Are Fiduciary Relationships Necessarily Excluded from the MMPA? Someone Claims So. McFarland v. Trame.

Are legal services within the M.M.P.A.?  McFarland v. Trame, No. ED99669, 2013 WL 6169474 (Mo. Ct. App., E.D. 2013), is a brief that argues so:

Appellant’s Count VI in her First Amended Petition, alleging violation of the Missouri Merchandising Practices Act, was dismissed on or about November 23, 2010. See L.F. 4. This ruling was proper and should not be disturbed because Missouri courts have not applied the MMPA to fiduciary causes of action such as the present case (i.e., cases against attorneys), and instead have only applied the MMPA to its intended types of cases, such as consumer transactions such as claims brought by automobile purchasers against automobile dealerships, and customers against roof repair and air conditioning companies. See, e.g., Schuchmann v. Air. Serv. Heating & Air. Cond., Inc., 199 S.W.3d 228 (Mo. App. S.D. 2006); Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc., 31 S.W.3d 55 (Mo. App. E.D. 2000); Viene v. Concours Auto Sales, Inc., 787 S.W.2d 814 (Mo. App. 1990); State ex rel. Webster v. Milbourn, 759 S.W.2d 862 (Mo. App. E.D. 1988).

That’s interesting.  What about real estate brokers?  Categorization of that relationship has changed in various jurisdictions over time.  What was the characterization in, let’s say, 1984, in a case discussing the relationship of H.S.C., as the real estate broker, to American, its principal and the seller?

More after the break …

Our courts have described such a relationship as a “confidential and fiduciary relationship under which respondent was obligated to be perfectly frank with his principal, to make a complete and full disclosure of all material facts concerning the transaction which might affect her decision to sell her property to him, to be loyal to his client, and to exercise the utmost fidelity and good faith towards her. (citation omitted) He was under ties of obligation as exacting as those imposed on a trustee in favor of his beneficiary.”  Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201, 206 (Mo.App.1951).

American Mortg. Inv. Co. v. Hardin-Stockton Corp., 671 S.W.2d 283, 290 (Mo. App. W.D. 1984).

So, then, of course there is not Missouri authority in, let’s say, what about 1984, holding a claim against a real estate broker as within the M.M.P.A.  Right? Right?  No:

The loss to plaintiff, as discussed hereafter, was occasioned by the acts of defendant in the performance of services as real estate brokers. …  We hold that plaintiff purchased the services of the defendants within the meaning of § 407.025.

Pointer v. Edward L. Kuhs Co., 678 S.W.2d 836, 841 (Mo. App. E.D. 1984).

Not an optimally persuasive argument.

Whether the M.M.P.A. applies to provision of legal services is only one of the bases for the defendant’s argument.  The  absence of a pertinent lawyer-client relationship is also claimed.  So, the defendant/respondent may ultimately prevail as to this particular claim.  The argument quoted above would seem to have been better kept under advisement.