Court of Appeals of Missouri, Western District, First Division
KENNETH D. TERRY, Appellant,
DALE E. KORN, VERONICA KORN, AND SHEILA LUMLEY, Respondents.
from the Circuit Court of Boone County, Missouri The
Honorable Kimberly J. Shaw, Judge
James E. Welsh, Presiding Judge, Anthony Rex Gabbert, Judge,
Edward R. Ardini, Jr., Judge.
Anthony Rex Gabbert, Judge.
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
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.
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.
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.
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.
letter was mailed to the 409 Duncan Street address because no
forwarding address was provided, but was not received by
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.
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.
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. ...