Herron v. Barnard

390 S.W.3d 901, 2013 WL 324040, 2013 Mo. App. LEXIS 133
CourtMissouri Court of Appeals
DecidedJanuary 29, 2013
DocketNo. WD 74910
StatusPublished
Cited by16 cases

This text of 390 S.W.3d 901 (Herron v. Barnard) 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
Herron v. Barnard, 390 S.W.3d 901, 2013 WL 324040, 2013 Mo. App. LEXIS 133 (Mo. Ct. App. 2013).

Opinion

KAREN KING MITCHELL, Judge.

David Herron appeals the judgment of the trial court denying, after a bench trial, his claims for conversion and replevin of various items of personal property that he had placed in office space leased from Charles Barnard by Herron’s employer. Herron raises three claims on appeal, all arguing that the trial court’s judgment was against the weight of the evidence. First, he argues that the evidence established meritorious claims for conversion and re-plevin of the property at issue. Second, he argues that Barnard failed to meet his burden to prove that the items at issue constituted fixtures, thereby becoming part of the leasehold to which Barnard was entitled. And third, he argues that Barnard failed to prove that Herron abandoned any of these items. Based upon our standard of review and the law as to which party bears the burden of proof on the various claims, we find that the trial court’s judgment as to all of the items except the door and transom was not supported by substantial evidence. Therefore, we affirm the trial court’s judgment regarding the door and transom, but we reverse its judgment and remand for further proceedings as to the remainder of the property in dispute.

Factual Background

On March 1, 2007, Barnard, acting on behalf of Baltimore Avenue Investors, LLC (collectively “Barnard”), executed a written lease agreement for a 1,442-square-foot office space at 2000 Baltimore Avenue in Kansas City, Missouri, with Boka Powell, LLC, a Texas-based architectural design firm. Herron was employed by Boka Powell to run the Kansas City office.

The Lease

The lease agreement was for a two-year term with a monthly rent payment of $1,562.17 and a right of first refusal regarding the lease of additional space within the building. The parties further agreed that Boka Powell, through Herron and at its own expense, would be permitted to remove existing partitions in order to reconfigure space for a kitchenette; relocate the plumbing, electrical, and waste lines for this purpose; add carpet; relocate the entry door; and paint the walls and ceiling. The lease further provided that Boka Powell was responsible for putting in a security system at its own expense. The space was then remodeled in accordance with the agreed-upon terms.

After the space was remodeled, Herron arranged for the installation of a sink, cabinetry (including a pull-out waste receptacle and storage bin), appliances, and shelving in the kitchenette area; he also arranged for the installation of a custom-made, tempered-glass door and matching transom for the entrance, as well as a variety of new light fixtures and bulbs, a picture-hanging mechanism, filing cabi[906]*906nets, and a security system. Of these items, Herron, himself, purchased the appliances, the sink, the bookshelves, the door and transom, the picture hanger, all of the lighting, the wire storage bin, and the wastebasket. Boka Powell purchased the filing cabinets, the storage cabinets, and the security system, but later transferred ownership of these items to Herron as part of a separation agreement. Her-ron later testified that the particular items he selected were for the purpose of creating an architectural showpiece for his customers to demonstrate what the architectural firm could do with a space.

Installation of the Property

The bookshelves were placed on an existing wall in the space in a manner that covered a freight elevator door, rendering it unusable so long as the shelving remained in the space.1 The shelving itself was affixed to the back wall pursuant to building codes, but it was attached by a “French cleat,” which is a method of attachment whereby the shelving is attached to spacers on the wall, as opposed to being directly attached to the wall; this method is designed specifically to foster easy removal of the shelving from the wall, leaving minimal or no damage. The shelving was also attached on both ends to the newly constructed side walls by sixteen six-inch-long screws.

The wood cabinets above and below the sink were affixed to the opposite side of the kitchenette on the newly constructed wall, also using the “French cleat” method to foster easy removal with minimal or no damage to the wall. The matching refrigerator and dishwasher were plugged into electrical outlets in the newly constructed wall in the spaces made available by the wood cabinetry. Both were also attached to a water line, and the dishwasher was further attached to a waste line to accommodate the garbage disposal. The sink faucet was a “high design architectural faucet” that cost approximately $1,800.00. It could be easily replaced by any other faucet for approximately $50.00. Within the wood cabinetry, there were two doors; one housed the wastebasket and the other housed the wire storage bin.

The filing cabinets adjacent to the sink, appliances, and other cabinetry were not attached to the wall in any manner; instead, they were held in place by gravity alone, and they were attached to one another with tape.

On the opposite side of the newly constructed wall, on the exterior of the kitchenette, was a 48-foot track with suspended wires used to hang pictures and display local artwork. It would not have caused any damage to the structure if removed. In fact, the wall was constructed, in accordance with building codes, to be completely self-sufficient, meaning that it would not be harmed by removal of anything that was attached to it.

Herron replaced the bulbs in some existing track lighting with special light bulbs to give the space more of a “daylight” feel. He also added accent lighting that merely sat atop the bookshelves, but was hardwired into the building in order to comply with building codes.

Herron also installed a custom tempered-glass door and matching transom (with a total height of approximately 14 feet), given to him by the glass manufacturer. The door was attached by two [907]*907hinges. The transom sat inside wooden pockets built into the drywall surrounding it. Removing the transom would have caused significant damage.

When Boka Powell first moved into the building, there was no security system, and by the terms of the lease agreement, Boka Powell was to provide its own security system at its own expense. Boka Powell purchased a wireless system from ADT, consisting of glass breakage sensors and a movement sensor, all taped to the space. Removing this system would not have caused any damage.

Termination of the Lease and Advent of the Property Dispute

Before the original two-year term expired, Boka Powell agreed to renew the lease. Barnard offered two options: the first was a two-year extension with an increased rent based upon an increase in the square footage of the space from renovations, and the second was a one-year extension at the same increased rental rate with the option for an additional extension of one year at an even higher rental rate. Although Herron was hoping for the two-year extension, Boka Powell opted for the one-year extension with the one-year renewal option. When Herron conveyed Boka Powell’s request to Barnard, Herron also told Barnard, “If at the end of the next year they decide to no longer participate or I have enough work to continue with my own company, I hope that we can still work out a future long term agreement.” The term of the renewed lease was set to expire on April 30, 2010.

Sometime in November 2009, Boka Powell decided to cancel the lease agreement.

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Cite This Page — Counsel Stack

Bluebook (online)
390 S.W.3d 901, 2013 WL 324040, 2013 Mo. App. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herron-v-barnard-moctapp-2013.