Tower Properties v. Allen, Jr. et al

Decision Date19 December 2000
Citation33 S.W.3d 684
Parties(Mo.App. W.D. 2000) . Tower Properties Company, Respondent, M.B.T. Properties, L.P., Appellant/Respondent, v. George G. Allen, Jr., et al., Respondent/Appellant. WD57473 & WD57490 Missouri Court of Appeals Western District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Jackson County, Hon. Charles Emmert Atwell

Counsel for Appellant: Robert B. Thomson
Counsel for Respondent: Jeffrey S. Bay & Lance Wolf Lefevre

Opinion Summary: George G. Allen appeals from judgment in favor of Tower Properties, the landlord's successor in interest, and against George Allen as it relates to both Tower's action for unlawful detainer and Mr. Allen's counter-claim for breach of contract following a judge tried case. The trial court awarded Tower damages in the amount of $7,458.69 on the unlawful detainer action, plus an additional sum of $4,500.00 in attorney's fees incurred in defending the breach of contract counter-claim based on an attorney's fee provision in the lease. Mr. Allen claims that the trial court erred in (1) entering a judgment in favor of Tower Properties on Tower's unlawful detainer action; (2) not entering a judgment in Mr. Allen's favor on his counter-claim for breach of contract; and (3) awarding Tower attorney's fees. M.B.T. Partners, L.P. ("MBT"), the original landlord, filed a motion to dismiss Mr. Allen's appeal as it relates to MBT and award MBT attorney's fees under Rule 84.19. The motion was ordered taken with the case. MBT also cross-appeals alleging the trial court erred in refusing to award MBT attorney's fees against Mr. Allen under the terms of the lease.

JUDGMENT AS TO ALLEN'S APPEAL AFFIRMED IN PART AND REVERSED IN PART; MBT'S MOTION TO DISMISS AND AWARD ATTORNEY'S FEES GRANTED; JUDGMENT AS TO MBT'S CORSS-APPEAL AFFIRMED.

Division Three holds:

(1) Where Mr. Allen appealed against both Tower and M.B.T., but only challenged the trial court's judgment as it relates to Tower, the appeal against M.B.T. should be dismissed. Under these circumstances where M.B.T. was compelled to retain counsel and defend against the appeal, it is entitled to reasonable attorney's fees under Rule 84.19.

(2) Where M.B.T. altered the terms of the proposed second addendum to the lease, which terms were never accepted by Mr. Allen, no contract existed to extend the terms of the lease beyond the termination date of the original lease. Accordingly the trial court did not err in finding no breach of contract in regards to the second addendum because no contract existed after the original termination date.

(3) Where Mr. Allen continued to occupy the premises as a month-to-month tenant at will after the term of the original lease had expired and such occupancy was in accordance with a hold-over provision of the original lease Mr. Allen was entitled to one month's notice effectively stating that the tenancy was being terminated and the premises must be vacated before unlawful detention could occur. Accordingly, because Mr. Allen was never given the requisite notice the trial court's judgment as it pertains to the unlawful detainer action is reversed.

(4) Where attorney's fees are not provided for by statute or contractual provision, incurred due to involvement in collateral litigation, or demanded by equity, litigants bear the expense of their own attorney's fees. The portion of the trial court's judgment awarding attorney's fees to Tower is, therefore, reversed, and the portion of the judgment denying attorney's fees to M.B.T. is affirmed.

Opinion Author: Robert G. Ulrich

Opinion Vote: Breckenridge, P.J., and Howard, J., concur.

Opinion:

George G. Allen appeals from the judgment entered in favor of Tower Properties ("Tower") and against George Allen as it relates to both Tower's action for unlawful detainer and Mr. Allen's counter-claim for breach of contract following a judge tried case. The trial court awarded Tower damages in the amount of $7,458.69 on the unlawful detainer action, plus an additional sum of $4,500.00 in attorney's fees incurred in defending the breach of contract counter-claim based on an attorney's fee provision in the lease. Mr. Allen claims that the trial court erred in (1) entering a judgment in favor of Tower Properties on Tower's unlawful detainer action; (2) not entering a judgment in Mr. Allen's favor on his counter-claim for breach of contract; and (3) awarding Tower attorney's fees. M.B.T. Partners, L.P. ("MBT") filed a motion to dismiss Mr. Allen's appeal as it relates to MBT and award MBT attorney's fees under Rule 84.19. The motion was ordered taken with the case. MBT also cross-appeals alleging the trial court erred in refusing to award MBT attorney's fees against Mr. Allen under the terms of the lease. The case as it pertains to Mr. Allen's appeal is affirmed in part and reversed in part. MBT's motion to dismiss and award attorney's fees is granted. The judgment as it relates to MBT's cross-appeal is affirmed.

