, the first point is an abstract assertion which presents nothing for review.Bentlage v. Springgate, 793 S.W.2d 228, 229-31(Mo.App.1990);Pauling v. Rountree, 412 S.W.2d 545, 548(Mo.App.1967).Point I is, therefore, denied.

In Point II the Pellets contend that the trial court erred in finding a breach of the terms and conditions of the lease because Jaron allegedly presented no evidence to establish a constructive eviction in that there was no evidence of any wrongful conduct, omission of a duty, or substantial interference with the use of the premises by the Pellets and, in addition, Jaron waived any claim of constructive eviction by its failure to promptly abandon the leased premises.Jaron, however, pleaded both a breach of the lease and interference with its business purpose amounting to an eviction and ouster (the latter being apparently labeled by the Pellets as "constructive eviction").The trial court found only that the Pellets had breached the lease and did not purport to base its finding on the theory of constructive eviction.In its judgment entry, it stated that the Pellets breached the terms and conditions of the lease by permitting the church to use the adjoining building during the time Jaron was attempting to obtain a liquor license, knowing that it was an impediment in the licensing process and that the church would not give the required consent.⁴These findings were supported by the evidence.

An appellate opinion should be limited to those questions essential to a proper disposition of the appeal.State v. State Tax Com'n of Missouri, 651 S.W.2d 130, 133(Mo. banc 1983).This point is, therefore, denied as irrelevant.Bryant v. Prenger, 717 S.W.2d 242, 243-44(Mo.App.1986);Antioch Travel Center v. Phillips, 676 S.W.2d 88, 89-90(Mo.App.1984);Coalition to Preserve Ed. v. K.C. Sch. Dist., 649 S.W.2d 533, 536(Mo.App.1983).

In Point III the Pellets allege trial court error in admitting James Schmitt's testimony that he made an oral agreement with the Pellets that rent was not due until Jaron actually commenced business in the leased premises.The Pellets contend that the testimony violated the parol evidence rule and resulted in the trial court's denial of their counterclaim for rent and reimbursement of insurance premiums.

A certain latitude is allowed concerning the admission of evidence in a court-tried case.Even if the evidence complained of in the instant case was inadmissible (a question which we need not consider), it will not be found to be prejudicial and a ground for reversal except where the trial court relies on that evidence in arriving at its findings.Blackburn v. Richardson, 849 S.W.2d 281, 292(Mo.App.1993), quoting fromIn re Marriage of Clark, 801 S.W.2d 496, 498-499(Mo.App.1990).See also In Interest of L.W., 830 S.W.2d 885, 890(Mo.App.1992).

In the instant case, the trial court found against the Pellets on their counterclaim without specifying reasons.The Pellets requested findings of fact and conclusions of law but, in doing so, did not request specific findings concerning their counterclaim except "what damages, if any, either party are [sic] entitled to recover from the other."Rule 73.01(a)(2) provides that the trial court shall include in its findings those controverted fact issues specified by counsel and that "[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached."The trial court, in the instant case, made the only finding requested of it by the Pellets concerning their counterclaim, to wit: that they were entitled to no damages.We are, therefore, unable to conclude that the trial court relied on the evidence about which the Pellets complain in arriving at its judgment, and we look only to determine if there was other sufficient competent evidence to support the trial court's judgment on the counterclaim.In Interest of C.K.G., 827 S.W.2d 760, 767(Mo.App.1992).

The lease called for the first rent payment to be due May 25, 1979.It also provided, however, that it was contingent upon Jaron obtaining a liquor license to operate a bar by June 15.Mr. Schmitt testified that no lease payments were made "because the lease called for a payment, I believe, in May, the end of May; and by that time, all of this had occurred."This obviously referred to Jaron's inability to obtain a liquor...