Stough v. Bregg

• Decision Date: 27 December 2016
• Docket Number: ED 103560
• Citation: 506 S.W.3d 400
• Parties: Tressa STOUGH, Respondent, v. Kirk A. BREGG, and Rhonda Bregg, Appellants.
• Court: Missouri Court of Appeals

506 S.W.3d 400

Tressa STOUGH, Respondent,

v.Kirk A. BREGG, and Rhonda Bregg, Appellants.

ED 103560

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

Filed: December 27, 2016

William M. Wunderlich, 1504 Gravois Road, High Ridge MO 63049, for appellants.

Phillip K. Gebhardt, 1720 North Main Street, PO Box 340, Desoto, MO 63020, for respondent.

Gary M. Gaertner, Jr., Judge

Introduction

Kirk A. Bregg and Rhonda Bregg (collectively, Appellants) appeal the trial court's judgment in favor of Respondent Tressa Stough on her action for rent and possession. Appellants argue the trial court violated their due process rights through inadequate notice and the trial court erred in excluding evidence on the basis that Appellants failed to raise written affirmative defenses or counterclaims prior to trial. We affirm.

Background

Appellants rented property from Respondent, consisting of a residential house as well as two garages from which Kirk Bregg ran a business. The parties had separate agreements for each part of the property: Appellants paid $1,250 per month for the house and $1,100 per month for the garages. Both of these rental agreements were oral agreements for month-to-month leases.

On May 14, 2015, Respondent filed a claim in the Circuit Court requesting past-due rent as well as possession of both of the premises leased to Appellants. The trial court issued summonses to Appellants, which were served on May 29, 2015, and required Appellants to appear in the trial court on June 10, 2015. Appellants appeared on that date pro se , and the trial court set the case for a bench trial on June 24, 2015.

At trial on June 24, 2015, Appellants again appeared pro se. Appellants attempted to introduce evidence of Respondent's failure to ensure they could continue their commercial use of the property that prompted them to cease paying rent to Respondent, but the court excluded this evidence because Appellants had not filed any written affirmative defenses or counterclaims. Appellants then requested a continuance to a date when their lawyer could be present, which the trial court denied at that point. The trial court found in favor of Respondent and entered a judgment against Appellants for past-due rent in the amount of $3,750 jointly, for the additional amount of $3,300 against Appellant Kirk Bregg individually, and for possession of the property.

After trial, Appellants' counsel entered an appearance on Appellants' behalf and filed a motion for new trial and motion to set aside the judgment and allow Appellants to file counterclaims. The trial court denied this motion. This appeal follows.

Discussion

Appellants raise two points on appeal. First, they argue that the statutory process followed by the trial court resulted in a violation of their due process rights. Second, Appellants argue that the trial court erred in excluding evidence at trial regarding the reason Appellants ceased paying rent. We discuss each in turn.

Point I

Appellants argue that the statutory process for a rent and possession case under Chapter 535, RSMo. (Supp. 2014), deprived Appellants of due process in that it failed to adequately notify them of their rights and did not provide enough time to prepare for trial. Specifically, Appellants argue that the form summons issued here failed to inform them of the steps required to preserve their claims and protect their rights, and that the four-day minimum time period between the summons and the court appearance in the statute is too short.

As a threshold matter, Respondent argues that Appellants failed to preserve this issue because the first time Appellants raised it was in their motion for new trial. "It is firmly established that a constitutional question must be presented at the earliest possible moment ‘that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.’ " St. Louis County v. Prestige Travel Inc., 344 S.W.3d 708, 712 (Mo. banc 2011) (quoting Callier v. Dir. of Revenue, State of Mo., 780 S.W.2d 639, 641 (Mo. banc 1989) ). In the vast majority of cases, the earliest possible moment is well before a motion for new trial.¹ See, e.g., State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975) ("constitutional issue cannot be preserved for appellate review by mentioning it for the first time in a motion for new trial"). Here, Appellants' constitutional question relates to the summons issued and the date set for trial. Appellants had an earlier opportunity to raise this issue than in their motion for new trial. Thus, this point was not preserved.

