Parthenopoulos v. Maddox, WD

CourtCourt of Appeal of Missouri (US)
Citation629 S.W.2d 563
Docket NumberNo. WD,WD
PartiesStelios PARTHENOPOULOS, Respondent-Appellant, v. Marvin MADDOX, Appellant-Respondent, Marvin Maddox, Inc., Appellant-Respondent, and Midas International Corporation, Respondent. 31850.
Decision Date08 December 1981

James S. Formby, Kansas City, for respondent-appellant.

Roger J. Barbieri, Leo C. Gotschall, Kansas City, for appellants-respondents.

Edward J. O'Reilly, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

These are cross appeals on behalf of plaintiff Stelios Parthenopoulos and defendants Marvin Maddox and Marvin Maddox, Inc. (Maddox, Inc.). Mr. Parthenopoulos appeals three orders of the trial court: (1) the order sustaining the motion of Midas International Corporation (Midas) to set aside a jury verdict against it in the amount of $768,888, (2) the order entered at the close of plaintiff's evidence sustaining a directed verdict on Count I in favor of all the defendants, and (3) the order overruling plaintiff's motion to amend the ad damnum clause in Count IV of plaintiff's petition. Mr. Maddox and Maddox, Inc., appeal the order of the trial court overruling their motion for a directed verdict at the end of all the evidence, the giving of five of the instructions, and the admission of evidence of the plaintiff's family status and background. Midas' appeal of the trial court's order overruling its alternative motion for new trial was dismissed by this court on its own motion in an order allowing Midas to argue alleged points of error therein in its respondent's brief. We affirm in part and reverse in part.

1. The Facts

On March 14, 1970, Mr. Parthenopoulos, the plaintiff, took his 1966 Ford to the Midas Muffler Shop at 5618 Independence Avenue in Kansas City, Missouri, to have his brakes repaired. Mr. Parthenopoulos, who had emigrated from Greece to the United States fourteen years earlier, chose the Midas shop because of Midas' advertising on national television and in the yellow pages of the Kansas City telephone directory. For $51.45 the Midas shop relined the brakes on all four wheels, put new wheel cylinder kits in all four wheels, bled and refilled the hydraulic system, installed two grease seals and gave Mr. Parthenopoulos the following written guarantee:

Midas custom brake linings are guaranteed to the original purchaser against wearing out for 30,000 miles. Replaced, if necessary for only a service charge at any Midas Brake Department.

Marvin Maddox, the authorized Midas dealer at the Independence Avenue shop and the president and sole owner of Marvin Maddox, Inc., read and explained the guarantee to the plaintiff.

In June, 1972 during the time that the 30,000 mile guarantee was still in effect, the plaintiff noticed a noise when he applied his brakes. He took the car back to the Midas shop on June 10, 1972. After his employees checked the brakes with the car on the rack, Mr. Maddox informed his customer that the brake drums were damaged. Mr. Parthenopoulos testified that Mr. Maddox told him that the cost to repair the brakes would be $145. (Mr. Maddox testified that the estimate was $75.) An argument ensued, the plaintiff maintaining that the entire cost of the needed repairs was covered by the guarantee and Mr. Maddox insisting that the customer would have to pay for the brake drums as well. As the argument became more heated, Mr. Parthenopoulos began yelling and waving his hands. Mr. Maddox testified, and the plaintiff denied, that Mr. Parthenopoulos doubled his hand into a fist and threatened to hit him.

Mr. Maddox called the police. The plaintiff waited quietly during the ten-minute interval before their arrival. Thomas E. Myer, one of the officers who responded to the call, was met by Mr. Maddox, identifying himself as the owner of the shop and wearing a "Midas" shirt which indicated that he was the manager. He told the officer that he wanted Mr. Parthenopoulos to leave the area. The officer testified that when he asked the plaintiff "what the problem was", Mr. Parthenopoulos replied by "hollering ... at the top of his lungs." Despite the fact that the officer suggested three times alternate ways to solve the guarantee problem, Mr. Parthenopoulos continued his tirade. The officer placed him under arrest and put him in the police van. He then asked Mr. Maddox to sign a complaint and summons against the customer charging that Mr. Parthenopoulos did "disturb the peace of Marvin Maddox by arguing and threatening the health and welfare of Marvin Maddox."

