Cooper v. Bluff City Mobile Home Sales
| Citation | 78 S.W.3d 157 |
| Decision Date | 26 April 2002 |
| Docket Number | No. 24240.,24240. |
| Parties | Ida A. COOPER, Plaintiff-Respondent, v. BLUFF CITY MOBILE HOME SALES, INC., Mid America Homes, Inc., and Steve Boyers and Patty Boyers, Husband and Wife, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Douglas G. Kennedy, Kennedy, Kennedy & Robbins, Poplar Bluff, for appellants.
Donald Rhodes, Bloomfield, for respondent.
Before SHRUM, P.J., MONTGOMERY, J., and BARNEY, C.J.
Ida A. Cooper ("Plaintiff") sued Bluff City Mobile Homes, Inc. ("Bluff City"), for breach of a contract for the sale of a new mobile home (Count I). Plaintiff alleged she immediately rejected the mobile home on delivery because it had been damaged and that Bluff City breached the sales contract when it refused to deliver Plaintiff a replacement mobile home in good condition.
Plaintiffs second count, denominated "forcible entry and detainer action," was against Steve and Patty Boyers ("Boyers"), owners, officers, and employees of Bluff City. Plaintiff claimed she was damaged when Boyers forcibly entered a mobile home (temporarily occupied by her while she was awaiting delivery of her new home) and removed all of Plaintiffs furniture therefrom.1
In a third count, Plaintiff alleged that when Boyers put her out of her temporary home, they converted some of Plaintiffs personal property.
After a non jury trial, the court entered a judgment that awarded Plaintiff compensatory damages on Counts I and II and punitive damages only on Count III. This appeal by Defendants followed. We affirm in part; we reverse in part.
We view the evidence in the light most favorable to the trial court's judgment and set forth the facts in that manner.
The following facts relate to Count I. On February 21, 1996, Plaintiff contracted to buy a new mobile home from Bluff City for $29,917.65. Plaintiff paid $1,500 down, and Bluff City arranged non-recourse financing for Plaintiff with a firm called "Greentree" for the balance of the purchase price.2 The purchase contract obligated Bluff City to do a "complete set up" of the mobile home.
Initially, Plaintiff could not decide where to set up her mobile home. Later, in May 1996, when Plaintiff was asked to move from her brother-in-law's property, she was still undecided on a site for her home. Thereon, Boyers allowed Plaintiff to move into a mobile home owned by them until she could get her home moved. This was on a rent-free basis with utilities provided. According to Plaintiff, no time limit was set on this arrangement. Soon, however, Boyers sold the mobile home temporarily occupied by Plaintiff and asked Plaintiff to move. Plaintiff did not move as requested, but she told Boyers (sometime in mid-June 1996) to move her mobile home to property owned by her mother-in-law, Shirley Holmes ("Holmes").
By June 22, 1996, Boyers had put Plaintiffs home on the Holmes property and the set-up work had been started. However, as Steve conceded at trial, Plaintiff's home "was not liveable" as of that date. Among other things, the utilities had not been hooked up, the air conditioner had not been installed, and the "skirting" was not in place. Moreover, the mobile home was damaged during the delivery process to the point that Plaintiff told Defendants she was rejecting the mobile home because of its damaged condition. Plaintiff's lengthy testimony about how her mobile home was damaged included complaints that the frame on the home was broken and bent in several places.3 Plaintiff also testified that although her contract expressly provided that axles and wheels were included as part of what she was buying, those items had been taken away from the delivery site.
In addition to telling Defendants she would not accept the home as delivered, Plaintiff filed a complaint with the Missouri Public Service Commission ("PSC") on June 22, 1996. As a result, Tom Jenson and Gene Winn, PSC employees, inspected the mobile home on June 27, 1996. Their field inspection report is reproduced in appendix "A" to this opinion. Both Winn and Jenson testified that if the items listed on their report had been fixed, the PSC would have deemed it a "properly made sale of a new mobile home." However, Winn also testified that the items on the report were considered "code items or setup related items[,]" not "cosmetic" items as Steve contended. Winn explained as follows:
Steve admitted at trial that the mobile home was damaged during delivery and set-up, but claimed all the damage done was "cosmetic stuff" that could have been repaired had they been given the opportunity to do so. When asked if he considered a "bent frame" on a mobile home cosmetic only, Steve answered, "No, its [sic] not." Even so, he persisted in his "cosmetic damage only" assertion by denying that the frame on Plaintiff's mobile home was damaged and insisting that only the tongue had been bent. Steve conceded that the mobile home axles and wheels were removed and taken from the site, and this was contrary to what the contract provided.
