FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Thomas L.
Division One: James E. Welsh, Presiding Judge, Lisa White
Hardwick and Gary D. Witt, Judges
WHITE HARDWICK, JUDGE
Allen appeals from the circuit court's judgment in favor
of her former landlords, Richard and Beverly Boehm, in an
unlawful detainer action. Allen contends the court erred in:
1) denying her request for a continuance; and 2) failing to
record the trial proceeding. For reasons explained herein, we
reverse and remand.
and Procedural History
November 3, 2016, Richard and Beverly Boehm filed a petition
for unlawful detainer in the Associate Division of the Cole
County Circuit Court against their tenant, Mendy Allen,
seeking possession of the property located at 2928 South Ten
Mile Drive, Jefferson City, Missouri. Allen was served with
the petition on November 10, 2016, and the return date on the
summons was December 20, 2016.
December 15, 2016, Allen filed a motion for continuance of
the December 20 return date. The Boehms filed suggestions in
opposition to the continuance, asserting that they were not
seeking any unpaid rent, "but want only possession of
the property in an exigent manner." At a hearing on
December 20, 2016, with both parties represented by counsel,
the associate circuit judge denied Allen's continuance
motion and proceeded to trial. No record was made of the
proceeding. Regarding the merits of the petition, the court
entered judgment in favor of the Boehms. The judgment stated
that Allen was permanently evicted from 2928 South Ten Mile
Drive and ordered her to vacate the premises by January 4,
2017, at 12:00 p.m. The judgment authorized the Cole County
Sheriff's Department to enforce the order "if
necessary" by forcefully gaining access to and removing
Allen from the premises.
December 28, 2016, Allen filed a motion to set aside the
judgment, which the court denied on January 3, 2017. On
January 5, the Cole County Sheriff's Department served
Allen with an Order of Execution for Possession of 2928 South
Ten Mile Drive, and she vacated the premises. Allen then
filed a notice of appeal and requested certified copies of
the hearing transcript from the circuit clerk. In response,
the clerk sent Allen a letter stating that "it has been
determined that the matter was not required to be sound
recorded or a trial by the court was not held, and therefore,
a sound recording does not exist." Allen appeals the
judgment of eviction.
appeal from an unlawful detainer action, our standard of
review is the same as set forth in Murphy v. Carron,
536 S.W.2d 30, 32 (Mo. banc 1976). JP Morgan Chase Bank
v. Tate, 279 S.W.3d 236, 237 (Mo. App. 2009). We will
affirm the judgment "unless there is no substantial
evidence to support it, it is against the weight of the
evidence, it erroneously declares the law or it erroneously
applies the law." Id. at 237-38.
to Dismiss Appeal
Boehms filed a motion to dismiss this appeal as moot.
Specifically, they argue that relief can no longer be granted
by this court because Allen vacated the subject property at
2928 South Ten Mile Drive, and the property has since been
re-let to new tenants.
a threshold matter, appellate courts must determine if a
controversy is moot." Dotson v. Kander, 435
S.W.3d 643, 644 (Mo. banc 2014). "'When an event
occurs that makes a decision on appeal unnecessary or makes
it impossible for the appellate court to grant effectual
relief, the appeal is moot and generally should be
dismissed.'" P.M. Constr. Servs. Inc. v.
Lewis,26 S.W.3d 284, 287 (Mo. App. 2000) (citation
omitted). By performing acts inconsistent with the right to