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Civil Practice : Trial By Jury – Rent And Possession Case

Where a tenant argued that the trial court erred when it interpreted Section 535.040 to deny her a right to a jury trial in a rent and possession case, the appellate court finds that a rent and possession action is similar to a breach of contract action seeking monetary damages, and the landlord’s petition alleged claims in law and equity, so the tenant should have been allowed a jury trial, but the law requires clarification since rent and possession actions are intended to be expeditiously resolved, so the case is transferred to the Missouri Supreme Court due to general interest and importance.


Legislative intent

Opinion concurring in result by Robert G. Dowd Jr., J., “The current version of the statute neither provides for nor precludes a jury trial. Instead, it sets forth procedures for the court to hear rent and possession actions in an expeditious manner. The statute requires the judge to set such a case on the first available court date upon the return of an executed summons, to hear the case at that time, and in certain situations, put the landlord into immediate possession of the property. Section 535.040.1. The officer is also required to deliver possession of the property within just five days from the receipt of the execution. Id. All of these elements of the statute indicate the legislature originally intended these actions to be addressed expeditiously. Should these cases be tried before juries, it would be nearly impossible for trial courts to meet the demands of the statute. The timing requirements in the statute are much more workable in judge-tried cases, which suggests that the legislature intended these cases to be tried by judges.”


Clarification needed

Concurring opinion by Quigless, J.: “Under the old provision of section 512.180 R.S.Mo. Supp. 2004,1 a party had the right to file an application for trial de novo. The case was then heard by a different judge anew. The trial de novo was not an appeal. Instead, it was a second trial heard by a judge except that by agreement of the parties the case ‘may be’ tried before a jury of six persons. Section 512.310. The amended version of section 512.180, however, eliminated the provision for a trial de novo in rent and possession cases, thus removing the parties’ ability to ‘agree to’ their constitutional right to a jury trial of six persons. A right that the Missouri Constitution indicates ‘shall remain inviolate.’ MO. CONST. art. I, § 22(a).

“Recognizing that right, I share in the practical concerns expressed by my colleague in his opinion. However, balancing the rights of the landlord to claim his property expeditiously, while affording the right of any party to a trial by jury, is an issue that requires clarification under the current legislative changes.”


Brainchild Holdings, LLC v. Cameron (MLW No. 70448/Case No. ED104122 – 10 pages) (Missouri Court of Appeals, Eastern District, Van Amburg, J.) Appealed from circuit court, St. Louis City, Noble, J. (Sam Hoff Stragand for appellant) (Brainchild Holdings, LLC, pro se).

Read the full text of this opinion. (PDF)