Rietsch v. T.W.H. Co., Inc., s. 13480

• Decision Date: 26 November 1985
• Docket Number: 13497,Nos. 13480,s. 13480
• Citation: 702 S.W.2d 108
• Parties: Kurt W. RIETSCH, Plaintiff-Appellant, v. T.W.H. COMPANY, INC., d/b/a Range Line Bowlarama, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 108

702 S.W.2d 108

Kurt W. RIETSCH, Plaintiff-Appellant, v. T.W.H. COMPANY, INC., d/b/a Range Line Bowlarama Defendant-Respondent.

Nos. 13480, 13497.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 26, 1985.

Jerry E. Wells, Joseph W. Schoeberl, Joplin, for plaintiff-appellant.

Phillip A. Glades, David Robards, Joplin, for defendant-respondent.

HOGAN, Presiding Judge.

Plaintiff Kurt W. Rietsch, owner and record title holder of an open shopping center known as the Elms Center Shopping Center, brought this action in three counts against the defendant, which is one of his tenants. Averring various breaches of the defendant's lease, plaintiff sought 1) possession of the demised premises; 2) recovery of the sum of $31,875 for the breach of two covenants contained in the lease and $3,000 as attorney's fees, and 3) a temporary restraining order enjoining the defendant from removing any "possessions or property located in the demised premises." The trial court found the issues tendered by Count I (for possession) and Count II (for a temporary injunction) to be moot but rendered judgment for the plaintiff and against the defendant in the amount of $10,078.99. Appeal No. 13480 is defendant's appeal. Appeal No. 13497 is plaintiff's cross-appeal. We affirm the judgment of the trial court.

As a threshold matter, we must consider defendant's assertion that plaintiff's notice of appeal was untimely and therefore vested no jurisdiction of Appeal No. 13497 in this court. We agree that the timely filing of a notice of appeal is jurisdictional, and that a judgment becomes final for the purpose of appeal thirty days after the entry of judgment unless a timely motion for new trial or in court-tried cases, the motion authorized by Rule 73.01(a)(3) is filed. Rule 81.05(a); Goldberg v. Mos, 631 S.W.2d 342 (Mo.1982). The judgment in this case was rendered and entered August 26, 1983; the judge's docket entry specifically so recites. No after-trial motion was filed. The judgment therefore became final for purposes of appeal September 26, 1983, as September 25, the thirtieth day after entry of the judgment, was a Sunday. Rule 44.01(a). Notice of Appeal was filed by the defendant in Appeal No. 13480 on October 3, 1983, 7 days after the judgment became final. Therefore, defendant's Appeal No. 13480 was timely commenced under the provisions of Rule 81.04(a). Notice of cross-appeal was filed by the plaintiff on October 13, 1983. Rule 81.04(b) provides that if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed. Therefore, the notice of cross-appeal in Appeal No. 13497 was timely filed and this court has jurisdiction of both appeals.

The merits of the appeals turn on the interpretation of a shopping center lease. The lease, 15 pages long, covers a bowling alley which is part of the Elms Shopping Center, located at Seventh and Range Line in Joplin. The center is an open center; when construction of the three buildings which make up the center was completed in 1966, the total leasable space in the shopping center was 112,975 square feet. The common facilities, as far as we can determine, consist entirely of a parking lot.

On November 18, 1968, the defendant executed a lease covering approximately 24,486 square feet in one of the buildings located in the shopping center. The space was to be used as a bowling alley, which the defendant operated under the name "Bowlarama." Defendant was also granted access to and exclusive use of a 600 square foot section in the basement of the premises for activity incidental to defendant's operation of the bowling alley. The lease provided for a base rent, a percentage rent based on annual sales over $250,000 and a "tax escalator" or "tax stop" clause requiring the tenant to bear the increase in taxes. This "tax escalator" clause is the principal source of controversy on defendant's appeal. It will be set out at length presently. The lease also contained a penalty provision which required a defaulting holdover tenant to pay double rent during the holdover period. The developer of the center was the Republic National Life Insurance Co. of Dallas, Texas, but the original lease was executed by the defendant as "tenant" and by Charles Parrish and his wife as "landlord." We are obliged to assume that whatever interest Mr. Parrish had in the center was salable; several different "landlords" appear in the record; the nature of their interest does not appear.

