DEBORAH A. STRATMAN and                      )
TIMOTHY M. STRATMAN,                         )
                                             )
       Plaintiffs-Respondents,               )
                                             )
       vs.                                   )               No. SD32679
                                             )
HAZEL I. WAGNER,                             )               Filed: April 29, 2014
                                             )
       Defendant-Appellant.                  )

             APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY

                         Honorable Tracy L. Storie, Senior Judge

AFFIRMED

       The trial court granted Deborah A. and Timothy M. Stratman (“Lessors”)

summary judgment against Hazel I. Wagner (“Tenant”) for immediate possession of a

home occupied by Tenant on Lessors’ claim of unlawful detainer. Tenant appeals, and

challenges the trial court’s grant of summary judgment in two points: (1) Lessors “did

not plead or prove that [a] condition [permitting early termination of Tenant’s lease

agreement] had been met,” and (2) there was a genuine issue of material fact that

precluded judgment for Lessors as a matter of law because the language “if either

Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60) continuous


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days” is “ambiguous” and “supports an inference” Lessors were able to terminate

Tenant’s lease agreement “only if either lessee moved out of the property.” We deny

both of Tenant’s points, and affirm the trial court’s grant of summary judgment in favor

of Lessors. For clarity of analysis, we address Tenant’s second point first.

                              Facts and Procedural History

       In a two-count complaint filed in the associate circuit division on February 17,

2012, Lessors sought immediate possession of a home occupied by Tenant under a lease

agreement entitled House Lease. Lessors pled that (1) they owned the home subject to

the House Lease, (2) Tenant “leased the [home] from [Lessors] pursuant to the House

Lease,” (3) the term of the House Lease was “[t]his Lease is for the lifetimes of Leonard

E. Wagner and Hazel I. Wagner, provided that it may be terminated by Lessor if either

Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60) continuous days

or upon breach of this agreement by either of them,” (4) “Leonard E. Wagner passed

away on December 1, 2010, and as such, he has not lived [in the home] since that date,”

(5) as a result, Lessors “are entitled to terminate the House Lease pursuant to its terms,”

(6) Lessors “notified [Tenant] that the House Lease was being terminated and that

[Tenant] would need to move from the property on or before May 1, 2011,” and (7)

Tenant “continues to reside [in the home], and has continuously failed and refused to

move from the [home] in spite of [Lessors’] demand.” In her answer, Tenant admitted

the factual averments in numbered paragraphs (1), (4), and (7), admitted that Tenant and

Leonard E. Wagner executed the House Lease, stated that “the House Lease speaks for

itself,” denied that Lessors were entitled to terminate the House lease, and admitted that




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Lessors “sent certain letters to [Tenant].” The House Lease was attached to the

complaint, and shows it was executed in October 2008.

        Lessors subsequently dismissed Count I, which left Count II (unlawful detainer of

the home) as Lessors’ sole claim.

        Following a trial to the court, an associate circuit judge entered judgment in favor

of Tenant against Lessors in June 2012.

        Lessors then filed an application for a trial de novo, and subsequently filed a

motion for summary judgment. Lessors and Tenant submitted Lessors’ motion for

summary judgment on the pleadings, affidavits, exhibits, and memorandum contained in

the court file, and, on February 26, 2013, the circuit court entered judgment in favor of

Lessors for immediate possession of the home on Lessors’ claim of unlawful detainer.

        Based on Lessors’ statement of uncontroverted material facts and Tenant’s

response to that statement, the following facts are uncontroverted in this case:

        1. Lessors are the “record owners” of the home subject to the House Lease.

        2. Tenant and Leonard E. Wagner executed the House Lease in 2008.

        3. Paragraph 1 of the House Lease states “[t]his Lease is for the lifetimes of

Leonard E. Wagner and Hazel I. Wagner, provided that it may be terminated by Lessor if

either Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60)

continuous days or upon breach of this agreement by either of them.”

        4. Leonard E. Wagner “passed away on December 1, 2010, and . . . he has not

lived [in the home] since that date.”

