Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Hon. Lawrence J.
G. DOWD, JR, PRESIDING JUDGE.
Triplett ("Appellant") appeals from the judgment
based upon a directed verdict in favor of Lane House
Construction, Inc. ("Respondent") on his claim
under the Missouri Merchandising Practices Act
("MMPA"), which was filed as a counterclaim against
Respondent. We reverse and remand for a new trial on
claims in this case pertain to a second-story addition
Respondent was hired to construct on Appellant's home.
Respondent sued Appellant for breach of contract, claiming
that Appellant still owed $9, 500 under the contract plus
interest and attorney fees for the project. Appellant filed a
counterclaim under the MMPA,  claiming that Respondent's
work was done poorly and slowly and was never materially
completed. Appellant claimed that Respondent strayed from
architectural plans in significant and material ways. Among
other allegations, Appellant alleged certain defects with
respect to the installation of the stairs and a roof that
leaked significantly causing water damage as well as issues
with siding and holes in various places in the home.
Appellant asserted that Respondent "used deception,
fraud, false pretense, misrepresentation, unfair practices
and/or concealment" in connection with the sale or
advertisement of the second-story addition. Appellant alleged
that as a result of Respondent's conduct, Appellant was
induced to enter into and continue making payments under the
agreement into which the parties had entered and to allow
Respondent to make "unsatisfactory and untimely real
estate improvements." In addition to actual damages,
Appellant sought punitive damages.
case was tried before a jury. At the close of the evidence,
the trial court granted Respondent's motion for directed
verdict on Appellant's MMPA claim. Thereafter, the jury
found for Appellant on Respondent's breach of contract
claim. This appeal of the trial court's directed verdict
on Appellant's MMPA claim follows.
claims the trial court erred (1) in refusing to allow
Appellant's pleadings to conform to the evidence because
said conformity is automatic under Missouri law, (2) in
entering a directed verdict on Appellant's MMPA because,
in viewing all the evidence and permissible inferences
favorable to Appellant, he proved all the necessary elements
of his claim and (3) in rejecting Appellant's claim for
punitive damages because Appellant presented substantial
evidence that Respondent's conduct was outrageous because
of evil motive or reckless indifference to the rights of
others. Regardless of whether Appellant should have been
allowed to amend his pleadings to conform to the evidence, we
find the evidence adduced at trial sufficient to withstand
directed verdict. Accordingly, we need not address
Appellant's first point on appeal and turn to
Appellant's second point.
reviewing a directed verdict in favor of a defendant, the
appellate court views the evidence and permissible inferences
most favorably to the plaintiff, disregards contrary evidence
and inferences, and determines whether plaintiff made a
submissible case." Morehouse v. Behlmann Pontiac-GMC
Truck Service, Inc., 31 S.W.3d 55, 57 (Mo. App. E.D.
2000). In analyzing whether the plaintiff made a submissible
case, we must determine "whether the plaintiff
introduced substantial evidence at trial that tends to prove
the essential facts for his or her recovery."
Intertel, Inc. v. Sedgwick Claims Management Services,
Inc., 204 S.W.3d 183, 199 (Mo. App. E.D. 2014).
"Directing a verdict is a drastic remedy."
Morehouse, 31 S.W.3d at 57. "A presumption is
made in favor of reversing the trial court's grant of a
directed verdict unless the facts and any inferences from
those facts are so strongly against the plaintiff as to leave
no room for reasonable minds to differ as to the
result." Intertel, Inc., 204 S.W.3d at 199
purpose of [the MMPA] is to preserve fundamental honesty,
fair play and right dealings in public transactions."
Schuchmann v. Air Services Heating & Air
Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. App. S.D.
2006) (internal quotation marks omitted). It supplements
common law fraud, "eliminating the need to prove an
intent to defraud or reliance." Id. "It is
the defendant's conduct, not his intent, which determines
whether a violation has occurred." Murphy v.
Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. App.
E.D. 2016). "The statute and the regulation paint in
broad strokes to prevent evasion thereof due to overly
meticulous definitions." Schuchman, 199 S.W.3d
order to prevail on his MMPA claim, Appellant must prove he
has: (1) purchased merchandise; (2) for personal, family or
household purposes; and (3) suffered an ascertainable loss of
money or property; (4) as a result of an act declared
unlawful under Section 407.020. Hess v. Chase
Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc
20007); Section 408.025.1. Unlawful conduct under Section
[t]he act, use or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation,
unfair practice or the concealment, suppression, or omission
of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce or the
solicitation of any funds for any charitable purpose . . . in
or from the state of Missouri.
407.020.1 further provides that "[a]ny act, use or
employment declared unlawful by this subsection violates this
subsection whether committed before, during or after the
sale, advertisement or solicitation."
literal words" of the MMPA have been described as
"cover[ing] every practice imaginable and every
unfairness to whatever degree." Schuchman,
Inc., 199 S.W.3d at 233 (emphasis in the original)
(citing Ports Petroleum Co., Inc. of Ohio v. Nixon, 37 S.W.3d
327, 240 (Mo. banc 2001)). Our courts have also held that the
plain and ordinary meaning of the words themselves in Section
407.020.1 are "unrestricted, all-encompassing and
exceedingly broad." Peel v. Credit Acceptance
Corp., 408 S.W.3d 191 (Mo. App. W.D. 2013) (citing Ports
Petroleum Co., Inc., 37 S.W.3d at 340)). Accordingly, we are
faced with a presumption in favor of reversing the trial
court's drastic remedy of granting Respondent's
motion for directed verdict on alleged violations of a
statute whose language is "unrestricted,
all-encompassing and exceedingly broad" and requires a
showing of neither intent nor reliance.
we must consider whether, when viewing the evidence and
permissible inferences most favorably to Appellant and
disregarding contrary evidence and inferences, Appellant
presented substantial evidence that Respondent used or
employed "any deception, fraud, false pretense, false
promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material
fact" in connection with the sale of the second-floor
addition that Respondent was to complete. Section 407.020.1.
We find that he has.
addition to also testifying to all the specific issues with
Respondent's work, Appellant testified to various alleged
misrepresentations by Respondent. One claimed
misrepresentation by Respondent was contained in a pamphlet
Appellant received from Respondent's representative, whom
he met at a trade show, which indicated that Respondent had
become one of the fastest growing residential remodeling
companies in the area "due to high quality material,
skilled craftsmen, competitive pricing, and one of the
strongest warranties in history, in the industry." The
pamphlet also indicated that Respondent's employees were
"certified, trained, and experienced to ensure
quality." Appellant claims this was a misrepresentation
because Respondent only had three employees, the owner and
two clerical employees. Appellant testified that if he had
known that Respondent only had three employees, the owner and
two clerical employees, at the time he entered the contract
with Respondent, he would not have done business with
Respondent. Similarly, had he known that Respondent did not
have any certified, trained or experienced employees who
actually worked for Respondent, other than the owner, he
would not have done business with Respondent. ...