Maag Motion Dismiss Replevin

8/14/2019 Maag Motion Dismiss Replevin

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JEREMIAHW. (JAY)NIXONATTORNEYGENERAL

A T T O R N E Y G E N E R A L O F M I S S O U R IJE FFE RS ON CITY

Q5102P.O.Box899(573) 7E1-3Q31

September 4, 2007

Clay County Circuit CourtClay County Circuit Clerk11 S. Water Street.Liberty, MO 64068 R e: D u f f , William v. Officer Frazier , et aL,Case No. 07CY-CV06125Dear Clerk:Please f ind enclosed th e original and one copy of Defendants' Motion to Dismiss Plaintiff'sReplevin Claim for filing in the above-referenced case.We would appreciate your returning a fi le stamped copy to our office in the enclosed self-add ressed, stamped envelope. Th ank you for your attention to this matter.

Sincerely,J E R E M I A H W . ( JA Y ) N I X O NA ttorney General

Emily A . DodgeAssistant Attorney GeneralE A D : s mcc: William D . Duf f


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IN THE CIRCUIT COURT OF CLAY COUNTYM I S S O U R I

W I L L I A M D . D U F F ,Plaintiff, )v. ) Case N o. 07C Y - C V 06 1 25

O F F I C E R F R A Z I E R , et al.,Defendants.

DEFENDANTS' MOTION TO DISM ISS PLAINTIFF'S REPLEVIN CLA IMPlaintiff amend ed his pe tit ion to add a claim for replevin of a 1996 Buick Plaintiff allegedly

purchased on E Bay . In ad d ition to Def end ants ' pend ing motion to dismiss, Defend ants specificallymove this Court, pursua nt to Ru le 55.27, to dismiss P l a i n t i f f s claim in replevin f or fa ilure to state aclaim upon which relief may be granted. Plaintiff has the burden of pro ving his superior right topossession of the Buick and D efend ants ' wrongful detention, burd ens he cannot meet. See B onnell v.Mahaf fev, 49 3 S.W.2d 688, 690-91 (Mo. App. 1973).

ARGUMENTDefendants refer the Court to the factual background and pleadings stated in their first

motion to dismiss . Plaintiff has not registered the Bu ick in the State of M issouri and did not haveproof of insurance for the vehicle when he was arrested. T he Buick sported fake license plates.Plaintiff asserts he purchased th e Buick on EBay, and attached a purported bill of sale as an exhibitto his petit ion.

A plaintiff without properly assigned ti t le to a motor vehicle cannot maintain a replevinaction for that vehicle. Wilks v. Stone. 339 S.W.2d 590, 59 4 (Mo. App. 1960). In the State ofMissouri, it is unlawful to purchase or sell any motor vehicle without assigning th e title as provided


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by statute. M O . R E V . STAT. 301.210.4 (2007). The sale of a motor vehicle withou t assignment of thetitle is f raudulent and a void transaction. Section 301.210.4; Bonnell v. Mahaffey, 493 S.W.2d 688,690-91 (M o. A pp. 1 973). The statute is strictly enforced; as Plaintiff did not receive the title to thevehicle from the seller, he received no right or title to the autom obile. Id. A s Plaintiff was not theowner of the Buick and had no legal right to its possession, his replevin claim fails as a matter oflaw. Turman v. Schneider Bailey, Inc., 768 S.W.2d 108, 1 1 2 (Mo. App. W.D. 1988).

M oreover, the officers' detention of the Buick was not wrongful, but w as a legally authorizedexercise of the off icers ' law enforcement duties. See Mitchell v. Village of Edmundson, 89 1 S.W.2d848, 850 (Mo. App. E.D. 1995).

Conclusion

W H E R E F O R E , Defendants request that th e Court dismiss Plaint i f fs replevin claim withprejudice, and for such other and further relief as the Court deems just and proper in the premises.

Respectfully submitted,J E R E M I A H W . ( J A Y ) N I X O NAttorney General

DGBY:E M I L Y A . D O D GEAssistant Attorney GeneralMissouri Bar N o. 53914P.O. Box 899Jefferson City, M O 65102Phone 573-751-8782Fax 573-751-9456


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CERTIFICATE O F SERVICEI hereby certify that a true an d correct copy of the foregoing was mailed, postage prepaid

this 4th day of September, 2007 to :William D . D uf f108 NW 101 PL.Kansas City, M O 64155

Assistant Afttorney Genera

Documents

Maag Motion Dismiss Replevin