Superior Outdoor Advertising Co. v. Snadon

• Citation: 965 S.W.2d 421
• Decision Date: 20 March 1998
• Docket Number: No. 21179,21179
• Parties: SUPERIOR OUTDOOR ADVERTISING COMPANY, d/b/a Buena Vista Sign Co., Plaintiff-Respondent, v. Gary W. SNADON, d/b/a Shepherd of the Hills Historical Society, Ltd., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 421

965 S.W.2d 421

SUPERIOR OUTDOOR ADVERTISING COMPANY, d/b/a Buena Vista Sign Co., Plaintiff-Respondent, v. Gary W. SNADON, d/b/a Shepherd of the Hills Historical Society, Ltd., Defendant-Appellant.

No. 21179.

Missouri Court of Appeals,

Southern District,

Division One.

March 20, 1998.

Gary A. Love, Ozark, for Defendant-Appellant.

Michael J. Patton, Eric M. Belk, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for Plaintiff-Respondent.

Before GARRISON, P.J., and PREWITT and CROW, JJ.

PER CURIAM.

The trial court awarded Superior Outdoor Advertising Company, d/b/a Buena Vista Sign Co. ("Plaintiff"), a $45,601.03 judgment against Shepherd Of The Hills Historical Society, Ltd. ("Defendant") based on a contract to furnish outdoor advertising signs. On this appeal, Defendant claims that the trial court erred because Plaintiff did not furnish quiet enjoyment of a material part of the signs, and had repudiated the contract. Alternatively, it contends that the trial court erred in computing damages by not considering evidence relating to mitigation of damages. We affirm.

In a court tried case, the scope of our review is set by Rule 73.01 ¹ as interpreted in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). This court will sustain the judgment of the trial court 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. Id. at 32. Under this standard, we give considerable deference to a judgment turning on evidentiary and factual evaluations by the trial court. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App. S.D.1992). We accept all evidence and inferences favorable to the judgment and disregard all contrary inferences. Kueffer v. Brown, 879 S.W.2d 658, 660 (Mo.App.E.D.1994). Where, as here, findings of fact and conclusions of law are neither requested nor entered, all factual issues are considered as having been found in accordance with the result reached. McLain v. Johnson, 885 S.W.2d 345, 347 (Mo.App. W.D.1994).

Defendant entered into a contract with Buena Vista Sign Co. on May 1, 1994, by which the latter agreed to furnish four outdoor advertising signs, designated as Signs 536, 628, 724, and 773. The contract called for Defendant to pay $52,200 over a period of 36 months at the rate of $1450 per month. It also contained the following language:

It is further agreed that if any of said monthly payments are not paid when due and remain delinquent for thirty days, the entire contract price shall become due and payable at once. If payments remain delinquent for sixty (60) days, [Buena Vista] shall be under no further obligation to maintain signs and [Buena Vista] may at any time while such delinquency continues remove said signs. Such removal shall in no manner reduce the total amount due under this agreement.

Buena Vista subsequently sold its business to Superior Outdoor Advertising Company, which assumed the contract with Defendant.

Defendant made periodic payments under the contract until October 18, 1994, when it made a payment which brought it current through November 1, 1994. The only other money paid by Defendant under the contract was a $2900 payment made on April 5, 1995, which was applied to the payments due on November 1 and December 1, 1994, bringing the account current through January 1, 1995. Plaintiff filed this suit on July 20, 1995.

In its first point, Defendant contends that the trial court erred in awarding any damages to Plaintiff because the "undisputed testimony" showed that Plaintiff "could not tender to [Defendant] quiet enjoyment of a material portion of the advertising" leased. Initially, we note that this point does not satisfy the "wherein and why" requirement of Rule 84.04(d). To satisfy that Rule, a point must state why the ruling was erroneous and wherein the evidence, the lack of it, or other matters supports the position the party asserts the trial court should have taken. Carrier v. City of Springfield, 852 S.W.2d 196, 198 (Mo.App. S.D.1993). Inasmuch as we can discern the essence of Defendant's contention from the argument section of its brief, and whereas Plaintiff has responded to the brief with no apparent difficulty, we will discuss this point on its merits.

