Michelson Realty Co. v. Curtis, Bamburg & Crossen, 61357

• Decision Date: 23 February 1993
• Docket Number: No. 61357,61357
• Court: Missouri Court of Appeals
• Parties: MICHELSON REALTY COMPANY, a Corporation, Agent for 230 S. Bemiston Associates, Plaintiff, v. CURTIS, BAMBURG & CROSSEN, a Partnership, Successors, Defendant/Third Party Plaintiff/Respondent, v. ANDERSON & PREUSS, Third Party Defendant/Appellant.

Page 7

851 S.W.2d 7

MICHELSON REALTY COMPANY, a Corporation, Agent for 230 S.

Bemiston Associates, Plaintiff, v. CURTIS, BAMBURG & CROSSEN, a Partnership, Successors, Defendant/Third Party Plaintiff/Respondent, v. ANDERSON & PREUSS, Third Party Defendant/Appellant.

No. 61357.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 23, 1993.

Rehearing Denied March 31, 1993.

Gerald Warren, Clayton, for third party defendant/appellant.

J. Patrick Chassaing, Dwight E. Cole, Curtis, Oetting, Heinz, Garrett, & Soule, P.C., Clayton, for defendant/third party plaintiff/respondent.

SMITH, Judge.

Third party defendant, Anderson and Pruess (Anderson), appeals from the judgment of the court in a court-tried case involving a sub-lease of commercial office space. In January 1983, third party plaintiff Curtis, Bamberg and Crossen (Curtis) leased office space from 230 S. Bemiston Associates on the fourth floor of the Two Thirty Building. The lease was for five years. In April 1987, Curtis and Anderson entered into an Agreement to Sublease a portion of the space with a right of first refusal to the remainder of the space. Both Curtis and Anderson are law firms. Landlord consented to the sublease in the following language:

230 S. Bemiston Associates hereby consents to the foregoing sublease with the understanding that neither this consent of anything herein contained, nor any action on its part in the future dealing directly with the Sublessee shall operate to release the Sublessor from said lease or to modify said lease in any respect.

In May 1988, Michelson Realty Co., as agent for 230 S. Bemiston Associates, sued Curtis for certain payments required under the lease. Curtis in turn filed its third party action against Anderson claiming that whatever payments were due to the landlord from Curtis were in turn due from Anderson to Curtis. Specifically, Michelson's action sought to recover from Curtis its pro-rata share of operating expenses for the building in excess of those for the base year of 1982 and for electricity utilized in the leased space. Both of these charges were provided for in the original lease between 230 S. Bemiston Associates and Curtis, and neither had been paid by Anderson to the landlord or to Curtis.

The sublease agreement provided for a larger per square foot rental amount than the original lease. It further provided "Operating expenses--Sublessee further agrees to pay to Sublessor, Sublessor's pro rata share of increases in Building Operating Expenses starting with year 1987". The trial court included in its judgment a total of $6158 for the operating expenses and no question is raised as to the accuracy of that figure. The sublease is silent concerning the electricity charges referred to in the original lease. The trial court allowed $2692 for the electricity charges. It further allowed $4940 in attorney's fees. The sublease is silent concerning attorney's fees. The original lease provided "All of the remedies herein are accumulative, and given without impairing any other rights or remedies of LESSOR, and LESSEE shall pay and discharge all costs, expenses and attorney's fees that shall arise from enforcing the covenants and conditions of this lease by LESSOR."

Anderson contends that the charges forming the basis of the judgment were not required to be paid by it under the sublease and therefore the judgment was erroneous. Curtis asserts that the sublease was not in fact a sublease but rather an assignment of all its interest in the leased premises and therefore Anderson is bound by the terms of the original lease. In addition it contends that Anderson assumed such charges by virtue of language in the sublease. That language reads:

Sublessee understands, agrees and accepts terms and conditions of the basic lease as indicated in the attached Exhibit "B" and made a part thereof, between 230 S. Bemiston Associates, as Landlord, and Thomas B. Curtis, Leland B. Curtis, Thomas E. Allen, and Lawrence J. Altman, as Tenant, dated January 1, 1985 and ending ...