Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)

Citation: Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)
Parent Document: Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)
Jurisdiction: Missouri (state)
Effective Date: 2002-11-21
Original Source: https://www.courtlistener.com/opinion/1890960/rathbun-v-cato-corp/ ↗

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PER CURIAM.
Lessor filed a “Motion For Rehearing Or, In The Alternative, For Transfer To The Missouri Supreme Court.” In that motion, Lessor contends, inter alia, that, although we correctly determined that the term “similar type and size business” in the Inducement paragraph of the Lease was ambiguous, we proceeded to weigh and determine the credibility of the evidence when that function should only be performed by the trial court. Lessor argues that the case should have been remanded to the trial court for that purpose and, in support, cites cases such as Specialty Restaurants Corp. v. Gaebler, 956 S.W.2d 391 (Mo.App. W.D.1997), and Baker v. Whitaker, 887 S.W.2d 664 (Mo.App. W.D.1994). In Specialty Restaurants, the *786court remanded the case to the trial court, saying that while the trial court had received evidence regarding the parties’ intent, it presumably had not considered it because of its conclusion that the document in question was “clear and unambiguous.” Id. at 394. On remand, the trial court was directed to glean the parties’ intent from the extrinsic evidence in the record. Id. at 395-96. In Baker, the trial court apparently made no determination about the meaning of the phrase found to be ambiguous, and on remand was directed to do so. Id. 670-71.

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