Acol v. Travers Autoplex & RV, Inc.

Decision Date19 October 2021
Docket NumberNo. ED 108917,ED 108917
Parties Douglas ACOL and Nabila Acol, Appellants, v. TRAVERS AUTOPLEX & RV, INC., Respondent.
CourtMissouri Court of Appeals

FOR APPELLANT: Kenneth N. Caldwell, Edward N. Foster, Caldwell Law Firm, LLC, 1201 NW Briarcliff Parkway, 2nd Floor, Kansas City, Missouri 64116.

FOR RESPONDENT: Donald H. Sanders, Dillon C. Sanders, D.H. Sanders, LLC, 8011 Clayton Road, Third Floor, St. Louis, Missouri 63117.

Philip M. Hess, Presiding Judge

Introduction

Douglas and Nabila Acol ("Appellants") appeal a jury verdict and award of attorney's fees to Travers Autoplex & RV, Inc. ("Respondent"). Appellants allege Respondent failed to adequately repair their RV and raise three points on appeal. In Point I, Appellants argue the trial court erred by failing to give a jury instruction for breach of implied warranty. In Point II, Appellants argue the trial court erred by giving a jury instruction for the economic loss doctrine. In Point III, Appellants argue the trial court abused its discretion by awarding attorney's fees to Respondent.

We affirm in part and reverse in part.

Factual and Procedural Background

Appellants purchased a 2009 Monaco Dynasty RV in 2012. On August 6, 2016, a tire blew out while Appellants were traveling through Illinois, causing an accident damaging the RV. Appellants arranged for the RV to be towed to St. Louis Auto & Truck Repair ("St. Louis Auto") in St. Louis, Missouri for repairs. After arriving in St. Louis, Appellants discovered the RV was further damaged during the tow.

St. Louis Auto partially repaired the RV but determined it could not make all necessary repairs. On August 10, 2016, St. Louis Auto referred Appellants to Respondent and the RV was taken to Respondent's facility. In March 2017, Respondent notified Appellants the RV was fixed and ready to be picked up. When Appellants inspected the RV, they determined the repairs were inadequate and refused to take possession. Appellants’ insurance paid $22,976.64 for repairs related to the accident and the towing company paid $3,996.36 to repair damage caused by the tow.

On June 21, 2017, Respondent sent Appellants a letter notifying them the RV was ready to be picked up and they owed $2,050 for the remaining repair costs and their insurance deductible. When Appellants refused to pay, Respondent offered to waive the $2,050 bill if Appellants would take possession of the RV. Appellants rejected the offer and did not pay the bill or collect the RV.

On July 26, 2017, Appellants sued Respondent, claiming Respondent (1) violated the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat §§ 407.010-.025 ;1 (2-3) breached its contract to repair the RV and for bailment; (4) committed conversion by retaining possession of the RV; (5-7) negligently repaired the RV; (8) breached its repair warranty; (9) was not entitled to the $2,050 charge; and (10) was liable for punitive damages. Respondent counterclaimed for unjust enrichment and suit on account, alleging Appellants failed to pay the agreed-to price for the RV's repairs.

Trial was held on February 3-5, 2020. After Appellants rested their case-in-chief, the trial court granted a directed verdict to Respondent for Appellants’ conversion, punitive damages, and declaratory judgment claims, leaving seven counts outstanding. During the jury instruction conference, the trial court permitted Appellants to instruct the jury on four claims: negligent repair, MMPA violations, breach of contract, and breach of bailment. The trial court rejected Appellants’ proposed breach of warranty instruction because it was "almost a mirror image" of their breach of contract claim. Appellants’ breach of warranty, general negligence, and specific negligence claims were not presented to the jury.

Respondent proposed jury Instruction 12 for the economic loss doctrine as applied to Appellants’ negligent repair claim. Appellants objected, arguing the economic loss doctrine applies to the sale of property, not negligent services. The trial court overruled Appellants’ objection and Instruction 12 was submitted to the jury. The jury found for Respondent on Appellants’ negligent repair, MMPA, breach of contract, and breach of bailment claims. The jury also found for Respondent on both of Respondent's counterclaims, awarding Respondent $8,050 for unpaid bills and attorney's fees.

The trial court entered judgment reflecting the jury verdict, without addressing Appellants’ unsubmitted claims for breach of warranty, general negligence, and specific negligence. On March 30, 2020, the trial court awarded Respondent $23,750 in attorney's fees for prevailing on Appellants’ MMPA claim. Appellants attempted to appeal the jury verdict and fee award. Respondent moved to dismiss the appeal, arguing the trial court had not yet entered a final, appealable judgment.

