                                                           
                    In the Missouri Court of Appeals
                            Eastern District
                                        DIVISION TWO

KNT MANAGEMENT, LLC,                                  )       No. ED99981
                                                      )
               Plaintiff/Appellant,                   )       Appeal from the Circuit Court
                                                      )       of the City of St. Louis
vs.                                                   )
                                                      )       Honorable Christopher E. McGraugh
KIMBERLY FLENOID,                                     )
                                                      )
               Defendant/Respondent.                  )       Filed: January 28, 2014

       The plaintiff landlord, KNT Management, L.L.C., appeals the judgment entered by the

Circuit Court of the City of St. Louis, awarding the landlord possession of an apartment leased

by the defendant tenant, Kimberly Flenoid, but denying the landlord rent due, costs, and

attorney’s fees. Following a trial de novo requested by the tenant, the trial court declined to

award the landlord rent due, attorney’s fees, or costs because the court misapprehended the

nature of a trial de novo and therefore its authority. The trial court erroneously declared and

applied the law in ruling that it had only “derivative” jurisdiction and could award no relief

greater than that previously awarded by the associate circuit judge. Consequently, we reverse the

judgment and remand the cause to the trial court for entry of judgment consistent with this

opinion.

       The landlord filed a petition for rent due and possession of the apartment leased by the

tenant. The petition sought a judgment “for rent through the day of court, other charges as
permitted by statute and restitution of the above premises with costs.” The summons was posted

on the door of the apartment. The landlord appeared for trial two weeks later, but the tenant

failed to appear and did not otherwise file an answer. The associate circuit judge awarded

possession of the apartment to the landlord but denied a money judgment. The tenant timely

filed an application for trial de novo in the circuit court, and posted bond payments of $390 on

two occasions, for a total bond posted of $780.

       The landlord appeared for the trial de novo, but the tenant failed to appear. On February

20, 2013, the trial court issued a judgment for possession of the apartment only, expressly

denying a money judgment for rent due, attorney’s fees, and costs as requested by the landlord.

The stated basis of the trial court’s award of possession only was that its jurisdiction was “purely

derivative” of that of the associate circuit judge. Since the associate circuit judge had tried only

the possession “cause of action,” the trial court reasoned that it had jurisdiction to hear only the

possession “cause of action” and not a “cause of action” for money damages. Following the

landlord’s motion for new trial, the trial court issued a second judgment on April 9, 2013. This

judgment again denied rent due and other money damages based on the same reasoning, but

awarded to the landlord the $780 bond posted by the tenant. The landlord appeals.

       In a court-tried case, we will affirm the judgment 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.

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

       The trial court misapprehended the nature of a trial de novo, and thus believed that its

jurisdiction was “derivative” of that possessed by the associate circuit judge in the original trial.

Consequently, the trial court declared that it could hear and consider only the cause of action—

namely possession of the apartment—heard and decided by the associate circuit judge in the




                                                  2
original trial. The trial court erroneously declared and applied the law. Because it

misunderstood the nature of a trial de novo, and thus the nature of its jurisdiction, the trial court

apparently believed that it could award no relief greater than that awarded by the associate circuit

judge.

              The associate circuit judge awarded the landlord the remedy of possession of the

apartment only, and did not award the remedy of rent due or other money damages, because at

that time, the landlord had not obtained personal service on the tenant. Rather, the landlord had

achieved service via posting, and the tenant failed to answer or appear and was in default.

Section 535.040.1 RSMo. (Supp. 2012) 1 provides in relevant part that “[n]o money judgment

shall be granted to the plaintiff if the defendant is in default and service was by the posting

procedure provided in section 535.030 unless the defendant otherwise enters an appearance.”

Thus, at the time of the original trial, the associate circuit judge lacked statutory authority to

award a money judgment to the landlord. Section 535.040.1.

              With the exception of an objection to subject-matter jurisdiction, however, if a party

takes any action in a case that recognizes the case as being in court, this amounts to a general

appearance. Germanese v. Champlin, 540 S.W.2d 109, 112 (Mo. App. St.L. Dist. 1976). Where

a party seeks relief, she necessarily assumes the attitude that the court’s jurisdiction has been

acquired, and she is bound by that position. Id. For example, Missouri courts have held that

affirmative action taken by a party constitutes a general entry of appearance when a party writes

to the trial court requesting a delay in placing the case on the docket, id., and when a party’s

attorney enters his appearance and seeks the court’s order allowing examination of juvenile files

open only to persons having a legitimate interest therein, State ex rel. A.M.T. v. Weinstein, 411

S.W.2d 267, 273-74 (Mo. App. St.L. Dist. 1967). In short, the test of a general appearance
                                                            
1
    All statutory references are to RSMo. (Supp. 2012) except as otherwise indicated.


                                                               3
conferring jurisdiction over the person is whether the defendant becomes an actor in the cause.