        5. Tenant received a letter from Lessors dated January 20, 2011 that stated in

part:




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           [W]e are letting you know we are ending any leasing relationship as our
           plans for the house and property have had to change. We believe the
           present situation is jut too detrimental to continue as it is. We will shut the
           house and property down as of May 1, 2011, including all utilities, so we
           can plan on starting the preparation of it’s [sic] eventual disposition.
                  This letter will also serve as notice from the date of January 20,
           2011 of more than 90 days of an implied surrender to end the tenancy of
           any landlord-tenant relationship between you and ourselves by May 1,
           2011.

           6. Tenant “did not move from [the home] on or before May 1, 2011,” and

“continues to reside [in the home], and has continuously failed and refused to move from

the [home] in spite of demand by [Lessors].”

                                            Standard of Review

           Under Rule 74.04(c),1 a moving party is entitled to summary judgment if the

summary judgment record shows “that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c));

ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation,

854 S.W.2d 371, 380-82 (Mo. banc 1993). A “genuine issue”:

           exists where the record contains competent materials that evidence two
           plausible, but contradictory, accounts of the essential facts. A “genuine
           issue” is a dispute that is real, not merely argumentative, imaginary or
           frivolous. Where the “genuine issues” raised by the non-movant are
           merely argumentative, imaginary or frivolous, summary judgment is
           proper.

ITT, 854 S.W.2d at 382.

           In reviewing whether the trial court properly granted summary judgment, we:

           review the record in the light most favorable to the party against whom
           judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc
           1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). Facts set forth
           by affidavit or otherwise in support of a party’s motion are taken as true
           unless contradicted by the non-moving party’s response to the summary
           judgment motion. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75
1
    All references to rules are to Missouri Court Rules (2014).


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        (Mo. banc 1978); Dietrich v. Pulitzer Publishing Company, 422 S.W.2d
        330, 333 (Mo.1986). We accord the non-movant the benefit of all
        reasonable inferences from the record. Martin v. City of Washington, 848
        S.W.2d 487, 489 (Mo. banc 1993); Madden v. C & K Barbecue Carryout,
        Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).
                Our review is essentially de novo. The criteria on appeal for
        testing the propriety of summary judgment are no different from those
        which should be employed by the trial court to determine the propriety of
        sustaining the motion initially. E.O. Dorsch Electric Co. v. Plaza Const.
        Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary
        judgment is purely an issue of law. As the trial court’s judgment is
        founded on the record submitted and the law, an appellate court need not
        defer to the trial court’s order granting summary judgment. Elliott v.
        Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367
        S.W.2d 575, 578 (Mo.1963).

Id. at 376.

                        Point II – Summary Judgment Was Proper

        In her second point, Tenant claims there was a genuine issue of material fact that

precluded judgment for Lessors as a matter of law because the language “if either

Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60) continuous

days” is “ambiguous” and “supports an inference” Lessors were able to terminate the

House Lease early “only if either lessee moved out of the property.” We reject this point

because we find that the language at issue is not ambiguous, and authorized Lessors to

terminate the House Lease early following Leonard’s death.

                               Applicable Legal Principles

        In order to be entitled to summary judgment on their claim Tenant unlawfully

detained the home, Lessors were required to prove as a matter of law that Lessors were

“lawfully possessed” of the home, and that Tenant “unlawfully detained” the home.

Section 534.200, RSMo 2000.




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        We review:

        the language of a lease de novo in order to determine the parties’ intent.
        Brittany Sobery Family Ltd. Partnership v. Coinmach Corp., 392 S.W.3d
        46, 50 (Mo.App.2013). When interpreting leases, this Court applies the
        rules of construction governing contracts. Id. First we examine the plain
        and ordinary meaning of the language used in the lease to determine if it
        clearly addresses the disputed matter. Id. An ambiguity must come from
        within the four corners of the contract; it cannot be created by the use of
        extrinsic, or parol, evidence. ATC Co., Inc. v. Myatt, 389 S.W.3d 732, 735
        (Mo.App.2013). . . . [I]f the language of a lease is ambiguous, courts will
        look to the language in the context of the entire lease and parol evidence to
        ascertain the parties’ intent. Coinmach, 392 S.W.3d at 50. A contract is
        ambiguous or unclear if its language is reasonably susceptible to more
        than one interpretation giving the words their plain and ordinary meaning
        as understood by the average, reasonable person. Id. Once an ambiguity
        is determined to exist, the parties’ intent can be ascertained through the
        use of extrinsic evidence. ATC Co., 389 S.W.3d at 735–36. Resolution of
        an ambiguity through the use of extrinsic evidence is a question of fact.
        Id. at 736.

