P & J Ventures, LLC, Respondent/Cross-Appellant v. Yi Yu Zheng, Qui Feng, and Ling Zing Zheng, Appellants/Respondents.

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
P & J VENTURES, LLC, ) No. ED101532
)
Respondent/Cross-Appellant, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
)
YI YU ZHENG, QUI FENG, AND LING ) Honorable Theodore House
ZING ZHENG, )
Appellants/Respondents. ) Filed: January 12, 2016
I. INTRODUCTION
Defendants Yi Yu Zheng (“Defendant Zheng”), Qui Feng (“Defendant Feng”) and Ling
Xing Zheng (“Defendant Leon”) appeal the judgment of the Circuit Court in favor of Plaintiff P
& J Ventures, LLC, (“P & J), on Counts I through V against Defendant Leon; and in favor of P
& J on Count III against Defendants Zheng and Feng. P & J cross-appeals the judgment of the
Circuit Court in favor of Defendants Zheng and Feng on Count I against P & J. Defendants
assert five points on appeal. In Points I through IV, Defendants claim the trial court erred in
entering judgment in favor of P & J on Count III (fraudulent misrepresentation). In Point V,
Defendants maintain the court erred in striking Defendant Leon’s pleadings and entering a
default judgment against him on all five counts of P & J’s petition. In its cross-appeal, P & J
contends the trial court erred in entering judgment in favor of Defendants Zheng and Feng on
Count I (breach of contract). P & J has also filed a motion to strike Defendants’ brief and dismiss
Defendants’ appeal, alleging Defendants failed to comply with Missouri Rule of Civil Procedure
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84.04. We ordered the motion to be taken with the case. We dismiss Defendants’ appeal, reverse
the judgment in part, and remand for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2010, James and Patricia Bovier (the "Boviers") entered into a
residential lease agreement with Defendants Zheng and Feng for the rental of the Boviers’ real
property located in St. Charles County, Missouri (the "Property"). In the lease agreement (the
“Lease”), the Boviers were identified as the “Lessor” and Defendants Zheng and Feng were
identified as the “Lessee.” The Lease specified that the premises were to be occupied solely by
the Lessee and the Lessee’s immediate family.
The Lease's term began on November 8, 2010, and ended on October 31, 2011.
Paragraph 4 of the Lease stated, "This Lease is not assignable, and said Premises, or any part
thereof may not be sublet without the written consent of the Lessor." The Boviers subsequently
formed P & J Ventures, LLC, and served as its sole members. On July 6, 2011, the Boviers
conveyed their interest in the Property to P & J through a General Warranty Deed. The General
Warranty Deed specifically indicated "all rights and appurtenances" belonging to the Boviers
were transferred to P & J.
During the term of the lease, the Boviers inspected the Property and found it in poor
condition and that additional, unknown people were occupying the home. The Boviers sent a
letter to Defendants in September notifying them the Lease would not be renewed at the end of
October. In October, Defendants paid their rent check to P & J.
In 2012, P & J filed suit against Defendants Zheng, Feng, and Leon. P & J’s Petition
contained the following claims: breach of the lease (Count I), unlawful detainer (Count II),
fraudulent misrepresentation (Count III), unjust enrichment (Count IV), and waste (Count V).
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Counts I, II, III, and V of the Petition were asserted against each Defendant. Count IV was
asserted against Defendant Leon only.
Defendants filed a motion to dismiss, claiming P & J lacked standing to assert a cause of
action because the Lease was not assignable. The court heard and overruled Defendants’ motion
based upon P & J’s representation that the Boviers, quitclaimed their interest in the Property to P
& J by recorded deed. The court requested P & J confirm the real estate recording status; P & J
filed the General Warranty Deed with the court.
The case was bench-tried. Defendant Leon was served with a subpoena, but failed to
appear at trial. P & J filed a Motion to Strike Defendant Leon's pleadings and enter a judgment
by default against him. After trial, the court entered judgment by default against Defendant Leon
on all five counts of P & J’s Petition. The trial court also entered judgment against the remaining
Defendants and in favor of P & J on Counts II (unlawful detainer) and III (fraudulent
misconduct). In that same judgment, the trial court found in favor of Defendants Zheng and
Feng as to Count I (breach of contract). The court found the Lease by its terms was not
assignable; therefore, P & J had no standing to assert a cause of action based on breach of
contract. As to Count V (waste), the court entered judgment in favor of Defendants. This appeal
follows.