The original lease was supplemented in December 1968, but that supplement is of no consequence on these appeals. In August 1975, a document entitled "Lease Amendment and Extension # 1" was executed by the defendant as "tenant" and by "L.T. Properties, Inc.," as "landlord." As premises, this amendment and extension recited the existence of the original lease; that L.T. Properties had become "owner of the Demised Premises and the Landlord of Tenant"; that the parties wished to enter into a new lease; that all of the terms of the original lease were incorporated, except that a) the premises demised would consist of 25,084 square feet; b) the base rental would be increased from $1,500 per month to $1,625 per month for that period commencing '4-1-76' to and including June 30, 1983 (our emphasis), and c) the charge for common facilities would be increased from $200 to $304 per month. The original lease provided that the demise was for a term of seven years with an option to renew for seven years. If the option was exercised the lease would determine June 30, 1983. So, because the modification of August 1975, commenced the renewal period three months earlier than was originally contemplated, the lease determined June 30, 1983. The renewal of the lease, as we shall see, triggered the tax escalator clause.

Plaintiff's Exhibit 12 shows that in 1968, $11,500 in taxes was paid by the original landlords. Plaintiff's Exhibits 13, 14, 15, 16 and 17 show that in 1976, L.T. Properties paid real property taxes in the amount of $23,437.28. In 1977, L.T. paid $22,556.16 in real property taxes; in 1978, $22,732.40; in 1979, $23,172.95; in 1980, $23,128.89. The real estate tax statements themselves, under the heading "value," indicate the assessed valuation of the entire center from 1977 through 1980 was $440,550. In 1981, the Board of Equalization, at the request of some unidentified person, reduced the total assessed valuation of the shopping center from $440,550 to $220,280. This brought the assessed valuation below that for the index year, 1968, which was $398,160. Therefore, the years in which the tax escalator was operative were 1976, 1977, 1978, 1979 and 1980.

Plaintiff Rietsch purchased Republic National's interest in the property and took the leases by assignment. Plaintiff was determined to sweep with a new broom. Republic having given him the right to collect any sums due under the tax escalator clause, subject to apportionment between the two, plaintiff proceeded to make demand for the cost of utilities furnished and for tax increases owed by the defendant. As we are able to decipher the record, plaintiff first calculated the amount due him for utility reimbursement from July 1980 to June 1981, under the tax escalator clause. This came to $13,960.72, which the defendant paid. By letter dated November 19, 1981, plaintiff advised the defendant that by his calculations, defendant owed $15,625.02, based on a "square foot" calculation. Rietsch interpreted the lease to mean that defendant would pay a proportionate share of the tax increase based on the percentage of the total square footage available in the center. Rietsch's figure excluded the basement area. Excluding the basement space, plaintiff calculated that defendant had occupied 25,084 square feet of a total of 112,975 available, and would therefore owe about 22 percent of the tax increase for each year since the beginning of the period of extension. Rietsch then came up with a figure of $13,861.43. Rietsch admitted his first calculations had been based on "incorrect" information obtained from the Jasper County Collector's office. Plaintiff engaged in prolonged negotiation with the defendant but he was unsuccessful. By letter dated December 8, 1981, plaintiff gave notice, of sorts, of termination of the lease, but continued to accept the previously agreed ground rental until the lease determined in June 1983. Plaintiff thereafter demanded penalty rent in the amount of $3,250 and for attorney's fees and costs in the amount of $3,000. Such is the general background of the case; other facts will be noted in the course of the opinion.

APPEAL NO. 13480

Appeal No. 13480 is the defendant's appeal. Again as a threshold matter, we must consider certain limitations upon the scope of our review. This is a bench-tried case and it may be conceded that present Rule 73.01(b) specifically provides that no after-trial motion is necessary to preserve any matter for appellate review. Nevertheless our review, even in court-tried cases, is limited to those issues put before the trial court. At least twice in recent years, in reviewing cases tried to the court, our Supreme Court has held that an appellate court will not, on review, convict a trial court of error on an issue which was not put before it to decide. In re Reorganization of Levee Dist. No. 3 of Mississippi County, 695 S.W.2d 450, 456, n. 6 (Mo. banc 1985); ¹ Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982) (review of declaratory judgment action), appeal dismissed 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983). The defendant now contends that the "tax escalator" or "tax saving" clause in the lease was so vague and indefinite as to be unenforceable. No such contention was presented to the trial court and we cannot consider it.

A second point advanced by the defendant is that the court's judgment is erroneous because ...