Central Stone Co. v. Warning, 412 S.W.3d 908, 912 (Mo. App. E.D. 2013).2 Further,

our Supreme Court has stated:

        the Court must ascertain the intent of the parties by looking at the words of
        the contract and giving those words their plain, ordinary, and usual
        meaning. State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 859–860
        (Mo. banc 2006). The “intent of the parties . . . is determined based on the
        contract alone unless the contract is ambiguous.” Trimble v. Pracna, 167
        S.W.3d 706, 714 (Mo. banc 2005) (citing J.E. Hathman, Inc. v. Sigma
        Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973)).
                “[A] contract is only ambiguous, and in need of a court’s
        interpretation, if its terms are susceptible to honest and fair differences.”
        Schneider, 194 S.W.3d at 860. “A contract is not ambiguous merely
        because the parties disagree as to its construction.” Id. “An ambiguity
        exists when there is duplicity, indistinctness, or uncertainty in the meaning
        of the language in the policy. Language is ambiguous if it is reasonably
        open to different constructions.” Seeck v. Geico General Ins. Co., 212
        S.W.3d 129, 132 (Mo. banc 2007) (quoting Gulf Ins. Co. v. Noble
        Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997)).


2
  In her brief, Tenant states that “[w]hether the language in the House Lease is ambiguous is a question of
fact[.]” Tenant is mistaken. Although resolution of an ambiguity through the use of extrinsic evidence is a
question of fact, “[t]he issue of whether a contract is ambiguous is a question of law.” Smith v. Taylor-
Morley, Inc., 929 S.W.2d 918, 921 (Mo. App. E.D. 1996).


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Ethridge v. TierOne Bank, 226 S.W.3d 127, 131 (Mo. banc 2007).

                                          Analysis

       In this case, the House Lease created a lease of the home for the “lifetimes of

Leonard E. Wagner and Hazel I. Wagner, provided that it may be terminated by Lessor if

either Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60)

continuous days.” The plain and ordinary meaning of the phrase “may be terminated by

Lessor if either Leonard E. Wagner or Hazel I. Wagner does not live there for sixty (60)

continuous days” is clear and is not ambiguous. The phrase means what it says – i.e.,

Lessors have the right at their option to terminate the House Lease early if either Leonard

or Tenant “does not live there for sixty (60) continuous days.” Under the language used,

the reason Leonard or Tenant “does not live there” is irrelevant – it is sufficient if one in

fact “does not live there” for the required period.

       The uncontroverted facts in this case include the facts Leonard “passed away on

December 1, 2010, and . . . he has not lived [in the home] since that date.” These facts

establish as a matter of law that Lessors were authorized to terminate the House Lease

effective May 1, 2011, and, in combination with the other uncontroverted facts in the

case, establish as a matter of law the elements of Lessors’ action for unlawful detainer –

i.e., that Lessors “lawfully possessed” the home and Tenant “unlawfully detained” the

home – and Lessors’ right to summary judgment.

       Tenant’s second point is denied.

Point I – Condition Giving Lessors Right To Terminate House Lease Early Was Properly
                                   Pled and Proved




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                                          Analysis

       In her first point, Tenant argues that Lessors “did not plead or prove that the

condition [permitting early termination of the House Lease] had been met.”

       The short answer to Tenant’s first point is that Lessors specifically pled in their

Verified Complaint (1) the language of the House Lease that permits early termination of

the lease “if either Leonard E. Wagner or Hazel I. Wagner does not live there for sixty

(60) continuous days,” (2) that Leonard E. Wagner had not lived in the home since his

death on December 1, 2010, and (3) that, as a result, Lessors were entitled to terminate

the House Lease. In addition, as explained in our discussion of Tenant’s second point,

the uncontroverted facts in the case prove that the condition permitting early termination

of the House Lease was met, and Lessors are entitled to judgment as a matter of law.

Tenant’s first point is denied.

       The trial court’s judgment granting summary judgment to Lessors is affirmed.


Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., C.J. – Concurs




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