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10/12/93 TONY AND JUANITA ROSS v. FORD MOTOR CREDIT

October 12, 1993

TONY AND JUANITA ROSS, RESPONDENTS
v.
FORD MOTOR CREDIT COMPANY, ET AL., APPELLANTS. TONY AND JUANITA ROSS, APPELLANTS V. FORD MOTOR CREDIT COMPANY, ET AL., RESPONDENTS



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. The Honorable Lee E. Wells, Judge

Respondent-appellant's Motion for Rehearing and/or Transfer to Supreme Court Denied November 30, 1993. Modified on Courts own Motion.

Before Kennedy, P.j., Fenner and Spinden, JJ.

The opinion of the court was delivered by: Kennedy

Plaintiffs, Tony and Juanita Ross, had verdicts and judgments against Ford Motor Credit Company (Ford Motor Credit) for actual and punitive damages on several counts growing out of Ford Motor Credit's repossession in a replevin action of a 1979 Mercury automobile in the possession of the Rosses. Ford Motor Credit has appealed.

The Rosses have cross-appealed from the judgments in their libel and conversion claims against Ford Motor Credit, with the complaint that the trial court erred by reducing the amounts of their actual damages awarded by the jury verdicts, and from the judgment by Ford Motor Credit on their abuse of process claim. They have appealed also from the trial court's denial of their request for attorney's fees in their section 1983 claims against Ford Motor Credit.

The facts are as follows:

The Rosses had in their possession a 1979 Mercury Grand Marquis automobile which they had gotten from North Hills Lincoln Mercury. The Rosses claimed they were test driving the car with a view to purchasing it. North Hills, on the other hand, claimed the Rosses had purchased the car in November, 1979. North Hills claimed that on November 6 and 7, 1979, the Rosses traded in a 1976 Buick Electra automobile, assigned the title thereto, and signed a retail buyer's order, a credit application, and a note for $8,939.04, secured by a security interest in the 1979 Mercury. The note represented the $5,600 balance of the Mercury's purchase price (after a $5,100 allowance for the 1976 Buick), plus finance charges, payable in 48 monthly payments of $186.23 each. The Rosses maintained their signatures had been forged on the documents, and that they had only left the 1976 Buick with North Hills while they were test-driving the 1979 Mercury.

On November 16, 1979, North Hills assigned the Rosses' note and its security interest in the 1979 Mercury to Ford Motor Credit, receiving therefor the amount of $7,078 from Ford Motor Credit. Ford Motor Credit sent the Rosses a loan payment book, which was received by the Rosses on December 19 or 20, 1979.

The Rosses never made any payments to Ford Motor Credit. On January 29, 1980, Richard Van Leeuwen, Ford Motor Credit's assistant branch manager, contacted Mr. Ross. Mr. Ross denied to him that he had purchased the 1979 Mercury. At that time Mr. Ross also told Mr. Van Leeuwen that the North Hills dealer had forged the contract of purchase. Mr. Ross stated he wanted his 1976 Buick back, and wanted to return the 1979 Mercury to North Hills. He would not surrender the 1979 Mercury to Ford Motor Credit, though, because he wanted to use it for leverage to get back his 1976 Buick.

Ford Motor Credit initiated a replevin suit against the Rosses in the Circuit Court of Jackson County. The suit was filed March 4, 1980. The petition, with supporting affidavit, sought immediate possession of the 1979 Mercury, which was stated to have a value of $7,000. Ford Motor Credit posted a forthcoming bond in the amount of $14,000. Circuit Judge Gant signed an ex parte "order of delivery" on March 5, 1980. Alfred Ferguson, a deputy process server of the Jackson County Circuit Court on March 10 repaired to the Ross home at 5406 Byrams Ford Road, Kansas City, Missouri, accompanied by a locksmith provided by Ford Motor Credit. No one was home. The process server allowed the opening of the locked garage door by the locksmith. The car was delivered to Ford Motor Credit, which removed the car. At 11:30 that night, Mrs. Ross received a telephone call about the replevin from the Sheriff's office. On March 12, the process server delivered to Mr. Ross the order of delivery and the notice of his right to post a redelivery bond, and his right to a hearing under Rule 99.

