Yes Chancellor Farms LLC v. Merkel
| Decision Date | 09 May 2023 |
| Docket Number | ED111217 |
| Parties | YES CHANCELLOR FARMS, LLC Plaintiff/Respondent, v. VICKI MERKEL, ET AL., Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jefferson County Cause No 22JE-AC01292-01 Honorable Timothy Miller, Judge.
Defendants-Appellants Estate of Vicki Merkel, Jessica Huber, Josh Huber, and Wendy Richardson appeal the trial court's summary judgment in favor of Plaintiff-Respondent Yes Chancellor Farms, LLC on its petition for rent and possession. Appellants also challenge the trial court's award of attorney fees to Respondent. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Only those material facts set forth in the parties' statements of facts may be considered in determining whether summary judgment is appropriate. Aziz v. Tsevis, 565 S.W.3d 738, 744 (Mo. App. E.D. 2018); see also Green v. Fotoohighiam, 606 S.W.3d 113 117-18 (Mo. banc 2020). The facts properly before us in the summary judgment record are as follows.[1]
Vicki Merkel owned a mobile home on a leased lot at 2490 Nottingham Lane in Fenton, Missouri ("the Premises"). Merkel leased the Premises pursuant to the terms of a 1994 Rental Agreement ("the Lease"). Rent was due on the first day of each month. Monthly rent for the Premises between August 1, 2021 and February 28, 2022 was $426. The Lease also provided that the landlord could recover all attorney fees expenses, and costs incurred by the landlord in enforcing any of the tenant's obligations under the Lease.
Merkel owned the mobile home until the summer of 2011. That summer, Appellant Jessica Huber, Merkel's daughter, became the owner of the mobile home. Appellants Jessica Huber, Josh Huber, and Wendy Richardson resided at the Premises. Merkel also continued residing at the Premises although she no longer owned the mobile home.
On October 14, 2021, Respondent became the owner of the mobile home park, including the lot leased by Merkel. On the same day, Respondent notified the residents of the Premises that Respondent had purchased the mobile home park.
Beginning on November 1, 2021, Merkel stopped paying rent to Respondent. On January 12, 2022 and March 11, 2022, the residents of the Premises were notified that the monthly rent was delinquent. Also on January 12, 2022, the residents were notified by letter of a $60 fee for failing to pay monthly rent by the fifth day of each month. On January 20, 2022, the residents were notified that the monthly rent was being increased to $444, effective March 1, 2022.
On March 8, 2022, Respondent received a check in the sum of $426 as payment of rent due on the Premises. The check was returned to Respondent for insufficient funds on March 22, 2022. Respondent charged $25 as additional rent for the returned check. By July 31, 2022, rent and additional rent owed on the account for the Premises amounted to $4,489. Respondent made demand on the residents for the amount owed prior to filing a petition for rent and possession.
Respondent pursued its petition for rent and possession against Vicki Merkel and Appellants Jessica Huber, Josh Huber, and Wendy Richardson. On June 1, 2022, Respondent obtained a judgment for rent and possession against them in associate circuit court.
On June 10, 2022, the Hubers applied for a trial de novo before the trial court pursuant to Section 512.190.[2] On June 17, 2022, Appellants, through counsel, filed a suggestion of death pursuant to Rule 52.13(a)(2), stating that Vicki Merkel was deceased and asking the trial court to dismiss the action against her.[3]
On October 17, 2022, more than 90 days after Appellants filed the suggestion of death, Respondent filed and served a motion to substitute the Estate of Vicki Merkel and Jessica Huber, as Personal Representative of the Estate of Vicki Merkel, as defendants in place of Vicki Merkel. On October 20, 2022, Appellants filed objections to Respondent's motion for substitution. Appellants argued "the appropriate remedy is to remove Vicki Merkel as a party in this case, pursuant to Rule 52.13(a)(2)." Appellants did not argue the appropriate remedy was to dismiss the action as to Vicki Merkel pursuant to Rule 52.13(a)(1), and never suggested Respondent's motion should be denied as untimely because it was served more than 90 days after Appellants' suggestion of death. The trial court granted Respondent's motion for substitution.
On November 4, 2022, Respondent filed its motion for summary judgment, statement of uncontroverted material facts, a copy of all discovery, exhibits, and affidavits on which the motion relied, and a separate legal memorandum explaining why summary judgment should be granted. See Rule 74.04(c)(1). In its motion and memorandum, Respondent also requested an award of attorney fees.
