Harjoe v. Herz Financial, SC 84858.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPer Curiam
Citation108 S.W.3d 653
PartiesDavid L. HARJOE, Respondent, v. HERZ FINANCIAL, Appellant.
Docket NumberNo. SC 84858.,SC 84858.
Decision Date01 July 2003

Page 653

108 S.W.3d 653
David L. HARJOE, Respondent,
No. SC 84858.
Supreme Court of Missouri, En Banc.
July 1, 2003.

Mary Ann L. Wymore, Kevin F. Hormuth, St. Louis, for appellant.

Karl W. Dickhaus, St. Louis, Max G. Margulis, Chesterfield, for respondent.

Page 654

Raymond W. Gruender, III, U.S. Atty., Joseph B. Moore, Asst. U.S. Atty., Robert D. McCullum, Jr., Atty. Gen., St. Louis, amicus curiae.

Mark B. Stern, Eric D. Miller, U.S. Department of Justice — Civil Division, Washington, D.C., Amicus Curiae (United States of America).


Herz Financial sent David L. Harjoe nine facsimiles, consisting of 18 pages. Harjoe filed this suit claiming a violation of the "Telephone Consumer Protection Act of 1991," 47 U.S.C. section 227.1 On cross motions for summary judgment, the circuit court entered judgment for Harjoe and awarded him $9,000 and court costs. Herz Financial appeals, challenging the validity of the federal act, a statute of the United States. This Court has jurisdiction. Mo. Const. article V, section 3. The judgment is affirmed as modified.

"When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Additionally the non-movant is afforded the benefit of all reasonable inferences contained in the record. Id. Review is de novo. Id. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment. Id. Generally, summary judgment allows a trial court to enter judgment for a party where they have demonstrated a right to a judgment as a matter of law based upon facts about which there is no genuine dispute. Id. "The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." Id. at 380.

Herz Financial argues the federal statute violates the first and fourteenth amendments to the United States Constitution under the test set out in Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Similar claims have been rejected in the following federal court cases: Missouri ex rel. Nixon v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir.2003); Destination Ventures,

Page 655

Ltd. v. FCC, 46 F.3d 54 (9th Cir.1995); Texas v. Am. Blastfax, Inc., 121 F.Supp.2d 1085 (W.D.Tex.2000); Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162 (S.D.Ind. 1997). See also Moser v. FCC, 46 F.3d 970 (9th Cir.1995).2 For the reasons expressed in those opinions, this Court also rejects Herz Financial's first and fourteenth amendment claims.

As a second basis for attacking the validity of the federal statute, Herz Financial alleges that the statutory penalty violates due process guarantees and the eighth amendment because the penalty is grossly excessive punishment. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal Inc., 492 U.S. 257, 264, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989), specifically holds that the excessive fine provision of the eighth amendment "does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." The excessive fines clause is intended to constrain the power of the state. "Simply put, the primary focus of the Eighth Amendment was the `prosecutorial' power, not concern with the extent or purposes of civil damages." Id. at 266, 109 S.Ct. 2909.

As to Herz Financial's due process claim, it is rejected for the same reasons expressed in Texas v. Am. Blastfax, Inc. at 1090 and Kenro at 1166. Congress is entitled to...

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