Kelly v. United Parcel Service, Inc.

407 S.W.3d 652, 2013 WL 2364093, 2013 Mo. App. LEXIS 658
CourtMissouri Court of Appeals
DecidedMay 30, 2013
DocketNo. SD 32151
StatusPublished

This text of 407 S.W.3d 652 (Kelly v. United Parcel Service, 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
Kelly v. United Parcel Service, Inc., 407 S.W.3d 652, 2013 WL 2364093, 2013 Mo. App. LEXIS 658 (Mo. Ct. App. 2013).

Opinion

NANCY STEFFEN RAHMEYER, J.

In December 2008, Jerry E. Kelly contracted with United Parcel Service, Inc. (“UPS”), to ship two Rolex watches and a diamond bracelet1 from Missouri to Louisiana, C.O.D., by next day air service. He paid $178.95 for the option of “C.O.D. $10,796.32, Guaranteed.” On delivery of the watches and bracelet, UPS collected a cashier’s check payable to “Gary E. Kelly,” and delivered that check to Kelly. Kelly sued UPS in circuit court for breach of contract. Following a trial to the court, the trial court entered judgment in favor of Kelly in the amount of $10,796.32.

The parties stipulated orally that:

Jerry Kelly, went to the local UPS Store [in Branson West, Missouri,] back in December of '08 and — and entered into an agreement with them for the shipping of two Rolex watches and a diamond tennis bracelet with a — I think a declared value of everything finally was around $10,500, to be shipped to a Michael Morgan in Louisiana [by next day air service]. This was to be a COD shipment and he was to receive either cash or certified funds. The package was ultimately delivered to the person believed to be Michael Morgan. And Michael Morgan gave to the UPS driver a cashier’s — what purports to be a cashier’s check in the total sum of 10,796.32. However, the cheek is made payable to Gary E. Kelly, not Jerry Kelly.

Kelly testified at trial that he endorsed his name on the back of the cashier’s check and attempted to deposit the cashier’s check at his local bank, but the bank “wouldn’t deposit it” and told him “you’ll have to get Gary to endorse it.” Subsequently, Kelly “called the bank and found out the check was no good.”

The trial court found: UPS agreed to deliver a package for Kelly and to collect from the recipient of the package on delivery, an adult signature and guaranteed funds in the amount of $10,795.32 payable to Kelly. UPS delivered the package, and obtained an adult signature and what appears to be a facially valid cashier’s check in the correct amount; however, the check was made payable to “Gary E. Kelly” instead of “Jerry E. Kelly,” the plaintiff. Kelly’s bank would not let him deposit the cashier’s check because he is not “Gary E. Kelly,” the person to whom the check is made payable. As a result, Kelly has what appears to be a facially valid certified cashier’s check with which he can do nothing because UPS “admittedly” accepted that payment made out to the wrong person. UPS claims that the cashier’s check is fraudulent, i.e., it is a forgery or otherwise fraudulent. Kelly does not dispute the cashier’s check may be fraudulent as claimed by UPS but no evidence was adduced conclusively establishing whether the check is or is not fraudulent.

Standard of Review

Our standard of review was set forth in Consolidated Grain & Barge, Co. v. Hobbs, 397 S.W.3d 467, 474 (Mo.App. S.D.2013):

In a court-tried case, we must affirm the judgment of the trial court unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Johnson v. Estate of McFarlin, 334 S.W.3d 469, 473 (Mo.App. S.D.2010).
[654]*654A judgment is supported by substantial evidence when there is evidence from which the trier of fact can reasonably find all facts necessary to sustain the judgment. Houston v. Crider, 317 S.W.3d 178, 186 (Mo.App. S.D.2010). In determining whether there is substantial evidence, we view the evidence and reasonable inferences from the evidence in the light most favorable to the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial court’s credibility determinations. Id.

Analysis

UPS appeals claiming that the trial court erred:

I. The trial court erred in ruling in favor of the Respondent for breach of contract, because the trial court failed to properly apply contractual provisions that limit the liability of United Parcel Service, Inc. when collecting or delivering checks, in that the UPS Tariff/Terms and Conditions of Service for Small Package Shipments, limits the liability of United Parcel Service, Inc. when collecting or delivering checks.
II. The trial court erred in ruling in favor of the Respondent for breach of contract, because the trial court erroneously determined that the check collected by United Parcel Service, Inc., made payable to Gary E. Kelly, and delivered to Jerry E. Kelly was not negotiable, in that (1) UPS did not have a duty to deliver a check made payable to Jerry E. Kelly; and (2) the check was a negotiable instrument.
III. The trial court erred in ruling in favor of the Respondent for breach of contract, because Jerry E. Kelly ratified United Parcel Service, Inc.’s conduct, in that he presented the check to his bank and attempted to deposit and otherwise negotiate the check thereby ratifying UPS’s conduct.

Point I

We initially point out that UPS’s first point does not comply with Rule 84.04(d)(1)2 in that it does not advise us in what way the UPS TariffiTerms and Conditions of Service for Small Package Shipments limits the liability of UPS. In its argument, UPS contends that the UPS Tariff is incorporated into the shipping contract. The trial court accepted UPS’s contention that “[Kelly] is bound by the terms and remedies of the UPS Tariff even if [Kelly] was without knowledge or notice of the tariff.”3 Despite the tariff, however, the trial court found that Kelly’s suit in Missouri for a breach of contract was not pre-empted by federal law and UPS breached its agreement by accepting a check that was made out to the wrong person.

UPS relies upon Section IV.Q.6 of the tariff to argue that it is not liable to Kelly. Specifically, UPS claims the italicized portion relieves it of all liability for the tendered cashier’s check:

6. Consignee’s Checks in Payment of C.O.D.s: Unless instructions to collect a cashier’s check or money order only are shown on the C.O.D. tag (in conformity with the instructions on the tag) or system-generated label, UPS will accept a check or other negotiable instrument issued by or on behalf of the consignee. When instructions to collect a cashier’s check or money order only are clearly indicated on the C.O.D. tag or system-generated label, UPS reserves the right [655]*655to accept a cashier’s check, money order, official bank check or other similar instrument issued by or on behalf of the consignee. All checks or other negotiable instruments (including cashier’s checks, official bank checks, money orders and other similar instruments) tendered in payment of C.O.D.s will be accepted by UPS based solely upon the shipper assuming all risk relating thereto including, but not limited to, risk of non-payment, insufficient funds, and forgery, and UPS shall not be liable upon any such instrument.

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Related

Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Johnson v. ESTATE OF McFARLIN EX REL. LINDSTROM
334 S.W.3d 469 (Missouri Court of Appeals, 2010)
Houston v. Crider
317 S.W.3d 178 (Missouri Court of Appeals, 2010)
Consolidated Grain & Barge, Co. v. Hobbs
397 S.W.3d 467 (Missouri Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
407 S.W.3d 652, 2013 WL 2364093, 2013 Mo. App. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-united-parcel-service-inc-moctapp-2013.