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Bell v. May Department Stores Company


August 11, 1998


The opinion of the court was delivered by: Clifford H. Ahrens, Presiding Judge

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker

Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Crandall, Jr., and Karohl, J., concurs.


John Bell appeals from summary judgment entered on April 14, 1997 against him and in favor of respondent, the May Department Stores Company, d/b/a Famous Barr Company (Famous Barr), on Count I of his petition for violation of the Truth in Lending and Fair Credit Billing Acts, 15 U.S.C. Sec. 1601, et seq., and Regulation Z, specifically 12 C.F.R. Sec. 226.13, and on Count II of his petition for tortious interference with credit expectancy. We affirm in part and reverse and remand in part.

On appeal, we test the propriety of summary judgment using the same criteria that the trial court employed to determine the propriety of sustaining the motion initially. Summary judgment is appropriate where there are no genuine issues of material fact and as a matter of law, the moving party is entitled to judgment. Rule 74.04(c); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Famous Barr bears the burden of establishing a right to judgment as a matter of law on the record as submitted. Bell is entitled to the benefit of all reasonable inferences to be drawn from the record. A genuine dispute exists if Famous Barr requires an inference to establish its right to judgment as a matter of law. ITT Commercial Fin. Corp., 854 S.W.2d at 376.

Review of the record reveals the following facts in the light most favorable to Bell and reasonably supported inferences in Bell's favor: Bell purchased a ceiling fan on August 2, 1992 at the Famous Barr located in the Galleria Shopping Mall. Planning to place the fan in his bedroom, Bell tested the available models and selected a quiet fan. Bell charged the purchase price of $132.16 to his Famous Barr account. Famous Barr had the fan delivered. Bell had the fan installed within several weeks of delivery. Bell alleges that after assembly and installation the fan made an unacceptable level of noise at all speeds, interfering with his sleep. Bell attempted to adjust the brackets, but determined the noise emanated from the fan itself.

Famous Barr billed Bell for the cost of the fan on September 1, 1992, with payment due on September 25. On or about September 23, 1992, Bell reported the problem to Famous Barr's credit office. Bell told the Famous Barr representative that he received a defective fan and did not intend to pay for it. The representative stated the problem would be noted and suggested that Bell contact the manager of the electric appliance department. Bell paid the undisputed amount shown on his September 1, 1992 Famous Barr statement, but withheld payment in the amount of $132.16. Bell attempted, but failed, to contact the manager of the electric appliance department.

Bell sent Famous Barr a letter, dated October 27, 1992. The letter stated the fan was defective because it made too much noise. Bell also wrote that he did not intend to pay for the fan, the cost of removing it, or the cost of reinstalling a new one. Additionally, Bell made a general reference to "Regulation Z" in his letter. Bell alleges he followed the directives on the back of his Famous Barr billing statement, which summarized a credit card user's billing rights. *fn1

Ms. Milton, who worked with "billing errors" for Famous Barr, sent Bell a reply letter within several days, acknowledging receipt and stating that a manager from the Famous Barr Galleria store would contact him in the near future. In November, 1992, Christopher Thau, Divisional Sales Manager at the Famous Barr Galleria store, contacted Bell and agreed to locate a replacement fan, which was of the same make and model as the defective fan. Thau also agreed to reimburse Bell for the installation cost. Thau and Bell never discussed the details regarding removal of the defective fan, the installation of the replacement fan, or the method for paying the cost of installation. Moreover, they never agreed that Bell should pay the purchase price for the defective fan.

Thau sent Bell to the Famous Barr located at the West County Shopping Mall to exchange the fan. The West County store did not have a replacement fan. Bell informed Thau of the situation. Thau stated there might be a delay in locating the fan.

In January, 1993, Thau contacted Bell to inform Bell that he was leaving his position and that Ms. Velk would be handling the ceiling fan situation. Bell waited for Velk to contact him. Bell did not recall hearing from Velk.

Beginning with the October, 1992 statement, Famous Barr claimed the cost of the fan as an amount due and added finance charges to Bell's statement. On Bell's November 1, 1992 statement, Famous Barr claimed Bell's account was past due. Bell contacted Famous Barr's credit department. A Famous Barr representative assured Bell that Famous Barr had simply made a mistake. In May, 1993, the billing statement showed a late fee and accruing finance charges as well as the price of the defective fan and the past due notice.