On November 9, 2020, this Court took the jurisdictional issue with the case, stating: "it appears [the breach of warranty and negligence counts] remain pending. If so, there is no final, appealable judgment. An appellate court has jurisdiction only over final judgments that dispose of all parties and claims in the case and leave nothing for future determination." (internal citations omitted). The trial court resolved the jurisdictional issue by amending the judgment on January 10, 2021. The court stated:

[D]ue to oversight this Court neglected to formally enter its Directed Verdict on the record disposing of Counts 6, 9, and 10 of PlaintiffsThird Amended Petition. As such, this Amended Judgment—pursuant to Rules 74.01, 75.01 and/or 78.07 and "PlaintiffsMotion to Correct, Amend, Modify or Enter a Final Judgment" dated December 4, 2020—is being entered for the purposes of clarifying the record and formally disposing of Counts 6, 9 and 10.

This appeal follows. Additional factual and procedural history will be provided below as necessary to address Appellants’ claims.

Standard of Review
Points I & II: Jury Instructions

Claims of instructional error are questions of law this Court reviews de novo. Lewellen v. Universal Underwriters Ins. Co. , 574 S.W.3d 251, 274 (Mo. App. W.D. 2019). "The instruction must be supported by both the evidence presented at trial and the applicable law." Id. We will reverse based on instructional error if "the instruction misdirected, misled, or confused the jury and resulted in prejudice." Id.

This Court may review unpreserved arguments for plain error. "Plain error review is discretionary with this Court and is rarely granted in civil cases." Declue v. Dir. of Revenue , 361 S.W.3d 465, 467 (Mo. App. E.D. 2012). "Our examination of the record must facially establish grounds for a belief that a manifest injustice has occurred." Id. Parties are "entitled to relief for plain error only when the error is outcome determinative." Id. at 468.

Point III: MMPA Attorney's Fees

Section 407.025.2 provides trial courts have discretion to award punitive damages, attorney's fees, or equitable relief to the prevailing party in MMPA claims. We review attorney's fee awards for abuse of discretion. Berry v. Volkswagen Grp. of Am., Inc. , 397 S.W.3d 425, 430 (Mo. banc 2013). Abuse of discretion occurs if the trial court's fee award was "against the logic of the circumstances" and so "arbitrary and unreasonable as to shock one's sense of justice." Id. at 431.

Discussion
Point I: Breach of Implied Warranty Instruction

At the close of Appellants’ evidence, the trial court entered a one-page handwritten order granting Respondent's motion for directed verdict for Appellants’ conversion, punitive damages, and declaratory judgment claims. The order stated the remaining claims would not be granted a directed verdict. During the jury instruction conference following the close of evidence, the trial court rejected Appellants’ request for a breach of implied warranty instruction, stating it was "almost a mirror image" of Appellants’ breach of contract claim. Appellants argued the instruction should nevertheless be given to the jury because the defenses to breach of contract and breach of implied warranty are different. The trial court rejected Appellants’ argument, stating:

I'm going to stick with my original position, I'm not going to let you submit on the warranty .... I think we're just going to leave it like it is now. I think you'll have an opportunity to argue the same things you're talking about irrespective of whether [the breach of warranty instruction is] submitted or not, so I'm going to deny your claim ....

The jury was instructed on Appellants’ counts of negligent repair, MMPA violations, breach of contract, and breach of bailment contract. The jury returned a verdict for Respondent on each count. Appellants’ breach of warranty, general negligence, and specific negligence counts were not formally resolved until the trial court entered its amended judgment on January 10, 2021.

Appellants challenge the trial court's failure to give the jury a breach of warranty instruction. Respondent asserts Appellants’ breach of warranty jury instruction claim is unpreserved and should be dismissed because the breach of warranty claim was decided by directed verdict. Respondent argues Appellants should have challenged the directed verdict, not the jury instructions because Rule 72.01(a)2 provides directed verdicts are "effective without any assent of the jury." Respondent reasons Rule 72.01(a) renders challenges to directed verdicts and proposed jury instructions mutually exclusive because directed verdicts preclude jury consideration of a matter. Respondent concludes Appellants’ argument would defeat the purpose of directed verdicts, effectively requiring trial courts to submit instructions to the jury for counts already decided by the judge.

We agree with Respondent. Point I is unpreserved and warrants dismissal...

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