Opinion
No. 58266
Opinion Filed: April 10, 2001
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI, THE HONORABLE THOMAS J. BROWN, III, JUDGE.
Timothy T. Stewart and Dale T. Smith, Jefferson City, MO, Attorneys for Respondent.
Lee R. Hardee, III, and F. Russell Peterson, Overland Park, KS, Attorneys for Appellant.
Before: Spinden, C.J., and Smart and Smith, JJ.
Nora Lee Conrad appeals the judgment of the Circuit Court of Cole County for the respondent, David Brizendine, awarding him treble damages of $33,760.35 pursuant to § 537.420 on his claim for waste. The respondent alleged in his petition that the appellant committed waste with respect to certain real property being leased by her from him pursuant to a written lease-purchase agreement entered into by the parties.
All statutory references are to RSMo 1994, unless otherwise indicated.
In her sole point on appeal, the appellant claims that the trial court erred in entering judgment for the respondent on his claim for damages, pursuant to § 537.420, because it was against the weight of the evidence, and erroneously declared and applied the law in that the lease-purchase agreement entered into by the parties contained a valid and enforceable liquidated damages clause, which precluded, as a matter of law, an action for actual damages for waste pursuant to § 537.420.
The appellant also claims in Point I that the trial court erred in denying her motion for judgment on the pleadings. The denial of such a motion is not subject to appellate review. Kilgore v. Kilgore , 666 S.W.2d 923, 928 (Mo.App. 1984).
We reverse and remand.
Facts
On September 30, 1997, the appellant entered into a written agreement with the respondent, entitled "Lease Purchase Agreement," as to a piece of real property owned by him, located at 301-303 Ash in Jefferson City, Missouri, consisting of nine apartment units and storage space. Under the terms of this agreement, the appellant was to lease the property from the respondent for one year, making payments of $725 per month, after which she was to purchase the property for $140,000. Pursuant to the agreement, the appellant was required to pay the respondent $15,000 at the time of the execution of the agreement, which was to be credited against the purchase price of the property, when the sale of the property was completed. The appellant was also required, by the agreement, for the duration of the lease, to manage the property by collecting rents from the tenants; to make repairs; and to generally fulfill the typical duties of a landlord. At the time the appellant took possession of the property, it was clean and in good repair.
At the end of the lease term, the appellant refused to purchase the property. The respondent advised the appellant that he would retake possession of the property, provided it was in the same condition, excluding normal wear and tear, as it was when she received it. However, upon inspecting the property in October 1998, the respondent found that it had been extensively damaged. As such, he refused to retake possession, and instead filed suit against the appellant on December 4, 1998. In his petition, the respondent alleged three counts: In Count I, he sought specific performance of the purchase agreement; in Count II, as an alternative to Count I, he sought damages for the appellant's failure to purchase; and in Count III, he sought damages for rent of $725 per month for each month past the one-year lease term that the appellant remained in possession of the property.
On January 1, 1999, the appellant dropped off the keys to the property at the respondent's attorney's offices. The appellant filed her answer and counterclaim on January 14, 1999, seeking dismissal of the respondent's claims, and damages for the expenses she had incurred in maintaining, repairing, and managing the property due to the respondent's refusal to retake possession of it. The respondent filed his reply and answer to the appellant's counterclaim on January 19, 1999.
On July 23, 1999, the respondent filed a motion for leave to file an amended petition, which was granted. His first amended petition alleged four counts: In Count I, in lieu of specific performance, he sought actual damages for the appellant's failure to purchase the property; in Count II, he sought rent for the months the appellant remained in possession of the property after the end of the lease period; in Count III, he sought statutory damages pursuant to § 537.420 for the waste committed by the appellant during the leasehold; and in Count IV, as an alternative to Counts I-III, he sought recovery in quantum meruit for all losses incurred as a result of appellant's breach of the parties' agreement. The appellant filed her answer to this amended petition on July 30, 1999, alleging the affirmative defense that the lease-purchase agreement contained a binding liquidated damages clause for $15,000, which precluded any claims for actual damages as to the lease or purchase of the property, including damages for waste, pursuant to § 537.420.
On July 30, 1999, the appellant filed a motion for judgment on the pleadings, asserting that the liquidated damages provision contained in paragraph 14 of the parties' agreement precluded an action pursuant to § 537.420 for actual damages, and that the respondent's recovery was limited to the $15,000 already paid by her at the time of the signing of the agreement. The respondent filed his suggestions in opposition to this motion on August 2, 1999. On that same day, the court heard and overruled the appellant's motion.