On May 4, 1993, Famous Barr informed Bell that it was sending his account to three credit reporting agencies and that this information may have an affect on his ability to obtain credit elsewhere. Again, Bell contacted the credit department and explained the dispute. A Famous Barr representative told Bell no further action would be taken to collect the disputed amount and the matter would not affect his credit rating.

Bell continued to receive statements containing late fees and finance charges, restrictions on his account preventing further purchases, threats to send his account to the collection department, and threats to report a derogatory rating of "R9" to credit reporting agencies. "R9" is the worst credit rating a person can receive. In the spring of 1993, Bell contacted the billing/collection office multiple times regarding the statements. On each occasion, a representative assured him that Famous Barr would correct the errors and he need not pay for the fan until resolution of the dispute.

In August, 1993, Famous Barr's automated system reported Bell 120 days delinquent to the credit reporting agencies. On or about August 18, 1993 the parties reached a provisional agreement. Famous Barr had been unsuccessful in locating a replacement fan. Famous Barr agreed to credit Bell's account with all finance and late fee charges and reinstate his credit line. Bell agreed to pay the original sale price if a Famous Barr representative would send a letter confirming the agreement that Famous Barr would allow the buyer of Bell's house an additional thirty days from the date of closing to exchange the fan. Despite the agreement, on September 1, 1993, Famous Barr assessed late fees and finance charges for nonpayment, closed Bell's account, and reported this information to the credit reporting agencies.

On September 13, 1993, Bell drafted a letter to Famous Barr setting out the agreement. Bell received a handwritten note from a Famous Barr representative, saying Famous Barr would "delete all derogatory information". On October 4, 1993, Bell re-dated the September 13, 1993 letter and mailed it with a check in the sum of $132.16 to cover the cost of the fan.

On October 16, 1993, Bell attempted to make a purchase at Famous Barr with his charge card. Famous Barr had closed his line of credit due to "poor prior payment history". On October 19, 1993, Bell wrote to Famous Barr, quoting the pertinent sections of Regulation Z and demanding the deletion of all adverse or derogatory credit history from his file. On November 19, 1993, Famous Barr wrote to Bell, informing him that it had requested that the credit reporting agencies delete any derogatory credit information from their files and reflect a credit rating of R1, the most favorable credit rating available. The letter also stated that Famous Barr reinstated Bell's account with Famous Barr.

Bell contacted Trans Union, one of the credit reporting agencies who Famous Bar provided derogatory information. Bell learned that Trans Union had deleted his entire credit history with Famous Barr, meaning it appeared as if Bell never had an account with Famous Barr. Sometime in the late spring or early summer of 1994, Bell applied to the European American Bank ("EAB") for a TWA credit card, hoping to earn frequent flyer miles with his purchases. EAB refused to extend a credit line based upon a report from TRW Information Services. The TRW report contained information provided by Famous Barr after November 4, 1993. The parties later discovered that the corrective letters sent by Famous Barr to the credit reporting agencies contained the wrong account number.

On August 12, 1994, Bell filed suit against Famous Barr. On January 27, 1997, Famous Barr filed its motion for summary judgment on both counts of the petition. On April 14, 1997, the trial court granted Famous Barr's motion for summary judgment on both counts of the petition, relying primarily upon its finding that the "evidence in the record shows that Mr. Bell used the fan during the time in which he was allegedly rejecting it." The court also found as a matter of law that Bell "resisted (Famous Barr's) attempt at cure and reasonable attempts to resolve the dispute over a substantial period of time." On July 21, 1997, the trial court denied Bell's motion for reconsideration. On August 21, 1997, the court entered final judgment against Bell.

Bell initially contends the trial court erred in granting summary judgment on Count I because the defective quality of the fan is a "billing error" under Regulation Z, there is a genuine dispute as to whether or not Famous Barr acted in compliance with Regulation Z, and there is a genuine dispute that Bell properly rejected the fan and did not act in bad faith. We agree.

