|Trent and Sharon Cowherd|
We're talking about the Rent-and-Possession (R and P) Petition designed to have Carol and me removed as tenants from property at 4070 S. Fort Ave. in Springfield, Missouri. The petition has been in the case record since August 5, 2015, the day it was filed. But it is "newly discovered" in the sense that we had never seen it until recently -- and we never were served with it.
I had noticed an item titled "Petition" in the court file, but I assumed it was a copy of an R and P form that had been attached to our door in various forms during the eviction proceeding. On a recent visit to the Greene County Courthouse, I decided to print out the petition -- and, lo and behold -- it was not the form; it was a document, like a complaint in a lawsuit, upon which mine eyes had never feasted. We could see immediately that it was most informative. What does it tell us?
(1) It confirms what we already knew: That Cowherd violated Missouri law by instituting eviction proceedings long before our rent was late by at least one month;
(2) It confirms that we never were lawfully served, as I had argued in our Counterclaim and Motion to Quash Execution, and that means the court had no jurisdiction over my wife, Carol, and me.
(3) The notion that Carol unlawfully was on the premises -- even though I told the Cowherd representative on the day I signed the lease that my wife was in Birmingham gathering our belongings and would be joining me in Missouri -- apparently originated with Cowherd, perhaps via a member (or members) of my family. The Cowherd rep OK'd Carol's presence in the apartment but did not write her name down as a tenant; the rep filled out the Rental Agreement and only allowed me to sign my name and fill in information about our pets. There is evidence in the lease that I told Cowherd about all the living beings that would be living in the apartment, and they approved them. But the eviction petition claims Carol was on the premises unlawfully -- and that is curious because Carol now faces a trespass charge in the bogus criminal case brought by the Greene County Sheriff's Office and Prosecuting Attorney Dan Patterson.
Documents in the criminal case provide zero information about the trespass count -- and it is due to be dismissed when Carol returns to court today -- and we've never had a clue about what "facts" it is based. That changed when we discovered Cowherd's Petition.
(Note: The Petition and Rental Agreement are embedded at the end of this post.)
Missouri law is clear that eviction proceedings cannot begin until a tenant's rent is late by at least one month. Here are the words straight from RSMo 535.120, which apparently has existed in one form or another since at least 1909. Why would Cowherd and Lowther be unaware of tenant-landlord law that has been around for more than 100 years? Hard to say. Here's how the law currently reads:
Whenever one month's rent or more is in arrear from a tenant, the landlord, if he has a subsisting right by law to reenter for the nonpayment of such rent, may bring an action to recover the possession of the demised premises.
That language seems pretty straightforward; a tenant is not a candidate for eviction proceedings until he is behind on rent by at least one month. But Cowherd and Lowther can't figure it out? Consider this language from the petition that Lowther filed on Cowherd's behalf:
4. That the Defendants are in arrears and there is now due unpaid rent in the amount of Seven Hundred Ninety Five Dollars and No Cents ($795.00).
5. Demand has been made for the rent, but has not been paid to the Plaintiff.
6. That said Lease Agreement signed by the Defendants provided for late charges and reasonable attorney fees should the employment of an attorney be necessary in order to collect the monies owed Plaintiff.
Let's address a few problems that arise from this language in Cowherd's petition:
(A) Our July rent had been paid, and the petition is dated August 5, 2015. So we're talking about the August rent here -- and on its face -- the petition shows that rent is late by five days. Cowherd makes no mention of the RSMo 535.120 requirement that rent be late by at least one month. He makes no mention that our rent was not even close to being late by one month. He makes no mention that he had zero grounds to institute eviction proceedings against us.
(C) The Lease Agreement does allow for late charges, but Cowherd never sought late charges because it never demanded the August rent at all. It simply told us to leave, for reasons not found in the lease. More importantly, late fees are proper under the lease, but attempted eviction is not proper under state law until rent is late by at least one month.
As for lack of unlawful service, we addressed that in our Motion to Quash Execution:
The judgment in this case is void due to improper service. Plaintiff Trent Cowherd ("Cowherd") elected to use the posting-mailing form of service allowed in landlord-tenant cases under RSMo. 535.030(2). But the docket in this case shows the petition never was mailed to Shuler. Missouri courts have held that "proper service of process must be accomplished before a court can obtain jurisdiction over the person or property of defendant." Reisinger v. Reisinger 39 S.W. 3d 80 (Mo. App. E.D., 2001). Further, Missouri courts have held: "[A] personal judgment rendered by a court without personal jurisdiction over a defendant is void and may be attacked collaterally." Crouch v. Crouch, 641 S.W. 2d 86 (Mo., 1982). Shuler raised the defenses of lack of personal jurisdiction and insufficiency of service of process in his answer, before ever appearing in court. That means the waiver provisions of Rule 55.27(g)(1)(B) were not triggered, contrary to the ruling of the trial court on this issue." A defending party who wishes to raise defenses of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process must do so either in a pre-answer motion or in the party's answer." Worley v. Worley, 19 S.W. 3d 127 (Mo., 2000).
The Notice of Eviction in the instant case also was improperly served. Missouri law holds, "The Missouri Eviction Notice must be served either personally on the tenant or by leaving it with a person at least 15 years of age who lives on the property. If no one is present, the server may post the demand and complete a sworn affidavit attesting to service." According to the docket in this case, no sworn affidavit attesting to service of the eviction notice is on file. That means service is unlawful, and said eviction notice is due to be quashed.
The service problems in our eviction case, which mean the judgment was void, only grew when we discovered Cowherd's R and P Petition in the court file about 10 days ago. We never were served with that either, had never seen it until we happened to stumble upon it during a courthouse visit on other matters.
Bottom line? We were kicked out of our home, had most of our physical possessions stolen by Cowherd's eviction crew, Carol had her arm broken, and I had an assault weapon pointed at my head . . . all because of a court judgment that was void on multiple grounds.
That sounds pretty grim, but we have discovered a sliver of light. The claim that Carol was unlawfully on the premises . . . well, there is some comedy involved in that. We will explain in an upcoming post.