Senu-Oke v. Modern Moving Systems, Inc.

• Decision Date: 11 August 1998
• Docket Number: P,SENU-OK,No. 72892,72892
• Citation: 978 S.W.2d 426
• Parties: Edwardlaintiff/Respondent, v. MODERN MOVING SYSTEMS, INC., et al., Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 426

978 S.W.2d 426

Edward SENU-OKE, Plaintiff/Respondent, v. MODERN MOVING SYSTEMS, INC., et al., Defendants/Appellants.

No. 72892.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 11, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 30, 1998.

Application for Transfer Denied Nov. 24, 1998.

Michael A. Gross, Cynthia A. Sciuto, Law Office of Michael A. Gross, St. Louis, for Defendants/Appellants.

James M. Martin, Martin & Malec, St. Louis, for Plaintiff/Respondent.

SIMON, Judge.

Modern Moving Systems, Inc. (Modern Moving), Vittco, Inc. (Vittco) and Russell Vitt (Vitt), defendants, appeal from judgments on jury verdicts awarding Edward Senu-Oke, plaintiff, compensatory damages in the amount of $150,000.00 for breach of contract and $150,000.00 for conversion, plus $43,775.00 for punitive damages for a total award of $343,775.00.

On appeal, defendants contend that the trial court erred in: (1) submitting verdict directing instructions to the jury which assumed the disputed issue of whether Vitt acted in an individual capacity because the instructions removed the issue from the jury's determination and permitted the jury to impose liability without any preliminary finding that Vitt acted individually; (2) submitting the same damage instruction following the verdict directors on each claim because the instructions enabled the jury to return verdicts for redundant damages, and the trial court plainly erred in entering judgments on verdicts awarding redundant damages; (3) permitting plaintiff's counsel to testify regarding an "informal agreement," which formed the basis of plaintiff's punitive damages claim; (4) denying defendants' motion for directed verdict on the issue of punitive damages at the close of plaintiff's case and at the close of all the evidence because plaintiff did not submit clear and convincing evidence that defendants entered into an agreement not to sell plaintiff's property, or that defendants acted with an evil motive or reckless indifference to plaintiff's rights in selling property; (5) denying defendants' motion for remittitur because the evidence was insufficient to support the jury's verdict, in that plaintiff testified that his actual damages were $150,000.00 and the verdict awarded damages in excess of twice that amount; and (6) denying defendants' motion for a directed verdict on the issue of Vitt's personal liability at the close of plaintiff's case and at the close of all of the evidence because the evidence, viewed in the light most favorable to the verdict, did not establish that Vitt knowingly engaged in wrongful conduct. Judgment affirmed in part, reversed and remanded in part, and reversed in part.

The evidence viewed in the light most favorable to the verdict reveals that plaintiff contacted Modern Moving in the fall of 1992 to book the transfer of his family's household goods and personal belongings from Torrington, Wyoming to Hustisford, Wisconsin. Plaintiff testified that he spoke with Brenda Bucceri, the general manager of Modern Moving. During the conversation, plaintiff told Bucceri how many rooms of furniture were to be moved and described the contents of his home including two cars, a Mercedes-Benz and an Audi. Bucceri told plaintiff that, based on his description, the move would cost $2,400.00.

The job was booked and arrangements were made for Modern Moving to pick up plaintiff's goods between October 6, 1992 and October 10, 1992, with an agreed delivery date between October 10, 1992 and October 11, 1992. Bucceri informed plaintiff that the movers would arrive on October 7, 1992. Subsequently, Modern Moving sent plaintiff a Bill of Lading for $2,400.00 plus $600.00 packing cost, if needed. The Bill of Lading reflected a non-binding estimate for the move and because plaintiff packaged his property himself, the $600.00 packing charge was unnecessary. Plaintiff instructed his wife, Helen, to obtain a cashier's check for $2,500.00, so that the movers could be paid an additional $100.00 when they arrived. Plaintiff's wife and family drove to Wisconsin ahead of him.

On October 8, 1992, plaintiff called Modern Moving and spoke to Bucceri. The movers had not shown up yet and plaintiff stated he would have to leave Wyoming for Joliet, Illinois, where he had a new teaching job. He left Wyoming for Joliet on the afternoon of October 9, 1992. When plaintiff arrived in Joliet on October 10, he called Modern Moving, spoke with Bucceri and was informed that the movers were in Torrington. Plaintiff inquired about the move and was informed that the cost was still $2,400.00.

