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Lane House Construction, Inc. v. Triplett

Court of Appeals of Missouri, Eastern District, First Division

November 21, 2017

LANE HOUSE CONSTRUCTION, INC., Respondent,
v.
STEVE TRIPLETT, Appellant.

         Appeal from the Circuit Court of St. Louis County Hon. Lawrence J. Permuter

          ROBERT G. DOWD, JR, PRESIDING JUDGE.

         Steve 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 Appellant's counterclaim.

         The 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, [1] 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.

         The 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.

         Appellant 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.

         "In 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

         "The 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 at 233.

         In 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 407.020 includes:

[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.

         Section 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."

         "[T]he 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.

         Here, 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.

         In 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. ...


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