Date: 08-24-2001

Case Style: Paul Suttofn v. Mike Snider and Marble Pierce Enterprises, L.L.C. d/b/a Super Bikes

Case Number: 96,116

Judge: Kenneth L. Buettner

Court: Court of Appeals of Okalhoma

Plaintiff's Attorney: Jeff Eulberg and Chris Eulberg of Eulberg Law Office, Oklahoma City, Oklahoma

Defendant's Attorney: Max C. Tuepker of Max C. Teupker, P.C., Oklahoma City, Oklahoma

Description: 1 Plaintiff/Appellant Paul Sutton appeals from summary judgment entered in favor of Defendant/Appellee Mike Snider in Sutton's action to replevin a motorcycle. The trial court also granted a summary declaratory judgment that Snider is the legal owner of the motorcycle. Because we find no substantial controversy of material fact, and that Snider was entitled to judgment as a matter of law, we affirm.1

2 The motorcycle at issue in this case is a 1995 Harley Davidson, Model FLF, VIN 1HD1BML175Y048074. Sutton filed his Petition November 21, 2000, in which he alleged that on May 8, 2000, he delivered the motorcycle to Super Bikes "to allow them to display his motorcycle for sale." Sutton retained the keys and the title to the motorcycle, but it is undisputed that the keys are not necessary to drive the motorcycle. Sutton alleged that Snider thereafter came into possession of the motorcycle, despite Snider's awareness that Super Bikes "was merely displaying the Motorcycle and was not the owner." Sutton asserted that he was the owner of the motorcycle and was entitled to immediate possession of it, but that Snider refused to return the motorcycle to Sutton. Sutton also alleged causes of action for conversion against both Snider and Super Bikes. Finally, Sutton sought punitive damages from Super Bikes. Attached to his Petition were Exhibit A, the Oklahoma title to the motorcycle, issued October 7, 2000, and Exhibit b, a letter from Sutton, dated October 13, 2000, addressed to Snider and Jim and Wendy Marble (apparently the owners of Super Bikes) demanding either return of the motorcycle or immediate payment of $17,500. The letter asserted that if either the motorcycle or the money was not received by October 16, 2000, Sutton would take legal action.

3 In his answer, Snider responded that he took possession of the motorcycle only after paying Super Bikes the agreed purchase price. Snider further averred that he was aware the motorcycle was on consignment, but that he did not know any of the terms of the consignment agreement. Snider agreed with Sutton as to the value of the motorcycle. Snider denied the conversion allegations. Snider argued that Sutton is estopped from asserting his title to the motorcycle because Snider is a bona fide purchaser for value without notice of any title defect. Snider further alleged that he paid the price for the motorcycle to which Sutton had agreed. Snider also argued that Sutton was trying to "jump title" by claiming that Snider held the motorcycle with notice that Sutton was the title owner, despite the fact that Sutton's title is dated after Snider purchased the motorcycle. Also in his answer, Snider asserted a counterclaim against Sutton and a crossclaim against Super Bikes for a declaratory judgment that Snider's possession and title are superior to Sutton's. Snider also sought injunctive relief ordering Sutton to deliver title to Snider. Snider asserted causes of action for fraud, breach of contract, and conversion against Super Bikes.

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5 The material facts of this matter are not in dispute. Sutton placed the motorcycle with Super Bikes for display. Although Sutton asserts that he intended for the motorcycle to be "displayed for sale," Sutton also alleges that Super Bikes had no authority to sell the motorcycle. Nothing in the record indicates that Super Bikes had no authority to sell the motorcycle, except for Sutton's declaration to that effect in his affidavit. Additionally, the record includes a document titled "Consignment Agreement,"2 signed by Sutton and Super Bikes, which provides:

As registered and legal owner of above mentioned vehicle:

I Paul Sutton , do willingly leave the above mentioned vehicle in the possession of Super Bikes, for the sole purpose of display with the intent to offer said vehicle for sale. Further, in signing this form I agree that all liability for said vehicle is my sole responsibility and will not hold Super Bikes, any of their affiliates and/or associates accountable for any loss or damage to said vehicle for the duration of this agreement. Upon final sale of said vehicle, I will receive and expect to collect exactly: $ 18,000 and any monies over and above that amount shall be the property of Super Bikes. This agreement is valid for twenty (20) days when signed below by both the legal owner of said vehicle and authorized agent of Super Bikes. Super Bikes retains the right to remove from display said vehicle at any time. (Emphasis added).