On November 5, 1999, the respondent voluntarily dismissed all of the counts in his first amended petition except the count for statutory waste damages. The case proceeded to trial before the court on December 3, 1999. The respondent introduced evidence at trial as to the extensive damage done to the property during the leasehold. The respondent testified that, because it would have been too expensive to restore the property, he opted to sell it to another buyer for $90,000. The court took the case under advisement at the close of the evidence.
On December 10, 1999, the trial court entered its judgment:
Plaintiff presented evidence of both diminution in market value and cost to repair. The Court finds that the cost of repair is the appropriate measure of damages in that cost of repair is insignificant in relation to the value of the property damaged. The Court, upon consideration of all the evidence, finds for the Plaintiff and against the Defendant for statutory waste damages under Section 537.420 RSMo (1994). The Court therefore determines damages to be $11,253.45. The Court further trebles said amount pursuant to Section 537.420 RSMo (1994) and enters judgment for Plaintiff in the amount of $33,760.35.
On January 3, 2000, the court, apparently on its own motion, amended its judgment, finding for the respondent on the appellant's counterclaim against him.
This appeal follows.
Standard of Review
In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). In our review, we are required to consider the evidence in the light most favorable to the prevailing party, giving that party the benefit of all reasonable inferences from the record and disregarding all evidence to the contrary. Stoup v. Robinson , 933 S.W.2d 935, 936 (Mo.App. 1996). We do not weigh the evidence, and, because the trial court is in the best position to judge the credibility of witnesses, we will defer to its findings. Id .
The determinative issues raised in this case require us to interpret the lease-purchase agreement entered into by the parties. Thus, a question of law is presented. Legg v. Certain Underwriters at Lloyd's of London , 18 S.W.3d 379, 383 (Mo.App. 1999) (citations omitted). "No deference is due the trial court's judgment where resolution of the controversy is a question of law." Id . (citations omitted). Thus, our review is de novo. Local 781 Int'l Ass'n of Firefighters v. City of Independence , 996 S.W.2d 112, 115 (Mo.App. 1999) ( citing Leggett v. Missouri State Life Ins . , 342 S.W.2d 833, 850 (Mo. banc 1960); Wallace, Saunders, Austin, Brown Enochs, Chartered v. Rahm , 963 S.W.2d 419, 422 (Mo.App. 1998)).
I.
In her sole point on appeal, the appellant claims that the trial court erred in entering judgment for the respondent on his claim for damages for waste, pursuant to § 537.420, because it was against the weight of the evidence, and erroneously declared and applied the law in that the lease-purchase agreement entered into by the parties contained a valid and enforceable liquidated damages clause, which precluded, as a matter of law, an action for damages for waste pursuant to § 537.420. In support of her claim, the appellant contends that paragraph 14 of the parties' agreement provided that she was to pay $15,000 as liquidated damages, the receipt of which was acknowledged by the respondent at the time of execution of the agreement, for the appellant's breach of both the lease and purchase provisions of the agreement. The appellant does not contest the fact that substantial waste occurred during the leasehold or that the respondent was entitled to some measure of damages thereon. Rather, she contends that she was only liable contractually for damages for the waste up to the $15,000 paid, as liquidated damages, pursuant to paragraph 14 of the lease-purchase agreement. As such, she contends that, pursuant to paragraph 14, the respondent waived any right he had to statutory damages for waste under § 537.420 and was limited to the contractually agreed upon amount of $15,000. For his part, the respondent contends that paragraph 14 was not intended by the parties to be a true liquidated damages clause; and if it was so intended, it only applied to the purchase provisions of the agreement, such that it in no way precluded his right to statutory damages for waste with respect to the lease. In the alternative, the respondent contends that if paragraph 14 was intended to be a true liquidated damages clause that applied to the lease provisions of the agreement, it was void and unenforceable as a "penalty" provision.