Plaintiff's next conversation with Modern Moving occurred Saturday, October 12, 1992, when he learned that his goods had not arrived in Hustisford, Wisconsin. Plaintiff had driven from Joliet to Hustisford on October 12 and was in Hustisford when he telephoned Modern Moving. Bucceri answered the phone and transferred the call to Russell Vitt, president of Modern Moving. Vitt told plaintiff that Bucceri misquoted the price and that the move would cost $3,600.00 plus $400.00 for the second car. Vitt explained that the second car would not fit on the same truck as the rest of plaintiff's goods and had to be placed on another trailer. Plaintiff agreed to pay the $4,000.00 and asked when the shipment would be delivered. He was told that it would arrive in Hustisford on October 14, 1992.

On October 13, plaintiff returned to Joliet from Hustisford to teach classes the next morning. On October 14 at 10:22 p.m., plaintiff spoke to Vitt from his apartment in Joliet. Vitt told plaintiff that he had the goods "loaded up" and plaintiff arranged to meet the movers in Wisconsin on October 15. Plaintiff drove from Joliet back to Hustisford to wait for the movers. At some point on either October 14 or 15, he received a verbal request for $3,600.00 from either Vitt or another representative of Modern Moving. Plaintiff agreed to pay the price because he had $10,000.00 in cash at his home in Hustisford.

On the evening of October 15, plaintiff received a telephone call from Vitt at his home in Hustisford. Plaintiff told Vitt how to get to Hustisford. He waited all night for the movers to show up, but they never did. Plaintiff left Hustisford for Joliet early in the morning of October 16 to fulfill his teaching responsibilities. He did not hear from Vitt or Modern Moving until he received a letter, dated October 19, 1992, advising him that the bill, including storage, was $7,200.00. After receiving the letter, plaintiff contacted Vitt and told him that "money was no problem" and he would pay him the $7,200.00, if his goods were delivered. Vitt refused to deliver unless plaintiff first mailed a cashier's check for $7,200.00. Eventually, Vitt authorized the sale of plaintiff's goods. Modern Moving sold the majority of plaintiff's goods at auction and those goods not sold were destroyed in a fire at the warehouse where they were being stored.

On January 29, 1993, plaintiff filed a three count petition against Modern Moving in the Circuit Court of the City of St. Louis. Count I was for breach of contract, Count II for specific performance, and Count III for replevin. Plaintiff alleged that he "was the owner and possessor of all property" in a list of goods attached to his petition, and set a value of those goods at $50,000.00. Modern Moving received a notice in January 1993 demanding return of the goods.

Defendants filed an answer and counterclaim on March 11, 1993. The answer asserted that plaintiff was estopped from suing by his wrongful refusal to accept delivery of his goods and that Modern Moving had retained his goods pursuant to a valid lien established through Section 400.7-307 RSMo 1994 (all further references shall be to RSMo 1994, unless otherwise indicated). Defendants' counterclaim was for breach of contract or recovery in quantum meruit.

In October 1994, Vitt asked Bucceri to call Michael McKittrick, attorney for Modern Moving, and ask if the goods had to be stored indefinitely or whether they could be sold. McKittrick was not defendants' trial attorney. McKittrick advised that there was a storage lien statute that had to be complied with. McKittrick knew that a possessory claim for the goods existed because of the pending lawsuit. He testified that he could recall having discussed only the storage lien statute with his client in response to Bucceri's inquiry. McKittrick did not recall discussing the replevin statute.

During cross examination by James Martin, plaintiff's trial attorney, McKittrick was asked whether Scott Smith, a member of McKittrick's law firm during 1993, had attended the "informal meeting with [Mr. Martin] and Judge Jimmie Edwards." McKittrick did not know; he could "not [deny] it happened and [did] not [state] it did happen." Martin was then allowed to testify to rebut McKittrick's testimony. Defendants objected on the basis that Martin "could not testify in a case in which he is counsel for the plaintiff." Defendants' objection was overruled and Martin testified that an individual, whom he could not identify with certainty but believed was Scott Smith, "appeared with [Mr. Martin] in Judge Jimmie Edwards' court." Martin stated that they "informally worked out an agreement in Judge Edwards' chambers. The understanding [he] had with the gentleman from McKittrick's office was that the goods would [not] be sold during the processing of the lawsuit."

According to Martin, shortly after the meeting he took a check in the amount of Two Thousand Six Hundred and Forty Dollars and paid it into the registry of the court, but the record does not indicate why this check was paid. Martin testified that the "next thing [he] heard about the property was just after the property was being sold sometime in the Fall of 1994."

On September 26, 1994, Modern Moving sent a notice addressed to "John Malec attorney for Edward Senu/Oke, of Martin and Malec, 1007 ...