Underneath that portion of the document, there is a handwritten notation "low dollars 17,0[00]." It is undisputed that Snider paid Super Bikes $17,500 and took possession of the motorcycle. The record includes Snider's check for that amount as well as the sales agreement between Snider and Super Bikes, both dated August 17, 2000.3 Sutton titled the motorcycle in his name October 7, 2000, after the instant dispute arose. Sutton asserts, and there is nothing to dispute, that Super Bikes has never paid Sutton for the motorcycle. In his demand letter dated October 13, 2000, Sutton demands either possession of the motorcycle or payment of $17,500.4 This statement supports the facts that (1) the Consignment Agreement authorized Super Bikes to sell the motorcycle, and (2) Sutton was agreeable to the sale for $17,500. In addition, Sutton alleged in his petition that the value of the motorcycle was $17,500. Snider's Motion for Summary Judgment included "Undisputed Fact 3" that "Super Bikes deals in the sale of motorcycles." Sutton's response to this was "Statement number 3 is correct to the extent that Super Bikes displayed motorcycles for sale for motorcycle owners pursuant to their 'Consignment Agreement.' The statement 'Super Bikes deals in the sale of motorcycles' is vague and therefore disputed."

6 Sutton alleged as undisputed facts 1) he placed the motorcycle with Super Bikes "to display with the intent to offer said vehicle for sale"; 2) Sutton retained the title and the keys (which were unnecessary to start the motorcycle) when he placed the motorcycle at Super Bikes; 3) "the primary business of Super Bikes was to sell motorcycle accessories and other peoples (sic) motorcycles based upon their 'Consignment Agreement'"; 4) Snider saw the motorcycle on display at Super Bikes and knew that Super Bikes was not the owner of the motorcycle; 5) Snider did not inquire about whether Super Bikes had authority to sell the motorcycle, about the identity of the owner of the motorcycle, or about how the motorcycle was titled; 6) Snider paid for the motorcycle with a personal check payable to Super Bikes for $17,500; 7) Super Bikes was not authorized to relinquish possession of the motorcycle to anyone but Sutton; 8) Snider has possession of the motorcycle and has refused to return it to Sutton despite Sutton's demands.

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10 The rule in replevin cases such as the instant case remains that, where one party has delivered a chattel to another with apparent authority to sell, the bona fide purchaser for value secures ownership under the rule that where one of two parties must suffer loss due to the act of a third party, the loss shall fall on the party which made the loss possible. Mahar v. White, 1942 OK 84, 124 P.2d 260, 261, 190 Okla. 434; Moskowitz, supra, 224 P.2d at 591. In Mahar, the plaintiff delivered his GMC truck to an agent and asked that he secure a purchaser for it. The agent took the truck to the defendant and, upon being paid the purchase price, left the truck with the defendant and absconded with the money. The court held that the plaintiff had made the loss possible by delivering his vehicle to the agent. Likewise, in the instant case, Sutton delivered the motorcycle to Super Bikes with the intent to offer it for sale at an agreed price. Super Bikes sold the motorcycle to Snider for a price within the agreed range, but apparently never paid Sutton. Under the rule of Mahar and under 12A O.S.Supp.1997 §2-403(2), Snider is an innocent purchaser for value and is the rightful owner of the motorcycle.

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Click the case caption above for the full text of the Court's opinion.

Outcome: ¶11 For these reasons, we affirm summary judgment on the replevin action. We also affirm the summary declaratory judgment that Snider is the legal owner of the motorcycle.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan