Joe Garavelli's Restaurant, Inc. v. Colonial Square Associates, L.P.

21 S.W.3d 149, 2000 Mo. App. LEXIS 1053, 2000 WL 876802
CourtMissouri Court of Appeals
DecidedJune 30, 2000
DocketNo. ED 76297
StatusPublished
Cited by1 cases

This text of 21 S.W.3d 149 (Joe Garavelli's Restaurant, Inc. v. Colonial Square Associates, L.P.) 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
Joe Garavelli's Restaurant, Inc. v. Colonial Square Associates, L.P., 21 S.W.3d 149, 2000 Mo. App. LEXIS 1053, 2000 WL 876802 (Mo. Ct. App. 2000).

Opinion

CHARLES B. BLACKMAR, Sr. J.

Joe Garavelli’s Restaurant, Inc., a Missouri corporation, filed suit against Colonial Square Associates, L.P., a limited partnership, seeking damages for breach of contract on account of the cancellation of a lease for restaurant premises. The trial court entered judgment for plaintiff Garavelli’s in the amount of $360,000. Defendant Colonial appeals. We affirm. We adopt our statement of the case from the statement in Colonial’s brief, which Garav-elli’s has not challenged.

Garavelli’s purchased a restaurant business located in Colonial Shopping Center in December of 1990 and operated this restaurant until September 14, 1996, when the premises were seriously damaged by fire. Colonial then exercised its option to terminate the existing lease because the premises could not be restored within 45 days.

The parties then negotiated a new lease, reaching agreement in January of 1997. The new lease was for a term of five years, with rent to begin when Garavelli’s reopened for business, and with a five-year option for renewal by the lessee. The lease contained a provision reading as follows:

63. RESTORED PREMISES:

63.0 Upon execution of this lease by both parties, and within ten (10) business days of same, both Lessor and Lessee shall have plans and specifications drawn showing proposed improvements of each party to the leased premises and shall present same to the other for review and approval. If within five (5) business days of presentation of plans and specifications, Lessor and Lessee cannot agree on the scope and/or quality of each party’s work as set forth in said plans and specifications, either party may cancel this lease by written notice to the other.

By letter dated February 6, 1997, the parties agreed that the ten (10) day period for submission and approval of the plans and specifications was not realistic, and removed that time limitation from the agreement. The remainder of the lease terms remained in effect. The letter also specifically set forth the restoration work that was to be undertaken by Colonial. All remaining work was to be completed by Garavelli’s.

Immediately after the fire Colonial retained Shanfeld Construction Services to act as its general contractor in connection with the center. After execution of the new lease Shanfeld was instructed by Colonial to incorporate plans and specifications for Colonial’s part of the restoration of the restaurant premises into plans and specifications for the restoration of the entire building shell. The plans and specifications for Colonial’s part of the restaurant restoration were completed by Shan-feld on March 14, 1997. Required permits were quickly obtained.

On March 26, 1997, Colonial presented the plans and specifications setting forth the scope and quality of its portion of the restoration work to Garavelli’s for approval. Garavelli’s indicated approval, with a few exceptions noted on the front page of the plans. There is no indication that Colonial disagreed with these notations.

[151]*151Shanfeld obtained bids from subcontractors for Colonial’s part of the work of restoration and received authorization to proceed. It was necessary for Shanfeld to complete the work on the shell of the building before Garavelli’s part of the restaurant work could begin.

Shanfeld commenced work during the first week of June in 1997 but realized that it could not practically complete the work before Garavelli’s had commenced and concluded its part of the restoration. Otherwise Garavelli’s would have had to tear out some of ColoniaFs work.

Garavelli’s, in April 1997, retained Shan-feld to prepare the plans and specifications for its part of the work, which were completed on June 26, 1997. Garavelli’s president, Hawatmeh, testified, and the jury could have found, that he instructed Shan-feld to present these plans to Colonial for approval. Hawatmeh requested that Shanfeld submit a bid for Garavelli’s part of the restoration. Shanfeld obtained bids from subcontractors and submitted such a bid on July 10, 1997. Garavelli’s considered this bid too high and sought a second bid from Pernikoff Construction, which was lower than Shanfeld’s bid by about $75,000.

The parties met on July 24, 1997. Ha-watmeh advised Colonial that he did not intend to use Shanfeld for Garavelli’s part of the work because of the price. Colonial was concerned about having two general contractors working on the site at the same time and solicited a bid from Perni-koff for the remaining part of its work.

On August 4,1997 Colonial wrote Garav-elli’s, proposing (1) that Pernikoff be the contractor for all remaining work, under Garavelli’s supervision; (2) that Colonial make an allowance of $60,352 to Garavelli’s for its remaining work, this being the amount of Pernikoffs bid for that work; (3) that, inasmuch as Pernikoff had estimated that the remaining work would consume 45 days, the rent begin on October 1, 1997; and (4) that Garavelli’s reimburse Colonial in the amount of $3574 for an additional air conditioning unit and $5054 for an additional sprinkler unit.

Garavelli’s reviewed this proposal with its attorney, and the attorneys for the parties had several meetings. Garavelli’s advised Colonial that the proposed agreement was not acceptable, and that it would honor its obligations under the lease of January 14, 1997 and the modification by letter agreement of February 6,1997.

Under date of September 3, 1997, Colonial wrote Garavelli’s a letter, praising itself for its diligence in the premises and uttering sharp criticism of Garavelli’s. The concluding paragraph read as follows:

Under the circumstances, you have left us with no choice but to inform you that we will not proceed further with you. The lease which was in effect prior to the fire was cancelled. The lease dated January 14, 1997 has never gone into effect. To avoid any question, however, to the extent that the “new lease” exists, we hereby cancel same in accordance with its Section 63 since the parties cannot agree on the scope and/or quality of each party’s work.

Further discussions proved futile, and this suit was filed on April 27, 1998. Of the several counts, only the breach of contract claim was submitted to the jury.

1. Submissibility

In its first point Colonial asserts error in overruling its motion for directed verdict
because plaintiff failed to adduce evidence of any agreement between the parties with respect to the quality and scope of the reconstruction work to be performed by each of them as required by Paragraph 63 of the lease agreement.

The only cases cited are completely unrelated on the facts and hold simply that unambiguous contracts should be enforced as they are written.

The time requirements of the new lease were modified by the letter agree[152]*152ment of February 6, 1997. To the extent that there are variations, the language of the latter agreement prevails. Boyd v. Lane, 869 S.W.2d 305, 309 (Mo.App.1994).

In determining submissibility we of course view the evidence from the plaintiffs standpoint and give no regard to conflicting testimony adduced by the defendant. Steward v. Goetz, 945 S.W.2d 520

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Bluebook (online)
21 S.W.3d 149, 2000 Mo. App. LEXIS 1053, 2000 WL 876802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-garavellis-restaurant-inc-v-colonial-square-associates-lp-moctapp-2000.