Id. at 272.

         When the tenant requested the trial de novo, she took affirmative action recognizing the

case as being in court and seeking relief. She became an actor in the cause. Thus, the tenant

“otherwise enter[ed] an appearance” and submitted to the court’s jurisdiction. The trial court

correctly ruled to this effect in its February 20, 2013 judgment. Given the tenant’s entry of

appearance, the trial court then had statutory authority to consider a judgment for both rent due

and possession of the apartment as prayed for by the landlord. The trial court was not

constrained by the judgment for possession of the premises granted by the associate circuit

judge.

         The trial court indicated that it could not award any relief beyond that awarded by the

associate circuit judge because the court believed that its jurisdiction was “derivative.” There is

no such concept as “derivative” circuit-court jurisdiction in Missouri. Missouri courts recognize

two kinds of jurisdiction—subject-matter jurisdiction and personal jurisdiction. J.C.W. ex rel.

Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). These two kinds of jurisdiction—

and the circuit court has only these two kinds—are based on constitutional principles. Id. For

the most part, personal jurisdiction is a matter of federal constitutional law. Id. Today, when a

court says it lacks personal jurisdiction, it means that due process prohibits it from affecting the

rights and interests of a particular person or entity. Id. at 253. Webb defined subject-matter

jurisdiction as “the court’s authority to render a judgment in a particular category of case.” Id.

Article V, section 14 of the Missouri Constitution governs subject-matter jurisdiction, and

provides in relevant part that “[t]he circuit courts shall have original jurisdiction over all cases




                                                   4
and matters, civil and criminal.” Id. at 253 (emphasis in Webb). Thus, we reject the proposition

that a circuit court has only “derivative” jurisdiction when conducting a trial de novo.

              In concluding that it had only “derivative” jurisdiction, the trial court misapprehended the

nature of a trial de novo and therefore its authority. 535.110 RSMo. (2000) provides in relevant

part that applications for trials de novo and appeals shall be allowed and conducted in the manner

provided in chapter 512. Section 512.180.1 provides in pertinent part that “[a]ny person

aggrieved by a judgment in a case tried without a jury before an associate circuit judge . . . shall

have the right of a trial de novo in all cases tried . . . under the provisions of chapters 482 [small

claims], 534 [forcible entry and unlawful detainer], and 535 [landlord-tenant].” 2

              While the caselaw uses the terms “appeal” and “trial de novo” interchangeably, it is

important conceptually to recognize that section 512.180.1 cases do not involve an “appeal” to

the circuit court, but rather, the right to an automatic new trial of the entire case. Hloben v.

Henry, 660 S.W.2d 431, 433 (Mo. App. E.D. 1983)(emphases added). The term “trial de novo”

means “[a] new trial on the entire case—that is, on both questions of fact and issues of law—

conducted as if there had been no trial in the first instance.” Black’s Law Dictionary 1512 (7th

ed. 1999). The circuit court does not take a case not heard on the record by an associate circuit

judge for “appeal” or review de novo, but for a trial de novo. State ex rel. Means v. Randall, 764

S.W.2d 120, 123 (Mo. App. W.D. 1988). It takes such a case for a trial anew of the entire case.

Id. Section 512.180.1 uses the term “de novo” “in its elemental and literal sense: a hearing anew

of the whole case as if no trial whatever had been had in the first instance—an original action in

which the evidence is heard anew and on which the de novo court is bound to give a judgment of


                                                            
2
 We note the contrast in the language of section 512.180.1 with that of section 512.180.2, which provides in
pertinent part that in all other contested civil cases tried before an associate circuit judge, a record shall be kept, and
any person aggrieved by a judgment rendered in such a case may appeal to the appropriate appellate court (emphasis
added).


                                                               5
its own.” See id. (making this observation with regard to section 482.365, chapter 482 actions

being covered by the trial de novo provisions of section 512.180.1). The statute does not mean

that the de novo court sits as an appellate court to assess claims of error in the original

proceedings before the associate circuit judge. Id. Citing section 512.180.1, the Means court

reiterated that the statutory scheme of a trial de novo contemplates an original proceeding in the

circuit court. Id.

        The trial court relied on Newman v. Weinstein, 75 S.W.2d 871, 873 (Mo. App. St.L. Dist.

1934), and McMenamy v. Main, 686 S.W.2d 874, 876 (Mo. App. E.D. 1985), for the proposition

that the court’s jurisdiction was merely derivative. The trial court also relied on Green v.

