Kevin Dochterman, Respondent, v. Shana Lindsey, Appellant.

NORTH ERN DIVISION KEVIN D OCHTERMAN, Responden t, v.

S HANA LINDSEY, Appellant . ) ) ) ) ) ) ) ) ) No. ED112915

App eal from the Circuit Court of Clark County The Honorable Holly Conger-Koenig, Judge Shana Lindsey appeals the circuit court's judgment in unlawful detainer finding that her landlord, Kevin Dochterman, was entitled to immediate possession of the leased property and attorney's fees. Among her four points on appeal, Lindsey argues that the circuit court erred in awarding Dochterman his attorney's fees. Because an unlawful detainer action is a suit brought under statute and not under the contract, and because the unlawful detainer statutes do not separately allow for attorney's fees, the Court agrees with Lindsey on this point. The judgment is affirmed, in part, and reversed, in part.

2 Background In March 2023, Dochterman and Lindsey entered into a lease-to-own agreement for Dochterman's property. As part of the lease, Lindsey agreed to "pay all utility charges and bills, including, but not limited to, water, sewer, gas, oil, and electric, which may be assessed or charged against the property." Lindsey never paid the utilities. Dochterman served Lindsay a notice of termination on August 5, 2023, claiming unpaid rent, and a second notice on August 25, 2023, claiming unpaid utilities. The notices of termination demanded Lindsay vacate the property and deliver possession to Dochterman. Lindsey failed to deliver possession of the property, and in December 2023, Dochterman filed suit for unlawful detainer, citing only the second notice of termination. Thereafter, Lindsey filed for bankruptcy and notified the circuit court that all proceedings against her should be stayed as a result. The circuit court stayed its proceedings until after the bankruptcy case resolved on April 5, 2024. The circuit court held a bench trial and issued its judgment on May 14, 2024. The circuit court found Dochterman was entitled to possession of the property and awarded him attorney's fees. Lindsey appeals. Analysis Standard of Review This Court will affirm the circuit court's judgment "unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." Vanguard Heights v. Sourakli, 713 S.W.3d 713, 716 (Mo. App. 2025). The evidence and inferences from the evidence are viewed in the

3 light most favorable to the judgment, disregarding all contrary evidence and inferences. Id. Against the Weight of the Evidence Challenge Lindsey claims the circuit court's finding she materially breached the lease is against the weight of the evidence. 1 Lindsey argues the lease did not explain how she was to pay the utilities and Dochterman did not present evidence that he was damaged by paying the utilities. "Appellate courts act with caution in exercising the power to set aside a decree or judgment on the ground that it is against the weight of the evidence." Ivie v. Smith, 439 S.W.3d 189, 205 (Mo. banc 2014). Claiming a "judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment." Id. An 1 It is unclear whether Dochterman complied with the technical common law requirements to invoke unlawful detainer in these circumstances. See Indep. Flying Serv., Inc. v. Abitz, 386 S.W.2d 399, 405 (Mo. 1965) and Fritts v. Cloud Oak Flooring Co., 478 S.W.2d 8, 11-12 (Mo. App. 1972). Unlawful detainer, in the circumstance of a leasehold estate, applies when a tenant holds over property "after the termination of the time for which they were let." Section 534.030. It can also apply when a leasehold estate is terminated by forfeiture. But not every breach of lease constitutes a forfeiture of the leasehold estate. "To effectuate forfeiture of a lease every requirement of the law must be scrupulously observed, unless waived by agreement, and a covenant permitting a forfeiture will be strictly construed against the party invoking it and in favor of the tenant." Hous. Auth. of City of Mansfield v. Rovig, 676 S.W.2d 314, 316 (Mo. App. 1984). Unless the breach of a covenant is unequivocal, a lease forfeiture will not be enforced. Id.; Carbonetti v. Elms, 261 S.W. 748, 750 (Mo. App. 1924). However, because Lindsay brought an against-the-weight-of-the-evidence challenge rather than an erroneous application of the law challenge, this Court is precluded from undertaking this analysis. "The function of the appellate court is to examine asserted error, not to serve as an advocate for any party on appeal." Pearson v. Keystone Temp. Assignment Grp., Inc., 588 S.W.3d 546, 552 (Mo. App. 2019) (quoting Kramer v. Park-Et Rest., Inc., 226 S.W.3d 867, 870 (Mo. App. 2007)).

4 against the weight of the evidence challenge tests the persuasiveness of the evidence. Id. at 206. An against-the-weight-of-the-evidence challenge must follow a four-step analytical framework. Weeks v. City of St. Louis, No. SC101018, 2025 WL 3088365, at *2 (Mo. Nov. 4, 2025). "When reviewing the record in an against-the-weight-of-the- evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations." Id. "The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. To correctly make an against-the-weight-of-the- evidence argument, Lindsey must: (1) identify a challenged factual proposition necessary to sustain the judg ment; (2) identify all of the favorable evidence in the record sup porting the challenged factual proposition; (3) identify the evidence in the record contrar y to that proposition, resolving all evidentiary conf licts in accordance w ith the circuit court's implicit and explicit credibility determinations; and, (4) demonstrate the favorable evidence, and th e reasonable i nferences therefrom, is so lacking in probative value that it f ails to induce be lief in that proposition when considered in the context of the entire record. Weeks, at *2; see also Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. 2010) (identifying the four required and sequential steps for an against-the-weight-of-the- evidence challenge). Lindsey fails to comply with the necessary analytical framework to advance her argu ment that the judgment is against the weight of the evidence. Lindsey's argument is based only on the evidence favorable to her position without reference to opposing

