Moore Equipment Co. v. Halferty

• Decision Date: 24 February 1998
• Docket Number: No. WD,WD
• Citation: 980 S.W.2d 578
• Parties: 37 UCC Rep.Serv.2d 1008 MOORE EQUIPMENT COMPANY, Appellant, v. H.H. HALFERTY d/b/a H.H. Halferty and Sons and Ford Motor Credit Co. Respondents. 53772.
• Court: Missouri Court of Appeals

Page 578

980 S.W.2d 578

37 UCC Rep.Serv.2d 1008

MOORE EQUIPMENT COMPANY, Appellant, v. H.H. HALFERTY d/b/a H.H. Halferty and Sons and Ford Motor

Credit Co. Respondents.

No. WD 53772.

Missouri Court of Appeals,

Western District.

Feb. 24, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court March 31, 1998.

Application for Transfer Sustained

May 26, 1998.

Case Retransferred Dec. 22, 1998.

Court of Appeals Opinion Readopted

Dec. 29, 1998.

Michael P. Healy, Kansas City, for appellant.

Duane J. Fox, Kansas City, for respondent, H.H. Halferty, H.H. Halferty and Sons.

Keith J. Shuttleworth, Kansas City, for respondent, Ford Motor Credit Co.

Before ELLIS, P.J., and HOWARD and RIEDERER, JJ.

RIEDERER, Judge.

Moore Equipment Company appeals the grant of summary judgment in favor of Respondents. We reverse the grant of summary judgment to Respondents, grant summary judgment in favor of Appellant and remand to the trial court for determination of damages.

I. Facts

On February 13, 1990, Moore Equipment Company, Appellant, entered into a transaction which it believed was for the sale of a John Deere combine, serial # 615939, to one M.N. Nance ("Nance"). Appellant executed two documents to accomplish this purported sale: a customer purchase order dated February 13, 1990; and a variable rate loan contract / security agreement dated February 15, 1990. Appellant never actually dealt in person with Nance in this transaction. Rather, Appellant dealt with David McConkey ("McConkey") who represented to Appellant that he was acting on behalf of Nance. Once the papers were drawn up, McConkey told Appellant he was delivering the papers to Nance for Nance to sign. McConkey then forged Nance's signature on both of the documents and returned them to Appellant. Nance was unaware of the purported sale of the combine. Appellant, believing that Nance had signed the documents, delivered the combine to Nance's property in Gentry County. McConkey then took possession of the combine, a fact unknown to both Nance and Appellant. Meanwhile, on February 20, 1990, a financing statement was filed with the Recorder of Deeds in Gentry County, perfecting the security agreement.

After taking possession of the combine, McConkey entered into a transaction with Respondent, H.H. Halferty & Sons ("Halferty") who, like Appellant, was an equipment dealer. McConkey wanted to borrow money from Halferty and use the combine as collateral. However, instead of making an agreement for McConkey to borrow money from Halferty, McConkey and Halferty entered into a retail installment sales contract in July of 1991, which purported to sell this same combine from Halferty to McConkey. Halferty never owned this combine. Nevertheless, the retail installment contract purported to grant Halferty a security interest in the combine. The contract, including the security interest, was then immediately assigned by Halferty to Respondent, Ford Motor Credit Co. ("FMC").

Nance never made any payments under the first contract of sale, since he did not know it existed. The account went into default, at which time Moore attempted to repossess the combine. However, Moore was unsuccessful in its attempt to repossess the combine, since the combine had already been repossessed by FMC. FMC and Halferty had repossessed the combine because McConkey had defaulted on payments he owed to Halferty and FMC under the July 1991 contract. FMC and Halferty jointly repossessed the combine on approximately March 26, 1992.

II. Procedural Background

In July of 1994, Moore filed a petition suing Halferty and FMC for conversion. At that time the parties to the suit did not yet know that McConkey had forged Nance's signature. In January of 1996, Moore moved to amend the petition to add Nance as a defendant. Appellant's first amended petition alleged four claims against Nance, arising out of the purported sale. Nance then disclosed by affidavit that he did not sign the sale documents; that his signatures were not made with his knowledge and authority; that he was unaware of a transaction involving the combine; and that McConkey forged his signature. After these revelations, Moore dismissed the claims against Nance, and motions for summary judgment pursuant to Rule 74.04 were filed by Appellant and by Respondents. The trial court denied Moore's motion for summary judgment and granted Halferty and Ford's summary judgment motions. The trial court did not specify its reasons for this decision, simply stating "Plaintiff's motion for Summary Judgment is denied. Defendant H.H. Halferty, d/b/a H.H. Halferty and Sons and defendant Ford Motor Credit Company Motions for Summary Judgment are granted. Judgment in favor of defendants and against plaintiff." This appeal ensued.

