            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
DORIS KOCINA,                                            )
                                                         )
                    Respondent,                          )
                                                         )
v.                                                       )        WD79324
                                                         )
TRACY JOHANNES,                                          )        Opinion filed: December 20, 2016
                                                         )
                    Appellant.                           )

         APPEAL FROM THE CIRCUIT COURT OF MILLER COUNTY, MISSOURI
                 THE HONORABLE JON A. KALTENBRONN, JUDGE

                        Before Division One: Thomas H. Newton, Presiding Judge,
                        Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

           Tracy Johannes (“Johannes”) appeals the judgment of the trial court in an unlawful

detainer action finding her possession of an apartment owned by Doris Kocina (“Kocina”) to be

wrongful and ordering her to pay damages in the amount of “double the reasonable rental value

of the property” from August 18, 2015, to September 10, 2015, as well as court costs.

           On appeal, Johannes alleges that she was a month-to-month at-will tenant and entitled to

one month’s notice of termination under sections 441.060.3 and 534.030.1.1 Thus, Johannes

argues that Kocina did not have standing to file her complaint for unlawful detainer until her

tenancy terminated after the expiration of the statutorily required one-month notice period. We



1
    All statutory citations are to the Revised Statutes of Missouri, 2000, as supplemented.
find that there was no landlord-tenant relationship between Johannes and Kocina and, therefore,

that Kocina did have standing to file her complaint for unlawful detainer against Johannes.

        Johannes alleges in her second point on appeal that the trial court erred in assessing court

costs against her because she was represented by Mid-Missouri Legal Service, Corp., which filed

a Certificate of Inability to Pay Costs, Fees, and Expenses pursuant to section 514.040.3. We find

that the trial court erred in assessing court costs against Johannes.2 As to those costs, the trial

court’s judgment is reversed and remanded for entry of judgment consistent with this opinion.

                                  I.    Facts and Procedural History3

        Johannes’ son entered into an oral employment agreement with Kocina wherein he agreed

to provide maintenance at an apartment complex owned by Kocina in exchange for a furnished

apartment and utilities. Johannes moved in with her son. On or about June 30, 2015, Johannes’

son informed Kocina that he would not continue providing maintenance at the apartments, thereby

terminating his tenancy.

        Kocina offered Johannes’ son the option to continue living in the apartment at $500 per

month, but he rejected the proposed arrangement. After Johannes’ son terminated the employment

agreement, he did not provide any further services to Kocina, make any rental payments, or pay

for utilities. Johannes’ son vacated the apartment in early August, but his personal possessions

remained and Johannes continued to live in the apartment. On August 18, 2015, Johannes was

served with a written notice to deliver possession of the apartment to Kocina. Johannes remained

in the apartment until September 10, 2015.



2
 Costs were taxed against Johannes and her son. The costs taxed against her son are not an issue raised on appeal
and are assumed to be proper.
3
  When reviewing a court-tried civil case, “the evidence is viewed in the light most favorable to the trial court’s
judgment.” White v. Dir. of Revenue, 321 S.W.3d 298, 302 (Mo. banc 2010).


                                                             2
       Meanwhile, Kocina filed a Complaint for Unlawful Detainer on August 26, 2015. After a

bench trial, the trial court entered judgment finding that, while the notice referenced a month-to-

month tenancy, Johannes never had an agreement with Kocina to occupy the premises and her

possession after August 18, 2015, was thus wrongful. The judgment ordered Johannes to pay

double the “reasonable rental value of the property” from August 18, 2015 to September 10, 2015,

and ordered court costs be paid by Johannes and her son. Johannes appeals the judgment against

her.

                                  II.     Standard of Review

       In a court-tried civil case, the court’s judgment will be affirmed “unless there is no

substantial evidence to support it, unless it is against the weight of the evidence, unless it

erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. banc 1976).

                                        III.   Discussion

       Johannes alleges two points of error on appeal. First, Johannes alleges that the trial court’s

judgment was in error because the evidence established that she was a month-to-month at-will

tenant and entitled to one month’s notice of termination under sections 441.060.3 and 534.030.1.

As a result, Johannes argues, Kocina did not have standing to file her complaint for unlawful

detainer until after the expiration of the required notice period. Johannes alleges in her second

point that the trial court erred in assessing court costs against her because she was represented by

Mid-Missouri Legal Service, Corp., who filed a Certificate of Inability to Pay Costs, Fees, and

Expenses, and the assessment of court costs under such circumstances was prohibited pursuant to

section 514.040.3.




