Tag Archives: MMPA

Proving Damages for MMPA Claim–Oitker v. K.C. Waterproofing, Inc.

Missouri authority allows a property owner to testify as to the value of property, in contexts where one might think that the property owner’s testimony would be excluded as being an expert testimony without proof of the ordinary prerequisites to expert testimony. Oitker v. K.C. Waterproofing addresses such an issue. It seems there were problems with the foundation work done by the contractor.

It seems to be the contractor’s position that the client was not entitled to claim that the promised services were worth at least what the contractor charged. Presumably the contractor would not have expressly disagreed at the time the contract was formed.

Let’s see if the contractor’s discussion of the foundation for the damages computation is “all wet”.

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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?

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If a Car Dealer Says, “it is what it is; you have to pay it”, Should You Believe it? Does the Question Answer Itself?

Fired for a girlfriend’s vehicle purchase.  No cause of action, or can we think of something?

Here we have the basics of the allegations, as framed by the appellate court:

Hedrick began working for Wolfe in October, 2010. On May 26, 2012, Hedrick approached the General Sales Manager, Jason Brink (“Brink”), about his live-in girlfriend’s desire to purchase a Honda. Brink quoted Hedrick a price that was about $600 above that car’s normal price point. Hedrick asked why the price was higher and Brink replied that “it is what it is; you have to pay it.” Following this, Hedrick and his girlfriend shopped around and received a quote from another Honda dealer that was $1,000 below the price that Hedrick received from Brink. Hedrick’s girlfriend then purchased the car from the competing Honda dealer. On June 1, 2012, Brink asked Hedrick whether his girlfriend had purchased the Honda elsewhere and Hedrick confirmed that she did. Later that night, Brink informed Hedrick that he was terminated, stating “[a]s your employer, I can’t have somebody work for me who bought a car somewhere else, so I have to let you go.”

Following his termination, Hedrick submitted a written request for a service letter. Wolfe subsequently issued Hedrick a letter that stated in part:

We do, however, fully expect our employees and members of their household to purchase new Honda vehicles from our dealership … Based on the fact that you or the person with whom you live as husband and wife … purchased a new Honda Accord SE from a direct competitor on or about mid-late May without giving the Company the opportunity to meet the price quoted, we made the decision to terminate the employment relationship …

The odious circumstances are provided by Hedrick v. Jay Wolfe Imports I, LLC, 404 S.W.3d 454, 456 (Mo. App. W.D. 2013).

The court rejects a creative claim that the circumstances fit into a public policy exception to at-will employment:

Hedrick contends that Missouri has a clear public policy of allowing citizens to freely conduct business and that by patronizing his employer’s competitor for a better price in purchasing a Honda, he and his live-in girlfriend acted in accordance with a public policy that Missouri encourages. He asserts that his termination falls under the public policy exception because he was terminated for acting in accordance with public policy. We disagree.

Id. at 458.

Let’s see if we can find an alternative way to frame the claim, shall we?

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unPeeling the Impact of Assignments on MMPA Rights

Can a seller, in a transaction covered by the MMPA, by assigning rights and delegating duties pretermit the other’s rights under the MMPA?  There appears to be some question.  Peel v. Credit Acceptance Corp., 2013 WL 2301095 (Mo. App. W.D. May 28, 2013), and prior authority, raise some interesting questions.  We below provide a somewhat complicated discussion of certain issues raised.  As an introduction, let us not provide some basic observations under the common law of contracts (understanding that FTC rules also may apply):

  • An obligor cannot assign rights without the consent of the obligee if the assignment operates to materially affect the rights of the obligee.
  • An assignment of the right to payment under a contract, where the payee’s performance is subject to the MMPA, would materially affect the rights of the obligee if the assignment operated to eliminate protections in the debt collection process that would be otherwise available absent the assignment.
  • It would appear that a party cannot consent to elimination of protection of the MMPA.  There would not seem to be a useful reason not to apply that to consenting to an assignment in circumstances that operated to eliminate MMPA protections.
  • Were a court to determine an assignee of a debt representing deferred payments from a payor benefitting from the MMPA was not subject to the MMPA, effectiveness of the assignment would therefore require the assignor remained liable for any practice engaged-in by the assignee that would be actionable had there not been an assignment and it had been performed by the assignor.

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Potential MMPA Claim Against a Public Corporation — Dunn v. Board of Curators

Though justice is supposed to be blind, perhaps it requires particular efforts to take up the charge against those the legislature has termed “heroes”.  We shall see if those in that camp are up to it.

Here we have a discussion of an interesting issue of whether the MMPA extends to–whether the defined term “person” includes–a particular “public corporation” (see State v. Long, 213 S.W. 436 (Mo. 1919) (“We judicially notice, however, that the corporation by which the University of Missouri is controlled is styled “the curators of the University of Missouri.” We notice this because such corporation is a public one, created by a public statute (section 11097, R. S. 1909), of which, and of all such statutes, we are required to take judicial notice.”).

The brief notes:

Plaintiffs have alleged that Defendants violated the Missouri Merchandising Practices Act (“MMPA”) by misrepresenting the meaning and purpose of the Missouri Heroes’ Act by misapplying Plaintiffs’ money and “gift aid” funds.

Something of an awkward circumstance, to be sure.

The brief, in the case styled Dunn v. Board of Curators of University of Missouri, available at 2013 WL 3191817 (Mo.App. E.D.), also raises interesting issues of sovereign immunity.  A recent Pennsylvania case, Meyer v. Community College of Beaver County, 30 A.3d 587 (Commonwealth Ct. of Pa. 2011), appeal granted in part by Meyer v. Community College of Beaver County, 51 A.3d 177 (Pa. 2012), also examines whether a state consumer protection claim sounds in tort or contract.  Here’s part of what it had to say:

Moreover, we conclude that these averments sound in contract rather than tort. Clearly, the averments relate to the sale of educational services. Under these averments, the protection of bargained-for expectations is implicated.

Further, Plaintiffs brought an action under Section 9.2 of the CPL. As discussed elsewhere, such an action may be brought by a person “who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss….” 73 P.S. § 201–9.2. Thus, an action under Section 9.2 of the CPL must be transaction based. For this additional reason, we conclude Plaintiffs’ action under the CPL sounds in contract.

30 A.3d at at 599.  Of course, the MMPA allows enhanced remedies, including punitive damages.  A facile way to distinguish contract and tort is to focus on the availability of something beyond expectation damages.  But not so fast.

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