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Kohner Properties, Inc. v. Johnson

Court of Appeals of Missouri, Eastern District, Second Division

September 13, 2016

KOHNER PROPERTIES, INC., Plaintiff/Respondent,
v.
LATASHA JOHNSON, Defendant/Appellant.

         Appeal from the Circuit Court of St. Louis County Honorable Judy Preddy Draper

          SHERRI B. SULLIVAN, PJ

         Introduction

         Latasha Johnson (Appellant) appeals from the trial court's judgment in favor of Kohner Properties, Inc. (Respondent) on Respondent's suit in rent and possession for unpaid rent.[1] We transfer to the Missouri Supreme Court pursuant to Rule 83.02.[2]

         Factual and Procedural Background

         On October 31, 2014, Appellant entered into a lease with Respondent to rent the premises at 3543 DeHart Place, Apartment 1. The lease provided for $585.00 per month in rent and a $200.00 security deposit. Appellant moved into the apartment that day and immediately noticed problems with the only bathroom. Appellant wrote on her move-in sheet that the shower was missing tiles and there were cracks in the bathroom floor. Appellant testified the stove was also not working properly and there were some issues with the blinds. While moving in, Appellant asked the property manager about the bathroom floor and was told there was "nothing [they] could do."

         In November 2014, a water leak appeared in the ceiling above the shower. The leak began as a drip but developed into a stream. Shortly thereafter, mold began growing on the ceiling. Appellant reported the leak and mold via Respondent's telephone service line and by personally speaking with the maintenance technician.

         Records indicate on November 29, 2014, Appellant made a service request regarding two tiles that had fallen off the shower wall. The tiles were placed back on the wall by Respondent's maintenance technician. According to the property manager, the property was built in the 1950s and "[t]iles are going to start popping."

         Records indicate that over the course of December 2014, Appellant reported an issue with a board under the kitchen sink, her range would not light and the oven was not functioning properly, and the tiles had fallen off the bathroom wall again. Respondent's maintenance technician replaced the board, turned on the gas to the stove, and put the tiles back up on the bathroom wall. Shortly thereafter, Appellant reported an electrical shortage in a bedroom. Respondent's maintenance technician replaced a light switch in the bedroom and installed some new blinds.

         On February 10, 2015, Appellant contacted Respondent again about the mold on the bathroom ceiling and the cracked, unstable bathroom floor. Appellant testified the condition of the floor continued to deteriorate during her tenancy. Respondent's maintenance technician responded the following day, at which time he "cleaned [the] mold area" and requested that a supervisor look at the floor.

          On March 1, 2015, Appellant withheld her rent payment because her maintenance requests regarding the leak in the bathroom ceiling, the mold, and the floor were not resolved.

         On March 17, 2015, at 2:00 a.m., the bathroom ceiling above the shower collapsed. Appellant placed an emergency service request. Respondent's maintenance technician responded later that morning and determined the bathtub above Appellant's apartment was leaking. After "repairing" the tub spout in the bathroom upstairs, Respondent taped a black plastic bag over the hole in the ceiling. The leak persisted, however, and water collected in the plastic and pulled at the tape on the ceiling. Appellant repeatedly asked Respondent to repair the leak and the hole in her ceiling but Respondent failed to do so. At the time of trial, in April 2015, both the leak and the ceiling remained unrepaired.

         As a result of the leaking water, Appellant was only getting "minimum" use of the bathroom. Although Appellant continued to use the shower to bathe, her young daughter with cerebral palsy was unable to use the bathtub for bathing and was only able to be in the bathroom for short periods of time. Appellant testified the mold and air conditions in the bathroom aggravated her daughter's allergies and irritated her daughter's eyes to the extent her eyes were beginning to droop.

         Since the collapse, Appellant and her daughter have stayed at a hotel three or four nights at her own expense. Appellant testified she is still living in the apartment and has not yet been able to secure other housing due, in part, to a lack of resources. Appellant testified that while she withheld her March and April rent, she had to expend some of that money for hotel rooms. Appellant has applied for other housing in her daughter's school district, but she has been repeatedly rejected because she does not meet the minimum income requirements. Appellant stated she lives in a low-income area and that it takes time to find housing within her price range.

         On March 20, 2015, Respondent filed a lawsuit against Appellant seeking unpaid rent and possession of the premises. Appellant filed an answer; affirmative defenses, including a breach of the implied warranty of habitability; and a two-count counterclaim for violation of the Missouri Merchandising Practices Act and a common law breach of lease alleging violation of the implied warranty of habitability. The case went to trial on April 21, 2015.

         Prior to opening statements, Respondent moved to bar Appellant's affirmative defense and counterclaim for breach of lease based on the implied warranty of habitability, asserting such could not be raised because Appellant failed to pay her rent to the court in custodia legis.[3] The court overruled Respondent's motion and the case proceeded to trial.

         The court took the case under submission and, on May 13, 2015, entered its Order and Judgment against Appellant for $2, 104.36 in rent, late fees, attorney's fees and court costs and awarded possession of the premises to Respondent. The court found the credible evidence demonstrated that, at the time of trial, the hole in the ceiling remained covered by plastic, the hole had not been repaired, and water continued to drip from the hole and plastic covering the ceiling. The court found Appellant was barred from asserting the affirmative defense or counterclaim of implied warranty of habitability because she failed to either vacate the premises or tender her rent to the court in custodia legis as required by King v. Moorehead, 495 S.W.2d 65 (Mo. App. W.D. 1973). The court also found Respondent breached the maintenance clause of the lease agreement and awarded Appellant a $300 set-off for hotel costs. This appeal follows.

         Points on Appeal

         In her first point on appeal, Appellant argues the trial court erred in barring her from asserting the affirmative defense of breach of the implied warranty of habitability on the grounds she had not vacated the premises or tendered her rent to the court in custodia legis because doing so is not a legal prerequisite to asserting the affirmative defense of breach of implied warranty of habitability.

         In her second point on appeal, Appellant argues the trial court erred in barring her from asserting a counterclaim for breach of the implied warranty of habitability on the grounds she had not vacated the premises or tendered her rent to the court in custodia legis because doing so is not a legal prerequisite to asserting a breach of implied warranty of habitability counterclaim.

         Discussion

         The central issue in the case is whether a tenant who remains in possession of leased premises must tender her unpaid rent to the court in custodia legis as a prerequisite to raising a defense of or counterclaim for a breach of the implied warranty of habitability in a rent and possession suit against her.

         King v. Moorehead

         King v. Moorehead, 495 S.W.2d 65 (Mo. App. W.D. 1973) is the seminal case in Missouri on the implied warranty of habitability. The King court provided a thorough history of the relevant common law, including the traditional doctrine of caveat emptor and the evolution of this doctrine as applied to tenants purchasing an estate in land. Id. at 68-73. The court recognized that modern housing leases are not purely conveyances of property interests with independent covenants to perform ...


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