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BMJ Partners v. King's Beauty Distributor Co.

Court of Appeals of Missouri, Eastern District, Fourth Division

December 6, 2016

BMJ PARTNERS, Respondent,
v.
KING'S BEAUTY DISTRIBUTOR CO., Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Thomas C. Clark, II

          KURT S. ODENWALD, Judge

         Introduction

         King's Beauty Distributor Co. ("King's Beauty") appeals from the judgment of the trial court entered after a bench trial. King's Beauty leased property owned by BMJ Partners ("BMJ"). BMJ sued for rent and possession under Section 535.010, [1] alleging that King's Beauty breached the lease agreement by failing to pay rent. On appeal, King's Beauty argues that the trial court erred in awarding possession of the property to BMJ because BMJ did not give notice of termination under Paragraph 22(A)(1) of the lease agreement. Because King's Beauty did not present this argument to the trial court, we will not consider this argument on appeal. The trial court's judgment is affirmed.

         Factual and Procedural History

         King's Beauty leased property owned by BMJ in the City of St. Louis. The original lease was for a five-year period beginning in October 2007. After two amendments to the lease agreement, the initial term was extended through December 2017. BMJ filed a petition for rent and possession against King's Beauty in December 2014, alleging that King's Beauty had stopped paying rent and owed $128, 048.96 for rent and other charges allowed by the lease. The trial court conducted a bench trial.

         In its case-in-chief, BMJ called Angela Zimmerly ("Zimmerly"), an employee for the company that managed the property for BMJ. During Zimmerly's testimony, the trial court admitted the lease agreement into evidence. Zimmerly testified that BMJ had stopped paying rent and that the outstanding balance on the date of trial was $168, 422.52.

         After BMJ rested its case, King's Beauty filed a motion for judgment.[2] King's Beauty asserted that BMJ failed to prove that it complied with the termination provision in the lease agreement. Specifically, counsel claimed that Paragraph 22(A) of the lease agreement required a written notice of default before termination. "So, " counsel for King's Beauty concluded, "there [was] no testimony before you, Judge, as to written notice of a default, which is required."

         In addition to its oral argument at trial, King's Beauty submitted a written memorandum of law accompanying the motion for judgment. The memorandum asserted that Paragraphs 22(A) and 33(D) of the lease agreement required a written notice of default, sent by registered or certified mail, before the lease could be terminated. The memorandum concluded that, because BMJ failed to show that written notice of default was given under Paragraph 22(A), BMJ did not prove that it met a condition precedent to terminate the lease.

         The trial court overruled King's Beauty's motion for judgment. The bench trial continued, with King's Beauty presenting evidence in defense and then BMJ offering rebuttal evidence.

         During that rebuttal evidence, the trial court admitted Exhibits 3 and 4. Exhibit 3 was a letter from BMJ's attorney to King's Beauty on March 5, 2014, which was sent via certified mail. The letter informed King's Beauty that it had failed to pay rent, and it demanded payment of the amount then due within ten days. The letter explicitly stated, "This is a Notice of Default." Exhibit 4 was another letter from BMJ's attorney to King's Beauty sent via certified mail and dated June 2, 2014. This letter also demanded payment for the amount then due and stated that it was a "Notice of Default." Both exhibits included the corresponding return receipts from the post office indicating that the letters had been delivered to the leased property. After BMJ's rebuttal evidence, the case was submitted.

         The trial court issued a written judgment finding for BMJ and against King's Beauty. The trial court found that King's Beauty failed to pay the required monthly rent and expenses. The written judgment specifically addressed King's Beauty's contention that BMJ failed to comply with Paragraph 22(A). The trial court found that Exhibits 3 and 4 provided written notice of default under Paragraph 22(A). In conclusion, the trial court awarded BMJ possession of the property and $191, 616.36 in damages, attorney's fees, and interest. This appeal follows.[3]

         Point on Appeal

         King's Beauty's sole point on appeal argues that the trial court erred in awarding BMJ possession of the leased premises. Specifically, King's Beauty contends that BMJ did not provide written notice of termination, which was a condition ...


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