Browning by Browning v. White, No. 20795

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: GARRISON; BARNEY, P.J. and PREWITT
• Citation: 940 S.W.2d 914
• Parties: Kevin BROWNING, by his next friend, Linda BROWNING, and Linda Browning, individually, Plaintiffs-Respondents, v. Lawrence H. WHITE, Defendant, and Dwayne CORBETT and the City of Rolla, Missouri, Defendants-Appellants.
• Docket Number: No. 20795
• Decision Date: 13 March 1997

Page 914

940 S.W.2d 914 Kevin BROWNING, by his next friend, Linda BROWNING, and
Linda Browning, individually, Plaintiffs-Respondents,
v.
Lawrence H. WHITE, Defendant,
and
Dwayne CORBETT and the City of Rolla, Missouri, Defendants-Appellants. No. 20795. Missouri Court of Appeals,
Southern District,
Division One. March 13, 1997.

Page 917

Joy R. Urbom, Evans & Dixon, St. Louis, for defendants-appellants.

No appearance for plaintiffs-respondents.

GARRISON, Judge.

Kevin Browning and Linda Browning (Plaintiffs) sued the City of Rolla, Missouri (City); a Rolla police officer, Dwayne Corbett (Corbett); and Lawrence White (White) in a three-count petition. Counts I and III, which were against all three defendants, sought damages for conversion of a truck, and for deprivation of constitutional rights under color of state law in violation of 42 U.S.C.A. § 1983, respectively. Count II was against White only and sought rescission of a contract. ¹ This is an appeal by both the City and Corbett from adverse judgments entered by the trial court after a trial without a jury.

Pursuant to Rule 73.01(c), the judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Under this standard, appellate courts should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Id. Considerable deference is accorded judgments turning on evidentiary and factual evaluations by the trial court, but no such deference is given when the law has been erroneously declared or applied. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App. S.D.1992).

On August 12, 1992, Kevin Browning (Kevin) purchased a 1967 Ford pickup from White, giving him $200 cash, a 1968 Chevrolet

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pickup which White valued at $600, and a $1,000 promissory note signed by Kevin and his mother, Linda Browning (Mrs. Browning). The note called for monthly payments of $100 with the balance due on June 12, 1993. The title application was in Kevin's name and listed White as the lienholder.

According to White, he went to the Browning residence on September 12, 1992 to collect the monthly payment. Apparently he was unsuccessful because he then went to the Rolla Police Department and requested that an officer accompany him to the Browning property "to keep the peace" while he repossessed the truck. Corbett was summoned by the dispatcher, and, according to White, he showed Corbett his copy of the title application reflecting his lien and a copy of the promissory note.

Corbett drove to the Browning home in his patrol car where he met White. The '67 Ford pickup was at the side of the house, and as White and Corbett walked onto the property, they were met by Mrs. Browning. All witnesses agreed that White did not have a court order to take the truck; Corbett was in full uniform, with handcuffs, a revolver and a walkie-talkie on his belt; Mrs. Browning was upset, yelled, and apparently would have hit White if Corbett had not stepped between them; White argued with Mrs. Browning; White eventually went out to the street at Corbett's direction; Corbett radioed the dispatcher to send a tow truck at White's request; and a tow truck arrived and towed the '67 pickup from the Browning property to White's property in Salem, Missouri, for which White paid $75. Much of what transpired thereafter was disputed.

Mrs. Browning testified that Corbett told her he was there to help White get his truck back; he told her to take White to court when she asked him if a court order was necessary to take the truck; when she asked Corbett for his help to keep White from taking the truck, Corbett told her that he could not do anything about it because White had "the paper and the lien"; she thought of calling the police, but realized that they were already there in the person of Corbett; when she asked Corbett what would have happened if she had hidden the truck, he said "that wouldn't have been a pretty sight"; and Corbett kept saying, "Calm down and back up. Don't get in the way." Mrs. Browning also said that when she sat in the truck, Corbett took her by the arm and said, "You know you have to get out or else."

