Opinion
No. 69260
OPINION FILED: March 18, 1997 Rehearing Denied May 1, 1997
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HONORABLE THAD F. NIEMIRA
Charles R. Willis, St. Louis, for Appellants.
Arthur Friedman Amy W. Boltzman, St. Louis, for Respondents.
Before Clifford H. Ahrens, C.J. and William H. Crandall, Jr., J. and Joseph M. Ellis, Sp. J.
ORDER
Plaintiffs appeal from the trial court's judgments entered for defendants on plaintiffs' claim for rent and possession and for one defendant's counterclaim for damages. The trial court's judgments are supported by substantial evidence and are not against the weight of the evidence. No error of law appears and an opinion would have no precedential value. However, the parties have been furnished, for their use only, with a memorandum explaining the reasons for this decision.
The judgments of the trial court are affirmed. Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
The memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Appellants, Charles Willis and Cecil Willis, appeal from the trial court's judgments entered for respondent, Impact Solutions, Inc., in this action involving the lease of part of a building. We affirm.
Appellants brought the original action and named the president of Impact Solutions, Inc., Aleta Mitchell, as a defendant. The trial court sustained with prejudice Aleta Mitchell's motion to dismiss her individually because the lease at issue was with Impact Solutions, Inc. Appellants do not challenge this ruling on appeal and Impact Solutions, Inc. will be referred to as respondent.
Appellants own a two-story building located in St. Louis, Mo. In October 1994, Charles Willis met with Aleta Mitchell to discuss renting office space in the building. Mr. Willis showed Ms. Mitchell the second floor which she described as "totally gutted." According to Ms. Mitchell, Mr. Willis advised her the second floor would be ready around the first of the year. She advised Mr. Willis that respondent needed the space before the first of the year. Mr. Willis then informed Ms. Mitchell he had temporary space on the first floor and they then looked at the first floor space. A letter from Charles Willis to Aleta Mitchell dated October 13, 1994, provides, in part, as follows:
I can provide your company the space shown to you yesterday, totaling 2400 square feet, under terms of the enclosed lease, for the annual rental of $24,000.00, for a term not less than four years . . . . The space shown you could be ready for your temporary use approximately thirty days following execution of the lease. This space will be duplicated, by our agreement, on the second floor of the building. Occupation of that floor is planned around the first of the year.
The parties executed a lease to commence on December 1, 1994. Charles Willis, who is an attorney, prepared the lease. The lease provides that the "Leased Premises" is approximately 2400 square feet of space on the second floor. The lease also provides under appellants' covenants that they will deliver possession of the premises no later than December 1, 1994, permit respondent to "peacefully and quietly have, hold and enjoy the premises" as long as respondent performed its obligations, make any repairs to maintain the premises in good condition and replace the heating system if required.
Aleta Mitchell would later testify the first floor was not ready on December 1, 1994 or by December 5, 1994, but respondent had to move in because it had to vacate the premises it was occupying. She would also testify as to the unsatisfactory condition of the premises and her contacts with appellants, both by letter and orally, regarding the conditions. On January 14, 1995, respondent moved out of appellants' building.
Appellants brought an action for rent and possession and respondent counterclaimed. Respondent alleged appellants constructively evicted it from the premises and appellants breached the covenant of quiet enjoyment provided in the lease. After a hearing, the trial court found that appellants breached the contract with respondent, the second floor space was not ready for use as of the date of trial, the temporary space on the first floor was clearly not usable for respondent's business and appellants constructively evicted respondent from the premises. The court entered judgment for respondent on appellants' claim for rent and for respondent on its counterclaim. The court awarded respondent $6781.20 based on its finding that respondent was entitled to $4281.20 it paid for a security deposit, $2000 it paid for December 1994 rent and $500 as nominal damages for appellants' breach of contract. Appellants raise five points on appeal.
In a court-tried civil case, the trial court's judgment will be affirmed 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). We defer to the trial court on the question of credibility of witnesses and the weight given their testimony. Rule 73.01(c)(2).
Appellants argue in their first point that the evidence established they demanded the rent due under the lease and respondent failed to pay the rent. Appellants contend because they established these facts by "uncontroverted evidence" then under §§ 535.040 and 535.150 RSMo 1994 they were entitled to judgment as a matter of law. Section 535.040 does provide, in part, that if after hearing the cause "it shall appear" that the rent due has been demanded and payment has not been made, then the judge shall render judgment for recovery of the possession of the premises and the amount of rent then due. However, appellants' argument fails to consider that the trial court found they constructively evicted respondent from the premises.
Section 535.150 provides "If, upon the trial of such action, it is proved . . . that the plaintiff had a right to commence such action according to the provisions of this chapter, he shall have judgment to recover the possession of the demised premises and costs."
A tenant's liability for rent is suspended if a constructive eviction by the landlord causes the tenant to abandon the premises. Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App. 1988). A constructive eviction occurs when the lessor substantially interferes with the lessee's beneficial possession or enjoyment of the property. Id.; S.L. Motel Enterprises, Inc. v. East Ocean, Inc., 751 S.W.2d 114, 118 (Mo. App. 1988).
Here, respondent presented testimony from six witnesses regarding the condition of the premises. This testimony revealed there were rooms in the premises that did not have ceiling tiles, doors or electrical outlets. Witnesses also testified electrical wiring and insulation was exposed and certain rooms could not be used for any purpose. Witnesses further testified regarding the temperature of the premises. Respondent's employees had to wear coats on certain days. One witness testified she came to respondent's office to be tested and fill out an application but because the "testing room's" temperature was so cold she could not be tested. The trial court's finding of constructive eviction is supported by substantial evidence and is not against the weight of the evidence. The trial court did not erroneously apply the law by entering judgment for respondent on appellants' claim for rent and their first point is denied.
