Amond v. Ron York & Sons Towing

• Decision Date: 29 December 2009
• Docket Number: No. ED 92087.,ED 92087.
• Parties: Antoinette AMOND, Plaintiff/Appellant, v. RON YORK & SONS TOWING, Defendant/Respondent, Tim Carpenter, and Barbara Carpenter, Defendants.
• Court: Missouri Court of Appeals

302 S.W.3d 708

Antoinette AMOND, Plaintiff/Appellant, v. RON YORK & SONS TOWING, Defendant/Respondent, Tim Carpenter, and Barbara Carpenter, Defendants.

No. ED 92087.

Missouri Court of Appeals, Eastern District, Division One.

December 29, 2009.

Matthew H. Hearne, Hearne & Bendick LLC, St. Louis, MO, for appellant.

Ron York & Sons Towing, St. Louis, MO, pro se.

Tim and Barbara Carpenter, St. Ann, MO, pro se.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff filed a lawsuit against defendants, a towing company and its owners, for conversion of her vehicle after defendants towed the vehicle at the request of law enforcement officials, sent plaintiff two defective notices of redemption, and thereafter refused to allow plaintiff to redeem her vehicle when she made demand and tendered proof of ownership and the costs to redeem. After a bench trial, the trial court entered judgment in favor of the towing company.¹ Plaintiff appeals.² We reverse the judgment because the undisputed evidence established conversion as a matter of law. We remand for a partial new trial on the issue of plaintiff's damages.

The facts are not disputed. Plaintiff, Antoinette Amond, a Texas resident, was the owner of a 2004 Jeep Cherokee. She allowed a friend in St. Louis, Missouri to borrow the vehicle for a couple of months. On December 21, 2006, law enforcement officials from St. Ann, Missouri, gave Ron York & Sons Towing (Ron York), a corporation with offices in Breckenridge Hills, Missouri, authorization to tow plaintiff's vehicle. On January 12, 2007, Ron York sent a notice letter dated December 26, 2006 via certified mail to plaintiff's home address in Texas. This letter was returned to Ron York marked "Unclaimed." Subsequently, Ron York sent another notice letter to plaintiff via certified mail on February 16, 2007. Both notices were admitted into evidence at trial. Except for the dates on the letters and total amount due, the notices were identical, and provided:

This notice is sent to you by [Ron York] the lienor, to notify you that said lienor has possession of said motor vehicle as described below, and claims a lien for towing and/or storage fees on your vehicle. Vehicle was ordered towed by the above police department.

[The notice then provides the VIN number, license plate number, and a description of plaintiff's vehicle, as well as the date Ron York began storing the vehicle and the total amount due.]

To redeem the vehicle the cash sums are required to be paid the lienor for the labor and services performed plus storage fees and costs incurred for utilizing the enforcement procedures of this statute. You must make arrangements to redeem your vehicle within 30 days if your vehicle was towed from public property (authorized in section 304.155 and 304.575, RSMo) or within 60 days if your vehicle was towed from private property (authorized in section 304.157).

Title holders: You must act to protect your title

Lienholders: You must act to protect your title

Title holder: If you are no longer interested in this vehicle bring the title to our office, all charges due will be dropped. If no action is taken the title holder could be held liable for the deficiency after the vehicle is sold.

Lienholder: If the lien has been released, please send a notarized lien release on your company letterhead.

If you have any questions, please call the phone number listed above.

Plaintiff received the second notice on February 23, 2007. After receiving the notice, plaintiff contacted Ron York. The employee who answered the phone told plaintiff what she needed to bring to pick up the vehicle and that the cost to redeem the vehicle was $1,495. Plaintiff informed the employee that she would be traveling to St. Louis on Monday, February 26, 2007 to the pay the costs and to pick up her vehicle. Plaintiff arrived at Ron York's office on that Monday morning. At that time, Ron York had already submitted an application to obtain title to plaintiff's vehicle. After arriving at Ron York's office, plaintiff provided an employee of Ron York with her driver's license and the vehicle's registration in order to show proof of ownership. The employee then said that the cost to redeem would be $1,795. Plaintiff agreed and attempted to pay that amount. The employee called Barbara Carpenter, Vice President of Ron York, to come to the office. Ms. Carpenter refused to accept plaintiff's payment or to release plaintiff's vehicle, claiming that she had already applied for a title to the vehicle. Plaintiff left without her vehicle. Ron York subsequently received a salvage title for plaintiff's vehicle, which was issued on March 27, 2007. It sold the vehicle within the first several weeks after receiving the title.

