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Wanda Myers Living Trust v. Nea Lg Le

Court of Appeals of Missouri, Western District, Fourth Division

April 28, 2015

THE WANDA MYERS LIVING TRUST, Respondent,
v.
NEA LG LE, et al., Appellants

Page 518

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. THE HONORABLE ROBERT L. TROUT, JUDGE.

Benny J. Harding, for respondent.

Stephanie G. Hazelton, Kansas City, MO for appellants.

BEFORE DIVISION FOUR: ALOK AHUJA, CHIEF JUDGE, PRESIDING, JOSEPH M. ELLIS, JUDGE AND MARCO A. ROLDAN, SPECIAL JUDGE. All concur.

OPINION

Joseph M. Ellis, Judge

Page 519

Nea Lg Le (" Appellant" ) appeals from a default judgment entered against him in the Circuit Court of Jackson County in favor of the Wanda Myers Living Trust (" Respondent" ). For the following reasons, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

In March 2009, Respondent renewed the lease on one of its properties to a dry cleaning business that had been operating there for many years. The renewed lease was to run until May 31, 2013. Later in 2009, Appellant purchased that dry cleaning business from the previous owner. Eventually, Appellant fell significantly behind in his payments to Respondent. On May 17, 2013, after Respondent indicated that it was not willing to renew the lease, Appellant contracted with Respondent to purchase the property for $40,000. The sale was to close on June 20, 2013. When Appellant was unable to acquire the funds to purchase the property and the sale fell through, Respondent instructed its attorney

Page 520

to terminate Appellant's tenancy. On July 18, 2013, Respondent's attorney sent Appellant a letter notifying him that, pursuant to § 441.060, his month-to-month tenancy was being terminated effective August 31, 2013.[1]

When Appellant failed to timely vacate the premises, on September 10, 2013, Respondent filed a petition against Appellant in the Circuit Court of Jackson County, asserting claims for rent and possession, unlawful detainer, and waste.[2] With regard to its unlawful detainer claim, Respondent pleaded that, starting on or about May 31, 2013, Respondent had the right to possession of the premises after having made a written demand for delivery of that property and that, from that date on, Appellant had " wrongfully and without force by disseisin and continued in" possession thereof. Subsequently, on September 18, 2013, after discovering that Appellant had begun operating his business at another location, Respondent changed the locks on the property and thereafter refused to grant Appellant access to the property, though equipment owned by Appellant and some of his clients' property remained in the building.

On October 2, 2013, Appellant, acting pro se, filed a motion requesting a continuance which was granted by the court, and a hearing was set for October 22, 2013. On October 21, 2013, after Appellant had retained counsel, the parties filed a Joint Motion for Continuance indicating that the parties were discussing settlement and that Appellant would be filing an Answer and Counterclaim with the consent of Respondent. That motion was granted by the court, and the cause was set for a hearing on November 12, 2013. On November 11, 2013, the parties filed another joint motion for continuance, again stating that the parties were discussing settlement and that Appellant would be filing an Answer and Counterclaim with the consent of Respondent. The court granted that motion, and a hearing was set for December 10, 2013.

On December 10, 2013, when neither Appellant nor his attorney appeared for the scheduled hearing, Respondent verbally asked the court to enter a default judgment against Appellant. At that hearing, Respondent offered into evidence an affidavit that had been executed by its trustee on October 2, 2013. In that affidavit, the trustee stated that, after the sale of the property failed to close in June 2013, he had instructed counsel to notify Appellant that the tenancy was being terminated and to vacate the premises. In support of that statement, the trustee cited counsel's letter of July 18, 2013, which was attached as an exhibit to thereto, that terminated ...


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