FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Richard C. Bresnahan, Judge
PATRICIA BRECKENRIDGE, JUDGE
Jackson filed an action against the owners and operators of
LifeSmile Dental Care (collectively, "LifeSmile")
and attorney Dennis J. Barton III. The petition alleged Mr.
Barton's debt collection actions violated the Fair Debt
Collection Practices Act (FDCPA). The petition further
alleged LifeSmile and Mr. Barton violated the Missouri
Merchandising Practices Act (MMPA). The alleged violations
arose out of Mr. Barton's attempts to collect payment Mr.
Jackson purportedly owed as a result of dental services
rendered by LifeSmile. The circuit court dismissed Mr.
Jackson's petition, concluding his FDCPA claim was barred
by the one-year statute of limitations and his MMPA claim
failed to state a claim because Mr. Barton's collection
activities were not "in connection with" the sale
of LifeSmile's dental services to Mr. Jackson and no
lender-borrower relationship existed between Mr. Barton and
circuit court erred in concluding Mr. Jackson's FDCPA
claim was barred by the one-year statute of limitations. Mr.
Jackson identified three actions he alleges amount to an
FDCPA violation, all occurring within a year of his filing of
the FDCPA action. An FDCPA violation is not time-barred
simply because it restates or relates back to assertions made
in a debt collection action that is beyond the one-year
statute of limitations. That the alleged conduct relates to
the collection of a single debt does not preclude such
conduct from constituting an independent FDCPA claim.
the circuit court erred in concluding Mr. Jackson failed to
state an MMPA claim. A relationship existed between
LifeSmile's sale of dental services to Mr. Jackson and
Mr. Barton's subsequent collection actions. That Mr.
Barton did not become involved in the transaction until after
the dental services had been performed is of no consequence.
Mr. Barton's efforts to collect payment were an attempt
to complete the sale transaction and, therefore, were
"in connection with" the sale. The circuit
court's judgment is reversed, and the case is remanded.
and Procedural Background
2011, Mr. Jackson sought dental services from LifeSmile and
informed LifeSmile he could not spend more than $1, 000.
LifeSmile told Mr. Jackson the dental work would cost $1, 090
but he would be responsible only for $178 because his
insurance would cover the remainder. LifeSmile agreed to
extend credit to Mr. Jackson, allowing him to pay the charges
over an extended period of time. Mr. Jackson did not enter
into a written agreement with LifeSmile regarding the dental
services. LifeSmile subsequently completed the dental
procedures, and Mr. Jackson paid LifeSmile $178 in cash.
April 2012, Mr. Jackson returned twice to LifeSmile for
additional dental services. LifeSmile informed him the
additional services would cost $495 in total but he would be
responsible for only $177.80 after insurance. Mr. Jackson did
not sign a written agreement regarding the dental services he
received in April. He subsequently paid LifeSmile the
15, 2012, LifeSmile began sending Mr. Jackson collection
letters stating he owed LifeSmile $184.20. At that time, it
also began assessing a $35 monthly late fee against Mr.
Jackson. On September 9, 2013, Mr. Barton filed a collection
suit on behalf of LifeSmile against Mr. Jackson.
LifeSmile's petition alleged that, on or about June 22,
2011, Mr. Jackson requested LifeSmile extend dental services
valued at $485.52, which remained due plus interest. In its
prayer for relief, LifeSmile requested a judgment for the
$485.52 together with interest, reasonable attorney fees
pursuant to contract, and court costs. Mr. Barton set the
case for trial on July 10, 2014. Mr. Jackson appeared with
his attorney on the scheduled trial date, but Mr. Barton did
not appear on behalf of LifeSmile. The circuit court
dismissed the action without prejudice for failure to
16, 2014, Mr. Barton sent Mr. Jackson a demand letter for
$551.34 and sought prejudgment interest on that amount dating
back to June 22, 2011. On the same day, Mr. Barton filed a
motion to vacate and set aside the judgment dismissing the
collection action for failure to prosecute. On August 7,
2014, the circuit court sustained Mr. Barton's motion and
vacated its judgment dismissing the collection action against
Mr. Jackson. On October 2, 2014, LifeSmile voluntarily
dismissed the collection action against Mr. Jackson.
January 29, 2015, Mr. Jackson filed an action against Mr.
Barton and LifeSmilealleging Mr. Barton violated the FDCPA by
engaging in harassing, abusive, misleading, deceptive, and
unconscionable conduct in attempting to collect payment on
behalf of LifeSmile. Mr. Jackson further alleged Mr. Barton
and LifeSmile violated the MMPA by using false pretenses,
false promises, misrepresentations, factual omissions, and
unfair business practices in deceiving him about the cost and
terms of the dental work.
amended petition, Mr. Jackson alleged LifeSmile fabricated a
contract that greatly changed the pricing terms he had agreed
to with LifeSmile, including that he would be subjected to
monthly late fees on the unpaid balance, and forged his
signature on the fabricated contract. The contract purported
to pertain to all dental services Mr. Jackson received from
LifeSmile. He further claimed Mr. Barton knew or should have
known that Mr. Jackson's signature on the fabricated
contract was forged, that Mr. Jackson had paid all amounts
agreed to with LifeSmile, and that no written agreement,
including the forged contract, obligated Mr. Jackson to pay
response, Mr. Barton filed a motion to dismiss asserting Mr.