The law is well-settled that parties may stipulate as to the measure of damages in the event of a breach, with such stipulations being commonly referred to as liquidated damages clauses. Warstler v. Cibrian , 859 S.W.2d 162, 165 (Mo.App. 1993) ( quoting Goldberg v. Charlie's Chevrolet, Inc . , 672 S.W.2d 177, 179 (Mo.App. 1984)). Liquidated damages clauses are included in agreements where actual damages are difficult, if not impossible, to ascertain. Carmel v. Dieckmann , 617 S.W.2d 459, 461 (Mo.App. 1981) ( quoting Stein v. Bruce , 366 S.W.2d 732, 736-37 (Mo.App. 1963)). Provisions in contracts found to be true liquidated damages clauses have been held to be valid and enforceable. Hawkins v. Foster , 897 S.W.2d 80, 85 (Mo.App. 1995). "In Missouri, liquidated damages provisions in contracts are generally upheld by the courts provided they are reasonable and the parties agreed in good faith upon a sum as damages that would likely ensue if the contract were breached." Warstler , 859 S.W.2d at 165 . To qualify as a valid and enforceable liquidated damages clause: (1) the amount of liquidated damages agreed upon must be a reasonable forecast of the harm caused by the breach; and (2) the harm must be of a kind difficult to estimate. Diffley v. Royal Papers, Inc . , 948 S.W.2d 244, 246 (Mo.App. 1997) (citations omitted). As the appellant contends, if a liquidated damages clause is upheld and enforced, it works to limit recovery for breach to the amount of the liquidated damages agreed upon by the parties, and precludes recovery for actual damages. Germany v. Nelson , 677 S.W.2d 386, 388 (Mo.App. 1984). Thus, the issue in this case is whether the parties' written lease-purchase agreement contained a valid, enforceable liquidated damages clause, specifically paragraph 14, that limited the respondent's damages for the waste that occurred during the lease at $15,000, effectively waiving his right to bring a cause of action under § 537.420 for actual damages and a trebling of those damages.
The appellant asks us to find that paragraph 14 was a valid and enforceable liquidated damages clause that limited the respondent's recovery for damages to $15,000 for breach of the lease and purchase provisions of the parties' agreement. It reads:
In the event Lessor shall perform his part of this agreement or shall tender performance thereof, and Lessee fail to perform her part, then the sum of Fifteen Thousand Dollars ($15,000) paid herewith shall be retained by Lessor as liquidated damages, it being agreed that actual damages are difficult, if not impossible, to ascertain. However, Lessor reserves the right to seek specific performance of this agreement.
(Emphasis added.) The appellant contends that the waste, which the trial court found she had committed during the lease, constituted a breach of the lease provisions of the lease-purchase agreement. In this regard, the agreement provides, in pertinent part:
3. The Lessee covenants and agrees:
. . .
(c) To maintain in good condition all interior and exterior surfaces and to do all interior decorating and maintenance at her own expense. It is agreed that all costs for maintenance and repair of the premises and mechanical apparatus located thereon (including replacement) shall be borne by the Lessee during the term of this Agreement. After execution, all costs of maintenance shall be at the Lessee's expense.
. . .
(f) If for any reason Lessee fails to purchase the property, she agrees to surrender it to Lessor in the same condition as received, ordinary wear and tear excepted.
Thus, as the appellant contends, the waste found would, in fact, be a breach of the parties' agreement with respect to these lease provisions. The question is whether paragraph 14 works as a liquidated damages clause to limit the respondent's recovery for this breach to the contractually agreed-upon amount of $15,000, precluding an action under § 537.420.
In determining whether an agreement sets forth a true liquidated damages clause, we must look to the intention of the parties as ascertained from the contract as a whole. Diffley , 948 S.W.2d at 246 (citation omitted). Although the parties' labeling of paragraph 14 as one for liquidated damages is not conclusive, it is a circumstance to be considered in deciding whether it is a liquidated damages clause. Id . at 247 (citations omitted). As stated by the Missouri Supreme Court in Wilt v. Waterfield , 273 S.W.2d 290, 295 (Mo. 1954):
The courts are not justified in construing a contract plainly fixing a stipulated amount as damages accruing to one party by the violation of the contract by the other party and designating the same to be "liquidated damages", to mean other than what those words purport to mean upon their face . . . .
In addition to the parties' labeling of the provision in question as one for liquidated damages, further support for finding that paragraph 14 was intended by the parties to be a liquidated damages clause is their express recognition in paragraph 14 that "actual damages [for breach of the agreement were] difficult, if not impossible, to ascertain," which language has been recognized by our appellate courts as being indicative of a true liquidated damages clause. Carmel , 617 S.W.2d at 461 . From the language of paragraph 14, it is apparent to us that it was intended by the parties to function as a liquidated damages clause.
