 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
Bl\/IJ PARTNERS, ) No. ED103033
)
Respondent, ) Appeal from the Circuit Court
) ofthe City of St. Louis
vs. )
) Honorable Thomas C. Clarlc, II
KING’S BEAUTY DISTRIBUTOR CO., )
)
Appellant. ) FILED: December 6, 20l6

Introduction

King’s Beauty Distributor Co. (“King’s Beauty”) appeals from thejudgment 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,l 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)(l) 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

 

l All Statutory references are to RSl\/lo (2000), unless otherwise noted.

 

Factual and Procedural Historv

 

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 BM]. 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 BM.I rested its case, King’s Beauty filed a motion f`orjudgment.2 King’s Beauty
asserted that BMJ failed to prove that it complied with the termination provision in the iease
agreement Specifically, counsel ciaimed 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, iudge, 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_iudgment. 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 maif, before the lease could be terminated The memorandum concluded that, because

 

2 Actually, counsel for King’s Beauty purported to move for directed verdict ln a bench triai, however, there is no
jury verdict to direct, So such a motion was improper. When a party improperly moves for a directed verdict in a
bench trial, we properly construe the motion as one for judgment under Mo. R. Civ. P. 73.0l(b). Royal Forest
Condo. Owners’s Ass’n v. Kiigore, 416 S.W.Bd 370, 372 n.l (Mo. App. E.D. 2013).

2

 

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 iease.

The trial court overruled King’s Beauty’s motion forjudgment. The bench trial
continued, with King’s Beauty presenting evidence in defense and then BM.T 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. Af`ter
BMJ’s rebuttal evidence, the case was submitted

The trial court issued a writtenjudgment 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 writtenjudgment 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). ln conclusion, the trial court awarded BMJ possession

of the property and 3191,616.36 in damages, attorney’s fees, and interest. This appeal follows3

 

3 We note that, on appeal, a non-attorney managing partner of BMJ attempted to file the respondent’s brief. BMJ is
a limited partnership Limited partnerships, as statutory entities, may only appear in Missouri courts through a
licensed attorney. Navlor Senior Citizens Hous.. LP v. Sides Constr. Co.. 423 S.W.$d 238, 246 (Mo, banc 2014).
Thus, BM.T’s brief was struck from the reeord.

 

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 Specifieally, King’s Beauty contends that BMJ did not
provide written notice of termination, which was a condition precedent to terminating the lease
under Paragraph 22(A)(l) of the lease agreement

Standard of Review

Our review of a court-tried case is governed by the principles set forth by the Supreme
Court in Murphy v. Carron, 536 S.W.Zd 30, 32 (l\/Io. banc i976). We will affirm thejudgment
of the trial court unless there is no substantial evidence to support it, it is against the weight of
the evidence, or it erroneously declares or applies the law. ida We defer to the trial court’s
factual findings if they are supported by substantial evidence, but we review the trial court’s
legal conclusions de novo. Roval Forest Condo. Owners’s Ass’n v. Kilgore. 416 S.W.3d 3?0,
373 (Mo. App. E.D. 2013). We review the language of a lease agreement de novo. B_ritt_ariy
Soberv Familv Ltd. v. Coinmach Corp.. 392 S.W.$d 46, 50 (Mo. App. E.D. 2013).

Discussion
King’s Beauty argues that the trial court erred in awarding BMJ possession of the
property because BMJ did not comply with a condition precedent to terminate the lease. That
condition precedent, King’s Beauty asserts, was the requirement in Paragraph 22(A)(1) of the
lease agreement that requires written notice of termination Even assuming arguendo that BM]

needed to prove compliance with Paragraph ZZ(A)(l) to succeed on its claim for rent and

 

possession,4 King’s Bcauty did not make this argument before the trial court so we will not
consider it on appeal.
Paragraph 22 of the lease agreement states, in relevant part:

22. Default: This Lease is made on condition also that if any one or more of
the following events (herein referred to as an “event of default”) shall happen:
A. Lessee shall default in the due and punctual payment of the rent or
any additional rent payable hereunder, and such default shall continue for
ten (lO) days after receipt of written notice from Lessor;

Then, in such event, Lessor shall have the right at its election, then or at
any time thereafter, and while such event of default shall continue, and
without limiting Lessor in the exercise of any other right or remedy Lessor
may have on account of such default, either:

(l) To give Lessee written notice of the termination of this
Lease on the date of such notice or on any later date specified
therein; and that within ten (10) days of any such notice, Lessee’s
right to possession of the Premises shall cease and this Lease shall
thereupon be terminated; or

When interpreting lease agreements, we follow the rules of construction governing

contracts Brittanv Soberv Familv Ltd.. 392 S.W.3d at 50. We determine whether the plain

 

language of the agreement clearly addresses the issue at hand. TAP Pharm. Prods. Inc. v. State
Bd. of Pharmacy, 238 S.W.?>d 140, 143 (Mo. banc 2007). if the language is clear and addresses

the disputed matter, the inquiry ends. Ic_l.

