Bethany Krajelis Jan. 24, 2013, 1:39pm


A panel of the Fifth District Appellate Court has affirmed a trio of St. Clair County orders over a lease dispute.

Dong Ha Kim sued Bhaskar Brahmbhatt and Badetoom Restaurant Group in October 2011, claiming they breached their lease with him for commercial property for a restaurant near Scott Air Force Base.

Kim alleged that the defendants vacated the leased premises on Siebert Road early and didn’t pay him the rent he alleges they owe. His suit sought payment of past-due rent and possession of the property.

The defendants filed a counterclaim, seeking injunctive relief to prevent Kim from denying them access to the premises. Kim had the locks to the building changed at some point.

The matter came to the Fifth District on interlocutory appeal from three orders St. Clair County Circuit Judge Vincent Lopinot entered in June, July and August of 2012.

In those orders, Lopinot gave Brahmbhatt 14 days to file an answer to the plaintiff’s complaint, granted the defendants’ motion for preliminary injunctive relief and denied the plaintiffs’ motion for a default judgment against Brahmbhatt.

Kim argues on appeal that Lopinot improperly denied his motion for a default judgment against Brahmbhatt, was wrong to grant the defendants’ request for injunctive relief and erred in finding he had failed to comply with the statutory requirements for demanding rent.

The injunctive relief ordered by Lopinot provided the defendants possession of the property back and required them to start paying rent immediately.

In an unpublished order delivered by Justice Bruce Stewart, the appeals panel affirmed two of three of the orders at issue. Justices Melissa Chapman and Judy Cates rounded out the panel.

The decision is among the first in which Cates has participated in as a jurist. She won election to the Fifth District in November and was sworn into office on Dec. 3.

In the Kim appeal, the panel refused to address Kim’s argument over Lopinot’s order denying his motion for a default judgment.

Stewart explained that the appellate court doesn’t have jurisdiction to consider that argument because Supreme Court Rule 307, which Kim relied on in his argument, does not include exceptions for interlocutory orders and allows only final judgments or orders to be appealed.

In regards to Kim’s other argument on appeal, he claimed the defendants failed to establish the proof needed for injunctive relief.

This proof, according to the appellate court order, includes showing a right in need of protection, irreparable harm in the absence of an injunction, no adequate remedy and a likelihood of success on the merits of the case.

To rule on this argument, the appellate court pointed to a rent provision in the three-year lease the parties signed in May 2011 that states rent must be paid “90 days after the commencement date or the date the tenant opens for business to the public.”

Kim claims the defendants breached the lease by failing to pay rent after 90 days while the defendants contend they didn’t owe Kim any rent because the restaurant never opened to the public.

“The lease contains no provision stating which one of these occurrences controls,” Stewart wrote for the appeals panel. That clause of the lease does not specify that whichever event occurred first would control, as is typical for contract provisions such as this.”

Stewart explained that Lopinot has not ruled on whether rent was due 90 days after commencement as Kim argues, but did order the defendants to have possession of the property and pay the first month’s rent before reentry.

“We do not find that the trial court's ruling was an abuse of discretion,” Stewart wrote. “Rather, the trial court reasonably ruled in a way that preserved the status quo until a hearing on the merits could be held.”

The appeals panel also rejected Kim’s argument that Lopinot improperly found he had failed to comply with the requirements for demanding rent and possession of property.

St. Louis attorney Guang Ming Li represented Kim at the trial court level.

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