Nickles v. Auntie Margaret Daycare, Corp.
| Decision Date | 24 March 1992 |
| Docket Number | No. 59394,59394 |
| Citation | 829 S.W.2d 614 |
| Parties | Walter NICKLES, et al., Respondents/Cross-Appellants, v. AUNTIE MARGARET DAYCARE, CORP., Appellants. |
| Court | Missouri Court of Appeals |
Schwartz, Herman & Davidson, Robert Herman, St. Louis, for appellant.
The Wallach Law Firm, Cathy Steele, St. Louis, for respondent.
In this action for rent and possession of leased premises, Auntie Margaret Daycare, Corp., (Auntie Margaret), lessee, appeals from the judgment of the trial court voiding a lease between Auntie Margaret and lessors, Walter Nickles, Shirley Nickles, Richard Wilke, and Debra Wilke. Lessors cross-appeal from the judgment. We reverse and remand.
Lessors are the owners of commercial property in St. Louis County. On May 9, 1990, lessors signed a Commercial Lease delivering possession of the property to Auntie Margaret Day Care Corporation. On the signature lines designated "Lessee," Anthony Daly signed: "Auntie Margarets [sic] Day Care Corp [sic] Margaret Daly."
The following provision was typewritten on the form lease under the "Term and Rental" section.
This Lease shall be effective on the date hereof, but the demised term and Lessee's obligations hereunder shall not commence until the first day of the calendar month following the issuance of a permanent Certificate of Use and Occupancy for the demised premises executed by the appropriate public authority.
Typewritten "Additional Terms and Conditions" were attached to the form lease. These included two pertinent provisions:
1. Upon execution hereof, Lessee shall pay to Lessor the sum of One Thousand Six Hundred Dollars ($1,600.00) and on May 9, 1990, the sum of One Thousand Six Hundred Dollars ($1,600.00) will be paid on date of occupancy, as and for a "Security Deposit" for the full and faithful performance by Lessee of each and every term, provision, condition and covenant of this Lease. The Security Deposit shall not bear interest, and shall not be considered an advance payment of any sums payable hereunder. Lease payments will start within 90 days after signing or if opening comes before 90-day time period.
* * * * * *
8. This Lease is contingent upon Lessee's ability to secure from all appropriate government authorities all permits and licenses necessary (including occupancy permits) to enable Lessee to use the demised premises for the purposes set forth herein. In the event Lessee is unable to obtain the necessary permits and licenses within ninety (90) days following the execution hereof, Lessee may cancel this Lease by so notifying Lessor of such intention. In the event of such termination and cancellation, Lessee's security deposit shall thereupon be returned to Lessee, this Lease shall thereupon be null and void, and each party hereto shall release the other and hereby does release the other from and against any and all further liability whatsoever.
On August 21, 1990, lessors' attorney sent a certified letter to "Auntie Margaret's Day Care, Inc., Margaret Daly, 11070 Little Drive, St. Louis, MO, 63126." The receiver signed "Daly" on the receipt. That letter advised,
On September 21, 1990, lessors filed a petition for rent and possession, alleging Auntie Margaret had defaulted in its obligation to pay August and September rent. Lessors requested a judgment of $3,200.00 plus accrued rent to the date of judgment, costs, and restitution of possession of the premises. No answer was filed; however, Auntie Margaret's attorney entered appearance on behalf of the corporation.
The cause was tried on November 20, 1990. On the day of trial, lessors orally amended their petition and requested reimbursement for property taxes. During the presentation of their evidence, lessors also specifically requested reimbursement for insurance premiums from August 9, 1990, to November 26, 1990, when lessors' policy lapsed. Auntie Margaret raised no objection to this request.
At the close of lessors' evidence, Auntie Margaret presented an oral motion to dismiss. Auntie Margaret contended, As further grounds for the motion, Auntie Margaret asserted,
Upon consideration of Auntie Margaret's motion, the trial court determined the provision regarding commencement of lease payments within 90 days was subordinate to the provision making the commencement of Auntie Margaret's obligations contingent upon securing a permanent Certificate of Occupancy and Use. The trial court found lessors failed to meet their burden of showing Auntie Margaret's lack of good-faith effort to comply with the contingency. Further, the trial court determined the lease was void because there was never a meeting of the minds on the agreement. Accordingly, the trial court ordered Auntie Margaret to restore possession of the property to lessors, and lessors to return $1,601.00 to Auntie Margaret.
In its first point, Auntie Margaret contends the trial court erred in sustaining objections to Auntie Margaret's cross-examination of lessors' witnesses regarding the intention of the parties and the execution of the written lease. Auntie Margaret asserts the lease was ambiguous on its face, and, therefore, the trial court should have permitted extrinsic evidence of the parties' intent.
"An ambiguity is said to exist in a written instrument 'only if it is reasonably susceptible of different constructions.' " Edgewater Health Care v. Health Sys., 752 S.W.2d 860, 865 (Mo.App.1988) (quoting Kalen v. Steele, 341 S.W.2d 343, 346-7 (Mo.App.1960)). "In determining whether vel non an ambiguity exists, the whole instrument must be considered." Edgewater, 752 S.W.2d at 865. "A contract is not rendered ambiguous by the fact that the parties do not agree upon the proper construction to be given it." Id. "[W]hether the terms of an agreement are ambiguous is a question of law." Id. Moreover, "[i]t is only when the contract or contract term is unclear that the court considers evidence of how the contract was understood or acted upon by the parties." Dehner Urban Redevelopment Corp. v. Dun & Bradstreet, Inc., 567 S.W.2d 700, 704 (Mo.App.1978).
The trial court did not expressly find an ambiguity existed in the terms regarding commencement of Auntie Margaret's obligations under the lease. Auntie Margaret argues, however, "as the court did construe the contract, it must be inferred that the court did make this primary finding that the contract was ambiguous, and therefore extrinsic evidence would be allowed."
Considering the instrument as a whole, we conclude the terms regarding commencement of Auntie Margaret's obligations under the lease are not reasonably susceptible of different constructions, and, therefore, are unambiguous as a matter of law. The lease terms are clear that lease payments were to commence within ninety days from the date of execution. Under the lease, those payments included rent, insurance, and property taxes. Auntie Margaret had the option of canceling the agreement if it was unable to obtain the Certificate of Use and Occupancy within ninety days from the date of execution. Thus, the issuance of a permanent Certificate of Use and Occupancy was the triggering event for commencement of Auntie Margaret's obligation to make lease payments at any time prior to the ninetieth day. Because Auntie Margaret chose not to exercise its option to cancel the agreement after it failed to obtain the certificate, Auntie Margaret's obligation to begin making lease payments commenced on the ninetieth day following execution.
The terms regarding commencement of Auntie Margaret's lease payment obligations were unambiguous as a matter of law. Therefore, we find no error in denying Auntie Margaret the opportunity to present extrinsic evidence regarding the parties' intent. See Edgewater, 752 S.W.2d at 865.
In its second point, Auntie Margaret alleges the trial court erred in "concluding the lease was void and entering a judgment of rescission prior to allowing appellant to place any testimony into evidence in appellant's case."
Under this point, Auntie Margaret initially contends the trial court erred in entering a judgment which favored lessors...
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