The respondent contends that if the $15,000 referred to in paragraph 14 was intended to be liquidated damages, as the appellant asserts, money would have been paid into an "escrow account" for that specific purpose, which was not done. In support of this proposition, he asserts that the $15,000 payment that was made by the appellant at the time the parties executed the agreement was not done in accordance with paragraph 14, but in accordance with paragraph 5. It reads:
For and in consideration of the Lessor's agreement to delay the closing of this transaction and to allow the Lessee to lease the premises for twelve (12) months, the Lessee agrees to pay to Lessor the sum of Fifteen Thousand Dollars ($15,000), the receipt of which is hereby acknowledged by the Lessor. It is understood and agreed that this $15,000 shall be credited against the purchase price of the real estate described herein in the event all conditions of the contract are satisfied. No part of the $15,000 shall be refunded to the Lessee should she fail to purchase the real estate described herein.
The respondent characterizes this paragraph as simply an "offer to extend to [the appellant] a credit against the purchase price of $140,000 in the amount of the payment received for [the respondent's] agreement to enter into the lease and to delay the closing date for [the appellant's] benefit." While this characterization of paragraph 5 would be accurate if the appellant subsequently purchased the property in accordance with the parties' agreement, it would not be accurate if she failed to do so. In that circumstance, paragraph 5 provides for a forfeiture of the $15,000. Thus, regardless of how the respondent tries to spin it, paragraph 5 is nothing more than an earnest money provision with respect to the purchase of the property, a type of liquidated damages clause. Warstler , 859 S.W.2d at 165 ( citing Carmel , 617 S.W.2d at 461 ); see also Seabaugh v. Keele , 775 S.W.2d 205, 206 (Mo.App. 1989); Goldberg , 672 S.W.2d at 179 . Regardless of the characterization of paragraph 5, however, the fact remains that both paragraphs 5 and 14 provided for the payment of $15,000, the receipt of which was acknowledged by the respondent in both paragraphs. Given this fact, and the fact that the record would indicate that the appellant only paid a total of $15,000, it would stand to reason that the parties intended that the $15,000 payment was to be made in accordance with both paragraphs and not simply paragraph 5. This would cut against the respondent's argument that the $15,000 payment was for liquidated damages with respect to the breach of those provisions of the agreement pertaining only to the purchase of the property, and not those provisions pertaining to the lease.
The forfeiture provision of paragraph 5 may have been overkill in light of paragraph 14, however, the credit provision of the paragraph was obviously necessary to spell out what was to occur upon purchase with respect to any portion of the $15,000 that was not otherwise forfeited pursuant to paragraph 14.
Having found that the parties intended for paragraph 14 to be a liquidated damages clause, we turn to the respondent's argument that it was intended to apply only to the purchase provisions of the agreement and not to the lease provisions. This flies in the face of the plain and ordinary meaning of the language used in paragraph 14, specifically, "[i]n the event Lessor shall perform his part of this agreement or shall tender performance thereof, and Lessee fail to perform her part, then the sum of Fifteen Thousand Dollars ($15,000) paid herewith shall be retained by Lessor as liquidated damages . . . ." (Emphasis added.) The reference to "this agreement" without any limitation as to its application clearly suggests to us that the parties intended that it apply across the board to both the lease and purchase provisions of the parties' agreement.
Finding that paragraph 14 is a liquidated damages clause that applied equally to the lease and purchase provisions of the parties' agreement, we next turn to the respondent's argument that it was void and unenforceable as a "penalty" provision. In making this argument, he asserts that by retaining the right to seek specific performance of the agreement in the case of breach, the liquidated damages clause of paragraph 14 was rendered nothing more than an unenforceable penalty provision. In support of this proposition, he points to the language of the paragraph that reads: "However, Lessor reserves the right to seek specific performance of this agreement," and cites us to Koedding v. Slaughter , 634 F.2d 1095 (8th Cir. 1980). His reliance on Koedding is misplaced.
Koedding was decided by the U.S. Court of Appeals, Eighth Circuit. Of course, we are not bound by decisions of the federal courts, but we may look to them for authority when they purport to rely upon Missouri law. Wright v. Mo. Dep't of Soc. Servs., Div. of Family Servs . , 25 S.W.3d 525, 528 (Mo.App. 2000) ( citing Judy v. Arkansas Log Homes , 923 S.W.2d 409, 416 (Mo.App. 1996); Hanch v. K.F.C. Nat. Mgmt. Corp . , 615 S.W.2d 28, 33 (Mo. banc 1981)). Koedding , citing Robert Blond Meat Co. v. Eisenberg , 273 S.W.2d 297 (Mo. 1954), held that under Missouri law, the implicated liquidated damage clause was not "a true liquidated damage clause" and was not enforceable as such because the seller of the real estate had retained the option of enforcing the agreement. 634 F.2d at 1098. We do not read Robert Blond Meat Co . as adopting a rule that the seller's retention of the right to seek specific performance of a real estate contract automatically renders a liquidated damage clause of the contract unenforceable, as Koedding states.