Famous Barr argues the evidence is undisputed that Bell accepted the ceiling fan or that a rejection was revoked by Bell's inaction. Famous Barr contends none of the definitions of "billing error" set out in 12 C.F.R. Sec. 226.13 are applicable in the instant case. *fn2 However, Section 226.13(a)(3) defines a "billing error" as: "A reflection on or with a periodic statement of an extension of credit for property or services not accepted by the consumer or the consumer's designee, or not delivered to the consumer or the consumer's designee as agreed." *fn3 The Official Staff Interpretations of Regulation Z, prepared by the Federal Reserve Board, clarify the provision, stating that "[s]section 226.13(a)(3) does not apply to a dispute relating to the quality of property or services that the consumer accepts." If Bell accepted the ceiling fan then Sec. 226.13(a)(3) does not apply and Famous Barr did not make a "billing error". We apply state law to determine if Bell accepted the ceiling fan. See Official Staff Interpretations to 12 C.F.R. Sec. 226.13(a)(3). Judged in a light most favorable to Bell, the record does establish as a matter of law that Bell accepted the fan, failed to properly reject the fan, revoked his rejection, or failed to provide proper notice under Regulation Z.

Absent a specific provision in the contract, the buyer has a reasonable time after delivery of goods to determine if the goods conform to the requirements of the contract. Stephens Industries, Inc. v. American Exp. Co., 471 S.W.2d 501, 504 (Mo. App. 1971). If the goods fail in any respect to conform to the contract, the buyer may accept the goods or rescind by rejecting the goods. Id. A buyer choosing to rescind must make the rescission known to the seller within a reasonable time after discovery of a defect or after a defect is discoverable. Id. After rejection, the buyer's continued use of the goods as the buyer's own and in a manner inconsistent with the rights of the seller nullifies the rescission and acts as an acceptance of the goods, requiring payment of the contract price. Sec. 400.2-606(1)(c) *fn4; Paramount Sales Co., Inc. v. Stark, 690 S.W.2d 500, 504 (Mo. App. 1985). "If the buyer does not use the goods as his own, but rescinds the contract and holds the merchandise as bailee for the seller, the buyer is not liable for the sale price (assuming the rejection was justified)." Paramount Sales Co., 690 S.W.2d at 504-05.

Bell purchased the fan on August 2, 1992. Famous Barr had the fan delivered. Bell did not discover the defect until he had the fan assembled and installed. After installation, Bell noticed an unacceptable level of noise. He took steps to inspect and test the product. Bell told a Famous Barr representative on or about September 23, 1992 that he received a defective fan and did not intend to pay for it.

The time in which to provide notice of rejection is not quantified by the Uniform Commercial Code ("UCC"). "A reasonable time" under the UCC depends upon the nature, purpose, and circumstances of the action to be taken. Sec. 400.1-204. The question of what is a reasonable time for rejecting defective goods is a question of fact for the jury to decide when fair-minded persons could disagree. Grus v. Patton, 790 S.W.2d 936, 940 (Mo. App. 1990). Fair-minded persons could disagree upon the question of whether a rejection of a ceiling fan less than two months after delivery is reasonable.

Famous Barr argues rejection did not occur, if at all, until Bell provided a written rejection on October 27, 1992, approximately two and one-half months after installation. Sec. 400.2-602 sets forth the manner and effect of a rightful rejection. This section does not explicitly require that a rejection notice be in writing. Verbal notice may be adequate. See, Polar Trading, Inc. v. Amboy Closeouts, Inc., 899 S.W.2d 577 (Mo. App. 1995); Paramount Sales Co., Inc. v. Stark, 690 S.W.2d 500 (Mo. App. 1985). Had the Missouri Legislature intended notice of rejection to be in writing, it could have so provided.

Famous Barr argues that both Regulation Z and the agreement governing a Famous Barr credit card user's billing rights require written notice within sixty days after the creditor transmits the periodic statement first reflecting the alleged error. See 12 C.F.R. Sec. 226.13(b)(1). Famous Barr first billed Bell for the defective fan on a September 1, 1992 periodic statement. Within sixty days thereafter, on October 27, 1992, Bell provided the requisite written notice of the billing error to Famous Barr. Famous Barr contends it could not have committed a billing error on the September statement in that it had no knowledge that the fan may have been defective. This argument is without merit. A trier of fact could find Bell rejected the fan on September 23, 1992, that Famous Bar erred in billing Bell for the fan on his October 1, 1992 billing statement, and that Bell provided written notice of the error within sixty days, complying with the contract and preserving his right under Regulation Z.

