National Garment Co. v. City of Paris

GUNN, Judge. An action in forcible entry and detainer under § 534.020, RSMo 1978 is the subject matter of this appeal. Plaintiff-appellant is the National Garment Company; the City of Paris (City) and Gates Energy Products, Inc. (Gates) are the defendants-respondents and alleged offenders in the plaintiff’s cause of action.1 At the close of plaintiff’s evidence, the trial judge directed a verdict in favor of the City and Gates. The Eastern District of the Missouri Court of Appeals affirmed the judgment. This Court granted application to transfer, and we, too, affirm the judgment. The underlying issue is whether there was sufficient evidence of forcible entry and detainer proven by plaintiff to submit the case to the jury. The guiding precept in reviewing the propriety of a directed verdict is that the evidence and reasonable inferences therefrom are to be considered in the light most favorable to the appellant. Matter of Estate of Passman, 537 S.W.2d 380, 385 (Mo. banc 1976). Germ seeds for this litigation were planted in November 1971 when the plaintiff and the City entered into an agreement and lease for the construction and use of a manufacturing facility by plaintiff in the manufacture of children’s sportswear. The transaction was authorized pursuant to §§ 100.010 to 100.200, RSMo 1969 which permitted certain cities to issue general revenue bonds for the construction of manufacturing and industrial plants to be leased to private individuals or corporations. The main purpose of the plant constructed and [517] leased to plaintiff was to provide jobs for persons living in and around the City. And, indeed, for a time the purpose of the plant was fulfilled. Upon completion of the facility, plaintiff moved in and commenced the manufacture of children’s sportswear, employing about 100 persons. However, in September 1979, plaintiff decided to cease its manufacturing operations at the Paris plant, citing economic reasons for its decision. Plaintiff’s president thereupon sent a letter to the City advising it of its decision to terminate operations and requesting aid in locating a new tenant. And plaintiff did make effort to secure a surrogate tenant but was unsuccessful. Shortly before November 1979, plaintiff removed from the plant all of its sewing machines, fixtures and equipment, excepting only an electrical feed rail, air compressor and air hose system. By January 1980, everything had been removed, and the building was vacant. In keeping with the lease, plaintiff did, however, continue to pay taxes, maintain insurance and performed some repair work, principally repair to a leaking roof. It also had a truck driver employee from another plant located in Fayette stop by from time to time to look into the vacant building. On January 21, plaintiff advised the City that it had been unsuccessful in its efforts to secure a substitute tenant but gave assurance that it would continue monthly rental payments and maintain the facility. Plaintiff also suggested that the City should have its police periodically check the vacant premises, which was done. On January 31, 1980, the City’s mayor asked for and received keys to the building. This action was followed by a February 26, 1980 letter in which the City advised plaintiff that it was terminating the lease as of March 10, 1980 under a default provision providing for termination if “tenant shall permit the plant to be vacant or deserted for a period of sixty (60) days.” Upon receipt of the notice, plaintiff’s president contacted an attorney and upon advice of counsel, had some property consisting of chairs, tables, a sewing machine and empty boxes moved into the plant. Sometime in March, the City notified the plaintiff that the equipment had been moved and was stored in City Hall. The City had the locks changed on March 25, 1980 and entered into a lease with Gates, which took possession of the plant on March 27, 1980. Plaintiff argues that the trial court erroneously granted the City’s motion for a directed verdict, maintaining that there is considerable evidence in the record to create a jury question on the issue of possession — a critical factor in forcible entry and detainer. Duffy v. Clark Oil & Refining Corp., 575 S.W.2d 888 (Mo.App.1978). Plaintiff suggests the following on its part as evidence of intent to retain possession of the plant and thereby form the basis and justification for its cause of action: periodic inspection of the premises, payment of rent, making repairs, heating the facility, maintaining insurance and storage of various items. Mostly, there is a dearth of recent case law on the subject of forcible entry and detainer, so it is necessary from time to time to dust off and hark back to some venerable old decisions for guidance. But first, it is essential to note that the foundation brick for the action under consideration is possession. Forcible entry and detainer is a possessory action, with it being immaterial whether the party being forcibly dispossessed had title or rightful possession. Lindsay v. McLaughlin, 311 S.W.2d 148, 152 (Mo.App.1958). And, generally, the possession issue is one of mixed law and fact. Duffy v. Clark Oil & Refining Corp., 575 S.W.2d at 888-89. This is so though the conclusion reached in this case is that the trial judge correctly ruled on the possession issue as a matter of law. Thus, it is appropriate to note that determination of what constitutes possession is a matter of law whereas whether the requisite acts have been accomplished is