Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of the City of St. Louis Honorable
David L. Dowd
M. Hess, Chief Judge.
Parking Holdings, LLC and Tucker Parking Equities, LLC
(collectively "Tucker") appeals from the judgment
of the Circuit Court of the City of St. Louis in favor of
Central Parking System of Missouri, LLC
("Central"). This case arises out of a dispute
between the parties over who is responsible for the expenses
relating to the near-collapse of a parking garage owned by
Tucker and operated and leased by Central. The trial court
determined that Tucker was responsible for the expenses, and
granted Central damages in the amount of $4, 161, 424.76 for
costs Central paid to evacuate and stabilize the parking
garage. We affirm.
evidence, viewed in the light most favorable to the trial
court's judgment, is as follows.
1998, Central leased a multilevel parking garage located
at 306-310 North Tucker Blvd., St. Louis, Missouri (the
"Garage") from 310 North Tucker, LLC
("Predecessor"). The Garage was built in 1967, and
was constructed using cast-in-place concrete slabs supported
by a button-head post-tensioning ("PT") system. The
button-head PT system design was commonly used during the
time of the Garage's construction, but has since become
entered into a Restated Lease with Predecessor in April 2000
(the "Lease"). The Lease provided that Central was
solely responsible for maintenance and structural repairs to
the Garage, but contained an exception for repairs
necessitated by normal wear and tear. Specifically, Section
8(a) of the Lease stated that:
Tenant shall, throughout the term of this lease, maintain the
Premises (and all structural components thereof) . . . in
good order, condition and repair, and Tenant shall not commit
or suffer any waste with respect thereto. Except as
specifically set forth in this lease, Tenant shall promptly
make all repairs, interior and exterior, structural and
nonstructural, ordinary as well as extraordinary, foreseen as
well as unforeseen, necessary to keep the Premises in good
and lawful order and condition (normal wear and tear
and damage from fire or other casualty excepted) . .
. . (Emphasis added).
addition, Section 15(a), governing the expiration of the
Lease, also included a wear and tear exception, requiring
Central to surrender the Garage to Predecessor at the
termination or expiration of the Lease "broom clean, in
good order and condition, ordinary wear and tear and damage
from casualty and fire excepted . . . ." The Lease also
included an "as is" clause in Section 30, stating
[Central] has examined [the Garage] and is fully familiar
with the physical condition thereof, and [Central] accepts
the same "AS IS" on the Commencement Date. Except
as expressly set forth to the contrary in this lease,
[Central] assumes all risks, if any, resulting from any
latent or patent defects in [the Garage] . . . .
[Predecessor] made no representation or warranties in respect
of the physical condition [of the Garage] . . . .
2007, Tucker purchased the Garage from Predecessor for $4,
125, 000. Tucker did not inspect the condition of the
Garage's PT system when it purchased the Garage.
March 2013, Tucker hired an engineering firm, Carl Walker,
Inc. ("Carl Walker") to provide an appraisal of the
Garage in order to determine repairs Central might be
required to make prior to the Lease's expiration on March
31, 2015. In its report, Carl Walker determined that the
Garage's concrete slabs showed signs of "widespread
deterioration resulting from corrosion of the embedded
reinforcing steel" and that there was approximately 21,
500 square feet of delaminated concrete in the Garage. Carl
Walker advised that additional testing was necessary to
determine the condition of the PT system, and it recommended
a budget of $2, 470, 000 for concrete repairs, exclusive of
any repairs to the PT system that might be required. Tucker
provided Central with a copy of the Carl Walker report
approximately the same time, Central hired its own
engineering firm, Walker Restoration Consultants
("Walker Restoration") to investigate the condition
of the Garage's PT system. Walker Restoration's
principal, Dan Moser, performed excavations at the Garage in
order to visually inspect the PT system. Mr. Moser produced a
report ("Moser 2013 Report") which estimated that
55% of the Garage's joist PT tendons were either broken
or under partial tension. The Moser 2013 Report estimated a
budget of $2, 276, 000 was necessary to repair the PT system.
This put the combined estimate of repairs at approximately
$4, 800, 000. Central did not disclose the full Moser 2013
Report to Tucker, despite Tucker's repeated requests.
2013, Central offered to pay Tucker $1, 483, 500 in exchange
for a release from its obligations under the Lease to repair
the Garage. Tucker rejected this offer, as well as
Central's later offer in 2014 to enter into a new five
year lease that would shift the obligations of structural
maintenance and repair onto Tucker.
March 2014, Central selected Tarlton Corporation
("Tarlton") to perform repairs on the Garage,
including PT system repairs, at a bid price of $2, 892, 000.
On July 3, 2014, while in the beginning stages of repairing
the Garage, Tarlton notified Walker Restoration that some of
the PT floor joists that supported the Garage had cracks.