III. STANDARD OF REVIEW
“In a court-tried case, we will affirm the judgment below if it is supported by substantial
evidence, is not against the weight of the evidence, and does not erroneously declare or apply the
law.” Reppy v. Winters, 351 S.W.3d 717, 720 (Mo. App. W.D. 2011) (citing Murphy v. Carron,
536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence in the light most favorable to the
trial court's judgment, disregarding all contrary inferences and evidence. Woods ex rel. Woods v.
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Cory, 192 S.W.3d 450, 458 (Mo. App. S.D. 2006). This Court will defer to the trial court's
findings of fact where the evidence is conflicting but not to its determinations of law. Empire
Dist. Elec. Co. v. Gaar, 26 S.W.3d 370, 373 (Mo. App. S.D. 2000).
IV. DISCUSSION
A. P & J’s Motion to Dismiss Appeal
Before considering the merits of the claims of error on appeal, we will address P & J’s
motion to strike Defendants’ brief and dismiss Defendants’ appeal. P & J contends Defendants’
brief fails to comply with the requirements of Rule 84.04.1 We agree.
The failure to substantially comply with the briefing requirements of Rule 84.04
preserves nothing for review. In re Marriage of Shumpert, 144 S.W.3d 317, 321 (Mo. App. E.D.
2004). Failure to comply with Rule 84.04 merits dismissal. Bridges v. Am. Family Mut. Ins. Co.,
146 S.W.3d 456, 459 (Mo. App. W.D. 2004).
First, we note Defendants’ brief violates Rule 84.04(b), which requires the jurisdictional
statement in a brief to “set forth sufficient factual data to demonstrate the applicability of the
particular provision or provisions of Article V, section 3, of the Constitution whereon
jurisdiction is sought to be predicated.” “Bare recitals that jurisdiction is invoked ‘on the ground
that the construction of the Constitution of the United States or of this state is involved’ or
similar statements or conclusions are insufficient as jurisdictional statements.” Rule 84.04(b). A
deficient jurisdictional statement merits dismissing an appeal. Anderson v. Am. Family Mut. Ins.,
173 S.W.3d 356, 357-58 (Mo. App. W. D. 2005).
Here, Defendants’ jurisdictional statement contains no facts that indicate jurisdiction is
proper in this court. Defendants’ complete jurisdictional statement reads:
1
All Rule references are to Missouri Court Rules (2014).
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This case is an appeal from a judgment entered in the Circuit Court of St. Charles
County, Missouri in favor of P & J and against Defendants, following a bench
trial. A Notice of Appeal was filed in a timely manner and the case does not
involve any of the categories reserved for the exclusive jurisdiction of the
Missouri Supreme Court. Therefore, jurisdiction lies in this Court pursuant to
Article V, Section 3, of the Missouri Constitution.
The requirements of Rule 84.04(b) are not satisfied as Defendants’ jurisdictional statement
merely concludes jurisdiction is proper. This violates Rule 84.04(b)'s prohibition against bare
recitals and conclusory statements. See Anderson, 173 S.W.3d at 358. In addition, Defendants’
jurisdictional statement does not clearly identify what final, appealable judgment of the circuit
court is being appealed. Finnical v. Finnical, 81 S.W.3d 554, 558 (Mo. App. W.D. 2002).
In and of itself, the failure of Defendants to provide a jurisdictional statement in
compliance with Rule 84.04(b) would be a sufficient basis for us to dismiss the Defendants’
appeal. Finnical, 81 S.W.3d at 558. However, even if we were inclined to disregard the
substantially deficient jurisdictional statement, we note that Defendants’ substantially failed to
comply with other provisions of Rule 84.04.
Defendants’ brief also violates the requirements of Rules 84.04(c) and 84.04(e). These
two provisions require all factual assertions contained in the statement of facts and argument to
have specific page references to the relevant portion of the record on appeal, i.e., the legal file,
transcript, or exhibits. Rule 84.04(c), (e). If the matter cited in the statement of facts or
argument is contained in the appendix, a page reference to the appendix must be included. Id.
Specific relevant cites to the record are “mandatory and essential for the effective functioning of
appellate courts because courts cannot spend time searching the record to determine if factual
assertions in the brief are supported by the record.” Jimmy Jones Excavation, Inc. v. JDC
Structural Concrete, LLC, 404 S.W.3d 922, 924 (Mo. App. S.D. 2013) (quotation omitted).
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Violation of Rule 84.04(c) is an adequate ground for dismissal. Tucker v. United Healthcare Svc,
Inc., 232 S.W.3d 636, 639 (Mo. App. S.D. 2007).
Here, the factual assertions set forth in the Argument portion of Defendant’s brief lack
any reference to the record whatsoever. Likewise, there are instances in the Statement of Facts
where no citation is provided to the Transcript, Legal File, Exhibits or Appendix. Twice,
Defendants simply cite to the whole Appendix in support of an assertion, instead of providing a
specific page reference.
