Farris v. Mitchell

745 S.W.2d 262, 1988 Mo. App. LEXIS 210, 1988 WL 11727
CourtMissouri Court of Appeals
DecidedFebruary 17, 1988
DocketNo. 15167
StatusPublished
Cited by4 cases

This text of 745 S.W.2d 262 (Farris v. Mitchell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farris v. Mitchell, 745 S.W.2d 262, 1988 Mo. App. LEXIS 210, 1988 WL 11727 (Mo. Ct. App. 1988).

Opinion

MAUS, Judge.

Upon the plaintiff-landlord’s petition, the trial court enjoined the defendants-tenants from removing certain items from a leased building. Upon the submission of a counterclaim for breach of a covenant to repair the exterior of the building, a jury returned a verdict in favor of the defendants for $36,000. Upon a submission for conversion of personal property, a jury returned a verdict in favor of the defendants for $3,500. The plaintiff appeals only from the judgment entered upon the verdict for $36,-000.

This case was tried with less than strict observance of the rules pertaining to pleadings, evidence and instructions. However, “[ajppellate review is limited to those issues presented in [appellant’s] points and they alone need be and are considered.” Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). Also see Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). This opinion should not be construed as determining any issue or question not specifically addressed. Nor should it be considered as limiting the issues upon a retrial of Count I of the counterclaim, if there be one. The following is a condensation of the evidence necessary for the consideration of plaintiff’s decisive points on appeal.

On June 1, 1980, the plaintiff leased to Terry L. McNulty and Patricia F. McNulty a portion of a building in a shopping center in St. Robert, Missouri, for an original term of ten years. The lease required the lessees to operate the business known as Skate World. The McNultys installed a skating rink floor and other fixtures necessary for the operation of a skating rink business. In general, the lease gave the lessees the right to remove the floor and fixtures they installed. The lease required the plaintiff to maintain the exterior, including the roof. The defendants were required to maintain the interior.

The McNultys operated the business until September 15, 1982, when they sold it to the defendants. The bill of sale conveyed the business known as Skate World, including fixtures, equipment, inventory and goodwill. With the plaintiff’s consent, the lease was assigned to the defendants. The purchase price was $57,000.

The defendants continued to operate the business until July, 15, 1983. They never [264]*264made a profit. The defendants decided to terminate the business and the lease at the end of July, 1983. In anticipation, they started liquidating their business assets and removing them from the leased building. They sold certain concession stand equipment. At this point, the plaintiff sought an injunction to prevent the removal of lighting equipment and fixtures. For an unexplained reason, the temporary restraining order covered additional items, including the concession stand equipment. This equipment was the subject of the judgment for conversion for $3,500.

The defendants contend their business was unsuccessful because of water damage to the ceiling and the skating rink floor. They presented evidence the roof leaked. They also presented evidence the damage to the floor resulted from improperly maintained guttering which caused water to enter under a wall. The plaintiff presented evidence the floor was damaged because it was improperly installed over an active sewer line which had commode openings that were not properly plugged. As stated, the jury returned a verdict for $36,000 in the defendants’ favor upon an instruction submitting the plaintiffs breach of a covenant to maintain the exterior of the building.

The plaintiffs first point is that the trial court erred in admitting documents presented by defendant Melvin C. Mitchell as copies of the 1980, 1981 and 1982 profit and loss statements of the McNultys’ operation of Skate World. The significance of this point must be considered in conjunction with the plaintiff’s third point. That point is that the evidence does not support the verdict because it does not establish a loss of anticipated profits with reasonable certainty.

‘[T]he recovery of anticipated profits of a commercial business is ... too remote, speculative, and too dependent upon changing circumstances to warrant a judgment for their recovery.’ [Orchard’ Container Corp. v. Orchard, 601 S.W.2d 299, 305 (Mo.App.1980.] However, in Orchard, the court pointed out, that ‘an exception to this rule exists where anticipated profits are “made reasonably certain by proof of actual facts, with present data for rational estimate of their amount; ...” and where “proof of the income and expenses of the business for a reasonable time anterior to its interruption, with a consequent establishing of the net profits during the previous period is shown.” ’

Herrington v. Hall, 624 S.W.2d 148, 153 (Mo.App.1981). Also see Jack L. Baker Cos. v. Pasley Mfg. & Distrib. Co., 413 S.W.2d 268 (Mo.1967); Hargis v. Sample, 306 S.W.2d 564 (Mo.1957). A corollary of that rule is that “proof of the income and expenses of the business for a reasonable time anterior to its interruption, with a consequent establishing of the net profits during the previous period, is indispensable.” Anderson v. Abernathy, 339 S.W.2d 817, 824 (Mo.1960). It has been held that the rule has not been satisfied by evidence consisting of tax returns which did not provide a basis to compare the profitable and unprofitable periods of operation of the business. Jack L. Baker Cos. v. Pasley Mfg. & Distrib. Co., supra. Also see Coonis v. Rogers, 429 S.W.2d 709 (Mo.1968). An unsupported opinion or estimate of a loss of profits is generally held to be insufficient. Yaffe v. American Fixture, Inc., 345 S.W.2d 195 (Mo.1961); Tnemec Company v. North Kansas City Development Co., 290 S.W.2d 169 (Mo.1956).

Defendant Melvin C. Mitchell, without objection, did state the following figures concerning the operation of Skate World by the McNultys. In the last six months of 1980 the business made a profit of $22,000. In 1981, it lost $2,000, but the McNultys had paid out $35,000 for wages. Through June of 1982 the business made a profit of $3,911. Initially, an objection to Mitchell’s estimate of his anticipated profits was sustained. The profit and loss statements referred to above were then produced for Mitchell to consider. He said he had considered them in deciding to purchase the business. He added, that for the last year or so the McNultys had made $2,350 per month. He was then permitted to state that he anticipated he would make a profit of $28,000 per year.

[265]*265The defendant Melvin C. Mitchell did not by his testimony present any data or details concerning the McNultys’ operation of the business. The profit and loss statements in question were apparently offered for that purpose. However, those statements were identified and verified only by Mitchell’s testimony that they were given to him by Patricia F. McNulty.

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745 S.W.2d 262, 1988 Mo. App. LEXIS 210, 1988 WL 11727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-mitchell-moctapp-1988.