In Robert Blond Meat Co ., the real estate contract in question provided for the payment of liquidated damages of $1,000, which amount had been paid in escrow. 273 S.W.2d at 299. The contract also provided that the contract "may or may not be operative [after the default of the buyer] at the option of the seller," which was viewed by the court as a retention of the right to specific performance of the contract. Id . at 299-300. In addition, the contract provided that the real estate broker was entitled to a commission of $1,000, to be paid to him by the seller upon delivery of the deed. Id . at 299. First discussing the court's holding in Wilt , 273 S.W.2d at 290, that a purported liquidated damages clause that works as a penalty is not enforceable, the Missouri Supreme Court held:
[T]he amount deposited was only the amount agreed to be paid to Eisenberg as his commission. Thus it seems clear that this provision was mainly for the purpose of furnishing the money to pay the commission due Eisenberg from plaintiff for making the sale. While it relieved plaintiff from paying Eisenberg out of its own funds, it provided nothing at all for any damages whatever for plaintiff. Thus, its apparent purpose was indemnity for what plaintiff might have to pay for commission (in case Eisenberg earned his commission by making the sale if defendant thereafter defaulted) and not damages for any loss plaintiff would sustain by breach of contract if defendant refused to perform his contract. Therefore, we must hold that it could not have been a true liquidated damages provision; and further hold that plaintiff had the right to enforce the contract.
Robert Blond Meat Co . , 273 S.W.2d at 300 . From this it is clear that the basis for the court's holding was not the rule recited by the Koedding court, that reserving the right to specific performance renders a liquidated damages clause an unenforceable penalty provision, but rather the fact that the amount stipulated to as damages was not reasonable in light of the anticipated or actual loss caused by the breach in question such that it acted as a penalty provision, which as a matter of public policy was not enforceable. Further support for the fact that the rule enunciated by the Koedding court is not a correct statement of Missouri law can be found in appellate decisions holding to the contrary, that an election of remedies provision, providing for both legal and equitable remedies, does not invalidate a liquidated damages clause. Home Shopping Club, Inc. v. Roberts Broadcasting Co . , 989 S.W.2d 174, 180 (Mo.App. 1998); Hoelscher v. Schenewerk , 804 S.W.2d 828, 831 (Mo.App. 1991).
Although the rule enunciated in Koedding has never been adopted by the appellate courts of this state, our courts have adopted the Restatement of Contracts rule as to the validity of liquidated damages clauses. Hawkins , 897 S.W.2d at 85 (citations omitted); Diffley , 948 S.W.2d at 246 . In that regard, the Restatement (Second) of Contracts, § 356 (1979) reads, in pertinent part:
(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.
Comment a. of that section provides that a "term that fixes an unreasonably small amount as damages may be unenforceable as unconscionable." Thus, as a general proposition, pursuant to the rule adopted, a liquidated damages clause will be upheld where it is reasonable in amount as a forecast of probable damages or is not disproportionate to the amount of damages that could probably result from the breach. Hawkins , 897 S.W.2d at 85; Goldberg , 672 S.W.2d at 179 . More precisely, a liquidated damages clause can be found to be unenforceable, as a matter of public policy, either as a penalty for being too large in light of the breach or as being unconscionable for being too small in light of the breach. Accordingly, because we are to affirm the judgment of the trial court if it is supported by the record on any theory, Ruzicka v. Hart Printing Co . , 21 S.W.3d 67, 71 (Mo.App. 2000) ( citing American Family Mut. Ins. v. Fehling , 970 S.W.2d 844, 855 (Mo.App. 1998)), if the record before us would support invalidating the liquidated damages clause found in paragraph 14 of the parties' agreement under the Restatement of Contracts rule either as a penalty for being too large or as being unconscionable for being too small, then we would affirm the judgment of the trial court.