“We adhere to the rule that an appellate court will not supply the deficiencies of an
inadequate brief by independent, additional research because to do so would be inherently unfair
to the opposition and parties in other cases awaiting disposition on appeal.” Anderson, 173
S.W.3d at 359 (quotation omitted). It is not an appellate court's role to serve as advocate for any
litigant. Jimmy Jones, 404 S.W.3d at 924. “In particular, we have no duty to search the
transcript or record to discover the facts which substantiate a point on appeal. That is the duty of
the parties, not the function of an appellate court.” Id. (quotation omitted). Accordingly, we
decline to search through the record to determine whether Defendants’ factual assertions are
properly supported.
Moreover, we find Defendants’ Statement of Facts violates Rule 84.04(c) in that it does
not provide “a fair and concise statement of the facts relevant to the questions presented for
determination[.]” Rule 84.04(c). The purpose of this provision is to provide an accurate,
complete and unbiased understanding of the facts of the case. Finnical, 81 S.W.3d at 558
(emphasis added). Defendants’ Statement of Facts does not provide a complete and unbiased
account of the facts necessary to resolve all of the issues presented on appeal. Anderson, 173
S.W.3d at 358. For example, although Defendants set forth Defendant Zheng’s favorable
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testimony regarding the condition of the Property, they omit contrary testimony and evidence
from several witnesses presented by P & J. “The failure of a [d]efendant to provide a fair and
concise statement of facts is a sufficient basis to dismiss an appeal.” Finnical, 81 S.W.3d at 559.
Thus, Defendants’ brief fails to comply with the requirements of Rule 84.04, providing a
sufficient basis to dismiss their appeal. Even if we were inclined to ignore the insufficiency of
their brief and review their claims ex gratia, we decline to do so in that Defendants now present
on appeal arguments in Points II and V of their brief that they did not present to the trial court
below. We will not convict a trial court of error on an issue which was not put before it to
decide. Swift v. Federal Home Loan Mortg. Corp., 417 S.W.3d 342, 347 (Mo. App. S. D. 2013).
Accordingly, we grant P & J’s motion to dismiss Defendant’s appeal.
B. P & J’s Cross-Appeal.
On cross-appeal, P & J claims the trial court erred in entering judgment in favor of
Defendants Zheng and Feng on Count I (breach of lease). P & J contends the court erred in
finding that P & J lacked standing to assert a claim for breach because the Lease was not
assignable to P & J. P & J asserts the trial court erred under the three grounds articulated in
Murphy v. Carron: 1) there was no substantial evidence to support the court’s judgment; 2) the
judgment was against the weight of the evidence; and 3) the judgment was a misapplication of
the law. Specifically, P & J argues that the record shows the Lease was assignable, the Boviers
assigned it, Defendants accepted the assignment by paying rent to P & J, and that the court found
the Lease was assignable when it denied Defendants motion to dismiss P & J’s Petition for lack
of standing. Defendants did not respond to P & J’s cross-appeal. We find the trial court erred in
finding P & J lacked standing because the Lease was not assignable. We reverse the judgment as
to Count I.
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“A party has standing to sue when it has a justiciable interest in the subject matter of the
action.” CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012) (quotation omitted); see also
Midwestern Health Mgmt., Inc. v. Walker, 208 S.W.3d 295, 298 (Mo. App. W.D. 2006) (stating
that standing to sue “exists when a party has an interest in the subject matter of the suit that gives
it a right to recovery, if validated.”). Courts have a duty to determine if a party has standing
prior to addressing the substantive issues of the case. Farmer v. Kinder, 89 S.W.3d 447, 451
(Mo. banc 2002). For this reason, standing cannot be waived. Id. ‘“Because standing is a
question of law, review of the issue on appeal is de novo.’” CACH, 358 S.W.3d at 61 (quoting
Missouri State Med. Ass'n v. State, 256 S.W.3d 85, 87 (Mo. banc 2008)).
Here, in its judgment, the trial court found P & J had no standing to assert a cause of
action based on breach of contract in that the Lease by its terms was not assignable. The “No
Assignability” provision contained in paragraph 4 of the Lease provides the following: “This
Lease is not assignable, and said Premises, or any part thereof may not be sublet without the
written consent of the Lessor.” The trial court interpreted this provision to mean the Boviers
were barred from assigning their interest in the Lease to P & J. In Point III, P & J argues that the
trial court misapplied the law in that P & J had standing as the Lease was assignable, thereby
giving P & J standing.