According to Corbett, White told him that he had been threatened by Mrs. Browning, and he wanted an officer there to keep the peace and witness what happened when he went to get the truck. Corbett told White that he could go to the Browning property only for the purpose of keeping the peace and witnessing the events, but he could not take sides. According to him, White asked him to radio the tow truck company used by the City, which he did after telling White that he would be responsible for all charges. He disputed the statements attributed to him by Mrs. Browning, except he did say that he told her and White to calm down more than once. He denied that he ever took possession of the truck or instructed the towing company about what to do with it.

White testified that he made the request for an officer to accompany him while he repossessed the truck after unsuccessfully attempting to collect the payment which was due. According to White, Mrs. Browning became upset, said that she was not going to pay for that "pile of junk," and that she did not know how she was going to get it out of her drive. He also said that Corbett tried repeatedly to calm Mrs. Browning down and threatened to arrest her if she did not do so.

After White testified, he consented to a judgment on Counts I and III in the amount of $50,000, but Plaintiffs agreed not to execute on it in return for the payment of $850. All of the evidence was presented in Plaintiffs' case. The City and Corbett filed a motion for a judgment at the conclusion of Plaintiffs' evidence, which was overruled. The court entered judgment against White for $50,000; against Corbett for $7,500; against the City for $7,500; and jointly against Corbett and the City for attorneys' fees in the amount of $7,500.

In the first point on appeal, the City complains about the trial court's decision that it was not protected from the conversion claim

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by the doctrine of sovereign immunity. This point refers to the following portion of the trial court's conclusions of law:

10. The actions of [White] and [Corbett] resulted in a conversion of Plaintiffs' property.

11. The City of Rolla does not enjoy a sovereign immunity for acts of conversion committed by its employees who are carrying out its official policies, customs and practices.

12. To the extent the City of Rolla enjoys sovereign immunity for acts of conversion by its employees, it has waived such immunity by carrying a liability insurance policy providing a coverage for injuries resulting from the acts and conduct of [Corbett] on September 12, 1992.

The City argues that in Missouri a municipality is immune from claims for conversion or other intentional torts committed by its employees. It also argues that Plaintiffs did not plead the existence of insurance coverage as a waiver of sovereign immunity, and in any event, the insurance policy admitted in evidence did not provide coverage for the acts in question.

The City contends that the finding in paragraph 11 is an erroneous declaration and/or application of the law, and cites several cases in support of its argument that intentional torts are included in the protection of sovereign immunity. Those cases are Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo.App. E.D.1995) (involving a claim for conversion where the court said that "[i]ntentional torts have consistently been found to fall within the shield of sovereign immunity"); Balderree v. Beeman, 837 S.W.2d 309, 316 (Mo.App. S.D.1992) (this court applied sovereign immunity in a suit for slander); Duncan v. Creve Coeur Fire Protection Dist., 802 S.W.2d 205, 207 (Mo.App. E.D.1991) (applying sovereign immunity under § 537.600, RSMo 1986, to a claim for intentional infliction of emotional distress); Conrod v. Missouri State Highway Patrol, 810 S.W.2d 614, 617-18 (Mo.App. S.D.1991) (holding that a claim for conversion was precluded by the doctrine of sovereign immunity); and Carmelo v. Miller, 569 S.W.2d 365, 367-68 (Mo.App. E.D.1978) (holding that sovereign immunity applied to a claim for assault and battery and false imprisonment).

Pursuant to § 537.600, ² sovereign immunity applies unless the claim is for injuries resulting from the operation of motor vehicles or the condition of an entity's property. State ex rel. Cass Med. Ctr. v. Mason, 796 S.W.2d 621, 622 (Mo.banc 1990). Because neither exception applies here, we agree that the sovereign immunity doctrine applies to Plaintiffs' claim for conversion in Count I.

The trial court found, however, that even if sovereign immunity applied to the conversion claim, the City waived that immunity by carrying liability insurance providing coverage for the claim. This refers to evidence that the City had coverage under a policy of self insurance issued to all participating members of the Missouri Intergovernmental Risk Management Association (MIRMA).

Section 537.610.1 authorizes the purchase of liability insurance by political subdivisions to protect them from tort claims. It further provides that:

Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.

This provision "provides an independent basis for waiving sovereign immunity--a basis cemented in the existence of coverage for the damage or injury...