a factual matter. Underwood v. City of Caruthersville, 197 Mo. App. 358, 194 S.W. 1090, 1091 (1917). In this case no dispute of the facts appears, so [518] the trial court had the issue before it of whether the facts presented constituted possession by the plaintiff. It concluded that plaintiff was not in possession under the facts, and it was correct in arriving at that conclusion. It is § 534.200, RSMo 1978 that sets forth the nature of plaintiff’s case and the proof which it must make: That it “... was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same.” And always the plaintiff in the action under consideration must prove every element of its case. Massey v. Goforth, 305 S.W.2d 894, 897 (Mo.App.1957). Plaintiff has failed as a matter of law to prove its case. It was neither in possession of the premises nor was the defendant’s entry unlawful. The possession by plaintiff essential to a forcible entry and detainer action contemplates acts by it indicating an intention to hold possession to itself. Bartlett v. Draper, 23 Mo. 407, 409 (1856). The possession must be manifested unequivocally, Underwood v. City of Caruthersville, 194 S.W. at 1092, and bona fide, DeGraw v. Prior, 60 Mo. 56, 58 (1875). The record is destitute of the requisite qualities. Generally, the actual possession necessary to an action in forcible entry and detainer consists of exercising acts of dominion over the land in dispute and in making the ordinary use of it, and it may consist of, and be shown by, a great number and combination of acts, the character of which must necessarily vary with the situation of the parties, the character of the land and the purpose to which it is adapted. 36A C.J.S. Forcible Entry and Detainer § lib (1961). In Dyer v. Reitz, 14 Mo.App. 45 (1884), possession was defined as “a real dominion, capable of devoting the property to some beneficial use, however small, by him who enjoys it.” Id. at 46. Considering the situation of the parties, the character of the property and the purpose to which it was adapted, it cannot be said that plaintiff’s acts evidenced an intent to maintain possession. Most of the acts performed by it were contractual obligations imposed by the terms of the lease. The property in question was a building suitable for use as a manufacturing plant. The acts performed by plaintiff evinced no intent on its part to further utilize the building in that capacity. The storage of “equipment” in the Paris facility was upon “advice of counsel” and falls squarely within those acts condemned as performed solely to gain an advantage in litigation. That action taken to achieve some advantage in the litigative process does not equate to the requisite “possession” for success by a plaintiff in forcible entry and detainer. It is at best a sham, more or less a “scrambling possession” and is certainly not the bona fide possession required. Hafner Mfg. Co. v. City of St. Louis, 262 Mo. 621, 172 S.W. 28, 34 (1914); Underwood v. City of Caruthersville, 194 S.W. at 1092. It is further noted that plaintiff presented no evidence indicating any intention to maintain possession in itself. To the contrary, the evidence showed that it had ceased its operation, removed all useful equipment, and abandoned the purpose for which it contracted to take possession. It was not exercising the type of dominion over the facility that was capable of devoting it to some beneficial use. Dyer v. Reitz, 14 Mo.App. at 46. Instead, it is apparent that plaintiff abandoned the facility and ceased its operation. Thus, no forcible entry occurred. Lindsay v. McLaughlin, 311 S.W.2d at 152-53. Plaintiff’s situation in this regard is not enhanced by the fact that it gave city officials the keys to the vacant building. See Thompson on Real Property, 3A, § 1369 (1981) on effect of voluntary release of keys to landlord as being a peaceable and lawful entry which would destroy the unlawful entry aspect of plaintiff’s required proof in its cause of action. Plaintiff’s action in placing some useless items in the plant to gain an advantage in litigation has already been discussed. That is not possession. Neither does1 payment of tax or rent alone establish possession. Miller v. Northup, 49 Mo. 397 (1872); St. Louis Agricultural & Mechanical [519] Ass’n v. Reinecke, 21 Mo.App. 478, 483 (1886). Based on the uncontroverted facts as applied to established legal principles, the trial court had ample basis for finding as a matter of law that plaintiff was not in possession of the vacated premises. Plaintiff’s point that the trial court erred in dismissing out the City’s mayor and city attorney is rendered moot by disposition of the possession issue. The plaintiff also argues that the trial court erred in disallowing into evidence a letter written by its attorney to the City after notice of termination of lease had been given. A review of the letter establishes only that it states matters which came into evidence through the testimony of plaintiff’s witnesses. It sheds no additional light on the possession issue. The exclusion of cumulative evidence is harmless and not reversible error. Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573, 590 (Mo. banc 1978). Judgment affirmed. HIGGINS, BILLINGS and DONNELLY, JJ., and MORGAN, Senior Judge, concur. RENDLEN, C.J., concurs in result. BLACKMAR, J., concurs in result in separate opinion filed. WELLIYER, J., not sitting. Footnotes [1] Two other defendants, the mayor of Paris and its city attorney, were dismissed from the case on the basis of official immunity.