D.S. Silfers Corp. v. Hallak

• Decision Date: 20 March 2001
• Citation: 46 S.W.3d 11
• Parties: (Mo.App. S.D. 2001) D.S. Sifers Corporation, Appellant, v. Leo Hallak, Paul Morris, Duren Sleyster, Kevin Sleyster and C.Y.A. Holding, L.L.C., Respondents. WD58295 0
• Court: Missouri Court of Appeals

46 S.W.3d 011 (Mo.App. S.D. 2001)

D.S. Sifers Corporation, Appellant, v. Leo Hallak, Paul Morris, Duren Sleyster, Kevin Sleyster and C.Y.A. Holding, L.L.C., Respondents.

WD58295

Missouri Court of Appeals Western District

03/20/2001

Appeal From: Circuit Court of Jackson County, Hon. Jay A. Daugherty

Counsel for Appellant: David R. Schmitt

Counsel for Respondent: Ronald D. Montieth

Opinion Summary: D.S. Sifers Corporation sought damages resulting from an agreement between it and Rob McCune to store D.S. Sifers' property in a storage facility that Mr. McCune was leasing from BSB Partnership. D.S. Sifers brought suit against both Mr. McCune, claiming negligence, and BSB Partnership, claiming breach of an implied bailment contract and general negligence. Following summary judgment, Mr. McCune was dismissed from the suit. D. S. Sifers appeals.

AFFIRMED.

Division I holds:

(1) Summary judgment in favor of BSB Partnership on D.S. Sifers' claim of implied bailment was proper since D.S. Sifers failed to provide evidence that the damage to its property occurred while in BSB Partnership's control. The presumption of negligence does not arise in this case, since the property was not within the exclusive possession of BSB Partnership.

(2) Summary judgment in favor of BSB Partnership on D.S. Sifers' claim of general negligence was proper since D.S. Sifers cannot establish a prima facie case of general negligence. D.S. Sifers has provided no basis or authority for which this court should adopt a theory of alternative liability to shift the burden to BSB Partnership to disprove that the damage occurred while in their possession.

Patricia Breckenridge, Judge

D. S. Sifers Corporation appeals from the summary judgment entered by the trial court in favor of Leo Hallak, Paul L. Morris, Duren Sleyster, Kevin Sleyster and C.Y.A. Holdings, L.L.C., who are partners in BSB Investment Partnership. D.S. Sifers first contends that the trial court erred in entering summary judgment because BSB Partnership owed a duty of care to D.S. Sifers to protect its property that was being stored on BSB Partnership's premises. Secondly, D.S. Sifers claims that once it established that damage to the property occurred due to negligence, the burden should have shifted to the defendants to demonstrate which of the two actually caused the negligence. Because D.S. Sifers cannot establish that the property was damaged while under BSB Partnership's control, summary judgment was proper with respect to the claim of implied bailment. Further, because D.S. Sifers has not made a prima facie case for general negligence nor provided a basis upon which the burden of proof should be shifted to BSB Partnership to prove that the damage did not occur while in their possession, summary judgment was also proper on its claim for general negligence.

Factual and Procedural Background

This appeal arises out of the lease of storage space and damage to property stored therein. BSB Partnership owned a building in which it leased space to other individuals or entities. In October 1995, BSB Partnership leased space in the building to Rob McCune. Mr. McCune used the space for storage of his own property and also for storage of other people's property. D.S. Sifers entered into an oral agreement in which Mr. McCune agreed to store property for the corporation. The sublease occurred without BSB Partnership's knowledge. BSB Partnership was aware, however, that Mr. McCune was storing property belonging to other individuals. While D.S. Sifers alleged that the property consisted of a printing press, printing plates and associated equipment, no inventory was provided to Mr. McCune upon delivery, nor did D.S. Sifers receive a receipt for the property.

In February 1997, BSB Partnership requested that Mr. McCune vacate the premises. When Mr. McCune complied with this request, he left the property belonging to D.S. Sifers on the premises and he failed to notify D.S. Sifers that he had vacated. While BSB Partnership was aware that property had been left behind, it claimed that it was unaware that the property was owned by D.S. Sifers.

