Kavanaugh v. Ealy

• Decision Date: 17 April 2012
• Docket Number: No. ED 96974.,ED 96974.
• Citation: 364 S.W.3d 759
• Parties: Christopher KAVANAUGH, Respondent, v. Shari EALY, Appellant.
• Court: Missouri Court of Appeals

364 S.W.3d 759

Christopher KAVANAUGH, Respondent,
v.
Shari EALY, Appellant.

No. ED 96974.

Missouri Court of Appeals,
Eastern District,
Division Three.

April 17, 2012.

[364 S.W.3d 760]

Sarah K. Molina, St. Louis, MO, for Appellant.

C. Clifford Schwartz, Arnold, MO, for Respondent.

ROBERT G. DOWD, JR., Presiding Judge.

Shari Ealy (“Ealy”) appeals from the judgment of the trial court awarding Christopher Kavanaugh (“Kavanaugh”) $13,200 in past rent and $250 in property damages. Ealy argues the trial court erred in: (1) prohibiting Ealy from raising title to the property as a defense; (2) allowing Kavanaugh to bring this lawsuit because he was not a proper party; and

[364 S.W.3d 761]

(3) awarding damages to Kavanaugh for damage to the property.¹ We affirm as modified.

In May or June of 2009, Kavanaugh and Ealy met and entered into a lease under which Ealy was renting certain property located at 5811 Pershing in the City of St. Louis. The lease commenced on July, 15, 2009, and Ealy was to pay $1,200 per month in rent. Shortly thereafter, Ealy failed to make her rent payment.

Kavanaugh filed a petition for rent and possession, damages, and/or an order to vacate premises. Kavanaugh alleged Ealy rented property belonging to him, failed to pay rent, and was delinquent to him in the amount of $14,400. Kavanaugh also alleged Ealy had damaged the property in an amount to be determined.

The trial court initially entered judgment in favor of Kavanaugh, ordering Ealy to turn over possession of the property and to pay $15,000 in back rent. Ealy then filed an application for trial de novo, but failed to post the appropriate bond and was evicted on September 28, 2010. Ealy also filed a motion to vacate judgment and to dismiss Kavanaugh's claims due to the failure of the real party in interest to bring and prosecute this action, failure to join all parties, and demand for excessive rent.

The trial court granted Ealy's application for trial de novo, but denied her motion to vacate and dismiss Kavanaugh's claims.

After the trial de novo, the trial court entered its order and judgment. The trial court found a lease existed between Kavanaugh and Ealy for the property. Further, it found the terms of the lease included a sixty-day tenancy, a rental payment of $1200 per month, and no pets allowed. Ealy made one rent payment of $1200 for July 15 to August 15, 2009. The trial court also found the fair market value of the property after the expiration of the sixty-day tenancy was $1,000 per month. In addition, the court found Kavanaugh did not meet his burden to prove there were damages to the property, except for $250 in damages to the front door. The trial court also rejected Ealy's argument that Kavanaugh was not entitled to rent because he was the representative of Larry and Mary Ann Ferguson, who did not own the property. Finally, the trial court awarded Kavanaugh a total of $13,450 in damages ($13,200 for rent and $250 for damages to the front door).

Ealy then filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, arguing, among other things, that Kavanaugh was not a proper party and Kavanaugh's alleged principals, the Fergusons, do not own the property. This motion was denied, and this appeal follows.

In a court-tried case, appellate review is governed by Rule 84.13(d) and the principles articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Wedgewood Square Center Ltd. Partnership v. Stewart Title Guar. Co., 347 S.W.3d 582, 585 (Mo.App. S.D.2011). Accordingly, the judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

In her first point, Ealy argues the trial court erred in prohibiting Ealy from raising title to the property as a defense because that rule does not apply to rent and property damage actions where possession is not at issue in that the prohibition against challenging title appears only in the statute authorizing unlawful detainer actions and not in the statute authorizing

[364 S.W.3d 762]

actions to simply recover rent. We disagree.

Initially, we note this is not an unlawful detainer action. Kavanaugh did not plead for relief under Chapter 534, nor is there any evidence he fulfilled the statutory requirements to file an unlawful detainer action. Thus, the remaining question is whether this cause of action was filed under Chapter 535 or 441.

Ealy contends this case is merely a suit for rent under Section 441.200. In support of her argument, Ealy argues Kavanaugh's attorney testified at trial he agreed “that possession was not an issue, and that ‘this is strictly a damages issue.’ ” Ealy further maintains Kavanaugh's suit did not pray for possession, and instead only sought money damages for rent and property damage. Ealy also notes the trial court awarded Kavanaugh money for damages to property when such relief is not available under Chapter 535.²

However, we first note the actual testimony at trial was as follows:

[The Court]: All right. Do we have any pretrial matters on this? As I understand it, possession is no longer an issue in this case; is that correct?

[Kavanaugh's attorney]: Correct.

[The Court]: So, this is strictly a damages issue, I believe. Is there a counterclaim?

[Ealy's attorney]: No, your honor.

Thus, the court only noted possession was “no longer an issue,” not that it was never an issue. The reason for that statement is Kavanaugh filed his initial petition and obtained a judgment for possession and for $15,000 in back rent. Ealy subsequently filed an application for trial de novo, which was granted, but she failed to post the appropriate bond and was evicted September 28, 2010. Therefore, by the time the trial de novo began, Kavanaugh had obtained possession of the property. However, this fact does not automatically remove this proceeding from Chapter...