Okello v. Beebe
| Citation | 930 S.W.2d 40 |
| Decision Date | 06 August 1996 |
| Docket Number | No. WD,WD |
| Parties | Simon OKELLO, Respondent, v. Steven J. BEEBE, d/b/a Cars For Less, Defendant, John Smith, Appellant. 51353. |
| Court | Court of Appeal of Missouri (US) |
Charles A. Kellogg, Marcia J. Lamkin, Independence, for appellant.
Richard T. Brewster, Jr., Brewster & Brewster, Kansas City, for respondent.
Before EDWIN H. SMITH, P.J., and BRECKENRIDGE and ELLIS, JJ.
John Smith appeals from a judgment in a court-tried action for conversion and for assault and battery. 1 Mr. Smith contends that (1) the trial court erroneously applied the law pertaining to conversion and the transfer of title of a used motor vehicle; (2) the trial court lacked jurisdiction to hear the conversion claim because of the lack of standing of the plaintiff, Simon Okello; and (3) the trial court erred by entering an award of punitive damages.
The appeal is dismissed and the cause remanded.
The following statement of facts recites the evidence in a light most favorable to the judgment of the trial court. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481, 483 (Mo.1980). On November 5, 1994, Simon Okello went to Cars 4 Less, a business owned by Mr. Smith, to purchase an automobile. There, he bought a 1988 Honda Accord for $3,660.00. Mr. Okello made a down payment of $1,000.00, and an additional $800.00 was credited toward the purchase price because Mr. Okello traded in a 1981 Dodge Omni. The transaction was accompanied by a bill of sale stating that the balance due of $1,895.00 was to be paid in weekly installments.
In the course of the sales transaction, Mr. Smith gave Mr. Okello an Application for Missouri Title and License, which listed Cars 4 Less as holding a lien on the automobile. A certificate of title was never delivered to Mr. Okello, however, and there is no evidence in the record that Mr. Smith ever assigned title to the vehicle to Mr. Okello.
Mr. Okello experienced mechanical problems with the vehicle the day after he drove it home. On the next business day, Mr. Okello complained to Mr. Smith, and Mr. Smith arranged for the automobile to be towed back to the Cars 4 Less lot. In a subsequent telephone conversation, Mr. Smith told Mr. Okello that the automobile needed repairs to replace a burned-out clutch and to fix a problem with overheating. Mr. Smith told Mr. Okello that Mr. Okello would have to pay for the repairs to the clutch, which would cost $600.00.
Mr. Okello then told Mr. Smith that he had a friend who could fix the clutch at a lower cost, but Mr. Smith refused to let Mr. Okello remove the automobile from the lot to have his friend make the repairs. On November 8, 1994, Mr. Okello went to the Cars 4 Less lot in another attempt to persuade Mr. Smith to allow him to take the automobile to his friend for repairs. According to Mr. Okello, Mr. Smith took out a gun and pushed him off the premises.
Mr. Okello subsequently filed a two-count petition seeking damages from Mr. Smith. Count I of the petition was a claim for conversion, and Count II was a claim for assault and battery. Mr. Okello sought both actual and punitive damages in each count. Following a bench trial, the court announced: "I'm going to find the issues for the plaintiff for $3,600.00 actual damages and $10,000.00 punitive damages." The trial court also made a docket entry which stated: "Issues for [plaintiff] for $3600.00 and costs actual damages and $10,000.00 punitive damages." Mr. Smith now appeals from this decision.
As a prerequisite to considering the merits of Mr. Smith's appeal, this court must determine whether the underlying judgment is final, since absent a final judgment, this court has no appellate jurisdiction. Four Seasons Lakesites v. Dungan, 781 S.W.2d 269, 271 (Mo.App.1989). In order for a judgment to be final and appealable, it must dispose of all issues and all parties. Citizens Elec. Corp. v. Campbell, 696 S.W.2d 844, 845 (Mo.App.1985). Furthermore, it is the duty of the appellate court to determine, sua sponte, its own jurisdiction, and if a judgment is not final, the court must dismiss the appeal. Id.
Mr. Okello's petition sought damages in Count I for conversion, and in Count II for assault and battery, but the trial court's judgment awarding damages to Mr. Okello was not sufficiently specific to indicate its disposition of the two counts in Mr. Okello's petition. On its face, the judgment does not indicate whether the award is on the first count, the second count, or both counts, and the judgment does not indicate how the damages were allocated between the two counts.
A judgment which awards a single monetary amount on a two-count petition, without further explanation or detail, does not clearly dispose of all claims on its face and is not final. Harvey v. Village of Hillsdale, 893 S.W.2d 395, 398 (Mo.App.1995). Therefore, the appeal is dismissed as premature, and the cause is remanded to the trial court for further proceedings consistent with this opinion, after which a complete and final judgment is to be entered. Four Seasons Lakesites, 781 S.W.2d at 271.
The trial court's failure to distinguish between the two counts in its judgment is particularly significant because it appears that Mr. Okello has failed to establish the necessary elements of a claim for conversion. Because Mr. Okello did not receive a certificate of title as part of the sales transaction, Mr. Okello did not acquire the right to ownership or possession necessary to maintain an action for conversion.
In order to recover for conversion, a plaintiff must establish that, at the time of the alleged conversion, the plaintiff was the owner of or had the right to possession of the property alleged to have been converted. Centerre Bank Nat. v. Missouri Farmers Ass'n, 716 S.W.2d 336, 341 (Mo.App.1986). The act of conversion can be shown...
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