Paragraph 9 of Respondent's statement of uncontroverted material facts stated, "That on or about January 12, 2022 and March 11, 2022, the residents at the Premises were notified that the monthly rent due for the Premises was delinquent." Paragraph 10 stated, "That by letter dated January 12, 2022, delivered to the Premises, the Defendants were notified that the fee for failing to pay monthly rent by the 5th of the month is $60.00." Paragraph 11 stated, "That by letter dated January 20, 2022, the Defendants were notified that the monthly rent was being increased to $444.00 effective on March 1, 2022."
Among other exhibits attached to Respondent's statement of uncontroverted material facts was Exhibit 3, a letter dated January 20, 2022 and addressed to Vicki Merkel at the Premises. The letter gave notice that the monthly rent was being increased to $444 effective on March 1, 2022. Also attached was Exhibit 4, a letter dated January 12, 2022 and addressed to Vicki Merkel at the Premises. The letter gave notice that Respondent had not received rent on Merkel's account for the Premises and a $60 late fee had been assessed to Merkel's account pursuant to the Lease.
On November 17, 2022, Appellants filed their response to Respondent's statement of uncontroverted material facts. They denied paragraphs 9 and 10, stating "Upon information and belief, Defendants state that Exhibit 4 was not delivered on the premises to any single occupant nor posted on the premises." They denied paragraph 11, stating "Exhibit 3 is addressed to Vicki Merkel only." Appellants did not attach Exhibits 3 or 4 to their response. See Rule 74.04(c)(2).
The trial court held a hearing and heard arguments on the motion on November 30, 2022. In a judgment and order of December 5, 2022, the trial court granted Respondent's motion for summary judgment. Regarding paragraphs 9 and 10, the trial court noted Appellants' failure to attach Exhibit 4 to their response and found that Appellants' denials were unsupported by any discovery, exhibit, or affidavit. Regarding paragraph 11, the trial court noted Appellants' failure to attach Exhibit 3 and concluded that Appellants' response was not a denial of the statement in paragraph 11 and was unsupported by any discovery, exhibit, or affidavit. The trial court deemed paragraphs 9, 10, and 11 admitted for Appellants' failure to comply with Rule 74.04(c)(2). The trial court entered judgment in favor of Respondent for possession of the Premises, rent and additional rent, attorney fees, and costs against all defendants.
Appellants filed their notice of appeal on December 6, 2022. More than three weeks later, on December 29, 2022, Appellants also filed a motion to vacate, correct, amend, or modify the trial court's judgment as to the award of attorney fees against all defendants. Specifically, Appellants argued for the first time that the award of attorney fees against "Vicki Merkel, and/or Defendant Jessica Huber as Personal Representative of the Estate of Vicki Merkel, and the Estate of Vicki Merkel" was erroneous because Respondent's motion to substitute them as parties was served more than 90 days after the filing of the suggestion of death, in violation of Rule 52.13(a).
The trial court denied Appellants' motion. The court explained:
At no point in the motion arguments did Defendants' counsel raise the issue of timeliness or Rule 52.13(a). Had counsel done so, and had the result been a dismissal of the deceased Vicki Merkel from the lawsuit, then Plaintiff (as pointed out by Plaintiff's counsel in arguments on this motion) would have added the estate and the PR [Personal Representative] as parties, and the action would have gone forward in that form. By filing this motion, Defendants are asking the Court to now, after a judgment has been entered, void the substitution of the parties and dismiss Vicki Merkel, which would eliminate the estate and the PR from the case. . . . Here, what Defendants are asking is that the Court look back and deny a motion that was granted over two months ago, based on an argument that was never made at the time, and is only being made now after a judgment has been entered, so that Plaintiff will have no opportunity to add new parties.
In their first point on appeal, Appellants argue the trial court erred in granting Respondent's motion for summary judgment. In their second point, Appellants argue the trial court erred in awarding attorney fees against the Estate of Vicki Merkel and Jessica Huber as Personal Representative of the Estate (hereinafter collectively, "the Estate"). In their third and final point, Appellants argue the trial court erred in awarding attorney fees against the remaining Appellants, Jessica Huber (in her personal capacity), Josh Huber, and Wendy Richardson. We affirm the...
To continue reading
Request your trial