Bolt v. Giordano

• Decision Date: 20 April 2010
• Docket Number: No. ED 93121.,ED 93121.
• Citation: Bolt v. Giordano, 310 SW 3d 237 (Mo. App. 2010)
• Parties: Kaylin BOLT, Appellant, v. Gene GIORDANO, Respondent, and John Shelter, Defendant.
• Court: Missouri Court of Appeals

310 SW 3d 237

Kaylin BOLT, Appellant, v.Gene GIORDANO, Respondent, and John Shelter, Defendant.

No. ED 93121.

Missouri Court of Appeals, Eastern District, Division Four.

April 20, 2010.

Kaylin Bolt, Fitchburg, WI, for Appellant.

Thomas A. Spoon, Michelle M. Funkenbusch, St. Louis, MO, for Respondent.

GEORGE W. DRAPER, III, Judge.

Kaylin Bolt(hereinafter, "Bolt") appeals pro se from the trial court's judgment in favor of Gene Giordano(hereinafter, "Dealer") on her petition seeking relief from a vehicle sales contract.Bolt raises three points on appeal.We affirm in part, and reverse and remand in part for further proceedings.

On September 22, 2008, Bolt went to First Capitol Auto Sales, owned by Dealer, to shop for an automobile.Bolt test drove a 2001Chevy Prizm, listed for sale at $3,100.00.When Bolt test drove the vehicle, the "check engine" light came on.Bolt expressed her concern about the light to John Shelton(hereinafter, "Shelton"), the salesman assisting her.The parties came to an agreement that Dealer would repair the vehicle and ensure it passed the safety and emissions inspection because it was not in compliance with state emissions standards, and Bolt would pay an additional $150.00 for a total purchase price of $3,250.00.Dealer told Bolt if the problem reoccurred, she could return the vehicle and it would be repaired again.

Bolt subsequently signed a bill of sale and made a down payment in the amount of $1,250.00.The bill of sale indicated the vehicle was being sold "as is" and there were no warranties or representations made with respect to the vehicle.The bill of sale also contained a handwritten notation, "Safety and Emissions Inspected."Bolt left the vehicle at the dealership to be repaired.Bolt made several phone calls over the course of the next four days to Dealer to check on the status of the repairs.On September 26, 2008, the vehicle failed an emissions inspection.Bolt picked up the vehicle from the repair shop to drive it "through the cycles" to prepare it for retesting.The same day, Bolt tendered the remainder of the purchase price to Dealer.

On September 30, 2008, Bolt called the dealership and informed Shelton she was having the vehicle repaired on October 1, 2008.Prior to taking the vehicle back to the original repair shop, Bolt had the vehicle inspected by another mechanic that uncovered three specific emissions defects.After another series of phone calls, Bolt discovered the vehicle failed emissions testing again on October 7, 2008, and two repairs were made in an effort to solve the problem.Bolt retrieved the vehicle from the repair shop on October 9, 2008, and drove it to prepare it for retesting.

During this time, the "check engine" light came on again.Bolt returned the vehicle to the repair shop on October 20, 2008.After additional repairs, the vehicle passed an emissions inspection on October 23, 2008.Shortly after Bolt picked up the vehicle from the repair shop, the "check engine" light came on a third time, and Bolt contacted Dealer about the issue.Bolt returned the vehicle to the repair shop on November 1, 2008, at which time the "check engine" light was cleared.No further repairs were made and she was told the computer system in the vehicle possibly needed to be reprogrammed or reset.

The "check engine" light illuminated for a fourth time on November 3, 2008.Bolt repeatedly called Shelton and Dealer about the issue, but it was not resolved.Bolt then attempted to return the vehicle to the dealership for a refund of the purchase price, but was told it would be towed at her own expense if she left it at the dealership.After failing a subsequent emissions test, Bolt had the vehicle examined at a different repair shop.At this time, it was discovered the vehicle still suffered from the three specific emissions defects Bolt's mechanic found on September 30, 2008.Bolt received an estimate for the repairs, but was unable to have the repairs completed.Bolt stopped driving the vehicle shortly thereafter.

Bolt sent two certified letters attempting to document and resolve the dispute with Dealer and Shelton; however, the first letter was unclaimed and the second one was refused.Bolt then filed a consumer complaint against Dealer with the Attorney General.Bolt's complaint included an allegation that she had not received title or other paperwork related to the vehicle.In response, Dealer indicated he had "completely filled his obligation" to Bolt and "wants no further involvement" with her.The Attorney General declined to take action on Bolt's complaint after Bolt chose to file suit against Dealer.