When D.S. Sifers finally discovered in August 1997 that Mr. McCune had vacated the premises, it went to the premises and found that its property had been damaged and some of it was missing. When D.S. Sifers contacted BSB Partnership, BSB Partnership denied any knowledge concerning the condition of D.S. Sifers' property. BSB Partnership requested, and D.S. Sifers, paid $350 for rent accrued following Mr. McCune's vacating the premises. It also requested that D.S. Sifers provide a release from Mr. McCune before BSB Partnership would release any of the property.

D.S. Sifers filed suit against BSB Partnership, alleging breach of bailment contract and general negligence.¹ In alleging breach of bailment contract, D.S. Sifers claimed that when Mr. McCune moved its equipment from and vacated BSB Partnership's premises, BSB Partnership took possession and control of D.S. Sifers' property. D.S. Sifers claimed that BSB Partnership failed to return certain property and other property was returned damaged. Concerning the general negligence claim, D.S. Sifers asserted that "dirt, cement grit, cement dust and dust" had collected on one of its printers and some of its property had disappeared, neither of which would normally occur when an entity storing property utilizes due care.

BSB Partnership filed their answer denying the allegations that it took possession and control of or was storing D.S. Sifers' property. Furthermore, BSB Partnership denied that it was responsible for any damage or loss to D.S. Sifers' property.

Thereafter, BSB Partnership filed a motion for summary judgment in which it claimed that under Missouri law, D.S. Sifers could not establish the essential elements of its bailment and negligence claims against BSB Partnership. In their suggestions in support, BSB Partnership argued that there could be no bailment contract between BSB Partnership and D.S. Sifers because the property was not delivered to BSB Partnership. The agreement that occurred between D.S. Sifers and Mr. McCune was without BSB Partnership's knowledge and the property would have been delivered to Mr. McCune, if anyone. Furthermore, it claimed that there was no acceptance of the property by BSB Partnership, nor was there notice or knowledge of the subject matter of the purported bailment. Finally, BSB Partnership claimed that even if there was a proper bailment contract, there was no evidence that the property was lost or damaged while under BSB Partnership's alleged possession or control.

With respect to general negligence, BSB Partnership argued that the theory of negligence presented by D.S. Sifers was res ipsa loquitur. Because D.S. Sifers could not show that the damage occurred after Mr. McCune vacated the premises, BSB Partnership claimed that this doctrine does not apply.

This appeal follows the trial court's entry of summary judgment in favor of BSB Partnership.

Standard of Review

This court will review an appeal from a trial court's entry of summary judgment de novo, viewing "the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. The trial court's decision will be affirmed if "there are no genuine issues of material fact and . . . the movant is entitled to judgment as a matter of law." ITT Commercial, 854 S.W.2d at 377. Yet, this court "need not defer to the trial court's order granting summary judgment." Id. at 376. To be entitled to summary judgment, the movant must "show a right to judgment flowing from facts about which there is no genuine dispute." Id. at 378. As the "defending party," BSB Partnership must show one of the following:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381.

"In a bailment action, three theories may be asserted by the bailor--general negligence, specific negligence, and breach of bailment contract." C.V. Sohn, Inc. v. J.W. Milligan, Inc., 741 S.W.2d 60, 63 (Mo. App. 1987). D.S. Sifers' third amended petition contained allegations of both breach of bailment contract and general negligence by BSB Partnership.

Facts Alleged Do Not Support Implied Bailment Theory

In its first point, D.S. Sifers claims that the trial court erred in entering summary judgment in favor of BSB Partnership concerning its theory of breach of bailment contract. D.S. Sifers alleges that when Mr. McCune vacated the premises leaving behind its property and BSB Partnership knew the property remained on the premises, a duty of care arose requiring BSB Partnership to exercise ordinary care with regard to the property. When BSB Partnership took no steps to protect the property or to prevent it from being damaged, D.S. Sifers argues that BSB Partnership breached their duty. D.S. Sifers concedes that the facts do not support an actual bailment, but argues that this case should be decided under the theory of constructive bailment.

BSB Partnership argues that no bailment existed because of the following reasons: (1) there was no valid contract between D.S. Sifers and BSB Partnership; (2) there was no delivery because BSB Partnership never agreed to store, take possession, or control D.S. Sifers' property; (3) there was no acceptance by BSB Partnership when the property was moved onto the premises or when Mr. McCune vacated the premises; and (4) there was no acceptance because BSB Partnership did not have notice or...