Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Hon. Barbara
G. DOWD, JR., JUDGE.
Boone ("Tenant") appeals from the judgment in favor
of Bryant Cunningham ("Landlord") and his partner
Victoria Jamerson on their petition for rent and possession.
We affirm the judgment as modified herein.
and Landlord orally agreed that Tenant would rent a house
from Landlord for $600 a month on a month-to-month basis.
Tenant began living in the house and paying rent in September
of 2015. On March 10, 2016, Landlord filed a rent and
possession petition in the associate circuit division of the
circuit court alleging that Tenant owed $600 in rent for the
month of March. Tenant filed a responsive pleading denying
that any rent was due. Tenant alleged that he was withholding
rent until necessary repairs were made to the house. He
asserted as an affirmative defense and counterclaim that
Landlord breached the implied warranty of habitability by
failing to provide a premises fit for human occupation due to
a sewer problem. Tenant also asserted as an affirmative
defense that the Landlord's petition was an attempt to
enforce an illegal contract. Tenant alleged that the City of
St. Louis condemned the property because Landlord never
obtained a certificate of inspection permitting occupancy of
bench trial was held on April 8, 2016. Landlord testified
that he was seeking unpaid rent for the months of February,
March and April of 2016. Tenant testified that he paid rent
in February, but admitted that he had not paid rent in March
or April. Tenant was still in possession of the house at the
time of trial. Tenant testified that he was withholding the
rent until Landlord fixed the sewer and other problems.
Landlord essentially agreed that these problems existed, but
claimed he could not fix them because Tenant would not give
him access to the property. Landlord admitted that he had
received a letter from the City informing him the property
had been condemned for lack of an occupancy permit. Landlord
believed that Tenant was responsible for getting the
occupancy permit. Landlord testified that he was also aware
the property had health code violations. Tenant testified
that he learned the home was condemned in February of 2016
and told Landlord in March that he would have to move out.
The trial court asked Tenant why he was still living at a
condemned property in April, and Tenant said he was waiting
for his new place to be ready to move into. The trial court
also asked "when you withheld that rent, did you put it
aside in any type of bank or escrow account to prove to the
court that but for the conditions, you would have paid [the
rent]." Tenant said yes, but was unable to provide the
court proof from a bank account or escrow account.
trial court found that rent in the amount of $1800 was due
and unpaid, presumably representing $600 for each of the
months Landlord claimed at trial. It awarded Landlord
possession of the property and denied Tenant's
counterclaim. This appeal follows. This Court will affirm the
judgment in a rent and possession case tried by the court
"unless there is no substantial evidence to support it,
it is against the weight of the evidence, or it erroneously
declares or applies the law." K.O. Real Estate, LLC
v. O'Toole, 291 S.W.3d 780, 788 (Mo. App. E.D.
first two points on appeal, Tenant claims the court
erroneously declared and misapplied the law by requiring
Tenant to show he escrowed the rent in order to prevail on
his affirmative defense and counterclaim for breach of the
implied warranty of habitability. In his fourth point, Tenant
contends the judgment was against the weight of the evidence
because he proved all the required elements of this defense
and counterclaim. The Supreme Court's recent discussion
on this issue in Kohner Properties, Inc. v. Johnson,
2018 WL 3235686, *2 (Mo. banc July 3, 2018), dictates our
Kohner, the trial court barred the tenant from
asserting an affirmative defense and counterclaim that the
landlord had breached the implied warranty of habitability
because the tenant failed to either vacate the premises or
tender her rent to the court in custodia legis.
Id. at *1. In doing so, the trial court relied on
King v. Moorehead, 495 S.W.2d 65, 77 (Mo. App. 1973)
and its pronouncement of an in custodia legis
procedure in all rent and possession cases where the tenant
remains in possession. The Supreme Court held this
pronouncement was dicta. 2018 WL 3235686 at *3. The Court
noted that, nevertheless, our trial courts have been
dutifully following that dicta "for almost five decades
in the absence of contrary guidance from this Court or the
Missouri General Assembly" and requiring withheld rent
to be escrowed under King. Id. The Court in
Kohner provided the guidance that had been absent
since King, addressing squarely for the first time,
the question of whether tenants in possession asserting a
breach of the implied warranty of habitability are absolutely
required in all cases to deposit rent payments with the trial
court. Id. The Court examined how courts in other
jurisdictions handle this issue and concluded that the
majority of them leave the imposition of such a requirement
to the sound discretion of the trial court. Id. at
*3-5 (citing cases from the D.C. Circuit, California,
Pennsylvania, Minnesota and New York).
Court decided to do the same in our circuit courts:
"Consistent with the prevailing view of a majority of
jurisdictions, this Court holds circuit courts may exercise
discretion on a case-by-case basis to determine whether an
in custodia legis procedure is appropriate in a
particular case." Id. at *5. Trial courts are
in the best position to assess the merits of the parties'
position and determine whether requiring rent to be escrowed
is necessary to protect the landlord's economic interests
without depriving the tenant the opportunity to raise the
warranty of habitability issue. See id. Therefore,
the Court held, "the circuit courts have the discretion
to institute a suitable protective procedure upon either
party's request and after notice and an opportunity to be
heard by the opposing party." Id. at *6. But
the Court did not reverse the trial court's ruling even
though it relied on dicta from King:
King's pronouncement of an in custodia
legis procedure had been in place for almost five
decades, and, therefore, constituted the status quo in
Missouri. For this reason, and given the absence of contrary
authority from this Court or contrary legislation from the
General Assembly, the circuit court in this case cannot be
faulted for relying on King when it barred [the
tenant's] affirmative defense and counterclaim.
Accordingly, it did not erroneously declare or apply the law
at the time it entered its judgment.
Id. at *6-7.
same result is required in this case for the same reason.
Though not expressly stated as the basis for rejecting
Tenant's counterclaim for breach of the implied warranty
of habitability, it appears the trial court believed that
Tenant's claim was untenable absent proof that he had set
aside the rent money he was withholding. Like the Court in
Kohner, we will not fault this trial court for
following the status quo in Missouri. Thus, as in
Kohner, we conclude that the trial court did not
erroneously declare or apply the law as it was at the time
this judgment was entered.
I, II and IV are denied.
third point, Tenant argues the trial court erroneously
declared or misapplied the law in permitting Landlord to
recover rent on property for which no certificate of
inspection permitting occupancy had been obtained as required
by a City of St. Louis ordinance. He claims that the