Bolt filed a pro se petition seeking "relief from contract" against Dealer and Shelton on February 13, 2009, bringing three counts for relief.In her first count, Bolt alleged Dealer violated Section 643.315.4(3) RSMo (Cum.Supp.2008)¹ when he sold the vehicle without first receiving a certificate of compliance with state emissions standards, and failed to include specific statutory language in the sales contract notifying her of the right to return the vehicle within ten days of sale.Bolt alleged the absence of this language rendered the sales contract void.In her second count, Bolt alleged Dealer violated Section 301.210.4 RSMo (2000) when he did not convey title to the vehicle to her at the time of purchase or any time thereafter.Bolt alleged this violation rendered the contract void and constituted a fraudulent practice.In her final count, Bolt averred Dealer violated Section 407.020 in that the allegations raised in her first two counts constituted unlawful practices, requiring the trial court to enter an award for actual damages, attorney's fees, and punitive damages.

Bolt dismissed Shelton from the suit without prejudice on May 14, 2009.Dealer filed an answer denying all of Bolt's allegations and averring all three counts failed to state a claim upon which relief could be granted.On June 2, 2009, the same day Dealer filed his answer, a bench trial was held on Bolt's claims.Bolt proceeded pro se while Dealer was represented by counsel.After hearing testimony and receiving exhibits, the trial court entered its judgment in favor of Dealer, denying all of Bolt's claims.Bolt appeals.

Initially, we must address Dealer's request to dismiss Bolt's brief for failure to comply with Rule 84.04.Pro seappellants are held to the same standards as those represented by counsel, and their briefs must comply with the rules of appellate procedure.Patterson v. Dierbergs Mkts., Inc.,280 S.W.3d 787, 788(Mo.App. E.D.2009).Failure to comply with Supreme Court Rules constitutes grounds for dismissal.Kuenz v. Walker,244 S.W.3d 191, 193(Mo.App. E.D.2007)."It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties."Id.(quotingThornton v. City of Kirkwood,161 S.W.3d 916, 919(Mo.App. E.D.2005)).

Bolt's pro se brief contains several deficiencies which could constitute grounds for dismissal.However, we may exercise discretion to review a deficient brief and the points therein so long as "the deficiency `does not . . . impede disposition on the merits.'"State v. Bledsoe,178 S.W.3d 648, 653(Mo.App. W.D.2005)(quotingState v. Yole,136 S.W.3d 175, 178(Mo.App. W.D.2004)).The deficiencies complained of by Dealer do not impede the disposition of the appeal; thus, we will address Bolt's points on their merits.SeeHudson v. State,270 S.W.3d 464, 467(Mo.App. S.D.2008).

This Court reviews court-tried cases pursuant to the standard set forth in Murphy v. Carron,536 S.W.2d 30, 32(Mo. banc 1976).We will affirm the judgment unless it is not supported by the evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law.Id.We view all of the evidence and the reasonable inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence and inferences.Cannon v. Monroe,285 S.W.3d 375, 381(Mo.App. E.D.2009).When neither party requests the entry of findings of fact or conclusions of law, we assume the trial court resolved all issues of fact in accordance with the result reached.Rule 73.01(c);Jackson v. Cannon,147 S.W.3d 168, 170(Mo.App. S.D.2004).Therefore, we will affirm the judgment on any reasonable theory within the pleadings that is supported by the evidence.Pepsi Midamerica v. Harris,232 S.W.3d 648, 653(Mo.App. S.D.2007).

In her first point, Bolt argues the trial court erred in denying her claim for damages pursuant to Section 643.315.4(3).Specifically, Bolt claims Dealer violated this section because the sales contract failed to conspicuously disclose that she had a right to return the vehicle within ten days of purchase for repair or a mutually acceptable agreement regarding the repairs when the vehicle was not in compliance with state emission standards.Dealer argues Section 643.315.4(2) applies instead, and the evidence presented shows he was in full compliance with that subsection.

There is no Missouri case law discussing this statute.Statutory interpretation is an issue of law; therefore, no deference is due to the trial court's judgment and we review the issue de novo.City of Richmond Heights v. Waite,280 S.W.3d 770, 774(Mo.App. E.D.2009)."The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning."South Metro. Fire Prot. Dist. v. City of Lee's Summit,278 S.W.3d 659, 666(Mo. banc 2009)(quotingState v. McLaughlin,265 S.W.3d 257, 267(Mo. banc 2008))."The corollary to this rule is that a court should not interpret a statute so as to render some phrases mere surplusage."Middleton v. Missouri Dept. of Corr.,278 S.W.3d 193, 196(Mo. banc 2009).

Section 643.315.4(1) gives a...