Enchanted Hills, Inc. v. Medlin , 892 S.W.2d 722 ( 1994 )

GARY M. GAERTNER, Judge.

Appellant, Enchanted Hills, Inc., appeals from an order granting respondents’, Phyllis and James Medlin’s, motion to dismiss entered by the Circuit Court of Franklin County. We reverse and remand.

Respondents entered a lease agreement with appellant on April 24,1989, for the lease of property referred to as “The Office Tavern”. The property was destroyed in a fire on December 25, 1989. After an investigation, it was determined the fire began “in and around the area of the furnace.”

Appellant filed a two-count petition¹ against respondents on February 8, 1991. Count I alleged a breach of contract in that respondents faded to maintain the electric furnace in good repair as was required by the lease. Count II alleged negligence on the part of the respondents in “(a) allowing a fire hazard to exist on the premises in the area of the furnace; [and] (b) failing to properly maintain and repair the electric furnace.”

A first amended petition was filed on June 5, 1991, still sounding in breach of contract and negligence. On August 6, 1992, respondents filed a motion for summary judgment. While that motion was pending before the court, a second amended petition was filed on September 8, 1992, adding a third count alleging waste. Respondents’ motion for summary judgment as to Counts I and II of the first amended petition was granted on December 10, 1992.

Subsequent to appellant’s second amended petition, respondents filed a motion to dismiss relative to the third count alleging waste on November 24,1992. Appellant, too, filed a motion requesting partial summary judgment on Count I of its second amended petition. Both motions were heard on March 22, 1993. Appellant’s motion was overruled on August 16, 1993.²

On January 27, 1994, the trial court entered an order stating: “[t]he court thinks the record clear. Case will be tried on 2nd amended petition unless further petition allowed.” Respondents then filed a motion to dismiss all three counts of appellant’s second amended petition on March 25, 1994. Respondents argued that because summary judgment had been granted as to Counts I and II of appellant’s first amended petition and because these counts were identical to Counts I and II of appellant’s second amended petition, the grant of summary judgment had res judicata effect as to the first two counts of the second amended petition. Additionally, respondents asserted Count III should be dismissed because without a finding that they were negligent in causing the fire, respondents could not be found liable for waste. A final order was entered by the court on April 11, 1994, sustaining respondents’ motion. Appellant now appeals.

Two claims of error are raised. First, appellant contends the trial court erred in granting respondents’ motion to dismiss Counts I and II on the basis of res judicata because no final judgment had been entered. Second, appellant argues its Count III was erroneously dismissed as a claim for waste was adequately pleaded, and the record was void of evidence supporting respondents’ claim that they were “not negligent”.

As to its point one, appellant suggests the doctrine of res judicata does not apply as a grant of summary judgment is not a final judgment. It is well settled that a partial grant of summary judgment, with additional issues remaining before the trial court, is interlocutory and has no res judicata effect. See Gould v. Rafaeli, 822 S.W.2d 494, 494-95 (Mo.App.E.D.1991); Joy v. Safeway Stores, Inc., 755 S.W.2d 13, 14 (Mo.App.W.D.1988). Thus, although summary judgment had been granted as to the two counts of the first amended petition, because the second amended petition containing a third count was filed and accepted by the trial court, the original grant of summary judgment had no res judicata effect.

In addition, although respondents claim Counts I and II of the first and second amended petitions were identical, we disagree. Count II did remain basically the same between the two petitions. However, the changes as to the first counts deserve some discussion.

Paragraphs 11 through 14 of the first amended petition read:

11. Defendants Rachel N. Pechman, Phyllis B. Medlin and James Medlin failed to keep said electric furnace in good order and repair as required by the terms of the Lease Agreement. The failure of said Defendants to keep said electric furnace in good order and repair as set forth in the Lease Agreement resulted in the fire which destroyed the premises known as the “Office Tavern.”

12. The terms of said Lease Agreement required Defendants to provide liability insurance on the premises known as the “Office Tavern” of $300,000.

13. Defendants failed to provide liability insurance as required by the terms of said Lease Agreement much to the damage of Enchanted Hills.

14. By reason of the aforesaid breach of the Lease Agreement by Defendants, Enchanted Hills was caused to suffer significant damages in that the premises known as the “Office Tavern” was entirely destroyed resulting in a loss to Enchanted Hills of $174,400.

Paragraphs 11 through 13 of the Second amended petition state as follows:

11. Defendants Rachel N. Peehman, Phyllis B. Medlin and James Medlin failed to keep said electric furnace in good order and repair as required by the terms of the Lease Agreement. Failure of Defendants to keep said electric furnace in good order and repair as set forth in the Lease Agreement resulted in the fire which destroyed the “Office Tavern” and adjoining premises.

12. Defendants failed to deliver said premises to Plaintiff in good order and condition as required by the terms of the Lease Agreement.

13. By reason of the aforesaid breach of the Lease Agreement by Defendants, Plaintiff Enchanted Hills was caused to suffer significant damages in that the premises known as the “Office Tavern” and adjoining premises were entirely destroyed resulting in a loss to Enchanted Hills of $174,400.00.

As can be seen, the first amended petition suggested a breach of contract in two respects: respondents’ failure to keep the furnace in good repair, and their failure to maintain liability insurance. The second amended petition deleted the paragraphs addressing insurance and requested a breach of contract be found first, as was also alleged in the first amended petition, because of respondents’ failure to keep the furnace in good repair; and second, because of respondents’ failure to deliver the premises to appellant in good condition as required by the lease.

Thus, despite the fact respondents argue the breach of contract claim is identical in the first and second amended petitions, it is clear there is a difference and res judicata cannot apply. Point granted.

For its second point on appeal, appellant asserts the trial court erred in dismissing the third count of the second amended petition alleging waste. Respondents argue that because summary judgment was granted as to appellant’s Count II, without a showing of negligence, they could not be found guilty of waste.

Both parties refer to Brown v. Midwest Petroleum Co., 828 S.W.2d 686, 687 (Mo.App.E.D.1992) for their definitions of “waste”. “Waste is the failure of a tenant to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear.” Id. Caselaw also establishes that if a tenant, either through negligence or willful misconduct, causes injury to the leased premises, he is liable in damages. Sparks v. Lead Belt Beer Company, 337 S.W.2d 44, 45 (Mo.1960).

We hold, then, that upon a showing of negligence, it is also possible for a tenant to be found liable for waste. Here, because we determined Counts I and II were improperly dismissed, there is still a question of respondents’ negligence. As such, on remand, it is the responsibility of the trial court to assess the negligence, if any, of respondents and to determine whether respondents are liable for damages due to waste. Point granted.

Based on the foregoing, the decision is reversed; cause is remanded for further action in accordance with our opinion herein.

REINHAED, P.J., concurs in result. CRAHAN, J., dissents in separate opinion.

1 . Rachel N. Pechman was originally named as a defendant in this suit. However, Ms. Pechman was dismissed from the action without prejudice in September of 1992.

2 . We find nothing in the record to indicate whether a ruling was ever entered on respondents’ motion to dismiss Count III.