Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Jefferson County 15JE-AC01970
Honorable Timothy S. Miller.
M. Gaertner, Jr., Judge.
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.
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
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
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.
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
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.
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.
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 (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. 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' ...