III. Standard of Review

Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App.1996). The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences derived from the evidence. Id. If the reviewing court determines that no genuine issues of material fact exist and the movant has a right to judgment as a matter of law, the judgment will be affirmed on appeal. Id. "Where, as here, the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the summary judgment if it is appropriate under any theory." Baldwin v. Jim Butler Chevrolet, Inc., 926 S.W.2d 555, 557 (Mo.App.1996) (citing Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361 (Mo.App.1993)). Further, a trial court's order is presumed to have based its decision on the grounds specified in Respondents' motions if the trial court's order does not set forth its reasoning. McDowell v. Waldron, 920 S.W.2d 555, 562 (Mo.App.1996).

A. Rule 74.04

--Summary Judgment

Appellant claims the trial court erred in granting Respondents' summary judgment motions for a number of reasons. First, Appellant contends that the trial court erred because Respondents' summary judgment motions do not comply with Rule 74.04(c)(1). ¹ Specifically, Appellant claims that Halferty and FMC's motions fail to set forth each material fact in separately numbered paragraphs and fail to specifically reference supporting documentation. The record reveals this to be the case. Halferty's summary judgment motion includes a separate supporting memorandum. FMC's motion incorporates the motion suggestions and facts of Halferty's motion for summary judgment.

"The purpose underlying the requirements of Rule 74.04 is threefold: to apprise the opposing party, the trial court and the appellate court of the specific basis for the movant's claim of entitlement to summary judgment." Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995) (citing Johns v. Continental Western Insurance Company, 802 S.W.2d 196, 197 (Mo.App.1991)). A motion which fails to meet the specificity requirement of Rule 74.04(c) is deficient. Moss v. City of St. Louis, 883 S.W.2d 568, 569 (Mo.App.1994). The requirements of a properly drafted motion for summary judgment are not negated by incorporating by reference a memorandum of law. Koman v. Kroenke, 913 S.W.2d 108, 110 (Mo.App.1995) (citing Finley v. St. John's Mercy Medical Center, 903 S.W.2d 670, (Mo.App.1995)). Furthermore, "[i]t is not the function of an appellate court to sift through a voluminous record, separating fact from conclusion, admissions from disputes, the material from the immaterial, in an attempt to determine the basis for the motion." Miller, 892 S.W.2d 387 at 389 (citing McCarthy v. Community Fire Protection District, 876 S.W.2d 700, 703 (Mo.App.1994)). The court went on in Miller to state:

Because the purpose underlying the rule is directed toward benefitting trial and appellate courts to expedite the disposition of cases, noncompliance with these requirements is not a matter subject to waiver by a party. To hold otherwise would place the court in the position of performing the work of an advocate. 'This court should not encourage noncompliance with that requirement [of rule 74.04] by performing a function properly that of counsel.'

Id. Compliance with Rule 74.04 must be tempered by whether or not the underlying purposes of the rule have been met. If the issues are clear to the parties, the trial court and the appellate court, failure to strictly comply with the rule does not, per se preclude the granting of a summary judgment and/or its affirmance by an appellate court. AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 263, 267 (Mo.App.1996) (citing Mathes by Mathes v. Nolan, 904 S.W.2d 353, 355 (Mo.App.1995)).

In this case, FMC and Halferty did not follow Rule 74.04(c)(1), making it difficult to determine precisely what facts were uncontroverted. However, an examination of this voluminous record makes it clear that there are no genuine issues of material fact and that the trial court erred in granting summary judgment in favor of FMC and Halferty.

IV. Conversion

Appellant alleges that Halferty and FMC converted the combine in question. Conversion can be proved in one of three ways: (1) by a tortious taking; (2) by the use or appropriation to the use of the person in possession indicating a claim in opposition to the rights of the owner; and (3) by the refusal to give up possession on demand. Minton v. Hill, 944 S.W.2d 250, 253 (Mo.App.1997) (citing Centerre Bank Nat. Ass'n v. Missouri Farmers Ass'n, 716 S.W.2d 336, 341 (Mo.App.1986)). For Moore to recover under any theory of conversion, it must show that at the time of the alleged conversion they were the owner of, or had the right to possession of, the combine. Id.

In this case, the only issue with regard to the alleged conversion is whether Appellant had a right to possession of the combine at the time of the...