Gordon v. Williams

986 S.W.2d 470, 1998 Mo. App. LEXIS 2192, 1998 WL 846874
CourtMissouri Court of Appeals
DecidedDecember 8, 1998
DocketNos. 73141, 73409
StatusPublished
Cited by12 cases

This text of 986 S.W.2d 470 (Gordon v. Williams) 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
Gordon v. Williams, 986 S.W.2d 470, 1998 Mo. App. LEXIS 2192, 1998 WL 846874 (Mo. Ct. App. 1998).

Opinion

JAMES A. PUDLOWSKI, Presiding Judge.

David Williams and his wife Ann Wimsatt d/b/a Wimsatt Williams Studio (Appellants) appeal the trial court’s judgment against them and in favor of Edwin Gordon and Dorothy Gordon d/b/a Gordon Properties (Respondents) in an unlawful detainer action. On August 14,1997, the court ordered Appellants to relinquish the premises and pay $34,-755.00 to Respondents. Subsequent to Appellants’s Motion to Correct Judgment, the court reduced Respondents’s damages to $22,221.89 on September 15, 1997. Appellants allege the trial court erred in that there was no evidence supporting a judgment of unlawful detainer because the Respondents failed to comply with the statutory and common law requirements of forfeiture.1 On cross appeal, Respondents allege the trial court’s Amended Judgment improperly reduced their recovery. We affirm the judgment and remand to the trial court.

On June 19,1991, Appellants contracted to lease the second floor of 21 N. Meramec from the Respondents. Both parties were repre[472]*472sented by counsel. The lease would expire July 31, 1996. Appellants remained on the premises until September of 1997. All relevant lease terms are in Article VI Section C. Rent was due on the first of the month, and the lease provided that Appellants would be in default for failure to pay by the tenth day of the month. Appellants often failed to pay within 10 days of the first of the month, and the lease permitted Respondents to terminate the lease “after ten (10) days written notice and after said ten days...lessee will forthwith quit and surrender the leased premises....” This default provision provided that if Appellants failed to pay rent by the tenth of the month, Respondents could deliver written notice of termination and 10 days thereafter terminate the lease.

The rent due May 1 was received on May 25. On June 3,1996, Respondents’s property manager (Lori Dolan) notified Appellants, by certified mail, that they were in default due to delinquent rent payments. This was notice of Respondents intent to demand possession and terminate the lease. On July 1, 1996, Lori Dolan attempted to hand deliver a notice of termination and demand for possession to the Appellants; attached was a Notice of Eviction for failure to timely pay rent. She knocked on the door during business hours and slipped the demand under Appellants’s door when no one answered. Lori Dolan also sent an exact copy of said documents to Appellants by certified mail. Appellants acknowledged receipt of the notices, but refused to leave the premises.

On July 5, 1996, Respondents filed a Petition For Unlawful Detainer alleging Appellants were unlawfully in possession of the premises located at 21 N. Meramec. Respondents filed two separate amended petitions for unlawful detainer on August 1, 1996 and June 6, 1997. The matter proceeded to trial on June 19, 1997. At the conclusion of the evidence the trial court took the case as submitted and permitted the filing of post-trial briefs.

On August 14, 1997, the trial court rendered its judgment ordering Appellants to relinquish possession of the premises and to pay Respondents $33,000.00, double the reasonable rental value of $1,500.00 per month for the 11 month period of wrongful possession. The trial court also ordered interest in the sum of $1,755.00, making a total of $34,-755.00. Appellants filed a Motion to Correct the Court’s Judgment on September 10, 1997. Five days later, the trial court filed its Amended Judgment reducing the amount of Respondents’s double rent recovery, now $39,000,2 by the amount of rent Appellants paid during the term of wrongful possession, $17,875.00, rendering an award of $21,125.00. The trial court also ordered interest in the sum of $1,096.89, making a total of $22,-221.89. Appellants allege the trial court erred in granting a judgment in unlawful detainer because the Respondents failed to comply with the statutory and common law requirements of forfeiture.

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).

Respondents invoked the remedy of unlawful detainer which is available “when any person shall willfully and without force hold over any lands, tenements, or other possessions, after the termination of the time for which they were demised or let to him.” Section 534.030 RSMo 1997.3 Respondents sought not only to terminate the leasehold interest but also, by proceeding in unlawful detainer, to recover double damages and double rents. Davidson v. Kenney, 971 S.W.2d 896, 899 (Mo.App. W.D.1998); Fritts v. Cloud Oak Flooring Company, 478 S.W.2d 8, 12 (Mo.App.Spring.Dist.1972). Respondents, in seeking common law forfeiture to terminate the leasehold interest and proceed in unlawful detainer, must observe every requirement [473]*473of the common law, unless waived by agreement. Fritts, 478 S.W.2d at 12. There can be no unlawful detainer action until the lease has been terminated. Davidson, 971 S.W.2d at 898.

Appellants first allege that under Jones v. Gleason, 209 S.W.2d 536, 537 (Mo. App. E.D.1948), they were not in unlawful possession of the premises at the time the action was brought and, therefore, Respondents action in unlawful detainer must fail. Appellants admitted that neither April nor May rent was paid by the tenth of the month. The May rent was paid 25 days late. The lease provides that Appellants are in default for failing to pay by the tenth, and that Respondents may then “after ten (10) days written notice and after said ten days, terminate this lease and [Appellants] will forthwith quit and surrender the Leased Premises.” Appellants acknowledged receipt of Respondents’s intent to terminate the leasehold interest and demand for possession dated June 3, 1996. Appellants also admit receiving the July 1, 1996 demand for possession and notice of termination on July 2, 1996. Therefore, we find the Respondents terminated the lease, and Appellants were in wrongful possession at the time the action was brought on July 5,1996.

Appellants next argue that Respondents’ unlawful detainer action must fail because the July 1, 1996, demand for possession and notice of termination4 complied with neither the provisions of Section 534.050 RSMo 1994 nor common law requirements. Section 534.050 RSMo 1994 provides that the demand required by Section 534.030 “shall be made either by delivering a copy of such demand to the person in possession, or by leaving such copy with some person above the age of fifteen years....” Respondents attempted to hand deliver the documents during business hours, slipped them under the door when no one answered and simultaneously sent them by certified mail. Appellants acknowledged receipt on July 2, 1996, but argue Respondents failed to comply with the service requirements of Section 534.050 RSMo 1994.

Appellants further allege that the July notice did not conform with common law requirements of notice. To create a forfeiture of a leasehold interest at common law for failure to pay rent, there must be notice of forfeiture and demand for rent on the day due, and for the precise amount due. Fritts,

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Bluebook (online)
986 S.W.2d 470, 1998 Mo. App. LEXIS 2192, 1998 WL 846874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-williams-moctapp-1998.