Mertz v. Blockbuster, Inc.

• Decision Date: 10 October 2000
• Parties: (Mo.App. E.D. 2000) Richard Mertz, Appellant, v. Blockbuster, Inc., Respondent. ED76962
• Court: Missouri Court of Appeals

32 S.W.3d 130 (Mo.App. E.D. 2000)

Richard Mertz, Appellant, v. Blockbuster, Inc., Respondent.

ED76962

Missouri Court of Appeals Eastern District

10/10/2000

Appeal From: Circuit Court of St. Louis County, Hon. Dennis N. Smith, Judge

Counsel for Appellant: Irwin M. Roitman

Counsel for Respondent: Michael M. Godsy

Opinion Summary: Richard Mertz appeals the judgment in conversion based on his unauthorized possession of Blockbuster, Inc.'s video tapes and games. Following a jury trial, judgment was entered pursuant to a verdict for actual damages of $6,120 and punitive damages of $5,000. Mertz appeals the trial court's denial of his directed verdict motion, and his motion for judgment notwithstanding the verdict and motion for a new trial.

Division Three holds: (1) There is nothing to review when Mertz fails to state why the trial court erred in its denial of the directed verdict motion, and what evidence was before the court supported the correct ruling. (2) The trial court did not err in its denial of the motion for judgment notwithstanding the verdict since Blockbuster Inc. presented sufficient evidence as supported by the record for the jury to return a conversion verdict.

George W. Draper III, Judge

Richard Mertz (hereinafter, "Mertz") appeals the judgment in conversion based on his unauthorized possession of Blockbuster Inc.'s (hereinafter, "Blockbuster") video tapes and games. Following a jury trial, judgment was entered pursuant to a verdict for actual damages of $6,120 and punitive damages of $5,000. We affirm.

In July 1998, a Blockbuster store manager contacted Officer Keith Weber (hereinafter, "Officer Weber") of the Saint Louis County Police Department requesting assistance in investigating three suspicious applications received by his store. Blockbuster granted these applicants temporary memberships with rental privileges. After being granted their temporary memberships, the applicants rented multiple copies of the same video tapes and games. When the rental period expired for these items, the applicants failed to return the merchandise. Blockbuster personnel attempted to contact the applicants to alert them to the expired rental period, but their attempts failed due to the invalid addresses and phone numbers registered by the applicants.

The Blockbuster manager recognized a pattern whereby applications were falsified, large quantities of merchandise rented, and nothing was ever returned to the store. The Blockbuster manager placed these accounts on hold and alerted other stores in the Saint Louis area via their computer network.

After the regional alert, an applicant at another Blockbuster store used a similar false name in filling out his application. The applicant was denied temporary membership and rental privileges. As the applicant left the store, the Blockbuster employee obtained the license plate number from his car. Officer Weber instigated a registration inquiry on the license plate number and discovered the car was registered to a Missouri resident named Terry Black (hereinafter, "Black"), and he issued a nationwide alert via REJIS¹ for the vehicle.

Subsequently, Black was stopped for a traffic violation in Kentucky. When his license plate number appeared on the nationwide alert, police impounded the car and the merchandise in the trunk. Officer Weber was contacted, and the Kentucky police sent him the impounded merchandise.

Officer Weber returned to the Blockbuster store with the impounded merchandise to determine whether it belonged to Blockbuster. Officer Weber and the Blockbuster managers used a store scanner to determine that each of the boxes of impounded merchandise contained Blockbuster property. Black subsequently contacted Officer Weber from Kentucky requesting return of the impounded merchandise. Black informed Officer Weber that the merchandise was on consignment from Mertz, and he was attempting to sell it. Mertz in fact claimed he owned the merchandise when he called Officer Weber to attempt retrieval of the video tapes and games.

Mertz owns a business dealing in the purchase, sale, and trade of used video tapes, video games, music CDs, and music cassettes. Black is a friend of Mertz. Additionally, Mertz employed Black for business. On at least one prior occasion, Black drove a car of merchandise to Kentucky to sell at a flea market for Mertz.

Based upon information given to Officer Weber by Black that the merchandise came from Mertz's store, Officer Weber, on October 2, 1998, investigated Mertz's business. Two Blockbuster managers accompanied Officer Weber and brought a list of the merchandise which had been appropriated from Blockbuster by falsified applications. Upon arriving at Mertz's store, all three were able to view merchandise bearing Blockbuster labels from the front window while standing outside of the store.

Officer Weber contacted Mertz. Once Mertz arrived, Officer Weber explained he suspected there was stolen property in the store and read Mertz his Miranda rights. Mertz stated he understood his rights and consented to a search of his store. Before entering the store, Mertz commented to Officer Weber that "all businesses have . . . purchased stolen merchandise and that all businesses have stolen merchandise in them." Upon a detailed search of the store, there were over 100 video games identified and seized.

Mertz filed suit in replevin; Blockbuster counter-claimed in conversion. Following presentation of the evidence and arguments, the case was submitted to the jury. The jury returned its verdict finding for Blockbuster on its counterclaim and against Mertz on its suit in replevin. The jury awarded Blockbuster $6,120 in actual damages and $5,000 in punitive damages. The trial court...