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Mayer v. Lindenwood Female College

Court of Appeals of Missouri, Eastern District, Fourth Division

November 18, 2014

D. WAYNE MAYER, TRUSTEE, JOHN J. STOCK TRUST and RONALD J. NOLLE, TRUSTEE, OSCAR A. NOLLE TRUST, Appellants,
v.
LINDENWOOD FEMALE COLLEGE d/b/a LINDENWOOD UNIVERSITY, Respondents

Page 308

Appeal from the Circuit Court of St. Charles County. Honorable Richard K. Zerr.

Robert Schultz III, Chesterfield, MO, for appellant.

Gregory C. Mollett, St. Louis, MO, for respondent.

Patricia L. Cohen, Presiding Judge. Patricia L. Cohen, P.J., Roy L. Richter, J., and Robert M. Clayton III, J., concurring.

OPINION

Patricia L. Cohen, Presiding Judge.

Page 309

Introduction

D. Wayne Mayer, acting in his capacity as trustee of the John J. Stock Trust, and Ronald A. Nolle, acting in his capacity as trustee of the Oscar A. Nolle Trust (collectively, " Trusts" ), appeal the trial court's judgment in favor of Lindenwood University on its action for a judgment declaring that the proposed redevelopment of the Trusts' property would not constitute a breach of the lease or waste. The Trusts also appeal the trial court's judgment in favor Lindenwood on the Trusts' action seeking damages for breach of the lease and waste. Because Mr. Mayer and Mr. Nolle, who are not licensed attorneys, filed the notice of appeal as trustees on behalf of the Trusts, and thereby engaged in the unauthorized practice of law, we dismiss the appeal.

Factual and Procedural Background

The John J. Stock Trust and Oscar A. Nolle Trust each own an undivided one-half interest in land located at 2000 First Capital Drive (Property) in St. Charles. In December 1956, the Trusts executed a ninety-nine year lease agreement (Lease) with East Grand Realty Co.

The Lease granted the lessee broad authority to use the property " for any lawful purpose . . . for and during the term of Ninety-nine (99) years commencing on the First day of December, and ending on the Last day of November, 2055 . . . ." The Lease provided the lessee:

. . . the sole exclusive right to erect, build, repair, change, alter or otherwise construct such buildings, appurtenances, or other improvements for commercial use as the Lessee in its sole discretion may determine, so long as same are in no instance used for an unlawful purpose, and so long as the value of such improvements shall not be diminished to less than One Hundred Thousand Dollars ($100,000.00) as the result of such work.

In consideration for the leasehold rights, the lessee agreed to pay the Trusts $6,000 per year in rent and to construct " one or more commercial type buildings of sound construction . . .which . . . shall cost an aggregate minimum of One Hundred Thousand Dollars ($100,000.00). . . ." [1]

In regard to forfeiture, the Lease stated that " upon failure by Lessee . . . to keep and perform any of the [] covenants, conditions, agreements, and stipulations herein contained . . . the Lessors may cause a forfeiture of this lease and right of reentry into the demised premises, by serving notice of such forfeiture and right of reentry upon the Lessee . . . ." Such notice " shall state the cause or grounds for which the right of forfeiture and reentry is claimed" and " shall be mailed . . . at least six (6) months before the same shall authorize said forfeiture or reentry by Lessors . . . ."

Between January 1957 and 1960, East Grand Realty removed the then-existing

Page 310

structures from the Property and constructed a 15,000-square-foot commercial building (Original Building). The Original Building housed a Kroger Grocery Store and later Hackmann Lumber Co. After Hackmann Lumber vacated the Property in 2003, the Original Building remained unoccupied.

In December 2006, East Grand Realty assigned the Lease to Lindenwood. The Property was one of sixty parcels of land, totaling over thirty acres, upon which Lindenwood planned to construct a mixed-use development called " University Commons" (Development). Lindenwood's plans included demolishing the Original Building and constructing a new building -- a free-standing, multi-tenant 12,600-square-foot commercial structure (New Building) -- on the Property. In ...


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