Clement v. St. Charles Nissan, Inc.
| Decision Date | 22 April 2003 |
| Docket Number | No. ED 81667.,ED 81667. |
| Citation | 103 S.W.3d 898 |
| Parties | Marcia S. CLEMENT, Appellant, v. ST. CHARLES NISSAN, INC., Respondent. |
| Court | Missouri Court of Appeals |
Mitchell B. Stoddard, St. Louis, for Appellant.
Zora Manjencich, Herzog, Crebs & McGhee, LLP, St. Louis, for Respondent.
Marcia S. Clement (hereinafter, "Clement") claims she was induced fraudulently into entering a car lease with St. Charles Nissan, Inc. (hereinafter, "SCN"). Clement brought suit against SCN alleging it violated the Merchandising Practices Act, Chapter 407 RSMo (2000), et seq.1 SCN filed a motion to dismiss based on a lack of damages suffered by Clement. The trial court granted SCN's motion; this appeal follows.
Clement entered into a lease agreement with SCN for a Volkswagen Beetle. Clement states that before she signed the lease, SCN's sales representative guaranteed she could return the vehicle at any time prior to the lease termination date without a penalty, if she entered a five-year lease term. Based upon that guarantee, Clement agreed to execute the five-year lease.
Several months later, Clement attempted to return the car and terminate the lease. However, the same sales representative and others at SCN told her she could not terminate the lease without incurring a substantial penalty. Clement continued to make payments on the lease so as to avoid the substantial penalty.
Clement filed suit against SCN claiming SCN violated the Merchandising Practices Act.2 SCN filed a motion to dismiss, arguing that Clement's petition failed to state a claim because she did not allege an ascertainable loss of money or property. The trial court granted SCN's motion. Clement appeals.
A motion to dismiss is an attack on the petition and is solely a test of the adequacy of that pleading. Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). When reviewing a motion to dismiss, we assume that all of plaintiff's allegations are true and liberally grant plaintiff all reasonable inferences therefrom to determine if any ground for relief is stated. In re Estate of Clark, 83 S.W.3d 699, 702 (Mo.App. W.D.2002). We review the petition "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." Reynolds, 79 S.W.3d at 909.
Clement argues the trial court erred in granting SCN's motion to dismiss by failing to recognize that she incurred damages by continuing to make her lease payments when she was unable to terminate her lease due to SCN's alleged fraudulent representations. We agree.
The Merchandising Practices Act was created to supplement the definition of common-law fraud. State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo.App.K.C.Dist.1973). It attempts to preserve fundamental honesty, fair play and right dealings in public transactions. Id. "The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce ... in or from the state of Missouri, is declared to be an unlawful practice." Section 407.020.1. There is no definitive definition of deceptive practices. State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo.App. E.D.1988). Section 407.020 is broad in scope in order to prevent evasion by overly meticulous definitions; the determination of whether fair dealing has been violated turns on the unique facts and circumstances of each case. Id. "It is not necessary in order to establish `unlawful practice' to prove the elements of common law fraud." Id.
Taking into account our standard of review for a motion to dismiss, this Court believes Clement adequately pleaded her cause of action. See Clark, 83 S.W.3d at 702. Assuming all of her allegations are true and granting all reasonable inferences therefrom, Clement alleged that SCN has committed a violation of the Merchandising Practices Act. Clement stated SCN's sales representative affirmatively told her that she would not be subject to a penalty if she decided to terminate the five-year lease early. This statement induced her into signing the lease with SCN. Yet, when she attempted to act upon the sales representative's guarantee, she was informed she would incur a substantial penalty for termination of her lease. The use of "deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact" to induce Clement into signing a five-year lease with SCN would violate the Merchandising Practices Act. Section 407.020.1.
"Once the court finds that a violation of the Act has occurred or is about to occur, irreparable harm and harm to the public are presumed." State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 837-38 (Mo.App. E.D.2000)(citing State ex rel. Webster v. Milbourn, 759 S.W.2d 862, 864 (Mo.App. E.D.1988))3. Due to the alleged violation of the Merchandising Practices Act, Clement states she has suffered damages in the form of her continued lease payments. Under our standard of review, Clement adequately pleaded a violation of the Merchandising Practices Act. Clement also adequately pleaded monetary damages in that she had been compelled to continue her lease payments in order to avoid the consequences of SCN's misrepresentation to her.
Clement's continued lease payments, or a portion thereof, could be considered damages. See McLane v. Wal-Mart Stores, Inc., 10 S.W.3d 602 (Mo.App. E.D.2000)( various damage calculations following landlord-tenant dispute of cost of repairs to leased property); High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493 (Mo. banc 1992)(determining loss of...
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