Huch v. Charter Communications, Inc., No. ED 89926 (Mo. App. 4/15/2008)
| Decision Date | 15 April 2008 |
| Docket Number | No. ED 89926,ED 89926 |
| Parties | James Huch and Ryan Carstens, Plaintiffs/Appellants v. Charter Communications, Inc., Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County, Hon. Mark D. Seigel.
Erich Vieth, Amy Collignon Gunn and John E. Campbell, for Appellant.
James W. Erwin, Roman P. Wuller and Robert J. Wagner, for Respondent.
Before Dowd, Jr., J. and Romines, J.
Plaintiffs filed an amended class action petition seeking damages, injunctive relief, and certification as a class under sections 407.025 and 407.200 of the Missouri Merchandising Practices Act, section 407.010 et seq. RSMo (2000) (MMPA), and 15 CSR 60-8.060,1 alleging that the defendant television cable company sent customers television channel guides, which the customers had not solicited, and then billed them for the guides. The trial court entered a judgment dismissing the petition with prejudice on the ground that plaintiffs' damage claims were barred by the voluntary payment doctrine. Plaintiffs appeal, and we affirm.
James Huch and Ryan Carstens are the remaining plaintiffs in this case. They filed an Amended Petition for Individual and Class Action Relief against Charter Communications, Inc. (Charter) on behalf of themselves and Missouri Charter customers to recover damages and injunctive relief.
In their allegations common to all counts, plaintiffs alleged that plaintiff Huch had contracted with Charter to begin receiving cable television channels and services in April 2005, and plaintiff Carstens had contracted with Charter to begin receiving cable television channels and services in July 2005. They alleged that they did not request Charter's "Paper Guide," also known as the "Channel Guide Magazine" (the Guide); that Charter did not inform plaintiffs that it would charge them for the Guide; that the cost of the Guide was not included as part of their monthly cable channels or services; that the Guide "has been appearing as a separate line item" on their monthly bills; and that Charter charged plaintiffs $2.99 or $ 3.24 per month for the Guide.
Plaintiffs sought to represent a class of all Missouri consumers who were Charter customers and who had been charged by Charter for receiving the Guide when they had not requested the Guide or had not agreed to pay Charter a separate fee for the Guide.
In Count I, plaintiffs sought damages, attorney's fees, and a permanent injunction on the theory that Charter's actions in billing for the Guide constituted an unfair or deceptive trade practice under the MMPA. In Count II, plaintiffs sought the same relief on the theory that the conduct constituted a per se violation of the MMPA.
Charter filed a motion to dismiss the amended petition on the ground that both claims were barred by the voluntary payment doctrine, and, in addition, there was no recognized cause of action in Missouri for a per se violation of the MMPA, as alleged in Count II. After a hearing, the trial court dismissed the amended petition with prejudice, concluding that plaintiffs' damage claims were barred by the voluntary payment doctrine. The trial court found that plaintiffs knew exactly what services they requested from defendant; that they were, or should have been, aware that their cable bills separately listed a monthly charge for the Guide; they possessed full knowledge at the time of payment that they were being billed for a service which they allegedly never asked for or agreed to; they repeatedly paid the amount billed for the Guide without objection or protest; and they did not allege duress or mistake.
On appeal, plaintiffs challenge the denial of injunctive relief and the dismissal of their petition. We first consider the dismissal of the petition.
Plaintiffs assert that the trial court erred in dismissing their petition because [section] 407.025 provides that Plaintiffs may "recover actual damages" in cases involving unfair, deceptive or fraudulent acts or omissions, in that:
A) The Voluntary Payment Doctrine is an ancient doctrine ill-suited to modern consumer class actions;
B) The prayer of Plaintiffs' Petition, in which Plaintiffs alleged that Defendant inserted unauthorized "Channel Guide" charges into their cable TV bills, included requests to recover actual damages pursuant to specific consumer rights established by [section] 407.025.2 RSMo, [section] 407.200 RSMo and 15 CSR 60-8.060;
C) The Plaintiffs' Petition alleged that Defendant unfairly, deceptively and fraudulently charged its customers for Defendant's Channel Guide, but the voluntary payment doctrine does not apply in cases involving fraudulent conduct;
D) The allegations of the Petition, which the Court is required to accept as true for purposes of a motion to dismiss, did not establish that Plaintiffs had full knowledge of all the relevant facts pertaining to Plaintiffs' alleged transactions with Charter. The arguments under the first two subpoints attack the viability of the voluntary payment doctrine as a defense in this case. The second two subpoints address whether the allegations of the petition were sufficient to withstand the application of the voluntary payment doctrine.