Tarlton also informed Walker Restoration that it heard a
series of small pops or explosions that it believed indicated
that the joist PT systems were fracturing. Upon this
information, Walker Restoration determined that the joists
were at risk of collapsing and had to be repaired, which
required the Garage to be closed to car traffic. A few days
later, additional cracking in the joists was observed and, on
Walker Restoration's recommendation, Central completely
evacuated the Garage and closed it off from the
public. Over the following weeks, Tarlton, at Central's
request, began installing a shoring system in the Garage that
was composed of thousands of wood and metal support columns.
The shoring system prevented the Garage from collapsing and
provided structural support for Tarlton to make repairs to
the PT system. Central notified Tucker of the emergency and
kept Tucker informed of its plan to stabilize and repair the
September 2014, Walker Restoration recommended to Central
that the damage to the PT system was so extensive that a
steel beam support system was required to be installed
throughout the Garage. Walker Restoration estimated that
installing such a system could cost $16, 080, 000 or more. On
September 5, 2014, Central represented to Tucker that it
would be moving forward with the steel beam repair plan.
December 2014, both Tucker's engineers and Central's
engineers conducted destructive testing at the Garage to
investigate the PT system and determine the cause of its
failure. Following the tests, Central expressed to
Tucker that it did not think it was responsible for the PT
system repairs under the Lease because its engineers had
concluded that the cause of the PT failure was due to
ordinary wear and tear.
March 9, 2015, Central and Tucker both filed suit against
each other. In its petition, Central sought a declaration
that it was not responsible under the Lease for the PT system
repairs. Central also filed claims against Tucker for breach
of lease, and "unjust enrichment/quantum meruit."
Tucker, in its petition, sought a declaration that Central
was responsible for the PT system repairs, and filed claims
against Central for breach of lease, waste, and negligence.
The trial court later consolidated the actions.
March 25, 2015, Tucker filed a motion for a temporary
restraining order and preliminary injunction. In its motion,
Tucker argued that the costs of the shoring system
constituted "structural repairs" that fell within
Central's obligations under the Lease. Accordingly,
Tucker argued, Central was responsible for continuing to
maintain the shoring system and pay the ongoing expenses
associated with it. The following day, the trial court heard
oral argument on Tucker's motion and granted it in part,
enjoining Central and Tarlton from removing or altering the
shoring system. The trial court did not rule on which party
was responsible for paying the costs of the shoring system.
March 31, 2015, the Lease term ended and Central vacated the
Garage. However, the shoring system was kept in place and
monitored by Tarlton.
parties agreed to bifurcate the case. In the first phase, the
parties agreed to present evidence on Tucker's motion for
preliminary injunction in order to determine both the cause
of the PT system failure and which party was responsible for
the expenses arising from the failure. In the second phase,
the trial court was to conduct a damages hearing to determine
the damages to be awarded to the party that prevailed in the
28, 2015, as part of the first phase, the trial court held an
evidentiary hearing on Tucker's motion for preliminary
injunction. Following the hearing, the trial court issued its
judgment on October 13, 2015, in which it determined that
Tucker was responsible for the costs and expenses associated
with the PT system failure because the failure occurred due
to normal wear and tear. A summary of the trial court's
findings of fact and conclusions of law is provided below:
• The PT system failure constituted normal deterioration
for a concrete parking structure built in 1967 using a
button-head PT system.
• The button-head PT system construction joints were
vulnerable to water penetration. Chloride-laden water,
brought into the Garage over the years by vehicles entering
the Garage, had slowly degraded the PT tendons, ultimately
causing the PT system to fail in July 2014.
• The Garage, at the time of the PT system failure, had
survived well-beyond its design life.
• The PT system did not fail due to neglect by Central
in repairing cracked delaminations over the stressing pockets
in a timely matter. Tucker did not know when the
delaminations appeared, and did not prove that Central failed
to repair the delaminations in a timely matter.
• The PT system failed at multiple locations where the
top side concrete "was pristine, " which
demonstrated that neglected or cracked concrete was not the
cause of the PT system failure.
• The PT system is beyond repair, and Section 8(a) of
the Lease did not contemplate a replacement or a rebuild of
• Central did not "waive" its rights under the
Lease by agreeing to fix the PT system before it knew the
extent and cause of the PT system's damage.
January 21, following the evidentiary hearing for the second
phase of the trial, the trial court issued its judgment
regarding the amount of damages Tucker owed Central. A
summary of the trial court's findings of fact and
conclusions of law is provided below:
• Central notified Tucker immediately when it became
aware of the cracking in the Garage's joists in July
2014, and informed Tucker of its plan to repair the Garage.
Central gave Tucker detailed updates on the work, and Tucker
was fully aware of the magnitude of ...