Kimack v. Adams

• Decision Date: 08 October 1996
• Docket Number: No. 68955,68955
• Citation: Kimack v. Adams, 930 S.W.2d 505 (Mo. App. 1996)
• Parties: Joseph KIMACK, Plaintiff/Appellant, v. Jerry E. ADAMS and Kathy Adams, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 505

930 S.W.2d 505

Joseph KIMACK, Plaintiff/Appellant, v.Jerry E. ADAMS and Kathy Adams, Defendants/Respondents.

No. 68955.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 8, 1996.

Bruntrager & Billings, P.C., Mary P. Schroeder, Mary L. Bruntrager, St. Louis, for plaintiff/appellant.

Edwards, Singer, Wolk & Spoeneman, Richard H. Edwards, Jeffrey R. Edwards, Clayton, for defendants/respondents.

PUDLOWSKI, Judge.

Joseph Kimack(Kimack) filed suit for the return of $2,900 prepaid rental advance.The cause was tried before an associate circuit judge without a jury and judgment was entered in favor of Kimack.Jerry and Kathy Adams(Owners) appealed.In a de novo trial heard without a jury, the trier of fact Judge Dunlap, found for Kimack and entered judgment for him in the sum of $517.95 which represented five days rental credit.Kimack appeals the judgment.We affirm.

On January 9, 1994, Kimack telephoned the Owners inquiring about a newspaper advertisement for a Florida condominium rental.Owners related that they had several inquiries regarding their condominium and informed Kimack that whoever placed a security deposit first would secure the rental of the condominium.Kimack was interested and since the Owners would not be home later in the day, they left photographs and a rate schedule in their barbecue pit.Subsequently, Kimack went to the barbecue pit, viewed the photographs, read the rate schedule and left a $290 security deposit for a one month rental beginning on February 5th.

Owners mailed a receipt for the deposit the next day.Included with the receipt were the keys to the condominium and a letter informing Kimack of the "House Rules."Kimack then sent $2,900 prepaid rent check to Owners on January 12th.

On February 3rd, Kimack advised Owners that he would be unable, due to medical problems, to use the condominium for the rental period, which would begin in two days, and requested a refund.Owners returned the $290 security deposit.They were unsuccessful in securing replacement renters and the condominium remained vacant during the Kimack rental period until February 28th when Owners occupied it for five days to perform repairs and maintenance.Kimack again called Owners requesting a refund of the rent advance and was denied.

In this court tried case, we review the law and evidence submitted to the trial court and sustain the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or it erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).We defer to the trial court on the question of credibility of all witnesses and the weight given to their testimony.Rule 73.01(c)(2).

Kimack's appeal alleges two points of error: that Owners are not entitled to retain the prepaid rent and that he had not entered into a lease but merely a license.We will address the points in reverse order.

Kimack claims the agreement he had with Owners was a license in which the trial court erred in allowing Owners to retain the prepaid rent.A license is only a privilege to enter certain premises for a specific purpose.Hermann v. Lynnbrook Land Company, 806 S.W.2d 128, 130(Mo.App. E.D.1991).A license does not vest any title, interest or estate in the licensee and may be revoked at the will of the licensor.Annin v. Lake Montowese Development Company, Inc., 759 S.W.2d 240, 241(Mo.App. E.D.1988).In contrast, a lease is "any agreement which gives rise to relationship of landlord and tenant" and said "contract is for exclusive possession of tenements for a determinate period."Black's Law Dictionary, Fifth Edition (800).A landlord-tenant relationship is created when: (1) there is reversion in the landlord; (2) creation of an estate in the tenant either at will or for a term less than that which the landlord holds; (3) transfer of exclusive possession and control of the tenant; and (4) a contract.Chubb Group of Insurance Companies v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 777(Mo.App. W.D.1983).

Applying the facts to this test, Kimack's agreement with Owners comprises a lease rather than a license.Owners and Kimack had agreed to a rental fee for the period of one month and, at the termination of the rental period, the condominium would revert to the possession of Owners.They held a fee simple in the condominium while Kimack had an interest for a limited duration, i.e., one month.Kimack's actions of payment of the security deposit and rental payment along with the receipt and possession of the condominium keys fulfilled the intention of the parties to Kimack's exclusive possession of the condominium property.The evidence...