Bluff City defended Plaintiffs breach of contract count on the theory that it and the mobile home manufacturer were denied the right to cure by repairing the damages. To support this defense, Bluff City presented evidence that Holmes told them she would have them arrested for trespass if they came on her property to work on the home. Also, Bluff City elicited testimony from Plaintiff to the effect that when she rejected the mobile home, she told Boyers she did not want a "repaired" mobile home; that she had paid for a new mobile home and replacement of the damaged home with a new one was what she demanded as a cure. On the other hand, Defendants presented no evidence that Holmes's threat to arrest repair persons was made with Plaintiffs knowledge or approval or at her request, either express or tacit. When Plaintiff was specifically asked if she had ever told "anybody from Mid America [the mobile home manufacturer] or from Bluff City ... that they could not go into [her] mobile home to inspect it and repair it[,]" she answered, "No, I wasn't living there." Moreover, the record shows that when Boyers moved Plaintiff out of their mobile home on June 26, 1996, Plaintiff stayed the first night with Holmes, but then left because "we started having problems." There is also evidence that Plaintiffs departure from the Holmes property and her separation from her husband at that time were on less than an amicable basis, thus suggesting Holmes no longer wanted Plaintiff, her mobile home, or anyone associated with the mobile home on her property.
Plaintiffs damage evidence on her breach of contract claim included the fact that (a) she had made a $1,500 down payment, (b) had made two note payments totaling $519.90, and (c) had received a collection letter claiming that after repossession and sale of her home, she still owed $24,051.48 to the finance company.
Evidence adduced on Plaintiffs Count II claim ("forcible entry and detainer") and her conversion count included the following. Between 7:00 and 8:00 p.m. on the day Plaintiffs mobile home was moved to the Holmes property, Steve told Plaintiff she had to be out of the Boyers' mobile home by midnight of that day. Plaintiff answered that this was impossible and remained in the home. The next morning, while Plaintiff was at work, Boyers entered the home where Plaintiff was living and removed all of her property. After the police intervened, Boyers put Plaintiff s property back into the mobile home. However, four days later, on June 26, 1996, Boyers again entered the mobile home occupied by Plaintiff and removed Plaintiffs personal property. This time, they put Plaintiffs furniture and related items in a rented storage shed and her food items in a food locker. Steve conceded that neither he nor his wife had given Plaintiff written notice to vacate the mobile home nor had they obtained a court order allowing him to remove Plaintiffs property. Plaintiff testified at length about damages inflicted by Boyers on her personal property and about items taken or lost during these moves.
At the trial's conclusion, the court entered a judgment for Plaintiff and against Defendants for $29,000 on Count I. The court also entered judgment for Plaintiff and against Boyers for $5,225 on Count II. As to Count III (conversion claim), the trial court found the issues for Plaintiff and against Boyers and "affix[ed] Plaintiffs punitive damages at ... $3,500." This appeal followed.4
No dispute exists about the fact that article 2 of the Uniform Commercial Code (U.C.C.), §§ 400.2-101 et seq., governs mobile home sales contracts.5 See Lawrence v. Modern Mobile Homes, Inc., 562 S.W.2d 729 (Mo.App.1978). Under § 400.2-601, the right of a buyer to refuse goods that do not conform to the contract for sale is defined in terms of rejecting the seller's tender.6 Baker v. Wade, 949 S.W.2d 199, 200 (Mo.App.1997). Although § 400-2.601, standing alone, purports to give a non-accepting buyer the absolute right to reject goods that are nonconforming "in any respect" (sometimes called the "perfect tender" rule), Printing Center of Texas, Inc. v. Supermind Pub. Co., Inc., 669 S.W.2d 779, 783 (Tex.App.1984), another provision of the U.C.C. (§ 400.2-508) gives sellers the right to cure a rejection by repair or replacement.7 Bowen v. Foust, 925 S.W.2d 211, 215-16 (Mo.App.1996). Case law explains that the...
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Pattie v. French Quarter Resorts
...of the case interact, Pattie's points relied on must be deemed abandoned. Selberg, 201 S.W.3d at 516; Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 164 (Mo.App.2002). Furthermore, the factual assertions in the argument are not supported by references to the record on appeal, ......