In their second point, appellants argue that the trial court erred in entering judgment on respondent's counterclaim because "the covenants determined to have been breached were implied and such implied covenants were contrary to the express covenants of a written agreement." Appellants contend that a "cursory review" of the parties' agreement discloses that appellants did not covenant to provide respondent ceilings, doors, adequate heat or electricity and, therefore, the trial court erred by finding a breach of the agreement.
To establish a breach of the covenant of quiet enjoyment, an actual or constructive eviction is required. Shop `N Save Warehouse Foods, Inc. v. Soffer, 918 S.W.2d 851, 859 (Mo. App. 1996).
As discussed, the lease provides appellants would make repairs to maintain the premises in good condition and replace the heating system if required. The lease specifically provides that appellants would "make any repairs, replacement or improvement to the premises and appurtenances, roof, ceiling, foundation, walls, doors, stairs, sidewalks, sewers, drains and utility connections, which are necessary to maintain the premises in good condition . . . ." Contrary to appellants' assertion, there were express covenants and the trial court did not err by finding appellants breached the agreement. Appellants' second point is denied.
In several instances, appellants contend that respondent's allegations in its counterclaim were insufficient. Appellants' contentions are without merit because in certain instances the pleadings are sufficient and for the others the pleadings are considered amended. Rule 55.33(b).
Appellants argue in their third point that the trial court erred in entering judgment for respondent on its counterclaim for damages because there was no proof of damages and the court found there were no damages. The trial court found the "record is clear that not only did [respondent] not ever get the 2nd floor space, but the temporary space provided was a mess [and] unfit to be used as office space. Thus the [respondent's] rent deposit of $4000 should be returned but also the December rent of $2000 [and] $281.20 additional . . . illegally claim[ed]-additional deposit should be returned. See Section 535.300." Appellants contend that even if they breached the covenants, the damages awarded bear no rational relation to the injury claimed. We disagree.
The award of $281.20 will be discussed in appellants' fourth point.
Where there is a breach of the contract by the landlord, the measure of damages is the amount of money that will compensate the tenant for the loss caused by the landlord's breach.D.L. Development, Inc. v. Nance, 894 S.W.2d 258, 261 (Mo. App. 1995). The tenant is entitled to damages naturally and proximately caused by the breach and those damages that could have been reasonably contemplated by the landlord. Id. When a constructive eviction occurs, a tenant may recover rental payments for the landlord's breach. See Hamilton Music v. Gordon Gundaker Real Estate Co., 666 S.W.2d 840, 844-45 (Mo. App. 1984). In addition, a recovery by a tenant of a security deposit may also be proper. Id. at 844;Heutel v. Walker, 735 S.W.2d 196, 197 (Mo. App. 1987). The evidence here supports an award of the rent and security deposit that respondent paid.
In addition to the security deposit and December rent, respondent claimed other damages such as expenses for moving, advertising for classes that had to be canceled, a computer system shutdown, reprinting business stationary and inconvenience to respondent's employees. The trial court found that respondent did have some damages but did not prove the amounts claimed were reasonable or proved with any certainty. According to the court, it therefore awarded respondent nominal damages of $500 for appellants' breach of contract.
Appellants contend the trial court erred in awarding nominal damages because the court found respondent failed to prove the damages with certainty. Actions for breach of covenants in leases are generally governed by contract principles.Hamilton Music, 666 S.W.2d at 843. In contract cases, proof of the contract and of breach give rise to nominal damages, regardless of the failure to prove actual damages. Sunny Baer Co. v. Slaten, 623 S.W.2d 595, 598 (Mo. App. 1981). Here, there was substantial evidence of the contract and its breach and, therefore, the trial court did not err in awarding nominal damages. Appellants' third point is denied.
Appellants do not argue that an award of $500 for nominal damages is excessive. As a matter of discretion, we need not reach this issue because no manifest injustice or miscarriage of justice results from the trial court's award of $500. Rule 84.13(c).
In their fourth point, appellants argue the trial court erred in awarding respondent return of its security deposit based on § 535.300 RSMo 1994. The rent was $2,000 per month and respondent initially paid $4000 as a security deposit and later paid $281.20 toward an additional $2000 security deposit. The quoted portion of the court's findings discussed in appellants' third point and review of the language of § 535.300 reflects that the court was only awarding respondent $281.20 based on § 535.300. Section 535.300.1 RSMo 1994 provides that a landlord may not receive rent in excess of two months rent. Section 535.300 applies to dwelling units. See Property Exchange Sales, Inc. v. King, 863 S.W.2d 12, 15 (Mo. App. 1993). The evidence demonstrates that the premises involved was office space and not a dwelling unit as that term is defined. Id.
It appears the trial court erroneously relied on § 535.300 in awarding respondent $281.20. However, in reviewing a court-tried case this court is concerned with the correctness of the result and not the route taken to reach that result.Welshans v. Boatmen's Bancshares, 872 S.W.2d 489, 495 (Mo. App. 1994). Given the trial court's findings regarding the premises, the trial court did not err in awarding respondent the additional $281.20 it paid for a security deposit. Appellants' fourth point is denied.
Appellants argue in their final point that the trial court's judgment is against the weight of the evidence, and the court was biased and prejudiced in its consideration of the evidence. Appellants do not provide any argument under this point regarding how the judgment was against the weight of the evidence. Review of the remarks complained of, to which appellants did not object or move to disqualify, and the entire transcript does not reveal that the trial court was biased and prejudiced. Appellants' final point is denied.
The judgments of the trial court are affirmed.