Wheelhouse Real Estate, L.L.C. v. Bommarito

• Court: Missouri Court of Appeals
• Writing for the Court: John E. Parrish
• Citation: Wheelhouse Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761 (Mo. App. 2009)
• Decision Date: 15 May 2009
• Docket Number: No. SD 28997.,SD 28997.
• Parties: WHEELHOUSE MARINA REAL ESTATE, L.L.C., Appellant v. Anthony BOMMARITO d/b/a Docknockers Bar & Grill and Docknockers, L.L.C., Respondents.

284 S.W.3d 761

WHEELHOUSE MARINA REAL ESTATE, L.L.C., Appellant v. Anthony BOMMARITO d/b/a Docknockers Bar & Grill and Docknockers, L.L.C., Respondents.

No. SD 28997.

Missouri Court of Appeals, Southern District, Division Two.

May 15, 2009.

Donald E. Heck, Chesterfield, MO, for Appellant.

Lewis Z. Bridges, Curran & Sickal, Osage Beach, MO, for Respondents.

JOHN E. PARRISH, Judge.

Wheelhouse Marina Real Estate, L.L.C., (Wheelhouse Real Estate) brought an unlawful detainer action against Anthony Bommarito and Docknockers, L.L.C., (defendants) seeking rent and possession regarding premises in Camden County, Missouri, known as Docknockers Bar & Grill. Judgment was entered for defendants. This court affirms. The case, however, is remanded with instructions that a scrivener's error that is identified in n. 3, infra, be corrected.

There are a number of related entities and people who were involved with the events that led to this appeal. An understanding of their identities is relevant to the facts recited in this opinion. The individual defendant in the unlawful detainer action is Anthony Bommarito. He is the grandson of Ralph Keeney, Jr., (Keeney Jr.) who is the owner of Wheelhouse Marina Holding, L.L.C. (Wheelhouse Holding) and Wheelhouse Real Estate. Ralph Keeney, III, (Keeney III) is the son of Keeney Jr. and the uncle of Anthony Bommarito. Keeney III is a manager of Wheelhouse Holding. Mary Gordon, a previous owner of the property that is the subject of this action, was Keeney Jr.'s secretary.

Anthony Bommarito operates Docknockers Bar & Grill on property presently owned by Wheelhouse Real Estate. He took possession of the property May 30, 1993. At that time the property was owned by Mary Gordon. The following is a chronology of documents relative to the property where Docknockers Bar & Grill is located.

March 3, 1993 Date of one-page document entitled COMMERCIAL LEASE that identifies the "Leased Premises" as a certain commercial building. The document identifies Ralph Keeney as "Landlord" and Tony Bommarito as "Tenant(s)."¹ It is in evidence as Defendants' Exhibit A.

May 19, 1993 Date of notary public acknowledgement on document entitled RESTURANT [sic] RENTAL AGREEMENT bearing signatures of Ralph Keeney "acting in owners [sic] behaft [sic] Mary Sgordan [sic]" and Anthony Bommarito identified as "Tenant Anthony Bommarito."² The property is where Docknockers Bar & Grill is located. It is in evidence as Petitioner's Exhibit 2.

September 29, 1993 Date of notary public acknowledgement on quitclaim deed bearing date of September 1993 (the day of the month does not appear on the instrument). Grantor on the deed is Mary S. Gordon. Grantee is Keeney Jr. The property includes that where Docknockers Bar & Grill is located.

April 28, 2006 Date of quitclaim deed to property that includes the property where Docknockers Bar & Grill is located. Keeney Jr. is grantor. Wheelhouse Holding is grantee.

April 28, 2006 Date of quitclaim deed to property that includes the property where Docknockers Bar & Grill is located. Wheelhouse Holding is grantor and Wheelhouse Real Estate is grantee.

In 2006 Wheelhouse Real Estate notified Anthony Bommarito that his "month to month lease [was to be] terminated as of 12 p.m. on September 3, 2006." Bommarito was advised that if he remained on the premises after the stated date, an unlawful detainer action would be filed seeking "eviction, past due rentals, attorney's fees, and damages, if any." Keeney III notified Bommarito that he would be required to execute a new lease in order to be permitted to continue to occupy the property. Bommarito had paid $600 per month rent prior to that time. He contended that he was occupying the property under the terms of a 20-year lease that was dated March 3, 1993, that had been executed by he and Keeney Jr. See n. 1, supra. Bommarito did not execute a new lease.

The trial court entered judgment that recited the appearances of the parties; that at the conclusion of the evidence, the parties were permitted to submit "post trial briefs"; that following receipt of the briefs, the trial court found the issues in favor of the defendants. The judgment states the following findings:

It is clear to the Court that Ralph Keeney, III[sic][³] and defendant Bommarito entered into a lease agreement that was to become effective when Mr. Keeney acquired title to the subject property, which he did. Defendant [Anthony Bommarito] is not in breach of the lease. Any improvements made by defendant was [sic] done with the knowledge and consent of [Keeney III], and landlord not only approved said improvement but continued to accept rental payments knowing of the improvements. Court further finds that said argument re: improvements is beyond the scope of the pleadings and defendants have not consented to trying this issue.