Other facts will appear later in this opinion. These are enough for present purposes.

Out of this factual matrix sprang a 15-count lawsuit by the Rosses against North Hills, Ford Motor Credit, and others. The Rosses, as noted above, had verdicts against North Hills and against Ford Motor Credit for actual and punitive damages on various counts. The claims against other defendants were disposed of by settlement and dismissal. *fn1 North Hills has not appealed. The parties to this appeal are only Ford Motor Credit and the Rosses.

COUNTS III AND IV: SECTION 1983 CLAIMS

The Rosses' petition charged Ford Motor Credit in two counts with the deprivation of the Rosses' constitutional rights. The Rosses' theory is that Ford Motor Credit, in seizing the Mercury in the manner described above, deprived the Rosses of their constitutional right to due process of law (14th Amendment), and that its seizing the car from their garage constituted an unreasonable search and seizure (4th Amendment). They base their claim upon 42 U.S.C. § 1983. That brief statute reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be - liable to the party injured in an action at law, suit in equity, or other proceeding for redress.

At the Conclusion of the evidence, the trial court directed verdicts in favor of plaintiffs on the liability issue on Count III (deprivation of due process) and Count IV (unreasonable search and seizure). The court submitted the two claims on the issues of actual and punitive damages only. On Count III, the jury returned a verdict in plaintiffs' favor for $600 actual damages and $10,000 punitive damages. On Count IV, the verdict was for $150 actual damages and $2.5 million punitive damages.

Ford Motor Credit claims the court erred in directing a verdict for plaintiffs on the issue of liability on the two counts, and claiming the court erred in denying its own motions for judgment n.o.v.

We hold that plaintiffs did not make a submissible section 1983 case under either count. *fn2

In order to prevail in a section 1983 action for damages against Ford Motor Credit, the Rosses must show three things: They must show, first, that Ford Motor Credit deprived them of their constitutional rights in the pre-hearing seizure of the 1979 Mercury automobile; second, they must show that, in doing so, Ford Motor Credit was acting in accordance with a state law, or in accordance with a custom or usage of the state; and, third, that the state law, or the state custom or usage, was the cause of, or was the "moving force" behind, the deprivation of constitutional rights.

DEFENDANT'S APPEAL FROM JUDGMENT FOR DEPRIVATION OFPLAINTIFFS' 14Th AMENDMENT DUE PROCESS RIGHTS

There is plainly enough evidence to justify the Conclusion that the Rosses were deprived of due process in the seizure of the 1979 Mercury automobile under the court's ex parte order of delivery. The Ford Motor Credit affidavit upon which the order of delivery was based did not allege particular facts which would authorize the order of delivery without according to the replevin defendants an opportunity to be heard. The order of delivery was therefore void, and the seizure made thereunder was improvident, and was a violation of the Rosses constitutional rights. State ex rel. Tallen v. Marsh, 633 S.W.2d 458 (Mo. App. 1982).

To make a section 1983 case for damages against Ford Motor Credit, however, it is not enough to show that Ford Motor Credit deprived them of their constitutional rights in the seizure of their automobile. The Fourteenth Amendment, and section 1983 (which is intended to implement the Fourteenth Amendment, and is coterminous with it, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 934-35, 73 L. Ed. 2d 482, 102 S. Ct. . 2744 (1982)), are not aimed at private action, no matter how unlawful and discriminatory it may be. It is aimed, rather, at action "under color of state law," or "state action," which in this case are exactly the same thing. Lugar, 457 U.S. at 935. It might be explained in these terms: If the State, by an unconstitutional law, custom, or usage, equips or aids the private person to deprive another of his constitutional rights, then the private person and the state are joint-participants in the deprivation of constitutional rights, and the private individual becomes liable under section 1983 for the state's action.

Whether Ford Motor Credit's seizure of the automobile was "state action," or whether Ford Motor Credit was a "state actor," is ...


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