                                                     3
                                         A.      Standing

         In her first point on appeal, Johannes alleges that the evidence established that she was a

month-to-month at-will tenant and therefore entitled to one month’s notice of termination under

sections 441.060.3 and 534.030.1.

         “Unlawful detainer” is defined by section 534.030.1:

         When any person willfully and without force holds over any lands, tenements or
         other possessions, [1] after the termination of the time for which they were demised
         or let to the person, or the person under whom such person claims; or [2] after a
         mortgage or deed of trust has been foreclosed and the person has received written
         notice of a foreclosure; or [3] when premises are occupied incident to the terms of
         employment and the employee holds over after the termination of such
         employment; or [4] when any person wrongfully and without force, by disseisin,
         shall obtain and continue in possession of any lands, tenements or other
         possessions, and after demand made, in writing, for the delivery of such possession
         of the premises by the person having the legal right to such possession, or the
         person's agent or attorney, shall refuse or neglect to vacate such possession, such
         person is guilty of an “unlawful detainer.”

Thus, there are four distinct scenarios under which a person is guilty of unlawful detainer—the

holdover tenant class, the foreclosure class, the holdover employee class, and the wrongful

possession class. See P.M. Const. Servs., Inc. v. Lewis, 26 S.W.3d 284, 288 (Mo. App. W.D.

2000).

         Johannes alleges on appeal that she and Kocina had a landlord-tenant relationship and,

accordingly, that she was within the holdover tenant class of section 534.030.1 and entitled to one

month’s notice under section 441.060.3. As a result, she argues that her occupation was lawful

and her tenancy did not terminate until expiration of the one-month notice period; until such point,

an action for unlawful detainer did not lie. We agree with the trial court that there was no landlord-

tenant relationship between Kocina and Johannes and, therefore, the one-month notice

requirement found in section 441.060.3 was inapplicable.




                                                      4
       One of the elements required to establish a landlord-tenant relationship is “a contract,

either express or implied, between the parties.” Letsinger v. Drury College, 68 S.W.3d 408, 411

(Mo. banc 2002) (citation omitted); see also Santa Fe Trail Redevelopment Corp. v. W.F. Coehn

& Co., 154 S.W.3d 432, 439 (Mo. App. W.D. 2005). Johannes essentially argues that a landlord-

tenant relationship was created by implied consent because Kocina pursued a suit for rent against

her and knew of her occupancy both during Johannes’ son’s employment lease term and after its

termination.

       Johannes relies, in part, on the case of Schnucks Carrollton Corp. v. Bridgeton Health &

Fitness Inc., which states that a tenant who keeps possession after the expiration of the lease term

without the landlord’s consent and thus has a tenancy at sufferance can be converted to a true

tenant if the landlord otherwise “consents to the holdover’s continuing possession[.]” 884 S.W.2d

733, 738-39 (Mo. App. E.D. 1994) (citations omitted). In such a situation, the court stated that “a

demand or suit for rent or words showing the intention to treat the holdover as a tenant are

sufficient.” Id. at 739 (citations omitted). Johannes relies on language in the notice that Johannes

and her son were occupying the apartment as tenants from month-to-month and that the notice

was given for the purpose of terminating the tenancy in accordance with section 441.060.

       The facts in this case are clearly distinguishable from Schnucks in that Johannes never had

a lease term, never established a landlord-tenant relationship with Kocina, and therefore could

not be a holdover tenant. In addition, Kocina’s action was not a suit for rent. The trial court’s

consideration of the written notice and ultimate finding that “while the notice referenced a month-

to-month tenancy, Johannes never had an agreement with Kocina to occupy the premises” is in

accord with this analysis.




                                                     5
        Johannes also seeks support from White v. Marshall, where this court found a resident

was a month-to-month tenant, even though the resident was not a party to the underlying expired

lease agreement and the lessee had moved out. 83 S.W.3d 57, 61 (Mo. App. W.D. 2012). In

finding the existence of a tenancy, the White court relied on the facts that the landlord had

consented to the resident living in the apartment and that the resident was paying rent on a monthly

basis. Id. The facts of the present case are again distinguishable as Johannes had not been paying

rent.

