Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 73006

• Decision Date: 14 July 1998
• Docket Number: No. 73006,73006
• Citation: 986 S.W.2d 467
• Parties: AUTO ALARM SUPPLY CORP., Plaintiff-Appellant, v. LOU FUSZ MOTOR CO., Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 467

986 S.W.2d 467

AUTO ALARM SUPPLY CORP., Plaintiff-Appellant, v. LOU FUSZ MOTOR CO., Respondent-Respondent.

No. 73006.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 14, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 15, 1998.

Case Transferred to Supreme Court

Nov. 24, 1998.

Case Retransferred to Court of

Appeals March 23, 1999.

Original Opinion Reinstated

April 8, 1999.

Blair Drazic, Creve Coeur, for appellant.

Vatterott, Shaffar & Dolan, P.C., Paul F. Devine & John R. Hamill, Maryland Heights, for respondent.

KAROHL, Judge.

Plaintiff, Auto Alarm Supply Corporation, (Auto Alarm) appeals after judgment on a directed verdict for defendant, Lou Fusz Motor Company, (Lou Fusz) in an action for conversion. Auto Alarm claimed a lien on an automobile under common law and statutory artisan's liens. We hold there is evidence to support submission on the issue of conversion against Lou Fusz, a conditional vendor. The terms of the conditional sales contract placed the conditional vendee in the position of owner of the automobile in relation to Auto Alarm. Thus, the conditional vendee's failure to pay Auto Alarm for work on the automobile vested a right of possession of the automobile in Auto Alarm under a statutory artisan's lien, to the amount of the costs of the work done. We reverse and remand.

In written work orders totaling $1,364.89, Donovan Hansen requested Auto Alarm install neon tubing, window tinting and alarm systems for a 1990 Ford Mustang. After completing the work, yet before the bill was paid, the Overland Police Department seized the automobile from Auto Alarm on a complaint it was stolen. Lou Fusz later took possession of the automobile and sold it. There is no dispute that Hansen obtained the automobile with a check written on a closed account. Auto Alarm demanded return of the automobile under an artisan's lien. Lou Fusz refused. Auto Alarm brought claims for replevin and conversion.

We previously held Auto Alarm satisfied pleading requirements for an action in conversion by alleging a right to possession. Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 918 S.W.2d 390, 393 (Mo.App. E.D.1996). We found Auto Alarm pled:

Hansen was in lawful possession of the vehicle pursuant to the transaction of sale with Lou Fusz and that Hansen entered into a written contract with appellant to expend labor, services, skill and material upon the vehicle.

Id.

At the close of all evidence, the trial court directed a verdict for Lou Fusz "based upon [Auto Alarm's] failure to prove the right to possession." In reviewing a directed verdict granted in favor of defendant, we view the evidence and permissible inferences most favorably to the plaintiff, disregard contrary evidence and inferences, and determine whether plaintiff made a submissible case. Head v. National Super Mkts., Inc., 902 S.W.2d 305, 306 (Mo.App. E.D.1995). Directing a verdict is a drastic remedy. Id. A presumption, therefore, is made in favor of reversing the trial court's grant of a directed verdict unless the facts and any inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Friese v. Mallon, 940 S.W.2d 37, 40 (Mo.App. E.D.1997)

In order to recover under a theory of conversion, a plaintiff must show that at the time of the alleged conversion he had the right to possession of the property that was converted. Minton v. Hill, 944 S.W.2d 250, 253 (Mo.App. W.D.1997). Conversion is a tort against the right of possession, not against the right of title. Auto Alarm Supply Corp., 918 S.W.2d at 391. It can occur by: (1) a wrongful taking; (2) any use indicating a claim of right in opposition to the rights of the person entitled to possession; or, (3) an improper refusal to relinquish control on demand, as claimed in this case. Id.

The issue is whether Auto Alarm presented evidence to support a finding of a right to possess the automobile based on an artisan's lien. A statutory artisan's lien arises when a person expends labor, services, skill or material upon any motor vehicle at the written request of an owner, agent or person in lawful possession. Section 430.082 RSMo Cum.Supp.1992. Lou Fusz argues Hansen was never the owner of the automobile because title did not transfer at the time of...