We first address Point III as it is dispositive of the cross-appeal. The interpretation of a
contract is a question of law. Storey v. RGIS Inventory Specialists, LLC, 466 S.W.3d 650, 654
(Mo. App. E.D. 2015). “The cardinal principle of contract interpretation is to ascertain the
intention of the parties and to give effect to that intent.” Dunn Indus. Group, Inc. v. City of
Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). “The terms of a contract are read as a
whole to determine the intention of the parties and are given their plain, ordinary, and usual
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meaning.” Id. “Additionally, each term of a contract is construed to avoid rendering other terms
meaningless.” Id. “A construction that attributes a reasonable meaning to all the provisions of
the agreement is preferred to one that leaves some of the provisions without function or sense.”
Id.
The “No Assignability” clause at issue here plainly was not intended to be applied to the
Lessor. Instead, a common-sense interpretation of this provision is that it limits the Lessee from
assignment or subletting the Property without Lessor’s consent. Moreover, the meaning of this
provision is confirmed when construed in conjunction with other terms set forth in the Lease.
In subsection A of paragraph 29, the “Miscellaneous” provision provides that “The words
Lessor and Lessee as used herein . . . shall include all assignees of Lessor and all assignees of
Lessee with consent of Lessor.” (Emphasis added). By including all assignees of the Lessor in
the definition, this clause makes it clear the Lessor may assign its interest in the Lease. It also
confirms that the Lessee may not assign its interest without Lessor’s consent. This clause would
be rendered meaningless and without function if Lessor was also subject to the restriction on
assignment under paragraph 4.
Because we construe the terms of a contract as a whole to determine the intent of the
parties, we must read the “No Assignability” provision in conjunction with the “Miscellaneous”
provision. Thus, in paragraph 4, we find the parties intended the Lease to be assignable by
Lessor. Accordingly, we find the trial court’s judgment was a misapplication of the law.2
2
Moreover, we note that before trial, the court overruled Defendants’ motion to dismiss P & J’s
Petition based upon Defendants’ contention that P & J lacked standing as the Lease was not
assignable under paragraph 4. The court did not specifically find the Lease was assignable, but
instead required P & J to submit a General Warranty Deed to establish the recording status of the
Property as proof of assignment.
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Furthermore, we find the record provides evidence the Boviers assigned their interest in
the Lease to P & J. Assignment is accomplished when it appears from the circumstances an
intention of one side to assign and an intention of another side to receive. Barker v. Danner, 903
S.W.2d 950, 956 (Mo. App. W.D. 1995). After P & J was formed, the Boviers conveyed their
interest in the Property to P & J through a General Warranty Deed. The General Warranty Deed
indicated "all rights and appurtenances" belonging to the Boviers were transferred to P & J. In
acknowledgment of this transfer, in October 2011, Defendants paid their rent check to P & J, not
the Boviers. Thus, the record provides evidence the Boviers transferred their interest in the
Property and Lease to P & J.3 Accordingly, P & J has a justiciable interest in the subject matter
of the action and, therefore, has standing.
Thus, we find the trial court erred in entering judgment in favor of Defendants Zheng and
Feng as to Count I of P & J’s Petition. Point III is granted. Because P & J’s third point is
dispositive, Points I and II, challenging the trial court’s judgment under the remaining prongs of
Murphy v Carron, are not addressed. We reverse the trial court’s judgment as to Count I and
remand for determination of P & J’s breach of contract claim against Defendants Zheng and
Feng.
VI. CONCLUSION
Because their brief fails to comply with the requirements of Rule 84.04, we grant P & J’s
motion to strike Defendants’ brief and dismiss Defendants’ appeal. P & J also filed a motion to
3
Defendants argue, under Investors Alliance LLC v. Bordeaux, 482 S.W.3d 693 (Mo. App. E. D.
2014), that P & J does not have standing as it did not provide adequate and timely notice to
Defendants that the Lease had been assigned by the Boviers. Investors Reliance is clearly
distinguishable from the instant matter. Investors Reliance was an action for the recovery of
unpaid rent pursuant to §535.081 RSMo (2000), where the court found a purchaser of leased
property must provide adequate and timely notice of the property’s transfer of ownership to
recover rents. Investors Alliance, 482 S.W.3d at 697. The claim at issue here is a common law
claim for damages based upon Defendants’ breach of the Lease terms.
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strike Points II and V of Defendants’ brief, which is moot in light of our dismissal of
Defendant’s appeal. We reverse the judgment on Count I in Defendants Zheng and Feng’s favor.
This case is remanded for further proceedings in accordance with this opinion.
____________________________
Angela T. Quigless, Judge
Philip M. Hess, P.J., and
Gary M. Gaertner, Jr, J., Concurs.
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