Stamatiou v. El Greco Studios, Inc.

• Decision Date: 28 February 1995
• Docket Number: No. WD,WD
• Citation: 898 S.W.2d 571
• Parties: Dian STAMATIOU, Respondent, v. EL GRECO STUDIOS, INC., d/b/a Greek Islands Restaurant, Appellant. 48246.
• Court: Missouri Court of Appeals

Page 571

898 S.W.2d 571

Dian STAMATIOU, Respondent, v. EL GRECO STUDIOS, INC., d/b/a Greek Islands Restaurant, Appellant.

No. WD 48246.

Missouri Court of Appeals Western District.

Feb. 28, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 2, 1995.

Application to Transfer Denied June 20, 1995.

Allen S. Russell, Allen S. Russell, Jr., Kansas City, for appellant.

Keith E. Drill, Wyrsch, Atwell, Mirakian, Lee & Hobbs, P.C., Kansas City, for respondent.

Before ULRICH, P.J., and LOWENSTEIN and HANNA, JJ.

ULRICH, Judge.

This matter has a lengthy litigious history. Mrs. Lila Dian Stamatiou and Mr. Dimitri Stamati Stamatiou were married December 26, 1967, and divorced by order of the Clay County Circuit Court August 29, 1989. Mr. Stamatiou appealed, and this court remanded that portion of the decree dividing the property with directions. In re Marriage of Stamatiou, 798 S.W.2d 737 (Mo.App.1990) (Stamatiou I). On remand, the trial court awarded a chose in action to Mr. Stamatiou for recovery of missing coins and precious metal. Mr. Stamatiou appealed again, and the order distributing the marital property was affirmed as modified. Stamatiou v. Stamatiou, 827 S.W.2d 739 (Mo.App.1992) (Stamatiou II) Distribution of the marital property included awarding Ms. Stamatiou real property and the premises in which was located Greek Islands, a restaurant, and awarding Mr. Stamatiou El Greco Studios, Inc. (El Greco), the corporation that operated the restaurant business.

On January 16, 1990, Ms. Stamatiou filed a petition for Rent and Possession in the Circuit Court of Jackson County, Missouri, alleging that Mr. Stamatiou had failed to pay half the rental amount from the date of their separation in 1988 through the August 1989 Divorce Decree and that El Greco had failed to pay any monthly rent thereafter. Evidence in the rent and possession action indicated that the monthly rental amount owed by El Greco was $1,268. By an approved order signed by Mr. Stamatiou's counsel in his behalf and entered by the court on July 3, 1991, Mr. Stamatiou stipulated that the amount of the monthly rent owed by El Greco was $1,216.66. The trial court ordered El Greco to pay into an escrow account specified amounts of rent alleged to be in arrears and $1,216.66 per month during the pendency of the appeal pursuant to the property division in the dissolution proceedings. By joint stipulation, the rent and possession action was dismissed.

Ms. Stamatiou filed an unlawful detainer action on May 29, 1990; and on February 28, 1990, Ms. Stamatiou served Mr. Stamatiou and El Greco with statutory notice to quit, alleging that no written lease existed between El Greco and herself as owner of the real property and that any month-to-month tenancy would be terminated on April 1, 1990. Alternatively, Ms. Stamatiou gave notice that, while she disputed the validity of a purported lease, she had not been paid her half share of the rents due from the date of the Stamatious' separation through the date of the first decree and had not been paid any rent since the marriage was terminated in August 1989.

Prior to April 1, 1990, Mr. Stamatiou tendered a check to Ms. Stamatiou for $5,600. Ms. Stamatiou refused to accept this check, which Mr. Stamatiou claimed represented her share of the amount of rent due under the written disputed lease. The check tendered did not include Ms. Stamatiou's half share of the rent due from the date of separation through the decree on August 29, 1989.

On July 10, 1992, following this court's mandate in Stamatiou II, the trial court entered its order dividing the marital property a second time. The trial court's original disposition of the real property and premises to Ms. Stamatiou and the full ownership of El Greco to Mr. Stamatiou in Stamatiou I was unaltered.

On July 29, 1992, the unlawful detainer court ordered El Greco to pay arrearage payments to Ms. Stamatiou for the months of July and August 1992. On September 3, 1992, the court in the unlawful detainer action entered judgment for Ms. Stamatiou finding no written lease agreement existed and holding that El Greco had failed to comply with the court's July 29, 1992 order to pay rental arrearage and ordering El Greco to pay twice the value of the monthly rents from April 1990 through August 1992 in the total sum of $70,566.25.