Jackson's FDCPA claim was barred by the one-year statute
of limitation because Mr. Jackson failed to file the FDCPA
claim within one of year of Mr. Barton filing the collection
action on behalf of LifeSmile. Mr. Barton further asserted
Mr. Jackson failed to state a claim for any MMPA violation
because Mr. Barton's collection actions were not "in
connection with" the sale of LifeSmile's dental
services to Mr. Jackson.
circuit court sustained Mr. Barton's motion to dismiss,
concluding the FDCPA claim was time-barred and the MMPA claim
failed because Mr. Barton had no connection with the sale of
dental services and there was no lender-borrower relationship
between Mr. Barton and Mr. Jackson. Mr. Jackson then
voluntarily dismissed his claim against LifeSmile and
appealed. After an opinion by the court of appeals, the case
was transferred to this Court. Mo. Const. art. V, sec. 10.
Court reviews the grant of a motion to dismiss de
novo. Hanson v. Carroll, 527 S.W.3d 849, 852
(Mo. banc 2017). "A motion to dismiss for failure to
state a claim is solely a test of the adequacy of a
plaintiff's petition." Smith v. Humane Soc'y
of U.S., 519 S.W.3d 789, 797 (Mo. banc 2017) (internal
quotation omitted). This Court, therefore, assumes all facts
alleged in the petition are true and construes all reasonable
inferences in favor of the plaintiff. Id. at 798.
first point, Mr. Jackson asserts the circuit court erred in
dismissing his FDCPA claim against Mr. Barton as time-barred
because he alleged Mr. Barton committed multiple discrete
acts within one year of filing his FDCPA claim. A cause of action
under the FDCPA must be brought "within one year from
the date on which the violation occurs." 15 U.S.C.
§ 1692k(d). By section 1692k(d)'s plain language,
the statute of limitations begins to run from the date of the
violation. Therefore, the "applicability of §
1692k(d) turns on when the alleged 'violation'
occurred." Demarais v. Gurstel Chargo, P.A.,
869 F.3d 685, 693 (8th Cir. 2017).
Mr. Jackson alleges three instances of specific conduct by
Mr. Barton amounting to an FDCPA violation: (1) Mr.
Barton's purposeful failure to appear for the July 10,
2014 trial date; (2) Mr. Barton's sending of the July 16,
2014 demand letter with the grossly false amount; and (3) Mr.
Barton's actions obtaining the August 7, 2014 order
setting aside of the dismissal of the collection action for
amounts Mr. Jackson did not owe. Mr. Jackson filed his FDCPA
action January 29, 2015. These alleged instances all occurred
within a year of Mr. Jackson filing his FDCPA action.
Barton asserts Mr. Jackson's FDCPA claim is,
nevertheless, untimely because the alleged conduct all
relates back to the filing of the collection action. Mr.
Barton contends the statute of limitations begins to run for
FDCPA claims regarding collection actions on the date the
consumer is served; therefore, he asserts the one-year
statute of limitations period on Mr. Jackson's FDCPA
claim began accruing October 7, 2013, when Mr. Jackson was
served with the collection action.
Barton is correct that an FDCPA claim arising from the
instigation of a debt collection suit occurs when the
consumer is served. See Johnson v. Riddle, 305 F.3d
1107, 1113 (10th Cir. 2002). But Mr. Jackson is not alleging
the collection action, in and of itself, constituted an FDCPA
violation. Rather, he is alleging specific conduct by Mr.
Barton occurring after the filing of the collection action
amounts to an FDCPA violation. In a case with analogous
facts, the Eighth Circuit concluded a consumer's FDCPA
claim was not barred by the one-year statute of limitations
just because the violation related back to the complaint made
in a debt collection action. See Demarais, 869 F.3d
Demarais, the consumer alleged a law firm
representing a creditor violated the FDCPA because,
"[w]hen alleged debtors do not file answers, [the law
firm] often allows the cases to be set for trial rather than
moving for default judgments" and then, on the date of
trial, appears without any client representatives, witnesses,
or other evidence and asks for a continuance if the debtor
appears. Id. at 689. The consumer alleged the
practice was used to avoid a Minnesota statute regarding
default judgments on consumer debts and was an attempt to
collect post-charge-off interest. Id. at 689-90. The
district court found the FDCPA claim was barred by the
one-year statute of limitations. Id. at 690. In
doing so, it reasoned "communications during the course
of litigation that merely restate or relate back to
assertions made in the complaint do not restart the
limitations period." Id. at 694 (internal
Eighth Circuit rejected the district court's reasoning
and found it was of no consequence "that the debt
collector's violation restates earlier assertions - if
the plaintiff sues within one year of the violation, it is
not barred by § 1692k(d)." Id. It
emphasized each violation must be evaluated individually in
determining "whether any portion of the claim is not
barred by the statute of limitations." Id.
(internal quotation omitted). Otherwise, debt collectors
would be immunized from later wrongdoing. Id. The
Eighth Circuit concluded the district court should have