In cases of unpreserved error, "[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 84.13(c). However, "[p]lain error is rarely present in civil cases." Mansfield v. Horner, 443 S.W.3d 627, 647 (Mo. App. W.D. 2014).

Here, Appellants make two arguments: (1) that the statutory procedure for rent and possession does not allow adequate time to prepare for trial; and (2) the summons failed to inform Appellants of their rights and obligations in responding to the summons, specifically, the need to file written affirmative defenses or counterclaims. Appellants argue both of these resulted in a violation of their Fifth Amendment right to due process.

Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). At the same time, due process "does not require notice that some particular step must be taken or that certain procedure be followed; the opportunity afforded is to make a choice of whether to ‘appear or default, acquiesce or contest.’ " State v. Goodbar, 297 S.W.2d 525, 528 (Mo. 1957) (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652 ). Thus, regarding Appellants' claim that the summons form should have informed them of the steps they must take if they had affirmative defenses, this is not a requirement of due process.

The other issue Appellants raise is whether the proceeding here complied with due process requirements in the notice given and amount of time between service of the summons and the initial court date. Rent and possession is a summary proceeding, intended for expeditious resolution of disputes within its scope. See Ellsworth Breihan Bldg. Co. v. Teha Inc., 48 S.W.3d 80, 83 (Mo. App. E.D. 2001). Especially where possession is at issue, Chapter 535 gives the landlord the ability to reclaim property in a prompt manner when the tenant has stopped paying rent. Section 535.030.1 requires service of the summons at least four days before the court date. Section 535.040.1 then requires the trial court, upon return of the summons, to "set the case on the first available court date[.]"

We find no case law determining that such a summary proceeding fails to meet due process standards. On the contrary, the facts relevant to a rent and possession action are already known to tenants, and appearing to answer regarding such facts should require little preparation. See Lindsey v. Normet, 405 U.S. 56, 64–65, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (finding no due process violation in Oregon statute where statute required service at least two days before trial date; noting tenants had access to relevant facts and "can be expected to know the terms of their lease, whether they have paid their rent, whether they are in possession of the premises, and whether they have received a proper notice to quit, if one is necessary").

Here, Appellants had 12 days in between the service of the summonses and the date they were to appear, June 10, 2015, on the limited issues of the payment of rent and possession of property. While the statute required the trial court to set the matter on the first available court date, there is nothing in the statute that would have prohibited Appellants from requesting a continuance before the June 24, 2015 trial date. Additionally, Appellants were not prohibited from initiating their own separate action for damages against Respondent for any relief due to the landlord's conduct. See id. at 65–66, 92 S.Ct. 862 (noting "tenant is not foreclosed from instituting his own action against the landlord and litigating his right to damages or other relief in that action"); see also Becker Glove Int'l, Inc. v. Jack Dubinsky & Sons, 41 S.W.3d 885, 888 (Mo. banc 2001) (noting compulsory counterclaim rule does not apply to rent and possession actions in associate circuit division). The fact that this summary proceeding is designed to move quickly on these limited issues of unpaid rent and possession, and therefore differs from the time to prepare for trial in other contexts, does not per se amount to a due process violation. The question is whether the procedure allowed Appellants sufficient notice to appear regarding these limited issues.

Given the foregoing, we see no due process violation constituting error, plain or otherwise. Point denied.

Point II

Appellants argue that the trial court erred in excluding evidence at trial on the basis that Appellants failed to raise their affirmative defenses in writing before trial. We disagree.

We review a trial court's decision to admit or exclude evidence at trial for abuse of discretion. Self v. Brunson, 213 S.W.3d 149, 156 (Mo. App. E.D. 2006). Such an abuse of discretion occurs when the trial court's "ruling is clearly against the logic of the circumstances ... and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Hopfer v. Neenah Foundry Co., 477 S.W.3d 116, 128 (Mo. App. E.D. 2015) (quoting Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014) ).

Appellants attempted to present...