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09/10/93 LARRY LUNA v. KENNETH E. SMITH AND VIOLET

September 10, 1993

LARRY LUNA, PLAINTIFF-APPELLANT
v.
KENNETH E. SMITH AND VIOLET SMITH, DEFENDANTS-RESPONDENTS



APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable David H. Dunlap, Judge

Parrish, Crow, Shrum

The opinion of the court was delivered by: Parrish

Larry Luna (plaintiff) appeals from a judgment in which the trial court found against him on claims that arose from business dealings between plaintiff and Kenneth E. Smith and Violet Smith (defendants). The business dealings involved certain premises in West Plains, Missouri, that plaintiff leased from defendants. The trial court found for plaintiff on a counterclaim by which defendants sought to recover damages for the value of certain equipment that had been used in the business operations that plaintiff conducted at the leased premises. There was no appeal taken from the part of the judgment that determined the counterclaim. This court affirms.

Plaintiff and defendants entered into a lease agreement dated October 1, 1988. The leased premises included a retail store and gasoline station in West Plains known as Ken's Quick Stop. The lease was "for the term to begin with the 29th day of September, 1988 until the 28th day of September, 2008, unless sooner terminated under the provisions thereof." It provided that neither lessors nor lessee had the right to terminate the lease during its term "except for a breach of covenants and conditions." The lease agreement also granted plaintiff "the absolute and irrevocable option to purchase the property" at a price and according to terms included in the agreement.

The leased premises were to be used "for a convenience store - gasoline filling station and related uses." In either December 1990, or January 1991, plaintiff contacted defendant Kenneth Smith. Mr. Smith testified, "He told me that he was unable to make the store work. And I had an option of taking the store back, or he was going to file Chapter 7 bankruptcy." The parties attempted to negotiate an agreement for the return of the store to defendants and the retention of certain equipment by plaintiff. Those efforts failed. Mr. Smith explained:

Q. [By defendants' attorney] Did you at some point agree upon a term at which you would resume operation to the store?

A. Not really. He just said he was going to close it down, not -- In order to cut out as much loss as I could, I said I suppose I would.

Q. And did you indicate to him that you supposed you would take the store back over as of March the 1st?

A. Yes.

Q. And did he object to your taking over the store as of March the 1st?

A. No.

This case was tried before the trial court without a jury. Its appeal is governed by Rule 73.01.

The judgment of the trial court will not be disturbed unless it is against the weight of the evidence, is not supported by substantial evidence, or ...


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