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Tower Properties Co. v. Allen12/19/2000
Appeal From: Circuit Court of Jackson County, Hon. Charles Emmert Atwell
Opinion Vote: Breckenridge, P.J., and Howard, J., concur.
Opinion:
George G. Allen appeals from the judgment entered in favor of Tower Properties ("Tower") and against George Allen as it relates to both Tower's action for unlawful detainer and Mr. Allen's counter-claim for breach of contract following a judge tried case. The trial court awarded Tower damages in the amount of $7,458.69 on the unlawful detainer action, plus an additional sum of $4,500.00 in attorney's fees incurred in defending the breach of contract counter-claim based on an attorney's fee provision in the lease. Mr. Allen claims that the trial court erred in (1) entering a judgment in favor of Tower Properties on Tower's unlawful detainer action; (2) not entering a judgment in Mr. Allen's favor on his counter-claim for breach of contract; and (3) awarding Tower attorney's fees. M.B.T. Partners, L.P. ("MBT") filed a motion to dismiss Mr. Allen's appeal as it relates to MBT and award MBT attorney's fees under Rule 84.19. The motion was ordered taken with the case. MBT also cross-appeals alleging the trial court erred in refusing to award MBT attorney's fees against Mr. Allen under the terms of the lease. The case as it pertains to Mr. Allen's appeal is affirmed in part and reversed in part. MBT's motion to dismiss and award attorney's fees is granted. The judgment as it relates to MBT's cross-appeal is affirmed.
I. Facts
MBT, as owner of an office building known as the Ridge Arcade Building located at 916 Walnut, Kansas City, Missouri, and Mr. Allen entered into a lease agreement on September 10, 1993, wherein Mr. Allen leased from MBT a suite located in the Arcade Building for a term of one year commencing on September 10, 1993 and terminating on September 30, 1994. The lease also included an addendum signed by both parties, which gave Mr. Allen the option to extend the lease for an additional two years, through September 30, 1996. The lease also provided that if Mr. Allen continued to hold the leased premises after the termination of the lease, the tenancy would continue as a month-to-month tenancy at will with all of the other conditions remaining the same.
After entering into the lease, Mr. Allen requested options to extend the lease for three additional years beyond September 30, 1996. Mr. Allen prepared, signed and forwarded a second addendum to the lease to MBT, reciting the terms of the additional options Mr. Allen sought to add to the lease. MBT, by and through its president, modified the second addendum by inserting and requiring a sixty-day notice provision in order to exercise the options for additional years. The amended and modified second addendum was signed and initialed by MBT and then returned to Mr. Allen. Mr. Allen neither objected, responded nor agreed to the amendments and modifications made by MBT to the second addendum.
Tower entered into a contract to purchase the Arcade Building from MBT on September 19, 1996. Tower closed on the purchase of the Arcade Building on October 11, 1996. Shortly thereafter, Tower notified the tenants of the building, including Mr. Allen, of its purchase and told those tenants without leases that they had to vacate the building by December 31, 1996. Mr. Allen, under the belief that a valid lease existed, did not immediately vacate the premises. Although Mr. Allen continued to occupy the premises until December 28, 1996, he stopped paying rent after September 1996.
Tower filed a petition initiating an action against Mr. Allen for unlawful detainer on December 16, 1996. Mr. Allen voluntarily vacated the premises on Decembe
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