I. Facts

MBT, as owner of an office building known as the Ridge Arcade Building located at 916 Walnut, Kansas City, Missouri, and Mr. Allen entered into a lease agreement on September 10, 1993, wherein Mr. Allen leased from MBT a suite located in the Arcade Building for a term of one year commencing on September 10, 1993 and terminating on September 30, 1994. The lease also included an addendum signed by both parties, which gave Mr. Allen the option to extend the lease for an additional two years, through September 30, 1996. The lease also provided that if Mr. Allen continued to hold the leased premises after the termination of the lease, the tenancy would continue as a month-to-month tenancy at will with all of the other conditions remaining the same.

After entering into the lease, Mr. Allen requested options to extend the lease for three additional years beyond September 30, 1996. Mr. Allen prepared, signed and forwarded a second addendum to the lease to MBT, reciting the terms of the additional options Mr. Allen sought to add to the lease. MBT, by and through its president, modified the second addendum by inserting and requiring a sixty-day notice provision in order to exercise the options for additional years. The amended and modified second addendum was signed and initialed by MBT and then returned to Mr. Allen. Mr. Allen neither objected, responded nor agreed to the amendments and modifications made by MBT to the second addendum.

Tower entered into a contract to purchase the Arcade Building from MBT on September 19, 1996. Tower closed on the purchase of the Arcade Building on October 11, 1996. Shortly thereafter, Tower notified the tenants of the building, including Mr. Allen, of its purchase and told those tenants without leases that they had to vacate the building by December 31, 1996. Mr. Allen, under the belief that a valid lease existed, did not immediately vacate the premises. Although Mr. Allen continued to occupy the premises until December 28, 1996, he stopped paying rent after September 1996.

Tower filed a petition initiating an action against Mr. Allen for unlawful detainer on December 16, 1996. Mr. Allen voluntarily vacated the premises on December 28, 1996. Mr. Allen filed his answer, counter-claim, and third party petition joining MBT as a party for breach of contract on January 24, 1997.

The matter was tried in the Circuit Court of Jackson County, Missouri, on February 26, 1999. The trial court entered judgment in favor of Tower on the unlawful detainer action and in favor of both Tower and MBT on Mr. Allen's breach of contract cross-claim. The trial court awarded Tower damages in the amount of $7,458.69, plus an additional sum of $4,500.00 in attorney's fees based on an attorney's fee provision in the lease agreement between MBT and Mr. Allen. This appeal followed.

II. MBT's Motion to Dismiss Appeal and Award Attorney's fees

MBT, by separate motion that this court ordered taken with the case, seeks the dismissal of Mr. Allen's appeal as it pertains to M.B.T. Partners, L.P. and accordingly demands an award of attorney's fees for a frivolous appeal pursuant to Rule 84.19. MBT contends that because Mr. Allen does not challenge the trial court's judgment as it relates to MBT, the appeal as it relates to MBT should be dismissed. In his Notice of Appeal, Mr. Allen named both Tower and MBT as respondents in the appeal. But in his brief, Mr. Allen challenges the trial court's finding of liability only to Tower. He does not argue that the trial court erred in its judgment as it relates to MBT. Where a plaintiff appeals against more than one party but only argues the liability of one party in his appellate brief, the appeal against the other party is deemed abandoned. Hunsicker v. J.C. Industries, Inc., 952 S.W.2d 376, 381 (Mo. App. W.D. 1997). Thus, Mr. Allen's failure to challenge the trial court's judgment that MBT was not liable on the breach of contract claim results in an abandonment of any claim Mr. Allen may have had against MBT. Id. Under these circumstances, this court is required to dismiss Mr. Allen's appeal as it relates to MBT.

MBT also moves this court for frivolous appeal damages under Rule 84.19. An appeal is frivolous if it presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect that it can ever succeed. Fravel v. Guaranty Land Title, 934 S.W.2d 23, 25 (Mo. App. W.D. 1996). The purpose of awarding damages under Rule 84.19 is (1) to prevent congestion of appellate court dockets with cases devoid of merit which, by their presence, contribute to delaying resolution of cases with merit and (2) to compensate respondents for incurring expenses defending judgments against meritless issues. Id. Frivolous appeal sanctions are imposed with extreme caution to avoid chilling an appeal of even slight, colorable merit. Id.

Mr. Allen's appeal...

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