Obviously, the respondent does not want the liquidated damages clause of paragraph 14 of the parties' agreement to be enforced as to both the lease and purchase provisions of the parties' agreement, as we found, supra, was intended. If this were to occur, his total damages for the admitted waste committed by the appellant during the lease and for the appellant's failure to purchase the property would be limited to the contractual amount of damages agreed upon, $15,000. On the other hand, if it was found to be unenforceable, as a penalty or otherwise, he not only would endeavor to keep the $15,000 paid by the appellant at the time of execution of the agreement as earnest money, but would seek to recover treble his actual damages for waste of $33,760.35 ($11,253.45 x 3) in a separate action under § 537.420. In other words, if the clause were not enforced as written, he would stand to recover a total of $48,760.35 ($15,000 + $33,760.35). Whereas, if it were enforced, he would only recover $15,000, $33,760.35 less than the amount he would receive if the clause were not enforced ($48,760.35 — $15,000). Consequently, in seeking to invalidate paragraph 14 under the Restatement of Contract rule, the respondent, although denominating it as a penalty provision, would logically contend that the $15,000 in liquidated damages was unconscionable in that the amount stipulated to by the parties was unreasonably small in light of the anticipated or actual loss caused by the appellant's breaches of the applicable lease and purchase provisions. The question then is whether the record would support his contention such that the trial court would have been justified in not enforcing the liquidated damages clause of paragraph 14 on that basis.
As we have interpreted the pertinent provisions of the parties' agreement, it provides, pursuant to paragraphs 5 and 14, that the appellant was to pay to the respondent, at the time of execution, $15,000 as and for liquidated damages, which was not only to cover a breach of any lease provisions of the agreement, but also any breach of the purchase provisions. In so doing, it is presumed that the respondent anticipated that the appellant might breach not only paragraph 5 of the agreement by failing to purchase the property, but also might breach paragraphs 3(c) and (f), by committing waste with respect to the property during the lease. As such, he necessarily is presumed to have anticipated that any earnest money forfeited pursuant to paragraph 5 could be substantially less than the $15,000 paid in accordance with paragraph 5, depending on the amount forfeited for any waste that occurred. In that regard, the record reflects that the respondent sustained $11,253.45 in actual damages for waste, which is $3,746.55 less than the $15,000 in liquidated damages agreed upon. Thus, he cannot be heard to say that the liquidated damages stipulated to were too small as to his actual damages for waste. As such, he would only be left to argue that the $3,746.55, representing 2.68% of the $140,000 purchase price for the property, was too small as and for earnest money to be forfeited pursuant to paragraph 5 for the appellant's failure to purchase the property.
In reviewing the record, we find that the respondent did not produce any evidence at trial from which it could be inferred that $3,746.55 was unreasonably small as and for earnest money in light of the anticipated or actual loss caused by the appellant's breach in failing to purchase the property. In this regard, prior decisions of our appellate courts have approved of earnest money provisions of 2.0%, where the purchase price was $300,000 and the earnest money deposited was $6,000, Goldberg , 672 S.W.2d at 180 , and 2.5%, where the purchase price was $200,000 and the earnest money deposited was $5,000, Seabaugh , 775 S.W.2d at 206 . Thus, absent some evidence in the record to show that the $3,746.55 was unreasonable in light of the anticipated or actual loss caused by the appellant's breach in failing to purchase the property, the record would not support the trial court's invalidating the liquidated damages clause of paragraph 14 as being unconscionable.
Because we find that paragraph 14 is an enforceable liquidated damages clause as to both the lease and purchase provisions of the parties' lease-purchase agreement, the respondent was thus limited to $15,000 in damages for any breach of the agreement, including a breach of sub-paragraphs 3(c) and (f) for damages for waste committed by the appellant during the lease. "[W]here parties especially provide or stipulate for liquidated damages, such liquidated damages take the place of any actual damages suffered and any recovery for breach is limited to the amount so agreed upon." Warstler , 859 S.W.2d at 165 (citation omitted). Hence, by agreeing to reasonable liquidated damages of $15,000 for breach of the lease provisions of the agreement, as well as the purchase provisions, the respondent necessarily waived any right to seek statutory damages for waste during the lease under § 537.420. Consequently, the appellant was correct in claiming at trial that the respondent could not maintain a cause of action pursuant to § 537.420, because paragraph 14, as a valid and enforceable liquidated damages clause as to any breach of the parties' agreement, contractually precluded the same.
Conclusion
The judgment of the circuit court awarding treble damages for waste to the respondent of $33,760.35, pursuant to § 537.420, is reversed and the case is remanded to the court to enter its order dismissing the respondent's cause of action.
Spinden, C.J., and Smart, J., concur.