Chochorowski v. Home Depot U.S.A., Inc.

• Decision Date: 22 September 2009
• Docket Number: No. ED 92699.,ED 92699.
• Citation: 295 S.W.3d 194
• Parties: Janet CHOCHOROWSKI, Plaintiff/Appellant, v. HOME DEPOT U.S.A., INC., d/b/a The Home Depot, Defendant/Respondent.
• Court: Missouri Court of Appeals

295 S.W.3d 194

Janet CHOCHOROWSKI, Plaintiff/Appellant, v. HOME DEPOT U.S.A., INC., d/b/a The Home Depot, Defendant/Respondent.

No. ED 92699.

Missouri Court of Appeals, Eastern District, Division One.

September 22, 2009.

Phillip A. Bock, James M. Smith, Bock & Hatch, LLC, Chicago, IL, Mark L. Brown, Andrew W. Kuhlmann, Lakinchapman, LLC, Wood River, IL, for Appellant.

Russell K. Scott, Greensfelder, Hemker & Gale, P.C., Belleville (Swansea), IL, Dwight J. Davis, S. Stewart Haskins, Jonathan R. Chally, King & Spalding LLP, Atlanta, GA, for Respondent.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff, a lessee of merchandise, appeals from a judgment dismissing her lawsuit against defendant, a lessor of merchandise, seeking damages under the Missouri Merchandising Practices Act (MMPA), section 407.020 RSMo (2000)¹ for failure to state a claim. She asserts that she alleged sufficient facts to establish her claim that defendant violated the MMPA by deceiving plaintiff into believing a damage waiver was mandatory and by selling her a worthless damage waiver. We reverse.

PROCEDURAL BACKGROUND

On March 20, 2008, plaintiff, Janet Chochorowski, filed a lawsuit against defendant, Home Depot USA, Inc., seeking damages, punitive damages, costs, and class certification under the MMPA. Plaintiff alleged that she rented a power tiller from one of defendant's stores on April 27, 2002, at a listed, one-day rental price of $25.00 plus applicable sales and rental taxes, which listing did not disclose a damage waiver charge. She further alleged that defendant's computer automatically up-charged the rental by 10% for a damage waiver, that the damage waiver charges appeared on the rental agreement adjacent to the charge for sales tax, and that defendant required plaintiff to sign a computer-generated rental agreement that contained a damage waiver charge.

Plaintiff attached "page 1 of 1" and "page 2 of 2" of a Rental Agreement, numbered 121737, to her petition as Exhibits 3 and 4, respectively.² Exhibit 3 identified the parties and the equipment rented, followed by the heading, "SPECIAL TERMS AND CONDITIONS." The three statements under this heading were:

1. I HAVE BEEN OFFERED OPERATING MANUALS ON THE ABOVE LISTED RENTAL EQUIPMENT AND HAVE ACCEPTED THEM.

2. I ACCEPT THE BENEFITS OF THE DAMAGE WAIVER (IF APPLICABLE) DESCRIBED IN PARAGRAPH 11 IN THE TERMS AND CONDITIONS OF THIS RENTAL AGREEMENT.

3. A CLEANING CHARGE OF $25.00 WILL BE ASSESSED IF THE ABOVE LISTED RENTAL EQUIPMENT IS NOT RETURNED CLEAN.

These statements were followed by the statement:

I HAVE READ AND AGREE, AS INITIALED TO THE RIGHT, TO THESE SPECIAL TERMS AND CONDITIONS.

There was one small box to the right of this last statement that was labeled "Customer Initials," which contained the handwritten initials "J.C." Exhibit 4, which did not have a heading, contained twelve unnumbered paragraphs, including a paragraph entitled "Damage Waiver," that began, "If I pay the Damage Waiver charge...."

Plaintiff alleged that she did not request or agree to the Damage Waiver, and that defendant "never disclosed that the `Damage Waiver' was an optional charge, or that Plaintiff was not required to pay a `Damage Waiver' in order to rent the power tiller." Plaintiff further alleged that, because the operating manual and cleaning charge provisions listed with the damage waiver provision in the agreement were not optional, even if the Damage Waiver was optional, "there would still be no way for a consumer to decline it."

Plaintiff specifically alleged with respect to Count I that defendant "engaged in unlawful deceptive acts and practices" in part by "disclosing the `Damage Waiver' in a manner intended to deceive customers into believing the `Damage Waiver' was mandatory," and by "failing to disclose to Plaintiff and the other Class members that Home Depot would remove the `Damage Waiver' charge upon request."

In connection with Count II, plaintiff alleged various losses and damages that the damage waiver excluded, which, she alleged, excluded "the only liability the renter might have under the contract." She concluded that the damage waiver was "worthless because it d[id] not provide any protection for damage to rented tools not already contained in the rental agreement," and that the sale of the Damage Waiver constituted "an unlawful, deceptive and unfair act."

Defendant moved to dismiss the petition for failure to state a claim. As relevant to this appeal, it argued that the "rental agreement unambiguously discloses the damage waiver as an optional service" and that the "clear terms of the rental agreement" contradict the claim that the option was worthless. The trial court granted defendant's motion without stating its reasons therefor.

DISCUSSION

Standard of Review

Our review of a dismissal for failure to state a claim is de novo. Hess v. Chase Manhattan Bank, USA N.A., 220 S.W.3d 758, 768 (Mo. banc 2007). A motion to dismiss for failure to state a claim upon which relief can be granted is solely a test of the adequacy of the petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). When we consider whether a petition fails to state a claim upon which relief can be granted, we accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Id. We do not weigh the factual allegations to determine whether they are credible or persuasive. Id.; See also Zmuda v. Chesterfield Valley Power Sports, 267 S.W.3d 712, 714 (Mo. App.2008); Fenlon v. Union Elec. Co., 266 S.W.3d 855, 854 (Mo.App.2008). Instead, we review the petition "in an almost academic manner[] to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Nazeri, 860 S.W.2d at 306. The determination of factual questions is not appropriate on a motion to dismiss. Id. at 314; Fenlon, 266 S.W.3d at 856. It is not the trial court's function on a motion to dismiss, or our function on review of a judgment of dismissal for failure to state a claim, to determine whether an appellant is entitled to relief on the merits. Fenlon, 266 S.W.3d at 854. If a trial court does not set out the reasons for its dismissal, we presume that it did so for the reasons advanced in the motion to dismiss. Fenlon, 266 S.W.3d at 854.

I. Deception

For her first point, plaintiff asserts that the trial court erred in dismissing Count I of her petition because she alleged sufficient facts to state a cause of action under the MMPA against Home Depot "for deceiving plaintiff into believing that the `Damage Waiver' was mandatory."

Section 407.025.1 creates a private right of action under the MMPA in favor of "[a]ny person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020." In order to state a claim for violation of the MMPA, plaintiff was required to allege that she (1) leased merchandise from defendant; (2) for personal, family, or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of an act declared unlawful by section 407.020. See Hess, 220 S.W.3d at 773.

At issue in this appeal is the fourth element of an MMPA claim, that defendant engaged in a practice declared unlawful by section 407.020. To satisfy this element, plaintiff was required to allege facts establishing that defendant used or employed a...