 

4 While we do not reach the merits, we are skeptical about King’s Beauty’s argument BMJ did not sue King’s
Beauty for breach of contract but pursued an action for rent and possession under Section 535.010. To prove a case
for rent and possession, the “Landlord need only show that Tenant failed to pay rent and that Landlord has made a
demand for that rent.” Ellsworth Breihan Blda. Co. v. Teha Inc., 48 S.W.$d 80, 82 (Mo. App. E.D. 2001) (eiting
Section 535.020). Seetion 535.020 (Cum. Supp. 2012) requires the allegations in a petition for rent and possession
to state: Hthe terms on which the property was rented, the amount of rent due, that a demand for unpaid rent was
made, that payment has not been made, and a description of the leased property.” Northwest Plaza L.L.C. v.
Michael-Glen Inc., 102 S.W.3d 552, 558 (Mo. App. E.D. 2003). The plain language of Sectiou 535.020 does not
require a Landlord to terminate a lease before suing for rent and possession King’s Beauty’s brief on appeal
assumes, but does not explain why, BMJ was required to prove its compliance with Paragraph 22(A)(l)’s notice-of-
termination provision as an element of its claim for rent and possession We do not see how King’s Beauty carried
its burden to demonstrate trial-court error. E Scheclt indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 717 (Mo.
App. E.D. 20l4) (“The trial court’s judgment is presumed valid, and the burden is on the appellant to demonstrate its
ineorrectness.” (internal citation omitted)).

 

 

 

The plain language of Paragraph 22 clearly contemplates two steps to terminate the lease
and regain possession: (1) written notice of default under Paragraph 22(A) and then_if the
lessee is still in default ten days later_(2) written notice of termination under Paragraph
22(A)(l). Additionally, Paragraph 33(D) of the lease agreement requires all notices to be in
writing and deems notice properly given if sent by registered or certified mail to the leased
property with postage prepaid and return receipt requested King’s Beauty argued at trial that
BMJ did not provide notice of defiaer under Paragraph 22(A), but there was no argument at trial
about the notice of termination under Paragraph 22(A)(1), which is King’s Beauty’s only
argument on appeal5 Further, the trial court did not address Paragraph 22(A)(l) in its judgment

Absent some constitutional imperative not present here, it is not the role of this Court to
grant relief on arguments that were not presented to or decided by the trial court Barkley v.
McKeever Enterprises` Inc., 456 S.W.3d 829, 339 (Mo. banc 2015). This rule applies regardless
of the merits of the new argument. § “Appellate courts are merely courts of review for trial
errors, and there can be no review of a matter which has not been presented to or expressly
decided by the trial court.” § (quoting In re Adoption of C.M.B.R.. 332 S.W.3d 793, 814 (Mo.
banc 2011)). We will not convict the trial court of error on an issue that was not before it. w

v. Moor'e 332 S.W.3d 864, 867(1\/10. App. S.D. 2011).

 

Counsel for King’s Beauty suggests that his argument before the trial court encompassed
both notice of default and notice of termination Because counsel focused on the lack of a notice
of default in oral argument with the trial court, he argues that he never reached the notice-of-
terminationrequirement We are not persuaded King’s Beauty also filed a memorandum of law

in addition to orally arguing the legal issues before the trial court This memorandum similarly

 

5 At oral argument, counsel for King’s Beauty was also unable to show us where, in the record, Paragraph 22(A)(1)
was argued at trial.

 

failed to argue that_even if notice of default was given under Paragraph 22(A)_notice of
termination was not given under Paragraph 22(A)(l). Instead, the memorandum’s argument
rested entirely on the lack of a notice of default under Paragraph 22(A). King’s Beauty cannot
complain of trial-court error when it had every opportunity to present Paragraph 22(A)(i) to the
trial court, and it failed to do so. § My, 456 S.W.3d at 839.

King’s Beauty’s failure to argue BMJ’s compliance with requirements of Paragraph
22(A)(l) before the trial court precludes us from considering this argument on appeal. Because
BMJ’s alleged non-compliance with Paragraph 22(A)(l) is the only argument King’s Beauty
raises on appeal, we find no trial-court error. Point denied.

M

The judgment of the trial court is affirmed

K\ja"r s. 0DENWALD, wage

.lames M. Dowd, P.J., concurs
Gary M. Gaertner, Jr., J., concurs.

 

