Zaharopoulos v. Sprenger, 41284.

• Decision Date: 15 October 1980
• Docket Number: No. 41284.,41284.
• Citation: 605 S.W.2d 143
• Parties: Steven ZAHAROPOULOS and Nicholas Makikatos, d/b/a Grecian Steak House, Respondents, v. H. P. (Gary) SPRENGER, a/k/a Sprenger and Associates, Ltd., Appellants.
• Court: Missouri Court of Appeals

605 S.W.2d 143

Steven ZAHAROPOULOS and Nicholas Makikatos, d/b/a Grecian Steak House, Respondents, v. H. P. (Gary) SPRENGER, a/k/a Sprenger and Associates, Ltd., Appellants.

No. 41284.

Missouri Court of Appeals, Eastern District, Division Two.

June 10, 1980.

Motion for Rehearing and/or Transfer Denied September 12, 1980.

Application to Transfer Denied October 15, 1980.

Burton H. Shostak, Shostak & Witzel P.C., St. Louis, for appellants.

V. Kenneth Rohrer, Roberts, Roberts & Rohrer, Farmington, for respondents.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 12, 1980.

GUNN, Presiding Judge.

Plaintiffs-respondents operate a restaurant in a shopping center owned by defendants-appellants. Plaintiffs, as lessees, brought suit against defendants, as lessors, for damages, specific performance and a declaratory judgment as to the effect of certain disputed terms in the lease. From a judgment favorable to plaintiffs on all counts, defendants appeal.

Plaintiffs executed a lease with defendants and opened a restaurant in the demised premises shortly after the shopping center was constructed in 1974. Structural modifications were made and fixtures were installed by plaintiffs to render the premise suitable for the purveying of victuals to discriminating epicures. Included in the alterations was the installation of a hood and ventilation system to service the cooking apparatus which vented grease-bearing exhaust on the roof of the building. Under the terms of the lease, the defendants were responsible for providing adequate air conditioning, and several air conditioning units were installed on the roof of the restaurant, necessitating the cutting of openings in the roof. A dispute subsequently developed between the parties regarding the sufficiency of the air conditioning and water leakage that occurred in and around the areas where the openings were cut in the roof. Plaintiffs also complained that the heating in the premises was inadequate and that they suffered a consequent loss of business whenever the weather became too hot or too cold.

The parties' relationship further deteriorated when the sprinkler system in the premises burst, apparently due to freezing of the pipes. Plaintiffs' furnishings incurred extensive water damage as a result, and the restaurant had to be closed for a time for repairs.

After the shopping center had been open for about a year and a half, defendants were ordered by the Missouri Department of Natural Resources to upgrade a sewage lagoon servicing it. Accordingly, defendant Sprenger individually constructed a sewage treatment plant and began charging tenants of the center for its cost of operations. Plaintiffs, however, refused to pay any of the sewer charges.

Ultimately, plaintiffs filed suit for a variety of purposes: for $50,000 damages for profits lost due to the inadequate heating and cooling of the premises; for specific performance of certain obligations set out in the lease including maintenance of the premises, repair of leaks, and provision for adequate climate control equipment; for a declaratory judgment that the lease did not bar plaintiffs from suing defendants to recover profits lost due to the sprinkler malfunction; and for a declaration that they were not liable for any of the sewer charges levied by defendant Sprenger. The trial court entered judgment in plaintiffs' favor for $40,000 damages and granted the other requested relief.

In their first point, defendants complain that the trial court's damage award of $40,000 is without proper evidentiary support. Specifically, they argue that plaintiffs failed to show the exact time period during which they suffered a reduction in business due to climate control and leakage problems on the leased premises, the amount of total sales during the period, the costs of the goods sold, other overhead expenses for the period in question, and net income or profits for both before and during that period.

This was a court tried case, and we must defer to the judgment of the trial court as to factual determinations unless there is no substantial evidence in support thereof, or they are against the weight of the evidence. Gauldin v. Corn, 595 S.W.2d 329 (Mo.App.1980); Cave v. Cave, 593 S.W.2d 592 (Mo.App.1979). Further, the trial court entered no specific findings of fact, defendants having withdrawn their request for such findings at trial. Under these circumstances, "all fact issues will be deemed found in accordance with the result reached and the judgment will be affirmed if it is correct on any reasonable theory supported by the evidence." Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App.1978). It is presumed that the trial court acted on a permissible basis. In the Matter of M. D. H., 595 S.W.2d 448 (Mo.App.1980).

It is unnecessary to recount all the evidentiary minutiae adduced at trial. It is sufficient to note that plaintiffs testified to the frequency with which customers either left the premises without ordering because of malclimatic conditions, or tables were unusable in the first instance because humectated; the average gross proceeds per table per day and per customer; and the time period during which these conditions prevailed. Plaintiffs also made an offer of proof as to the percentage of retail food sales attributable to their costs, on the basis of which net profits could be calculated. The actual figures testified to by plaintiffs for these factors would support the $40,000 damage award, if these factors may properly constitute a basis for damage calculations. The loss of anticipated profits is recoverable where "made reasonably certain by proof of actual facts, with present data for a rational estimate of their amount." Orchard Container Corp. v. Orchard, 601 S.W.2d 299 (Mo.App.1980). The factors testified to by plaintiffs do form the sort of "basis for a rational estimate of lost profits" that was approved in Orchard Container Corp. and in Mills v. Murray, 472 S.W.2d 6, 16 (Mo.App.1971). The award of $40,000 is therefore correct under a "reasonable theory supported by the evidence," Roth v. Roth, and will be affirmed accordingly.

The only lease provision relating to defendants' obligations regarding climate control provides, in toto: "Lessor will provide sufficient air conditioning in order to maintain the rental premises at a temperature of 75° throughout." Apparently based on this provision, the following language appears in the judgment:

and further, Defendant is ordered to install ten tons of additional cooling units, one hundred sixty thousand BTU's of additional heating equipment and the necessary duct and fixtures, so as to maintain a 75 degree temperature in the let premises year round, and further, . . .

Defendants complain that their obligations are limited under the quoted lease provision to air conditioning alone, so that the order as to heating requirements has no basis in the lease. Further, they contend, that the quantitative requirements as to additional amounts of heating and cooling systems are without evidentiary support. Plaintiffs respond by arguing that defendant Sprenger judicially admitted his heating obligation and by directing our attention to certain testimony as to how much additional climate control equipment was necessary on the premises.

Plaintiffs' position is foiled by the fundamental precept that the court is not free to vary the written terms of the lease by reliance on the testimony of any party, absent a prior determination that such terms are ambiguous. Haggard v. Mid-States Metal Lines, Inc., 591 S.W.2d 71 (Mo. App.1979); Goodman v. Goodman, 576 S.W.2d 747 (Mo.App.1979). The resolution of the issue of ambiguity is committed to the trial court as a question of law in the first instance. Rouggly v. Whitman, 592 S.W.2d 516 (Mo.App.1979). If erroneous, determinations in that regard do not enjoy the deferential treatment on review afforded factual resolutions under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Rouggly, 592 S.W.2d at 519-520.

The lease provision dealing with the air conditioning requirement is plain and unequivocal. Its terms expressly require only "air conditioning" sufficient to maintain a 75° temperature "throughout" the premises. It is not "reasonably susceptible of different constructions" and hence not ambiguous. J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). Any order...