A new trial was granted on September 23, 1992, and judgment was filed on August 6, 1993, again finding no written lease existed between El Greco and Ms. Stamatiou. The judgment also ordered El Greco to pay $48,666.40 for the value of rents due from April 1, 1990 through August, 1 1993, and restored the premises to Ms. Stamatiou. From this judgment in the unlawful detainer action, El Greco appeals.

The judgment of the trial court is affirmed.

I

As point one on appeal, El Greco alleges the trial court's finding that no written lease existed between Ms. Stamatiou and El Greco is against the weight of the evidence. Therefore, El Greco asserts that the judgment in favor of Ms. Stamatiou is in an invalid sum, exceeding the amount of the purported written lease.

The standard of review applicable to unlawful detainer actions is the same enunciated in Rule 73.01 and in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), for cases tried without a jury. Kiefer v. First Capitol Sports Center, Inc., 684 S.W.2d 483, 487 (Mo.App.1984). Thus, the appellate court defers to the trial court's determination unless "there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy, 536 S.W.2d at 32. Furthermore, the reviewing court considers the evidence in the light most favorable to the party prevailing below, "giving that party the benefit of all reasonable inferences and disregarding the other party's evidence except as it may support the judgment." Morrison v. Jack Simpson Contractor, Inc., 748 S.W.2d 716, 718 (Mo.App.1988). Additionally, the appellate court gives due regard to the trial court's determination of the credibility of the witnesses. Id.

El Greco argues that Ms. Stamatiou has admitted the existence of a written lease between El Greco as tenant and the owner of the premises corroborating his claim that a written lease existed in the amount he claims. He asserts that Ms. Stamatiou filed, under oath, the action in rent and possession wherein she alleged the existence of a valid lease. Paragraph 3 of the rent and possession petition states

[t]hat the Plaintiff [Ms. Stamatiou] and Dimitri S. Stamatiou did lease said property to El Greco Studios, Incorporated, d/b/a Greek Islands Restaurant, which Plaintiff and her former husband own. Pursuant to the decree of dissolution of marriage, said corporation now belongs to Dimitri S. Stamatiou. The Plaintiff and Dimitri S. Stamatiou did lease said property to El Greco Studios, Incorporated, d/b/a Greek Islands Restaurant for a rental payment of $1,268 per month prior to November 1, 1988.

(Emphasis added). However, in the context of paragraph 3, the word lease is a verb and merely alludes to the act of leasing the premises. As such, it does not constitute an assertion by Ms. Stamatiou of an underlying written lease.

El Greco also argues Ms. Stamatiou's alternative pleadings in the unlawful detainer lawsuit establish the existence of a written lease as El Greco claims. Count I alleges an at-will tenancy and Count II alleges the existence of a written lease. However, "alternative fact allegations made in good faith and based on genuine doubt should not be considered admissions against interest." Rauch Lumber Co. v. Medallion Dev. Corp., 808 S.W.2d 10, 12 (Mo.App.1991). The pleader is not admitting anything other than uncertainty when stating facts in the alternative. Id. If alternative fact allegations are not based on genuine doubt, however, they may be considered admissions against interest. Id. (stating that such a holding is consistent with Rule 55.03).

The evidence supports the position that Ms. Stamatiou was unaware of the existence of any current written lease until Mr. Stamatiou asserted its existence following Ms. Stamatiou's tendering a demand to the El Greco for $2,000 per month as compensation for El Greco's continued use of the property. She then obtained a copy of the purported lease from the Department of Liquor Control and noted that the "signature" on the photocopy of the lease did not appear to be hers. At trial, El Greco's expert testified that the signature on the lease appeared to be consistent with other versions of Ms. Stamatiou's signature. The expert also testified that her inability to observe the original copy of the purported lease affected her opinion. She admitted that the signature on the copy of the purported lease could have been a photocopy of a valid signature on another document.

Ms. Stamatiou doubted the validity of the lease filed with the Department of Liquor Control. The Director of Liquor Control testified that department policy allowed photocopies of leases to be submitted instead of originals and that the Department of Liquor Control did not conduct an independent investigation to determine the validity of signatures on leases submitted in support of applications for liquor licenses. While Ms. Stamatiou made application for renewal of the restaurant's liquor license in 1987, that application made no reference to the purported written lease. Thus, Ms. Stamatiou made a good faith allegation of an at-will tenancy in Count I of the unlawful detainer action now on appeal, but she pleaded the purported lease in Count II in the event the trial court would have upheld the validity of the disputed lease.

The trial court fully considered the evidence and found that no written lease existed. Sufficient evidence exists for the trial court's holding.

Point one is denied.

II

As point two on appeal, El Greco claims Ms. Stamatiou...