The October 27, 1992 letter satisfied the requirements of 12 C.F.R. Sec. 226.13(b) in that the letter provided Bell's name and account number. The letter indicated the fan did not conform to the contract because it was defective. Bell attached a copy of the September 1, 1992 billing statement to the letter. This billing statement made clear the date and the amount of the error. Moreover, the letter stated that Bell's concerns fell under Regulation Z. The letter sufficiently identified the "billing error".

Regardless of whether notice of rejection occurred on September 23rd or October 27th, the trier of fact could find that the notice occurred within a reasonable time. The cases cited by Famous Barr are not persuasive authority that a delayed rejection of approximately three months is so long that reasonable people could not differ on its reasonableness, forcing the question to become one of law. See Burton v Auffenberg, 357 S.W.2d at 222 (Mo. App. 1962); Fitzgerald v. Don Darr Ford, Inc., 729 S.W.2d 256, 257 (Mo. App. 1987); and Grus, 790 S.W.2d 936. Moreover, the actions of the parties may affect what constitutes reasonable time. Stephens Industries, Inc., 471 S.W.2d at 504. Where a buyer complains about defects in the goods and the seller persuades him to keep the goods while the seller attempts to remedy the defects, the reasonable time within which to rescind the contract is extended. Id.

Additionally, Famous Barr argues that Bell did not properly reject the fan because he did not return it or tender it back to Famous Barr. This argument fails. The cases cited by Famous Barr do not support the proposition that the buyer must return the defective goods after rejection. *fn5 A buyer that rescinds the contract and holds the merchandise as bailee for the seller is not liable for the sale price (assuming the rejection was justified). Sec. 400.2-602(2); Stephens, 471 S.W.2d at 504-505. A buyer has no further obligations with regard to goods it has rejected. Polar Trading, 899 S.W.2d at 580, citing Sec. 400.2-602(2) RSMo. 1994. The seller bears the cost of return delivery. Id. Matthews, Burton, and Foam-Tex rely upon the common law, which predates Missouri's enactment of the Uniform Commercial Code in 1963. The facts in Polar Trading and Paramount Sales differ from those in the instant case because the buyers used the goods as their own and in a manner inconsistent with rights of the seller when they attempted to sell the delivered goods.

The summary judgment facts do not show that Bell refused to permit Famous Barr to remove and recover the defective fan after notice of rejection. There is no evidence in the record that Famous Barr demanded or took any action to remove the fan. To the contrary, a trier of fact could have determined that the October 27, 1992 rejection letter and Bell's testimony indicate Bell never intended to keep the defective fan and would have allowed Famous Barr to remove the fan from his ceiling. Bell simply refused to take responsibility for the return of the fan. The evidence further indicates a trier of fact could have determined Famous Barr acquiesced in Bell's continued possession of the fan, agreeing the defective fan would be exchanged when Famous Barr found a duplicate fan. Continued possession by a buyer following a seller's instructions and the seller's failure to effect a return of the goods cannot constitute an acceptance, unless the buyer uses the goods as his own and in a manner inconsistent with the rights of the seller.

Famous Barr argues Bell's continued use of the fan constituted an acceptance, citing Chancelor v. Development Co. v. Brand, 896 S.W.2d 672 (Mo. App. 1995). Unlike the buyers in Chancelor, Polar Trading, or Paramount Sales, Bell did not attempt to sell or solicit the aid of another to sell the fan. Bell's mere possession cannot constitute "an exercise of ownership" because Bell had a duty to "hold" the rejected goods. Sec. 400.2-602(2)(b).

The trial court found Bell accepted the fan because he used the fan after he rejected it. Specifically, the trial court relied on the testimony of Ms. Klorer, one of Bell's "house guests", who testified the fan was in use when she stayed at the house. Klorer never testified that she observed the fan in use after rejection. She may have testified regarding the use of the fan prior to rejection. The record does not support a prima facie showing that Bell continued to use the fan after he rejected it. Famous Barr's failure to make a prima facie showing of use eliminated Bell's need to respond. See Rule 74.04(e). Had Famous Barr alleged in it motion that it was beyond dispute that Bell used the fan while or after he rejected it, Bell could have denied such a statement and included such a denial in his reply affidavit and attached portions of his deposition testimony that traverse this contention. Additionally, under the provisions of the UCC, use no longer bars rejection or revocation of acceptance as a matter of law. Lawrence v. Modern Mobile Homes, Inc., 562 S.W.2d 729 (Mo. App. 1978).