We first observe that this point fails to comply with Rule 84.04(d) in that it identifies the entire judgment as the error for multiple unrelated reasons. Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n.2 (Mo.App. 1999); Lamar Adver. of Missouri, Inc. v. McDonald, 19 S.W.3d 743, 745 (Mo.App. 2000).
The error contemplated by Rule 84.04(d) in a court-tried case is not the judgment itself but the trial court's actions or rulings on which the adverse judgment is based, such as explicitly or implicitly making or failing to make a certain factual finding, applying or failing to apply a particular rule of law, taking or failing to take a certain procedural action, etc. See Thummel v. King, 570 S.W.2d 679, 685-688 (Mo. banc 1978). When an appellant makes the entire judgment one error and lists multiple grounds therefor, the result is that the point contains multiple legal issues. Separate issues should be stated in separate points relied on. Id. Wheeler, 999 S.W.2d at 283 n.2. Paragraphs A through D should have been stated in separate points, with each point supported by the legal reasons for the claim of error and an explanation of why those legal reasons support the claim. Without condoning this Rule 84.04 violation, we have ex gratia elected to review each subpoint independently, as though each had been set out in a separate point, and we have examined the argument under each subpoint to determine the legal and factual basis for the error.
"`A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition.'" Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007) (quoting Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001)). In reviewing a trial court's order dismissing a claim for failure to state a claim upon which relief can be granted, we accept all properly pleaded facts as true, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader, in order to determine whether the averments invoke principles of substantive law entitling the plaintiff to relief. Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003); Arnold v. Erkmann, 934 S.W.2d 621, 625-26 (Mo.App. 1996). We examine the petition simply to determine whether the alleged facts meet the elements of a recognized cause of action, or of a cause of action that might be adopted in a particular case. Bosch, 41 S.W.3d at 463 (citing Nazeri v. Missouri College, 860 S.W.2d 303, 306 (Mo. banc 1993)). However, we do not accept a pleader's conclusions. Arnold, 934 S.W.2d at 626. The petition must allege facts that support each essential element of the cause to be pleaded. Id. We may sustain a motion to dismiss based on an affirmative defense if the defense is irrefutably shown by the petition. Elam v. Dawson, 156 S.W.3d 807, 808 (Mo.App. 2005). Our review of a dismissal for failure to state a claim is de novo. Hess, 220 S.W.3d at 768.
No exhibits were attached to the petition or incorporated into it. Although some documents outside the pleadings, specifically copies of a cable bill and a cable guide, were submitted to the court during the litigation of the motion to dismiss, the trial court did not treat the motion as one for summary judgment and did not rely on these documents in entering the dismissal. As a result, our review on this appeal is confined to the allegations of the petition. City of Chesterfield v. DeShelter Homes, 938 S.W.2d 671, 673 (Mo.App. 1997); Jordan v. City of Kansas City, 972 S.W.2d 319, 322 (Mo.App. 1998). Although plaintiffs have referred to these exhibits in their argument, we cannot consider any documents that were not attached to or incorporated into the pleadings. See Williams v. Belgrade State Bank, 953 S.W.2d 187, 190 (Mo.App. 1997); State ex rel. Hwy. Com'n v. London, 824 S.W.2d 55, 61 n.5 (Mo.App. 1991).
Plaintiffs have also argued "facts" that were not alleged in the petition. References to matters not in the record on appeal are improper. Pattie v. French Quarter Resorts, 213 S.W.3d 237, 239 (Mo.App. 2007). In particular, on review of a motion to dismiss for failure to state a claim, we do not consider statements of fact made in a brief that were not alleged in the petition. See Estate of Saling, 924 S.W.2d 312, 314 (Mo.App. 1996).
An appellant must cite legal authority in support of its points relied on if precedent is appropriate and available, or, if there is no authority, explain why citations are unavailable. Thummel v. King, 570 S.W.2d 679,...
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