AB Realty One, LLC v. Miken Technologies, Inc.
2015 Mo. App. LEXIS 774
| Mo. Ct. App. | 2015Background
- Miken leased warehouse office space under a 2009 commercial lease that required tenant to pay base rent, certain utilities used on the leased premises, and a pro rata share of Common Area Maintenance (CAM) expenses; Miken’s initial pro rata share was 17.69%.
- A 2010 one‑page addendum (incorporated into the 2009 lease) reduced rent and stated: “[Miken] will not pay for CAMM during this lease but will continue to pay for utilities,” without distinguishing which “utilities.”
- No written renewal was entered for 2011 but Miken stayed and paid the 2010 rent; in February 2012 the parties signed a month‑to‑month 2012 addendum (incorporating the 2009 lease) that did not mention CAM or utilities and said all other lease terms remain in effect.
- After Miken vacated at end of 2012, AB Realty demanded CAM sums for 2011 and 2012 calculated at 30.49% of the building; Miken refused and AB Realty sued for breach, late charges, and attorney’s fees.
- Trial court found Miken breached for 2011 (failing to pay CAM “utilities”) and for 2012 (failing to pay CAM including utilities and insurance), awarded CAM damages, late fees and attorney’s fees; Miken appealed.
- On appeal the court affirmed breach for 2012 but reversed the 2011 breach finding (holding the 2010 addendum ambiguous and extrinsic evidence showed no CAM utilities liability in 2011), and remanded to recalculate damages using Miken’s 17.69% share (rejecting the 30.49% figure). AB Realty’s appeal fee motion denied.
Issues
| Issue | Plaintiff's Argument (AB Realty) | Defendant's Argument (Miken) | Held |
|---|---|---|---|
| Whether the 2010 addendum obligated Miken to pay CAM "utilities" for 2011 | The 2010 addendum incorporated 2009 lease terms; "utilities" means CAM utilities and Miken must pay | The 2010 addendum is ambiguous as to which "utilities" and extrinsic evidence shows parties did not intend CAM utilities in 2011 | Court: 2010 addendum ambiguous; no substantial evidence Miken owed CAM utilities in 2011 — reverse 2011 breach |
| Whether the 2012 addendum obligated Miken to pay CAM for 2012 | 2012 addendum incorporates 2009 lease so CAM obligations remained | 2012 addendum ambiguous as to which lease terms extended; parties intended no CAM | Court: 2012 addendum incorporated 2009 lease and clearly required CAM — affirm 2012 breach |
| Whether evidence supports finding Miken occupied 30.49% of leasable area (CAM share) | Testimony and demand letters support increased pro rata share to 30.49% | Evidence insufficient; original lease set 17.69% and increases must follow BOMA measurement; no BOMA calculation presented | Court: Insufficient evidence for 30.49%; remand to calculate CAM at 17.69% and recalculate damages and late fees |
| Whether AB Realty is prevailing party entitled to attorney’s fees on all claims and appeal | AB Realty prevailed overall and is entitled to fees | AB Realty lost on 2011 claim and is not prevailing on everything; fees must be recalculated | Court: Because AB Realty lost on 2011 claim and is not prevailing on appeal, fees must be recalculated; AB Realty’s appeal fee motion denied |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard for reviewing bench‑tried cases)
- Pearson v. Koster, 367 S.W.3d 36 (Mo. banc 2006) (de novo review of legal questions in court‑tried cases; deference to trial court on factual credibility)
- J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo. banc 1973) (use extrinsic evidence when contract is ambiguous)
- Wilson Mfg. Co. v. Fusco, 258 S.W.3d 841 (Mo. App. E.D. 2008) (incorporated instruments construed together only to the extent specified)
- Grand Inv. v. Connaughton, Boyd & Kenter, 119 S.W.3d 101 (Mo. App. W.D. 2003) (holdover tenancy applies terms of expired lease)
- TA Realty Assoc.’s Fund V, L.P. v. NCNB 1500, Inc., 144 S.W.3d 343 (Mo. App. E.D. 2004) (plaintiff must prove damages from breach with reasonable certainty)