Defendant's contention that Plaintiff could not tender a substantial portion of the subject of the contract relates to Sign 536. It argues that Plaintiff had a dispute with the landowner where that sign was located and was denied access to the property. Defendant contends, therefore, that the "package" of advertising leased to it was not available, and Plaintiff should fail on its claim for rent because "during a substantial period of time involved in the lease, and up to the date of trial, [Plaintiff] was not in a position to go ahead with the servicing of the signs ..." Defendant, however, provides no citation to the record in support of these statements.

Our review of the record indicates that there was evidence that Plaintiff had a dispute with the landowner where Sign 536 was located, and that it had been denied access to that property. The length of that dispute and the period during which such access had been denied are not clear from the record. In response to questions on cross-examination, an employee of Plaintiff admitted that it had been going on for "at least six to eight months" prior to the trial on July 3, 1996. We find no other evidence concerning the nature or length of that dispute.

Significantly, Defendant bases its contention solely on the existence of this dispute between Plaintiff and the landowner. It does not refer us to any evidence indicating how that dispute may have interfered with or adversely affected its advertising on that sign. In fact, the evidence indicated that the sign structure did contain Defendant's advertising. ²

Defendant cites § 400.2A-211 for the proposition that a lease of personalty includes a warranty that no person holds a claim or interest in the goods, arising from an act or omission of the lessor, that will interfere with the lessee's enjoyment of the leasehold interest. It also cites Shop 'N Save Warehouse Foods, Inc. v. Soffer, 918 S.W.2d 851, 859 (Mo.App. E.D.1996), in which it is stated that the covenant of quiet enjoyment in a real estate lease is breached when the lessor interferes with the lessee's possession or enjoyment of the property. In the instant case, there was no evidence that the dispute with the landowner originated with an act or omission by Plaintiff, or that it resulted in any interference with Defendant's use or enjoyment of Sign 536.

The evidence demonstrated that no rent had been paid since the April 5, 1995 payment, which was applied to the rental amounts due up to January 1, 1995. The contract provided that Plaintiff had no obligation to maintain the signs if rental payments were delinquent for sixty days. There was no evidence that the dispute with the landowner was even in existence, much less that it interfered with Defendant's use or enjoyment of Sign 536, during the time that Plaintiff had a duty to maintain the signs. ³ "An alleged breach of a covenant on the part of the lessor is not a defense to an action for rent where the acts relied on as a breach occurred subsequent to the termination of the lease by the lessor pursuant to its terms." 52 C.J.S. Landlord & Tenant § 556 (1968). Defendant's first point is without merit and is denied.

In its second point, Defendant contends that the trial court erred in entering the judgment against it because Plaintiff had repudiated the contract by manifesting a positive intention not to perform its terms. It argues that Plaintiff repudiated the contract when it wrote to Gary Snadon, an officer of Defendant, on March 21, 1995 demanding that Defendant's "receivables" be paid in full in order to hold any of Defendant's locations. According to Defendant, the "receivables" demanded by Plaintiff included amounts owing by a separate entity, Shenandoah South, Inc., of which Mr. Snadon was also apparently an officer. The pertinent part of the letter read:

Per our conversation, The Pioneer Group will require that you [sic] existing receivables be paid in full in order to hold any of the Shepherd of the Hills locations. Also, we are canceling the Shennandoah [sic] contracts immediately and will expect that receivable balance to be satisfied before we can reserve new locations.

Mr. Snadon responded by sending a letter on April 3, 1995 to Plaintiff enclosing a check from Defendant for $2900 "for sign rental for March and April," and saying that it would pay an additional $2900 between June and September "to bring Shepherd of the Hills account current." The letter also offered $4750 as full settlement of the Shenandoah South account. ⁴

At trial, Plaintiff's representative gave the following testimony about the letter, in cross-examination:

Q: All right, and isn't it true that the first sentence of the second paragraph is "Per our conversation, the Pioneer Group will require that your existing receivables be paid in full in order to hold any of the Shepherd of the Hills' locations"?

A: That's what it says.

Q: Did you have any basis in fact for taking that position?

....

A: My position as of March 21st of '95, when this was written, was that he owed us back payments.

Q: But, you told him he couldn't keep his Shepherd locations unless he paid for the...