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Terry v. Korn

Court of Appeals of Missouri, Western District, First Division

May 23, 2017

KENNETH D. TERRY, Appellant,
v.
DALE E. KORN, VERONICA KORN, AND SHEILA LUMLEY, Respondents.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Kimberly J. Shaw, Judge

          Before James E. Welsh, Presiding Judge, Anthony Rex Gabbert, Judge, Edward R. Ardini, Jr., Judge.

          Anthony Rex Gabbert, Judge.

         Kenneth D. Terry ("Terry") appeals the trial court's judgment in a landlord-tenant dispute. Terry, the landlord in the cause, raises five points on appeal. First, he argues that the trial court erred by setting aside a default judgment. Next, Terry alleges that the trial court erred in not awarding rent for the month of August 2015 because the undisputed evidence at trial shows that the rent amount was not paid and the issue was tried by implied consent. Third, Terry contends that the trial court erred in awarding damages to the Respondents for their forcible entry and detainer claim because the weight of the evidence established abandonment by Respondents. Fourth, Terry argues that the trial court erred in ruling in favor of Respondents on their conversion claim because the weight of the evidence established abandonment. Finally, Terry claims that the trial court erred in awarding damages to Respondents on their conversion of property claim because there was no proof offered to substantiate the damages. Finding no error, we affirm.

         Factual Background

         Terry entered into a written lease contract with Respondent Korn on November 4, 2014 concerning the premises located at 409 Duncan Street, Columbia, Missouri. The term of the lease was for six months, dating November 1, 2014 through May 1, 2015. The monthly rent payment was set at $850.00. Respondents paid $800.00 toward the $850.00 security deposit.

         Respondents maintained possession of the premises after expiration of the written lease on May 1, 2015, and paid Terry rent for May, June and July of 2015. These payments were accepted by Terry, thereby creating a month to month lease. Respondents failed to make rent payments in both August and September of 2015.

         On September 4, 2015, Terry filed a pro se action for Rent and Possesion against Respondent Korn. In the filed petition, Terry sought rent in the amount of $850.00 for the month of September 2015 and rent becoming due until the date of the judgment. On September 25, 2015, the court entered a default judgment for possession in favor of Terry.

         After obtaining the default judgment, Terry mailed a letter to Respondent Korn. The letter read:

As of today, September 25, 2015, since our court date which you left, we received possesion of the house at 409 Duncan. On October 5, 2015, this becomes final and at this point we take full possession of the house and would like to meet with you there on that day between 8 and 10 am to do a walk through to determine if you have returned the house to the condition you received it in. If not, we will discuss what needs to be done to bring the house back to its original condition. Please reply if you have any questions.

         The letter was mailed to the 409 Duncan Street address because no forwarding address was provided, but was not received by Respondents.

         Under the belief that Respondents had vacated the premises, Terry entered the home at 409 Duncan Street on September 28, 2015 to "check for damages and secure the premises and make sure it was safe until taking final possession." Terry claimed that he observed the entry doors to the house standing wide open and the premises appeared to be vacated with only trash and rotting food left on the premises. Terry proceeded to remove the trash and rotting food from the house and placed it in garbage bags on the porch outside.

         At trial, Respondents stated that the trash bags containing rotten food and garbarge were placed inside of a van owned by Respondent Lumley that was parked on the property. Respondent Lumley estimated that the value of the van was diminished by $1, 000 to $2, 000 as a result of the damage from the garbage and rotting food placed inside of the van. Terry denied placing the trash inside of the van.

         On September 28, 2015, Terry was told by a Columbia police officer that Respondent Korn did not wish to speak to Terry but that Respondents would completely vacate the premises by October 2, 2015. ...


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