Plaintiff filed a lawsuit against defendants, Ron York, and its owners, Tim Carpenter and Barbara Carpenter, for conversion, alleging that defendants wrongfully and unlawfully refused to deliver plaintiff's vehicle to her after she made demand upon defendants for the property. After a bench trial, the trial court entered an order in which it concluded that Ron York had obtained title to plaintiff's vehicle lawfully and in compliance with all applicable statutes and law, and that the individual defendants were acting at all times in their official capacities as officers and agents of Ron York. It entered judgment in favor of all defendants. Plaintiff appeals from the judgment in favor of Ron York, raising four claims of error.

DISCUSSION

In a court-tried case, we will sustain the judgment of the trial court 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). We review questions of law de novo, and we are not bound by and need not defer to the trial court's legal conclusions. Collins & Hermann, Inc. v. TM2 Const. Co., 263 S.W.3d 793, 796 (Mo. App.2008); Mullenix-St. Charles Props. v. St. Charles, 983 S.W.2d 550, 555 (Mo.App. 1998).

Conversion

In her first and second points, plaintiff contends that the trial court erred in ruling that Ron York (hereinafter defendant) did not convert her property because on the day that plaintiff appeared in defendant's office to redeem her vehicle, plaintiff was entitled to possession of the vehicle as the sole owner, and defendant did not have a right to retain possession of the vehicle because it failed to provide plaintiff with proper notice as set forth in section 304.156 RSMo (Cum.Supp.2006).³

"Conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner's rights." Bell v. Lafont Auto Sales, 85 S.W.3d 50, 54 (Mo. App.2002). Conversion may be proved in one of three ways: (1) showing a tortious taking; (2) showing a use or appropriation by the defendant indicating a claim of right in opposition to the rights of the owner; or (3) showing a defendant's refusal to give up possession to an owner upon demand, even though the defendant's original possession of the property was proper. Id.; Collins v. Trammell, 911 S.W.2d 635, 637-38 (Mo.App.1995); Northland Ins. v. Chet's Tow Service, 804 S.W.2d 54, 56 (Mo. App.1991).

Here, plaintiff does not dispute that defendant was given proper authority to tow her vehicle pursuant to section 304.155.1(5)⁴ and that, as a result, defendant was granted a lien against the vehicle for the reasonable charges for the towing and storage of the vehicle. See section 304.155.9.⁵ "`When the initial taking is authorized, demand and refusal are necessary to the existence of a conversion claim.'" Collins, 911 S.W.2d at 638 (quoting Kennedy v. Fournie, 898 S.W.2d 672, 679 (Mo.App.1995)). It is undisputed that defendant refused to allow plaintiff to redeem her vehicle after she appeared at defendant's office and demanded the return of her vehicle. Thus, the only issue to be resolved is whether defendant was legally entitled to retain possession of plaintiff's vehicle after plaintiff made demand for her vehicle.

At trial, defendant argued that it met the notice requirements of section 304.156.1 when it sent plaintiff the first notice on January 12, 2007 and that plaintiff had thirty days from that date to redeem her property. It argued that because plaintiff failed to retrieve her property within the thirty-day period, and because defendant had already applied for title to the property at the time plaintiff sought to redeem her property, plaintiff lost her right to redeem the vehicle when she arrived at defendant's office on February 26, 2007.

Plaintiff's position is that defendant did not have a legal right to possess plaintiff's vehicle after plaintiff made her demand for the vehicle because the contents of defendant's first notice failed to comply with section 304.156.1, which, she argues, provided her with insufficient notice. We agree.

Section 304.156.1 requires a towing company to provide notice to the owner and any lienholder of abandoned property that is in the possession of the towing company before that towing company is allowed to apply for title to the property. The definition of "abandoned property" includes any vehicle removed from public or private property as provided in sections 304.155 and 304.157. Section 304.001(1). Plaintiff's vehicle falls within this definition because the vehicle was towed pursuant to section 304.155.1(5). Section 304.156.1 provides:

Any towing company which comes into possession of abandoned property pursuant to section 304.155 or 304.157 and who claims a lien for recovering, towing or storing abandoned property shall give notice to the title owner and to all persons claiming a lien thereon, as disclosed by the records of the department of revenue or of a corresponding agency in any other state. The towing company shall notify the owner and any lienholder within ten business days of the date of mailing indicated on the notice sent by the...