State Ex Rel. Tallen v. Marsh
633 S.W.2d 458, 1982 Mo. App. LEXIS 3834 (1982)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
To comply with due process, an affidavit supporting an ex parte, prejudgment order for the seizure of property must state specific, evidentiary facts that demonstrate the plaintiff's right to possession, rather than mere conclusory allegations of default.
Facts:
- Richard G. Tallen owned a 1978 Ford Thunderbird automobile.
- Ford Motor Credit Company alleged that Tallen failed to make required contract payments for the vehicle.
- Based on this alleged default, Ford Motor Credit sought to repossess the car.
- An agent of the court administrator's office went to Tallen's home while no one was present.
- The Thunderbird was locked inside Tallen's attached garage.
- The agent hired a locksmith, gained entry to the garage through the house, and seized the automobile.
- The vehicle was then delivered to Ford Motor Credit Company.
Procedural Posture:
- Ford Motor Credit Company filed a petition in replevin against Richard G. Tallen in the Circuit Court of Jackson County, a trial court.
- Based on an affidavit from Ford Motor Credit, Judge Marsh entered an ex parte 'Order of delivery in replevin.'
- Tallen, appearing specially, filed a motion to quash the order of delivery.
- Ford Motor Credit filed a motion for an order to sell the seized vehicle.
- Judge Marsh, the respondent, overruled both motions.
- Tallen (the relator) then filed a petition for a writ of prohibition in the Missouri Court of Appeals, asking it to stop Judge Marsh from exercising further jurisdiction in the case.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an affidavit supporting a prejudgment order of delivery that merely states in a conclusory manner that the defendant failed to make required contract payments satisfy the due process requirement under Missouri Supreme Court Rule 99.03 that the affidavit state specific facts showing entitlement to possession?
Opinions:
Majority - Kennedy, Judge
No. A conclusory statement in an affidavit is insufficient to support a prejudgment order of delivery. The court held that the affidavit filed by Ford Motor Credit, which stated only that it was entitled to possession 'because of defendant’s failure to make required contract payments,' was legally worthless. To satisfy the due process standards established in Mitchell v. W. T. Grant Company and codified in Missouri Supreme Court Rule 99.03, an affidavit must state specific, evidentiary facts from which a judge can independently determine the probable validity of the plaintiff's claim. The affidavit here failed to specify the contract, the parties, the required payments, or the nature of the default. This lack of specificity is a jurisdictional defect that renders the order of delivery void, not a mere irregularity that can be amended after the seizure.
Analysis:
This decision significantly clarifies the procedural due process requirements for ex parte prejudgment replevin actions in Missouri. By ruling that a conclusory affidavit is a jurisdictional defect that voids the seizure order, the court elevates the factual pleading standard and provides a strong protection for debtors. This precedent prevents creditors from using boilerplate language to seize property before a hearing and forces them to present a detailed, fact-based case from the outset. Consequently, it makes such seizures more difficult to obtain and more vulnerable to being overturned, shifting some leverage back to the debtor in these disputes.
Unlock the full brief for State Ex Rel. Tallen v. Marsh