Mendy Allen doesn’t live there anymore.
However, she’s entitled to a second hearing on her landlords’ eviction case because of procedural errors made in last December’s hearing, the state appeals court in Kansas City ruled Tuesday.
Allen had leased a home on South Ten Mile Drive owned by Richard and Beverly Boehm, but that lease expired and wasn’t renewed.
The Boehms filed an “unlawful detainer” lawsuit Nov. 3 in Cole County Associate Circuit Court, asking Judge Thomas Sodergren to order Allen to move from the property.
After a Dec. 20 hearing, Sodergren agreed and ordered Allen to leave no later than noon Jan. 4, 2017.
He authorized the Cole County Sheriff’s Department to “forcefully remove (Allen), and all others existing on the premises under (her) authority, from the premises” if she didn’t leave.
And Sodergren ruled “the Sheriff may forcefully gain access to the premises, if necessary, so that the (Boehms) may have the locks changed.”
Allen left the property Jan. 5 after deputies served her with an order, Judge Lisa White Hardwick noted in a seven-page opinion written for the three-judge appeals court panel.
However, the appeals court ruled, Allen is entitled to a second trial in the case because Sodergren denied her Dec. 15 motion for a continuance of the scheduled Dec. 20 hearing.
Hardwick said state law provides procedures that apply to some cases brought before the associate circuit court, including unlawful detainer suits.
When a continuance is requested, she wrote, state law says “a case shall be continued to a day certain upon the request of any party, made on or before the return date of the summons” — and previous court rulings have found “a circuit court’s refusal to grant the continuance constitutes a misapplication of the law, warranting reversal.”
The appeals court noted the Boehms had argued Allen’s request for the continuance didn’t comply with a local court rule, which “applies to civil cases and permits the court to grant continuances upon good cause shown by a written motion and supporting affidavit.”
However, Hardwick wrote, “The local rule cannot be applied to void the statutory requirement.”
The appeals court also said Allen was entitled to a new trial because there was no official record made of the Dec. 20 hearing.
Court reporters regularly take notes during hearings done in circuit courts, but they aren’t used as often in associate circuit court proceedings.
Hardwick wrote that practice goes against state law.
With the exception of certain cases, the appeals court ruled, “in all other contested civil cases tried before an associate circuit judge, including an unlawful detainer case, (the law says) ‘a record shall be kept, and any person aggrieved by a judgment rendered in any such case may have an appeal upon that record to the appropriate appellate court.’”
The Boehms also argued Allen’s appeal should be dismissed because she had vacated the property and it since has been leased to new tenants.
However, the court found, “Allen did not voluntarily surrender the property. The eviction judgment was entered against her on Dec. 20, 2016, (and she) did not vacate … until the day she was served with an Order of Execution for Possession by the Cole County Sheriff’s Office.”
Hardwick added, “If Allen had not immediately complied with the order, the Sheriff had authority to forcefully enter and remove her from the premises.”