Viewing the facts in the light most favorable to Bell, it cannot be determined, as a matter of law, that Bell exercised his statutory rights in bad faith. We cannot determine if Bell "resisted" Famous Barr's attempts to cure and resolve the dispute. A trier of fact could reasonably find that Famous Barr agreed to exchange the defective fan when it located the same make and model. In the interim, Bell may not have been under an obligation to pay for the defective fan. Famous Barr could not locate a replacement fan. In August, 1993, the parties agreed that Bell would pay for the defective fan. Bell paid after receipt of the letter. The issue of Bell's bad faith presents a jury question in this case, making summary judgment improper. See, Brown v. P.N. Hirsch & Co. Stores, Inc., 661 S.W.2d 587, 590 (Mo. App. 1983). Bell's Count I, alleging statutory violations, was sufficient to withstand a motion for summary judgment. *fn6 We reverse and remand the trial court's grant of summary judgment as to Count I.

The trial court did not err in granting Famous Barr's motion for summary judgment on Count II. Count II of the petition attempted to state a cause of action for the tort of intentional interference with contract or business expectancy. *fn7 This tort contains the following five elements: (1) a contract, a valid business relationship, or an expectancy; (2) the defendant's knowledge of the contract, valid business relationship, or expectancy; (3) the defendant's intentional interference inducing or causing a breach of the contract or relationship; (4) the lack of justification for defendant's actions; and (5) the damages resulting from defendant's conduct. Tri-County Retreading, Inc. v. Bandag, Inc., 851 S.W.2d 780, 785 (Mo. App. 1993), citing Honigmann v. Hunter Group, Inc., 733 S.W.2d 799, 806-07 (Mo. App. 1987). Famous Barr must have shown facts that negate any one of these elements, that Bell after an adequate period of discovery failed to produce or would not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of these elements, or that there is no genuine dispute as to the existence of each of the facts necessary to support Famous Barr's properly pleaded affirmative defense. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Famous Barr made such a showing. Famous Barr contends that Bell would not be able to produce sufficient evidence to allow a trier of fact to find the existence of elements one, three, or four. We agree that Bell failed to show he could produce sufficient evidence to allow a trier of fact to find the existence of "intentional interference". We need not consider the sufficiency regarding the other elements of the tort.

To make a submissible case, Bell must offer facts to support findings that Famous Barr actively and affirmatively took steps to induce a breach or interfere with Bell's chance to obtain credit. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 216-17 (Mo. App. 1976). The primary purpose of Famous Barr's actions was not to interfere with Bell's credit expectancy. See Francisco v. Kansas City Star Co., 629 S.W.2d 524, 530 (Mo. App. 1981). To the contrary, a manager at Famous Barr testified that each month Famous Barr turned over magnetic tapes, containing all the activities on its accounts, to the various credit reporting agencies; the credit reporting agencies extracted the information they needed from the magnetic tapes to create reports; and Famous Barr had no way to override its automatic monthly reporting of derogatory information.

If Famous Barr had any purpose in reporting the derogatory information, it was to induce payment for the fan. Acting for such a purpose may be sufficient if it is coupled with a desire to interfere in Bell's credit expectancy. Franciso, 629 S.W.2d at 530. Bell failed to show he could produce evidence indicating a desire to interfere. The manager at Famous Barr testified that Famous Barr usually rectified the problem of improper reporting by sending letters to the credit reporting agencies requesting removal of the derogatory statements. After Bell brought the improper reporting to Famous Barr's attention, Famous Barr sent letters to the credit reporting agencies regarding Bell's Famous Barr account. Famous Barr's employees testified that they believed that they had addressed Bell's concerns. Bell failed to show he could prove that Famous Barr had any desire to prevent him from receiving credit.

