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August 16, 1983


From the Circuit Court of Marion County; Civil Appeal; Judge John D. Ogle.

Motion for Rehearing Overruled September 20, 1983.

The opinion of the court was delivered by: Gunn

An action in forcible entry and detainer under § 534.020, RSMo 1978 is the subject matter of this appeal. Plaintiff-appellant is the National Garment Company; the City of Paris (City) and Gates Energy Products, Inc. (Gates) are the defendants-respondents and alleged offenders in the plaintiff's cause of action. *fn1 At the close of plaintiff's evidence, the trial Judge directed a verdict in favor of the City and Gates. The Eastern District of the Missouri Court of Appeals affirmed the judgment. This Court granted application to transfer, and we, too, affirm the judgment.

The underlying issue is whether there was sufficient evidence of forcible entry and detainer proven by plaintiff to submit the case to the jury. The guiding precept in reviewing the propriety of a directed verdict is that the evidence and reasonable inferences therefrom are to be considered in the light most favorable to the appellant. Matter of Estate of Passman, 537 S.W.2d 380, 385 (Mo. banc 1976).

Germ seeds for this litigation were planted in November 1971 when the plaintiff and the City entered into an agreement and lease for the construction and use of a manufacturing facility by plaintiff in the manufacture of children's sportswear. The transaction was authorized pursuant to §§ 100.010 to 100.200, RSMo 1969 which permitted certain cities to issue general revenue bonds for the construction of manufacturing and industrial plants to be leased to private individuals or corporations. The main purpose of the plant constructed and leased to plaintiff was to provide jobs for persons living in and around the City. And, indeed, for a time the purpose of the plant was fulfilled. Upon completion of the facility, plaintiff moved in and commenced the manufacture of children's sportswear, employing about 100 persons.

However, in September 1979, plaintiff decided to cease its manufacturing operations at the Paris plant, citing economic reasons for its decision. Plaintiff's president thereupon sent a letter to the City advising it of its decision to terminate operations and requesting aid in locating a new tenant. And plaintiff did make effort to secure a surrogate tenant but was unsuccessful.

Shortly before November 1979, plaintiff removed from the plant all of its sewing machines, fixtures and equipment, excepting only an electrical feed rail, air compressor and air hose system. By January 1980, everything had been removed, and the building was vacant.

In keeping with the lease, plaintiff did, however, continue to pay taxes, maintain insurance and performed some repair work, principally repair to a leaking roof. It also had a truck driver employee from another plant located in Fayette stop by from time to time to look into the vacant building.

On January 21, plaintiff advised the City that it had been unsuccessful in its efforts to secure a substitute tenant but gave assurance that it would continue monthly rental payments and maintain the facility. Plaintiff also suggested that the City should have its police periodically check the vacant premises, which was done.

On January 31, 1980, the City's mayor asked for and received keys to the building. This action was followed by a February 26, 1980 letter in which the City advised plaintiff that it was terminating the lease as of March 10, 1980 under a default provision providing for termination if "tenant shall permit the plant to be vacant or deserted for a period of sixty (60) days."

Upon receipt of the notice, plaintiff's president contacted an attorney and upon advice of counsel, had some property consisting of chairs, tables, a sewing machine and empty boxes moved into the plant. Sometime in March, the City notified the plaintiff that the equipment had been moved and was stored in City Hall. The City had the locks changed on March 25, 1980, and entered into a lease with Gates, which took possession of the plant on March 27, 1980.

Plaintiff argues that the trial court erroneously granted the City's motion for a directed verdict, maintaining that there is considerable evidence in the record to create a jury question on the issue of possession--a critical factor in forcible entry and detainer. Duffy v. Clark Oil & Refining Corp., 575 S.W.2d 888 (Mo. App. 1978).

Plaintiff suggests the following on its part as evidence of intent to retain possession of the plant and thereby form the basis and justification for its cause of action: periodic inspection of the premises, payment of rent, making repairs, heating the facility, maintaining insurance and storage of various items.

Mostly, there is a dearth of recent case law on the subject of forcible entry and detainer, so it is necessary from time to time to dust off and hark back to some venerable old decisions for guidance. But first, it is essential to note that the foundation brick for the action under consideration is possession. Forcible entry and detainer is a possessory action, with it being immaterial whether the party being forcibly dispossessed had title or rightful possession. Lindsay v. McLaughlin, 311 S.W.2d 148, 152 (Mo. App. 1958). And, generally, the possession issue is one of mixed law and fact. Duffy v. Clark Oil & Refining Corp., 575 S.W.2d at 888-89. This is so though the Conclusion reached in this case is that the trial Judge correctly ruled on the possession issue as a matter of law. Thus, it is appropriate to note that determination of what constitutes possession is a matter of law whereas whether the requisite acts have been accomplished is a factual matter. Underwood v. City of Caruthersville, 197 Mo. App. 358, 194 S.W. 1090, 1091 (1917). In this ...

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