The Court finds Judgment should be entered for defendants. The Court enters Judgment in favor of defendants and against Plaintiffs [sic][⁴]. All costs are assessed against Plaintiffs [sic].

Wheelhouse Real Estate's Point I states:

The trial court erred in failing to find that the six month rental contract between Mary S. Gordon and Respondent Anthony Bommarito dated June 1, 1993 (Appendix A) constituted a novation thereby terminating all prior agreements, if any, including the alleged lease contract dated March 3, 1993 ([A]ppendix B), regarding the rental of the real estate known as Dockknockers [sic] Bar and Restaurant, because all prior agreements merged into the last entered into agreement as an accord. As a result no other agreements to rent existed and Respondent was after November 1993 a month to month tenant subject to termination upon proper notice.

"Appendix A" to Wheelhouse Real Estate's appellant's brief is a copy of the one paragraph document entitled "RESTURANT [sic] RENTAL AGREEMENT" identified in the chronology of documents that appears, supra, as the document that has the notary public acknowledgment of May 19, 1993. The document states in its entirety, less the notary acknowledgment:

RESTURANT [sic] RENTAL AGREEMENT

I, Anthony Bommarito, agree to rent the restaurant and fixtures at 700 Crow Road for the season starting June 1, 1993 and ending November 1, 1993 for six months at the rate of six hundred dollars per month. All utilities will be paid by Anthony Bommarito also to include the apartment at the end on the building. If all goes well the rental can be extended beyond this year providing all bills are paid and the property is kept clean. There must also be no complaints from the surrounding property owners of the noise. This agreement is binding for June 1, 1993 till November 1, 1993 providing that all liscense [sic] and insurance requirements are met.

  /s/ Ralph Keeney
                  Ralph Keeney acting in owners [sic]
                  behaft [sic] Mary Sgordan [sic]
                  /s/ Anthony J. Bommarito
                  Tenant Anthony Bommarito
                

Wheelhouse Real Estate's assertion of "novation" is raised for the first time on appeal. The broad definition of novation is "a substitution of a new contract or obligation for an old one which is thereby extinguished." W. Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276, 279 (Mo.App. 1968).

Wheelhouse Real Estate's petition asserted that Bommarito had a six-month lease with its predecessor in title, Mary Gordon, that expired November 1, 1993; that upon its expiration, Bommarito's continued occupancy of the premises was on a month-to-month basis. Wheelhouse Real Estate did not plead a novation. It did not plead that the six-month lease was a successor agreement that extinguished a prior lease. The petition alleged only that there was a lease that expired November 1, 1993; that subsequent occupancy was a month-to-month tenancy that had terminated. Because no issue of novation was raised in the trial court, the issue was not preserved for review by this court. Stewart v. Jones, 90 S.W.3d 174, 180 (Mo.App. 2002). See also Hocker Oil Co., Inc. v. Barker-Phillips-Jackson, Inc., 997 S.W.2d 510, 522 (Mo.App.1999); E.D. Mitchell Living Trust v. Murray, 818 S.W.2d 326, 329 (Mo.App.1991). Point I is denied.

Point II is directed to the admission in evidence of the document entitled "COMMERCIAL LEASE" dated March 3, 1993. It was admitted in evidence as Defendants' Exhibit A. Point II argues that the trial court erred in admitting the exhibit in evidence over Wheelhouse Real Estate's objection because it "was an incomplete photocopy and by finding that [Keeney Jr.], Wheelhouse Marina's predecessor in title, signed the lease because filling in blanks at the top of a form lease does not constitute a signature or acceptance of a contract." Point II further asserts that the text of the document was an invitation to offer a contract reserving its drafter the right to accept its terms; that "[t]he offer was rejected by a lapse of a reasonable amount of time after appellant[⁵] failed to sign the lease document and by [Bommarito] executing the Restaurant Rental agreement dated May 19, 1993"; that for those reasons, Bommarito was a month-to-month tenant.

Point II complains of the trial court's ruling in admitting Defendants' Exhibit A for multiple reasons. Point II's complaints appear to be (1) that the document was incomplete; (2) that the document was a photocopy; (3) that the written name of Ralph Keeney that appears at the top of the document does not suffice as a signature; and (4) that its text does not manifest a contract but is "merely an invitation to offer to contract." Arguably, this amounts to the collapsing of disparate contentions of error into a single point relied on and, therefore, violates Rule 84.04(d) and preserves nothing for this court's review. See Rushing v. City of Springfield, 180 S.W.3d 538, 539 (Mo.App.2006).

"Violations of Rule 84.04 are grounds for a court to dismiss an appeal." Shochet v. Allen, 987 S.W.2d 516, 518 (Mo. App.1999). "Whether an appeal will be dismissed for failure to comply with Rule 84.04 is...