Woodard, 588 S.W.2d 522, 524 (Mo. App. S.D. 1979), and Beilstein v. Allen, 616 S.W.2d 140,

143 (Mo. App. E.D. 1981), for the proposition that it was limited to the precise issues tried

before the associate circuit judge, namely possession of the apartment. Newman, Green, and

Beilstein, however, are clearly distinguishable. None of these cases involved a trial de novo from

a trial before an associate circuit judge under the current statutory scheme, but rather an appeal

from a justice or magistrate court to the circuit court when such appeals were authorized under

prior statutes. Newman, 75 S.W.2d at 871; Green, 588 S.W.2d at 523; Beilstein, 616 S.W.2d at

143; see also Hloben, 660 S.W.2d at 432 (explaining that prior to Court Reform and Revision

Act of 1978, judgments of magistrate courts could be appealed to circuit court). In addition, the

Court’s discussion in Beilstein relates to the statutory authority possessed by the magistrate

court, and consequently by the circuit court in a case on appeal from the magistrate court. 616

S.W.2d at 142-43. It was in the context of an appeal from a magistrate court under a former

statutory scheme, wherein the magistrate court lacked statutory authority to hear certain types of

claims and claims for money damages above a certain amount, that the Eastern District stated




                                                  6
that “[t]he circuit court was limited to the issues tried in the magistrate court.” Id. Furthermore,

our reading of McMenamy convinces us that the Court there was speaking of the concept of

“jurisdictional competence.” See 686 S.W.2d at 876. As our Supreme Court clarified in Webb,

Missouri does not recognize “jurisdictional competence” but only personal and subject-matter

jurisdiction. 275 S.W.3d at 252. Thus, following Webb, we can no longer accept McMenamy as

an accurate statement of the law. The cases relied on by the trial court are inapposite.

        Here, we do not have an appeal from a justice or magistrate court to the circuit court

under a former statutory scheme, but a trial de novo in the circuit court. We also do not have a

different cause of action than that pleaded and tried before the associate circuit judge, but rather

a landlord who, in the new trial, merely sought all remedies available in the same rent-and-

possession claim, such being made possible by virtue of the tenant’s entry of appearance.

        In addition to the foregoing cases, the trial court also cited section 512.280 RSMo.

(2000), which states in relevant part that “[t]he same cause of action, and no other, that was tried

before the associate circuit judge, shall be tried before the judge upon the trial de novo[.]” This

statute restricts the trial de novo to “the same cause of action” as the prior action. Obviously, to

ascertain whether the present action is “the same cause of action” requires consideration of the

prior cause of action. We conclude, however, that this statute exists to prevent abuse of the right

to a trial de novo by litigants seeking to assert new or distinct causes of action under the guise of

a new trial.

        This statute’s prohibition on changing or adding a cause of action upon a trial de novo

does not alter our conclusion under the circumstances present here. This is because “rent” and

“possession” are not distinct causes of action, but constitute alternative remedies available in a

single cause of action pursuant to section 535.040.1 based on the same theory and the same




                                                  7
ultimate facts. Although some authority exists stating that rent and possession are distinct

actions, see, e.g., Rouse Co. of Missouri, Inc. v. Justin’s Inc., 883 S.W.2d 525, 529 (Mo. App.

E.D. 1994) and Cook v. Am. Maint. Co., 588 S.W.2d 171, 172 (Mo. App. E.D. 1979), we find

this reasoning flawed.

       Section 535.040.1 provides in relevant part that upon return of the summons executed,

the judge shall set the case for the first available date, and “shall proceed to hear the cause,”

phrased as a singular noun, and shall render judgment that the landlord recover possession of the

premises and also the debt for the rent then due with all court costs. Moreover, rent and

possession constitute alternative remedies because they arise from the same underlying operative

facts. A “cause of action” is “[a] group of operative facts giving rise to one or more bases for

suing; a factual situation that entitles one person to obtain a remedy in court from another person;

claim[.]” Black’s Law Dictionary 214. Conversely, a “new cause of action” is “[a] claim not

arising out of or relating to the conduct, occurrence, or transaction contained in the original

pleading.” Id.

       We also draw guidance from S & P Properties, Inc. v. Bannister, where we held that by

resolving the issue of possession alone in the plaintiff’s unlawful-detainer action and bifurcating

the issue of damages for later determination by a jury, the trial court failed to resolve one claim

as to one party. 292 S.W.3d 404, 408 (Mo. App. E.D. 2009). If a petition seeks to enforce only

one legal right, then it states only a single claim, even if the petition seeks multiple remedies. Id.

Here, the landlord sought both rent and possession in its petition. Thus, no party sought to try

any different or additional cause of action upon the trial de novo in violation of section 512.280

RSMo. (2000), and the trial court’s reliance on section 512.280 under these circumstances was

misplaced.




                                                  8
