Bradley v. K & E INVESTMENTS, INC.

847 S.W.2d 915, 22 U.C.C. Rep. Serv. 2d (West) 915, 1993 Mo. App. LEXIS 118, 1993 WL 16391
CourtMissouri Court of Appeals
DecidedJanuary 27, 1993
Docket18125
StatusPublished
Cited by20 cases

This text of 847 S.W.2d 915 (Bradley v. K & E INVESTMENTS, INC.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradley v. K & E INVESTMENTS, INC., 847 S.W.2d 915, 22 U.C.C. Rep. Serv. 2d (West) 915, 1993 Mo. App. LEXIS 118, 1993 WL 16391 (Mo. Ct. App. 1993).

Opinions

[917]*917PER CURIAM.

K & E Investments, Inc., appeals from four orders, each characterized by the parties and the trial court as “a final order in mandamus,” by which the court ordered K & E to deliver to the plaintiffs certificates of ownership to certain used motor vehicles. Although the orders were erroneously designated, we affirm.

FACTS

In late 1991, the plaintiffs attempted to purchase used motor vehicles from John Charleston and Cheryl Charleston who conducted business under the name Country Auto Sales. The plaintiffs paid for the vehicles and received possession of them, but they did not receive certificates of ownership. John Charleston told Gary Taber “he had his floor plan on his vehicles through a finance company in Kansas City,” and Cheryl Charleston told him “it would be three to four days to get the title back.” The remaining plaintiffs who testified said they were led to believe the Charlestons had the certificates of ownership. Cheryl Charleston told Doug Bradley she had the certificate and would send it to him in two days; she gave Ray Gallette a photocopy of the certificate and told him she would send the original to his bank. Sam Simpson obtained a vehicle on a weekend from John Charleston who told him he did not know where the certificate was and that Cheryl Charleston would find it. The plaintiffs later learned the certificates were held by K & E Investments, Inc.

In February and March 1992, the plaintiffs filed separate actions against K & E, the Gallettes’ and Simpsons’ actions denominated “Petition for Mandamus” and the Bradleys’ and the Tabers’ actions denominated “Petition for Mandamus, Petition for Preliminary Injunction and Petition for Conversion.”1 In each petition, the plaintiffs sought “an Order in Mandamus compelling Defendant K & E Investments, Inc., to immediately provide the certificate of title to the vehicle purchased.”

K & E filed a separate “Counterclaim for Declaratory Relief to Quiet Title” in each action.2 After separating the conversion counts (See Rule 66.02), the court tried the four causes, including the counterclaims, together.

At trial, Keith L. Roberts, secretary-treasurer and 50 percent owner of K & E, testified that K & E provides floor plan financing to used car dealers. Roberts explained the arrangement by which K & E furnishes floor plan financing to about 30 dealers for some 6,000 vehicles a year:

The dealer, when they wanted to arrange for money on a vehicle they would provide us the title. And then we would advance the funds. And when they wanted to reclaim the title, they’d pay us off and we’d give them the title.

Concerning the vehicles the plaintiffs attempted to purchase, Roberts testified that K & E did not receive payment from Country Auto so it refused to surrender the certificates of ownership.

Attached to this opinion as appendices A, B, C, and D are reproductions of four documents admitted into evidence as K & E’s trial exhibits. Of those four documents, Roberts testified:

They are our security agreement with Country Auto Sales, a statement of terms for Country Auto Sales, a power of attorney from Country Auto Sales, and a fee schedule.

[918]*918For convenience, we shall refer collectively to these four documents as the “floor plan agreement.”

All the plaintiffs who testified denied knowing that the vehicles were subject to a lien or security interest. Only Gary Taber said he was aware that John Charleston had floor plan financing on his vehicles.

The certificates of ownership for the vehicles the Bradleys and the Simpsons attempted to purchase identify “Country Auto Sales” as “owner.” The certificates applicable to the Gallette and Taber vehicles show “Country Auto Sales” as ultimate assignee.

On March 26, 1992, the trial court entered its “Final Order in Mandamus” by which it denied K & E’s counterclaims and directed K & E to deliver to the plaintiffs the original certificates of ownership for the respective vehicles they had attempted to purchase from Country Auto Sales. On April 3, 1992, the court entered an order designating its order of March 26 “as final for the purposes of appeal pursuant to Missouri Rule of Civil Procedure 74.01, for the reason that there is no just reason for delay of said appeal.”

In the description of the case portion of its notice of appeal, K & E specified the judgment or order appealed from as follows: “The Circuit Court ordered K & E to deliver the certificates of title to the vehicles to [the plaintiffs]. K & E alleges that the order in mandamus for delivery of said certificates of title is error....”

NATURE OF THE CAUSES OF ACTION AND THE TRIAL COURT ORDERS

The parties and the trial court erroneously characterized as mandamus the plaintiffs’ claims for possession of the certificates of ownership.

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. This definition, which is frequently in effect carried into the statutes defining the writ, recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest.

52 Am.Jur.2d Mandamus § 1 (1970) (footnotes omitted). The public character of the remedy of mandamus has long been recognized in Missouri. In State ex rel. Kelleher v. Board of President and Directors of St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617 (1896), this state’s supreme court said of mandamus:

The ordinary function of this extraordinary original writ at common law is familiar. It is a command, in the name of the state, directed to some tribunal, corporation, or public officer, requiring it or him to do some specific act or particular thing, in the writ specified, which the court has previously determined that it is the duty of such tribunal, corporation, or officer to perform.

35 S.W. at 619. “The function of a writ of mandamus is to enforce, not establish, a claim or right and its purpose is to execute, not adjudicate.” Naugher v. Mallory, 631 S.W.2d 370, 374 (Mo.App.1982).

Mandamus was not available to any of the plaintiffs in the actions they brought against K & E. The plaintiffs were not attempting to have a public body or officer enforce an already established right, and K & E had no established duty that the public had an interest in enforcing.

We note, however, “the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader.” State ex rel. Conaway v. Consolidated School Dist. No. 4 of Iron County, 417 S.W.2d 657, 659[3] (Mo. banc 1967). “The case is whatever the pleadings and the facts make it, regardless of what name plaintiff gave it.” W.A. Boss Const.

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Bradley v. K & E INVESTMENTS, INC.
847 S.W.2d 915 (Missouri Court of Appeals, 1993)

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Bluebook (online)
847 S.W.2d 915, 22 U.C.C. Rep. Serv. 2d (West) 915, 1993 Mo. App. LEXIS 118, 1993 WL 16391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-k-e-investments-inc-moctapp-1993.