On December 5, 2017, the Missouri Supreme Court decided the case of Brainchild Holdings v. Cameron, holding that the parties in a rent & possession case have the right to request a trial by jury. Potentially, the results could be disastrous for landlords and for the court system.
At the present time, especially in Jackson County, the backlog of jury trials can be months long. (In other counties the wait could be shorter or longer.) If requests for jury trials for evictions become common, there is no way to predict how far out a trial might be scheduled.
One of the fears is that there are attorneys who will represent tenants solely for the purpose of delaying the process. After the great wave of foreclosures a few years ago, some attorneys represented people who had been foreclosed and refused to vacate the property. When an unlawful detainer was filed to remove the people from the property, it was possible for the defendant’s attorneys to delay the final eviction for as much as a year. (Jury trials have always been available in unlawful detainer cases, which is the kind of case which would be filed after a foreclosure.) It is possible that the same approach could be taken with tenants now.
It remains to be seen what the practical effect of this decision will be. There has been a right to trial by jury in unlawful detainer cases for years but they are seldom requested. Personally, I have had to actually try one unlawful detainer jury trial in my 42 years of law practice. Many attorneys have never had to try one. I’ve seen several other requests made but the cases were later settled or resolved by summary judgment motions. One fear seems to be that tenants or their attorneys will request the jury trial, delay the case several months, and then ask the landlord what he’ll pay the tenant to move out.
As we know, the great majority of eviction cases, maybe 80-90%, (whether unlawful detainer or rent & possession) result in default judgments – the tenant simply never appears in court. Therefore, nothing will change for those cases. In many other cases, the tenant will not be aware the right and will not make the request for a jury. Then, the trial will be heard by the judge in a week or two, as at present. Furthermore, the request for a jury trial must be made at the first court appearance or the right is waived. (Once the judge schedules the bench trial, it is too late to request a jury.) In short, in order for there to be a jury trial, the tenant must appear and make a timely request.
This jury trial decision may be like a tornado. You may go through your whole life and never be hit by one – but you just need to be hit once to have some extensive damage.
What can a landlord do?
First, be sure you have a provision in your lease which includes the tenant’s waiver of a jury trial.
The language contained in my lease reads,
“LANDLORD and TENANT hereby waive trial by jury in any action, proceeding or counterclaim brought by any of the parties hereto against any other party on, or in respect of, any matter whatsoever arising out of or in any way connected with this lease, the relationship of LANDLORD and TENANT hereunder, Tenant’s use or occupancy of the leased premises (including a suit for unlawful detainer) and/or any claim of injury or damage.”
In 1997, the Missouri Supreme Court upheld the validity of jury waivers in contracts. (Similar provisions are used by other attorneys and a waiver provision in in the “Blue Moon” lease used by the Apartment Association of Kansas City.)
Second, support legislation to change the statutes to specifically eliminate the right to jury trial.
When the time comes, we’ll need people to contact their state representatives. Although we don’t like the result of the court decision, we were fortunate in the timing. We have time to get bills filed before the legislative session begins in January.
Article Provided by Kansas City Eviction Attorney Robert J. Wise who can be reached at (816)942-5925 or via email at Wisebob@earthlink.net