        Even though Kocina was aware that Johannes was occupying the apartment during her

son’s employment-based tenancy and remained there after her son’s tenancy ended, Johannes’

“mere occupancy of land . . . with the knowledge but without the consent of the owner[ ] does not

create a tenancy.” Kilbourne v. Forester, 464 S.W.2d 770, 774 (Mo. App. 1970) (citations

omitted). In light of the cases reviewed, Kocina did not imply her consent to a landlord-tenant

contract with Johannes following the termination of her son’s tenancy, particularly where no

payment of rent was ever tendered by Johannes. Thus, no landlord-tenant relationship existed

between Kocina and Johannes, and Johannes was not entitled to one month’s notice of termination

under section 441.060.3 before she could be guilty of unlawful detainer under section 534.030.1.

        Because no landlord-tenant relationship existed between Kocina and Johannes, Johannes’

occupation of the apartment fell within the fourth scenario provided in section 534.030.1,

wrongful possession. A person is guilty of unlawful detainer as a wrongful possessor when she

wrongfully and without force dispossesses the person who has legal right to possession and then

refuses or neglects to vacate after demand is made in writing for delivery of possession of the

premises. § 534.030.1. While “a written demand for possession prior to the institution of the




                                                     6
action is necessary in such actions[,]” a landlord-tenant relationship is unnecessary. P.M. Const.

Servs., 26 S.W.3d at 288 (citations and inner quotation marks omitted).

       Here, Johannes wrongfully and without force dispossessed Kocina of her legal right to

possession of the apartment. When Johannes failed to vacate the apartment after she was served

with written demand, she was guilty of unlawful detainer under section 534.030.1. Kocina, as the

person with legal right to the apartment, had standing to file her unlawful detainer action any time

after she made the written demand. In conclusion, we find Johannes was a wrongful possessor

and not a holdover tenant, that the one-month notice of termination requirement in section

441.060.3 was not applicable to her status, and that Kocina accordingly had standing to file her

Complaint for Unlawful Detainer.

        Point denied.

                                         B.      Court Costs

       Johannes alleges in her second point on appeal that the trial court erred in assessing court

costs against Johannes because she was represented by Mid-Missouri Legal Service, Corp., who

filed a Certificate of Inability to Pay Costs, Fees, and Expenses pursuant to section 514.040.3.

Section 514.040.3 provides as follows:

       Where a party is represented in a civil action by . . . a legal services . . . organization
       funded in whole or substantial part by moneys appropriated by the general
       assembly of the state of Missouri, which has as its primary purpose the furnishing
       of legal services to indigent persons . . . all costs and expenses related to the
       prosecution of the suit may be waived without the necessity of a motion and court
       approval, provided that a determination has been made by such . . . organization
       that such party is unable to pay the costs, fees and expenses necessary to prosecute
       or defend the action, and that a certification that such determination has been made
       is filed with the clerk of the court.

Pursuant to section 514.040.3, so long as “the legal services organization representing the party

make[s] a determination that the party is unable to pay the [court costs] and a certificate of such



                                                       7
determination [is] filed with the clerk of the court[,]” the “court does not have jurisdiction or

discretion to assess cost[s] or fees against [that] party.” State ex rel. Holterman v. Patterson, 24

S.W.3d 784, 786 (Mo. App. E.D. 2000). The only relevant distinction in this case is that Johannes

was not the prosecuting party. The statute, however, has also been applied to waive costs and

expenses for defending parties. See, e.g., Versey v. Jirak, 219 S.W.3d 774, 777 (Mo. App. E.D.

2007) (holding that mother in paternity action filed by putative father could not be liable for fees

after qualified legal services organization filed certification that mother lacked ability to pay).

       Here, Johannes was represented by Mid-Missouri Legal Service, Corp., a not-for-profit

Missouri Corporation that provides legal services to the indigent and low-income clients and

receives substantial funds from the State of Missouri. The organization made a determination that

Johannes was unable to pay the costs and expenses related to the suit and filed a Certificate of

Inability to Pay Costs, Fees and Expenses with the court. Thus, the trial court did not have the

discretion or legal authority to assess costs or fees against Johannes.

       Point granted.

                                       IV.     Conclusion

       We find that there was no landlord-tenant relationship between Johannes and Kocina and,

thus, Kocina had standing to file her Complaint for Unlawful Detainer against Johannes. We also

find that the trial court erred in assessing court costs against Johannes. As to costs assessed against

Johannes, the trial court’s judgment is reversed and remanded for entry of judgment consistent

with this opinion.

                                                _________________________________________
                                                EDWARD R. ARDINI, JR., JUDGE
All concur.




                                                      8