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evidence or credibility determinations made by the circuit court. Lindsey's failure to identify the evidence supporting the judgment and to demonstrate that evidence is "so lacking in probative value that it fails to induce belief in that proposition," renders her argument without "any analytical value or persuasiveness." Weeks, *3 (quoting Houston v. Crider, 317 S.W.3d 178, 189 (Mo. App. 2010)). The evidence, viewed most favorably to the judgment, demonstrated that Lindsey agreed to pay utilities and failed to do so. The circuit court necessarily found that this amounted to a forfeiture of the leasehold estate sufficient to justify the use of unlawful detainer. In the absence of an analytically sound against the weight of the evidence challenge, this Court must affirm this portion of the circuit court's judgment. Sufficient Notice to Cure the Breach Lindsey claims the circuit court erred because Dochterman failed to prove he was entitled to immediate possession of the premises because he failed to give Lindsey sufficient notice to cure the alleged breach of the lease agreement as required by section 441.060, RSMo 2016. 2 But section 441.060 governs tenancies at will. When there is a tenancy at will, section 441.060.4 provides requirements for how a landlord may terminate the tenancy. See Vanguard Heights v. Sourakli, 713 S.W.3d 713, 717 (Mo. App. 2025) and Brown as Tr. of George E. Heard Revocable Tr., Dated Feb. 24, 2000 v. Barnes, 641 S.W.3d 241, 246 (Mo. App. 2021).

2 All statutory references are to RSMo 2016.

6 Lindsay did not have a tenancy at will. As a result, Section 441.060.4 does not apply. The circuit court did not err in failing to apply section 441.060. Failure to Stay during Bankruptcy Proceedings Lindsey claims the circuit court erred by entering the unlawful detainer judgment while Lindsay had a pending bankruptcy case. Lindsey argues this judgment violated the automatic stay provision. On January 16, 2024, Lindsey notified the circuit court that she filed a Chapter 13 petition for bankruptcy and all proceedings against her were stayed pursuant to 11 U.S.C. § 362. After Lindsey informed the circuit court of the bankruptcy stay, the circuit court continued the case. The bankruptcy code provides that a stay remains in effect until the earliest of— (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case un der chapter 9, 11, 12, or 13 of this title, the time a dischar ge is granted or d enied .... 11 U.S.C. § 362(c). 3 Lindsey's bankruptcy case was dismissed on January 26, 2024. Accordingly, the stay terminated at that time. There was no violation of the bankruptcy stay because the circuit court did not take any action in this case until well after the stay terminated. Attorney's Fees 3 The bankruptcy code also provides exceptions to ending the stay, but those exceptions are not at issue.

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Finally, Lindsey claims the circuit court lacked authority to award Dochterman attorney's fees. Lindsey argues that the unlawful detainer action assumed the lease agreement had been terminated and therefore, its provisions for attorney's fees could not be enforced. "Missouri courts follow the American Rule, which provides that, in the absence of statutory authorization or contractual agreement, with few exceptions, parties bear the expense of their own attorney fees." Arrowhead Lake Ests. Homeowners Ass'n, Inc. v. Aggarwal, 624 S.W.3d 165, 167 (Mo. banc 2021) (quoting Wilson v. City of Kan. City, 598 S.W.3d 888, 896 (Mo. banc 2020)). Unlawful detainer is a limited statutory action. Adams v. Ware , 691 S.W.3d 304, 308 (Mo. App. 2024). "The unlawful detainer statutes provide for summary relief and are an exclusive and special code." Ridgetop Manor, LLC v. White, 717 S.W.3d 818, 826 (Mo. App. 2025) (quoting Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 454 (Mo. banc 2013)). Unlawful detainer only resolves the right to immediate possession. Wells Fargo, 392 S.W.3d at 454. The unlawful detainer statutes do not authorize an award of attorney's fees. Espinosa, Tr. of Melissa K. Espinosa Revocable Tr. v. Baker, 631 S.W.3d 631, 634 (Mo. App. 2021). Additionally, Dochterman cannot claim attorney's fees under any provision of the lease. Although the lease unequivocally provides for an award of attorney's fees "in the event [the lease] is placed in the hands of an attorney for enforcement," an unlawful detainer action is not an action to enforce a lease. Rather, unlawful detainer presumes that

8 someone occupies property without any valid claim of possession, e.g. without a lease. Ellsworth Breihan Bldg. Co. v. Teha Inc., 48 S.W.3d 80, 83 (Mo. App. 2001). If Dochterman wanted to pursue possession while also seeking attorney's fees under the lease, he could have filed a rent and possession action under Chapter 535. He also could have sought damages for the breach of the lease and received attorney's fees while permitting Lindsey to maintain possession of the property. But Dochterman instead chose to file an unlawful detainer action under Chapter 534. Chapter 534 provides an expedited procedure to obtain possession of property after the termination of a leasehold interest and an opportunity for a landlord to seek double damages during the holdover period. It is not, however, a mechanism to enforce a lease. Dochterman had neither statutory authorization nor a valid contractual agreement from which the circuit court could award attorney's fees. Accordingly, the circuit court erred in awarding him attorney's fees. Conclusion The circuit court's judgment awarding attorney's fees is reversed. The circuit court's judgment on all other issues is affirmed. _______________________________ JOHN P. TORBITZKY, CHIEF JUDGE Robert M. Clayton III, Judge, and Michael S. Wright, Judge, concur.