Kickham v. Gardocki
| Decision Date | 07 April 1998 |
| Docket Number | No. 72154,72154 |
| Citation | 966 S.W.2d 361 |
| Parties | Timothy KICKHAM, Plaintiff/Appellant, v. Stanley GARDOCKI and Gloria Gardocki, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
Patrick O. Boyle, St. Louis, for plaintiff/appellant.
Ronald J. Brockmeyer, St. Charles, for defendants/respondents.
Plaintiff, Timothy Kickham, appeals from the judgment of the trial court, in a court-tried case, in his favor on his action for replevin of a boat and trailer and in favor of defendants, Stanley and Gloria Gardocki, on their counterclaim for storage fees. We affirm in part and reverse and remand in part.
Kickham brought an action in replevin for the return of his boat and trailer (hereinafter boat), which was stored at a storage lot owned and operated by the Gardockis and known as Stan's Self Storage (hereinafter facility). During the winters of 1989-1990 and 1990-1991, Kickham had stored the boat at the facility under written contracts for outside storage. In November 1991, he left the boat on the lot of the facility, which was unattended at the time. He did not sign a contract for storage then or at any time thereafter. On several occasions following his leaving his boat at the facility, he attempted to check on the boat; but was unable to do so because the facility was locked and unattended. Kickham did not pay storage fees after November 1991. In October 1994, he saw a "For Sale" sign on the boat. Upon requesting the return of the boat, Kickham learned that the Gardockis had acquired title to it.
Kickham brought this replevin action against the Gardockis, seeking in the alternative the return of the boat or its fair market value ($10,000.00 prior to the damage sustained in storage). In their answer, the Gardockis alleged they were the owners of the boat because Kickham had abandoned it. In their counterclaim, they averred Kickham owed them $16,380.00 in storage fees, interest, and court costs. They alleged they had moved the boat into inside storage where it was better protected and they wanted Kickham to pay for the increased cost of inside storage.
The trial court found in favor of Kickham on his replevin action and awarded him damages of $6,000.00. The court also found in favor of the Gardockis on their counterclaim for storage fees and awarded them $4,800.00 in damages.
Kickham appeals from the judgment of the trial court, challenging its measure of damages not only for his replevin claim but also for the Gardockis' counterclaim. In reviewing the judgment in a court-tried case, we are guided by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The appellate court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32. The trial court is entitled to believe all, part, or none of the testimony of any witness. Coffman v. Powell, 929 S.W.2d 309, 312 (Mo.App. S.D.1996). The trial court has the prerogative to make a finding of value within the range of values testified to at trial. Id. Against this backdrop, we review the points on appeal.
In his first point, Kickham claims error in the amount of damages awarded by the trial court on his replevin action. Rule 99.12 states that when the court finds that one not in possession is entitled to possession, the court shall determine the value of the property and may assess damages for the taking, detention, or injury. The party entitled to possession has the option of accepting the return of his property or its cash value. Rule 99.12.
Here, Kickham's own expert, who was a boat salesman and mechanic, testified that the value of the boat in "good running condition" was between $9,000.00 to $10,000.00 at the time of trial. He also testified that, after examining the boat, his estimate to repair the boat so that it was in running condition was $3,995.00. In addition, Kickham in his petition stated that the value of the boat prior to the damage was $10,000.00. In view of the record, the trial court did...
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