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Stough v. Bregg

Court of Appeals of Missouri, Eastern District, Fourth Division

December 27, 2016

TRESSA STOUGH, Respondent,
v.
KIRK A. BREGG, and RHONDA BREGG, Appellants.

         Appeal from the Circuit Court of Jefferson County 15JE-AC01970 Honorable Timothy S. Miller.

          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 (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' ...


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