Boehm v. Allen

• Decision Date: 25 July 2017
• Docket Number: WD 80428
• Parties: Richard BOEHM and Beverly Boehm, Respondents, v. Mendy ALLEN, Appellant.
• Court: Missouri Court of Appeals

524 S.W.3d 542 (Mem)

Richard BOEHM and Beverly Boehm, Respondents,
v.
Mendy ALLEN, Appellant.

WD 80428

Missouri Court of Appeals, Western District.

Filed: July 25, 2017

Michael T. Carney, Columbia for appellant.

David G. Bandré, Jefferson City for respondent.

Before Division One: James E. Welsh, Presiding Judge, Lisa White Hardwick and Gary D. Witt, Judges

Lisa White Hardwick, Judge

Mendy Allen appeals from the circuit court's judgment in favor of her former landlords, Richard and Beverly Boehm, in an unlawful detainer action. Allen contends the court erred in: 1) denying her request for a continuance; and 2) failing to record the trial proceeding. For reasons explained herein, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

On November 3, 2016, Richard and Beverly Boehm filed a petition for unlawful detainer¹ in the Associate Division of the Cole County Circuit Court against their

524 S.W.3d 543

tenant, Mendy Allen, seeking possession of the property located at 2928 South Ten Mile Drive, Jefferson City, Missouri. Allen was served with the petition on November 10, 2016, and the return date on the summons was December 20, 2016.

On December 15, 2016, Allen filed a motion for continuance of the December 20 return date. The Boehms filed suggestions in opposition to the continuance, asserting that they were not seeking any unpaid rent, "but want only possession of the property in an exigent manner." At a hearing on December 20, 2016, with both parties represented by counsel, the associate circuit judge denied Allen's continuance motion and proceeded to trial. No record was made of the proceeding. Regarding the merits of the petition, the court entered judgment in favor of the Boehms. The judgment stated that Allen was permanently evicted from 2928 South Ten Mile Drive and ordered her to vacate the premises by January 4, 2017, at 12:00 p.m. The judgment authorized the Cole County Sheriff's Department to enforce the order "if necessary" by forcefully gaining access to and removing Allen from the premises.

On December 28, 2016, Allen filed a motion to set aside the judgment, which the court denied on January 3, 2017. On January 5, the Cole County Sheriff's Department served Allen with an Order of Execution for Possession of 2928 South Ten Mile Drive, and she vacated the premises. Allen then filed a notice of appeal and requested certified copies of the hearing transcript from the circuit clerk. In response, the clerk sent Allen a letter stating that "it has been determined that the matter was not required to be sound recorded or a trial by the court was not held, and therefore, a sound recording does not exist." Allen appeals the judgment of eviction.

STANDARD OF REVIEW

On appeal from an unlawful detainer action, our standard of review is the same as set forth in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). JP Morgan Chase Bank v. Tate , 279 S.W.3d 236, 237 (Mo. App. 2009). We will affirm the judgment "unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law or it erroneously applies the law." Id. at 237–38.

ANALYSIS

Motion to Dismiss Appeal

The Boehms filed a motion to dismiss this appeal as moot. Specifically, they argue that relief can no longer be granted by this court because Allen vacated the subject property at 2928 South Ten Mile Drive, and the property has since been re-let to new tenants.

"As a threshold matter, appellate courts must determine if a controversy is moot." Dotson v. Kander , 435 S.W.3d 643, 644 (Mo. banc 2014). " ‘When an event occurs that makes a decision on appeal unnecessary or makes it impossible for the appellate court to grant effectual relief, the appeal is moot and generally should be dismissed.’ " P.M. Constr. Servs. Inc. v. Lewis , 26 S.W.3d 284, 287 (Mo. App. 2000) (citation omitted). By performing acts inconsistent with the right to appeal or which recognize the validity of the judgment, a party may estop herself from appealing a judgment. Id.

In P.M. Construction , the court considered the mootness of an appeal from an unlawful detainer action in which the...