Bell admitted that the Famous Barr representatives he dealt with were neither nasty, rude or disrespectful. Bell admitted in his deposition that Famous Barr employees acted courteously and attempted to help him resolve the dispute. After discovering the mistake, Famous Barr gave Bell a $100.00 gift certificate, removed all late fees and interest, and reinstated Bell's account with a credit limit of twice its original amount. These acts certainly would not preclude a finding of intent to interfere. They are, however, unrepresentative of a party acting with a desire to interfere with a customer's credit expectancy. There were no summary judgment facts to support a finding that Famous Barr harbored "ill-will" or had a desire to prevent Bell from receiving credit.

The element of "intentional interference" may also be found if the actor knows that the interference is certain or substantially certain to occur as a result of its action. Id. Denial of credit was not a necessary consequence of Famous Barr's improper reporting. Famous Barr indicated the problem of improper reporting is usually easily corrected. Famous Barr's automated system reported Bell 120 days delinquent to the credit reporting agencies in August, 1993. Bell complained about the derogatory statements to Famous Barr in October, 1993. On November, 19, 1993, Famous Barr's Vice-President, Credit Manager sent letters to the credit reporting agencies directing them to delete any derogatory credit information from their files and to reflect a credit rating of R-1. Bell failed to show Famous Barr knew the automated reporting system would show Bell's account was delinquent, resulting in derogatory credit reports prepared by the credit reporting agencies, and that Famous Barr did not know it could not easily correct the error to eliminate the possibility of interference with credit expectancy. There were no summary judgment facts to support a finding that Famous Barr intended to cause the consequences of its acts, or that it believed that the consequences were substantially certain to result from its acts. Id.

Moreover, "proof of intent requires proof defendants intended to commit an act which is ascertained to be wrongful and defendants knew was wrongful at the time the act was committed." Forkin v. Container Recovery Corp., 835 S.W.2d 500, 503 (Mo. App. 1992); Francisco, 629 S.W.2d at 530. Bell did not show he could produce evidence that Famous Barr knew its acts were improper. The only evidence plaintiff presented regarding intent was his own conclusory testimony. Bell failed to preserve a factual dispute on the requisite element of intentional interference. The trial court did not err in granting summary judgment on Count II, for tortious interference with a business expectancy.

Similarly, the trial court did not err in granting summary judgment in favor of Famous Barr on Bell's claims for punitive damages. Bell requested reasonable punitive damages in both Count I and Count II. Punitive damages are imposed for the purpose of punishment and deterrence. Vaughn v. Taft Broadcasting Co., 708 S.W.2d 656, 660 (Mo. banc 1986).

As stated above, the trial court did not err in granting summary judgment on Count II, the state law tort claim for interference with a business expectancy. Therefore, Bell could not have been awarded punitive damages based on Count II. Moreover, "punitive damages require a showing of a culpable mental state on the part of the defendant, either by a wanton, willful or outrageous act or reckless disregard (from which evil motive is inferred) for an act's consequences." Burnett v. Griffith, 769 S.W.2d 780, 787 (Mo. banc 1989). Missouri requires the evidence to meet the clear and convincing standard of proof. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996). Bell failed to show he could produce clear and convincing evidence that Famous Barr acted with malice.

Count I alleges statutory violations. The applicable civil liability sections corresponding to such statutory violations are 15 U.S.C. 1640 and 15 U.S.C. 1666(e). Neither section appears to allow recovery for punitive damages. Cf. 15 U.S.C. 1681o (allowing punitive damages for failure to comply with requirements of the Fair Credit Reporting Act); 15 U.S.C. 1691(b) (allowing punitive damages for failure to comply with any requirement imposed under the Equal Credit Opportunity Act). We presume the disparate statutory inclusion and exclusion of punitive damages was done intentionally and purposefully. Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). Therefore, Bell's request for punitive damages under Count I was improper. To the extent that several federal cases *fn8 have discussed punitive damage claims in the context of technical violations subjecting defendants to damages under Section 1640, such cases articulate a test for punitive damages similar to that of the State of Missouri. Punitive damages will not lie unless a defendant acts in a wanton, malicious or oppressive manner or in reckless disregard of the requirements of the law. See Smith v. Capital Roofing Co. of Jackson, Inc., 622 F.Supp. 191, 196 (S.D.Miss. 1985). Bell failed to make a showing that he could prove Famous Barr acted in such a manner.

We affirm the trial court's grant of summary judgment on Count II and on the issue of punitive damages on Counts I and II. We reverse the summary judgment on Count I and remand for further proceedings.

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