Siragusa v. Park, WD

• Decision Date: 23 January 1996
• Docket Number: No. WD,WD
• Citation: 913 S.W.2d 915
• Parties: Michael J. and Sunday SIRAGUSA, Respondents, v. Chang Su PARK, Appellant. 50354.
• Court: Missouri Court of Appeals

Page 915

913 S.W.2d 915

Michael J. and Sunday SIRAGUSA, Respondents, v. Chang Su PARK, Appellant.

No. WD 50354.

Missouri Court of Appeals Western District.

Jan. 23, 1996.

William P. Whitaker, Kansas City, for appellant.

Jay W. Jensen, Ennis, Browne & Jensen, P.C., Kansas City, for respondents.

Before ULRICH, P.J., and SPINDEN and ELLIS, JJ.

ELLIS, Judge.

This case arises out of a five-year lease entered into on June 23, 1987 by Michael and Sunday Siragusa as lessors, and Chang Su Park as lessee. Under the terms of the lease, Park leased property located at 5402 Winner Road in Kansas City for use as a coin laundry for a total rental sum of $47,400.00, payable in monthly installments that increased from year to year. The lease specifically provided that Park was unable to assign, transfer, encumber or sublet the premises without the Siragusas' written consent. After the lease was entered into, Park entered into possession of the premises, paid the rent when due, and had the enjoyment of the premises. However, on June 6, 1989, the Siragusas consented to sublet the premises to James L. Thomas. The Siragusas, Thomas and Park executed a document entitled "Consent to Subletting and Option," reflecting the agreement to sublet. Under the consent agreement, Park agreed to remain bound to pay the rents reserved and to perform each and every provision and condition required of him under the original lease. However, the consent agreement recited that this was in consideration of, and as an inducement to, lessors to consent to the proposed subletting. Thomas, under the consent agreement undertook additional obligations over and above those contained in the original lease by agreeing to pay an additional security deposit, maintaining fire insurance in excess of that contained in the original agreement, assuming the obligation for payment of all property taxes, which was not part of the original lease, and certain other alterations or changes to the original lease. After this agreement, Thomas paid the rent directly to the Siragusas, and there is no dispute that the rent continued to be paid so long as Thomas was in possession.

From the record, it appears Thomas vacated the building at some point but continued to pay rent and ultimately either he, or perhaps his banker, put Glenn Wallace into possession. Upon discovery, or notification by Thomas, (it is unclear which) the Siragusas consented to Wallace's possession and had him affix his signature to the lease and the consent agreement on December 28, 1989. There was no additional written agreement executed. Wallace then began paying rent to the Siragusas.

Some months later, Wallace apparently began having difficulty making the rent payments, and may have even vacated the premises. Again, the details are not entirely clear, but it appears Wallace made arrangements for Patsy J. Watters to lease the property, to which the Siragusas consented, and on July 7, 1990, they had Watters sign the original lease and the consent agreement. As was the case with Wallace, there was no additional written agreement.

By October, 1990, Watters notified the Siragusas that she could not make it and was vacating the premises, which she did. The Siragusas then brought suit in Jackson County Circuit Court against Park, Thomas, Wallace and Watters, seeking damages equal to the amount of unpaid rental under the terms of the original lease. Thomas, Wallace and Watters were subsequently dismissed without prejudice from the action based on lack of service. Thereafter, the case was tried to the court sitting without a jury and at the conclusion of trial, the court entered judgment, without the benefit of findings of fact or conclusions of law, in favor of the Siragusas and against Park in the amount $20,617.00. Park then filed this timely appeal.

On appeal of this court tried case, we will affirm the trial court's judgment 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). When the trial court does not make any specific findings of facts, the fact issues are found in accordance with result reached and the judgment must be affirmed under any reasonable theory supported by the evidence. MFA Inc. v. Pointer, 869 S.W.2d 109, 111 (Mo.App.1993). Moreover, we do not weigh the evidence, and we must give deference to the trial court's superior ability to judge the credibility of the witnesses. Brawley v. McNary, 811 S.W.2d 362, 365 (Mo. banc 1991).

The original lease in this case provided that in the event of a default, the Siragusas were required to give Park written notice of the default and ten (10) days in which to cure same. The parties concede that Park was never given such a notice. Therefore, Park argues that this failure, conjoined with the Siragusas re-letting of the premises first to Wallace, and later to Watters, constituted an election on their part to terminate the lease, and resume possession in their own right. See MRI Northwest Rentals Invs. I, Inc. v. Schnucks-Twenty-Five, Inc., 807 S.W.2d 531, 534 (Mo.App.1991). The Siragusas counter by asserting that the consent agreement was an assignment, not a sub-lease, and therefore the lease provision requiring notice to Park of a default was inapplicable.

The determination as to whether the consent agreement is a sub-lease or an assignment is not dependent on how the document is denominated. St. Joseph & St. Louis R. Co. v. St. Louis I.M. & S.R. Co., 135 Mo. 173, 189-90, 36 S.W. 602, 605 (Mo.1896).

The test in Missouri as to whether a sublease or an assignment has been given is that in a sublease the sublessor retains some right or interest in the premises leased while in an assignment he parts with all his interest of whatever kind or character.

Michelson Realty Co. v. Curtis, Bamburg & Crossen, 851 S.W.2d 7, 9 (Mo.App.1993). The difference between an assignment and a sublease is significant. In the former, the lessee parts with his whole term or interest as lessee, Mutual Drug Co. v. Sewall, 353 Mo. 375, 182 S.W.2d 575, 578 (1944), and retains no reversionary interest in the original lease. Employees Consumer Org., Inc. v. Gorman's, Inc., 395 S.W.2d 162, 165 (Mo.1965). On the other hand, if there remains a reversionary interest in the estate conveyed, however small, the arrangement is a sublease. Id. If the transaction...