Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Friend v. Cellco Partnership

Court of Appeals of Missouri, Western District, First Division

August 8, 2017

GARY FRIEND, Appellant,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Respondent.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable K. Elizabeth Davis, Judge

          Before James E. Welsh, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge

          Gary D. Witt, Judge

         Plaintiff/Appellant Gary Friend ("Friend") appeals the Judgment and Order of the Circuit Court of Clay County granting summary judgment in favor of Defendant/Respondent Cellco Partnership d/b/a Verizon Wireless ("Verizon"). Friend brought suit against Verizon for what he alleged was an improper addition onto his bill and attempted collection of certain taxes that Friend claimed he did not owe. The trial court found that there were no disputed issues of material fact and that Verizon was entitled to judgment as a matter of law on two independent bases. First, the trial court found that Verizon was shielded by the safe harbor provisions of the Mobile Telecommunication Sourcing Act ("MTSA"). Second, the trial court found that Friend failed to comply with a Missouri statute, section 144.190, [1] which sets forth special rules by which a telecommunications customer may contest a tax or charge the customer believes to have been assessed in error. Friend raises three claims of error on appeal. We affirm.

         Factual Background

         On May 12, 2012, Friend purchased Home Phone Connect Wireless Service ("HPC Wireless Service") from a retailer of Verizon wireless products and services in Excelsior Springs, Missouri. HPC Wireless Service consists of a portable telephone with an external antenna that receives improved service in certain areas, including rural locations. HPC Wireless Service operates on Verizon's cellular network.

         At the time Friend purchased his HPC Wireless Service, he provided his post office box address in Lawson, Missouri ("Lawson"), with a 64062 zip code. Lawson assesses a local sales tax ("Sales Tax") on companies doing business in Lawson in addition to a license fee on companies doing business in Lawson ("Business License Tax"). Verizon collects these taxes from its customers who conduct business in Lawson by adding the Sales Tax and Business License Tax (collectively, the "Lawson Taxes") onto its customers' monthly bill.

         In the underlying action, Friend claimed that he is not and has never been a resident of Lawson and has never maintained a business office in Lawson and is, therefore, not subject to the Lawson Taxes. In an affidavit submitted to the trial court in opposition to summary judgment, [2] Friend claimed that he telephoned Verizon multiple times and notified Verizon's customer service department that he was not subject to the Lawson Taxes. Friend apparently received a credit for the Lawson Taxes four times and he was told he would no longer be invoiced for the Lawson Taxes. Apparently, Verizon continued to charge Friend for the Lawson Taxes, and Friend decided unilaterally to deduct and refuse to pay the portion of his bill attributable to the Lawson Taxes. This resulted in the underpayment of the bills submitted to Friend by Verizon and, eventually, Verizon discontinued Friend's HPC Wireless Service.

         Friend filed suit against Verizon and the store at which he purchased his HPC Wireless Service, CoCoBro Enterprises, LLC, [3] alleging that they erroneously billed him for the Lawson Taxes.[4] In his First Amended Petition, Friend alleged that he was erroneously assessed and billed for the Lawson Taxes and that this constituted a violation of the Missouri Merchandising Practices Act ("MMPA"), section 407 et seq.

         Verizon moved for summary judgment. Following briefing and oral argument, the trial court granted Verizon summary judgment. The trial court found that Verizon was entitled to summary judgment as it had set forth sufficient and undisputed facts that it had complied with the MTSA's safe harbor provision, 4 U.S.C §§ 116 - 126. The trial court also found that Verizon set forth sufficient facts demonstrating that Friend failed to comply with the requirements of section 144.190.7(2), a Missouri statute setting forth special rules through which a mobile telecommunication customer may contest a tax or other charge the customer believes was assessed in error. Friend now appeals.

         Standard of Review

When considering an appeal from a summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Because the circuit court's judgment is based on the record submitted and the law, we need not defer to the circuit court's order granting summary judgment. Id. Rather, because "[t]he propriety of summary judgment is purely an issue of law, " we review the grant of a summary judgment de novo. Id. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. Thus, we will affirm the grant of a summary judgment where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 377, 380.

Reverse Mortgage Solutions, Inc. v. Estate of Hunter, 479 S.W.3d 662, 665-666 (Mo. App. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.