After Mr. Parthenopoulos posted a $25 bond at the police station, he returned to the Midas shop, retrieved his car and took it to a nearby Montgomery Ward service shop where the brakes were repaired for $96.

Before the trial for disturbing the peace commenced on June 13, 1972, the complaint was dismissed at the request of Mr. Maddox. At trial Mr. Parthenopoulos gave the following confusing account of the 1972 proceedings in the municipal court:

Q. And when you got to court that morning, what happened?

A. Well, just the judge called our names, and I went over there and Mr. Maddox say, "Not guilty." And I don't explain anything to Mr. Judge. But, like he told me, "Okay, that's going to take you out $25.00 bail," you know, "and go home, just-"

Q. Mr. Maddox said you were not guilty?

A. No, he say, "Not guilty", the gentleman, he say, "Not guilty."

Q. This man here (indicating) said that?

A. Yes.

Q. And did the judge dismiss the case then?

A. Yes. And he told me to go to take the $25.00 where I pay, you know, for the bond.

The judgment of the trial in municipal court simply indicates that the complaint was dismissed at the request of the complainant.

On June 8, 1974, the plaintiff filed suit against Midas, Marvin Maddox and Maddox, Inc. That petition was amended on February 11, 1980, the first day of trial. In four counts it charged the three defendants with fraudulent misrepresentation, breach of express warranty, false arrest, and malicious prosecution. In each of Counts I and II the plaintiff prayed for $250 in actual damages and $200,000 in punitive damages; In each of Counts III and IV he prayed for $250 in actual damages and $250,000 in punitive damages.

At the close of plaintiff's evidence, the court sustained the motions of all the defendants for a directed verdict as to Count I, fraudulent misrepresentation. At the close of all the evidence, the court sustained the motions of all the defendants as to Count III, false arrest. Counts II and IV, for breach of express warranty and malicious prosecution, respectively, were submitted to the jury. Midas presented no evidence at the trial.

On Count II the jury found against Marvin Maddox, Inc., for breach of express warranty and awarded $150 in damages to plaintiff. On Count IV the jury awarded $4,250 in actual damages to plaintiff against Marvin Maddox, Marvin Maddox, Inc., and Midas for malicious prosecution. In addition the jury awarded punitive damages for malicious prosecution against Marvin Maddox in the sum of $1,250, against Maddox, Inc. in the sum of $3,750, and against the surprised Midas in the curious sum of $768,888.

Thereafter, the plaintiff moved to amend the ad damnum clause in Count IV to conform to the evidence and the verdict of the jury as to actual and punitive damages. He also moved the court to set aside its order directing a verdict in favor of all the defendants on Count I and to grant a new trial on that count (which alleged false and fraudulent misrepresentation). The court denied both motions.

After trial Marvin Maddox and Maddox, Inc., moved the court, notwithstanding the verdict of the jury, to set aside the verdict and judgment or, in the alternative, to order a remittitur of $4,000 by plaintiff as to actual damages on Count IV.

Midas, suddenly stimulated, moved to set aside the verdict and to enter judgment in its favor or, in the alternative, to grant a new trial. Midas alleged prejudicial error in giving certain instructions, excessiveness of the verdict and forty other errors. Subsequently, Marvin Maddox and Maddox, Inc., not to be totally outdone, filed an amended motion for new trial, citing prejudicial error in the giving of certain instructions and fourteen other errors. The court overruled all of the motions.

In his order of May 12, 1980, and his amended judgment entry of May 13, the trial judge set aside the jury's verdict as applied to Midas. In a second amendment on May 13, the trial judge conditionally sustained Midas' motion for a new trial. On the same date, however, the second amended judgment entry was set aside and the court overruled Midas' motion for a new trial.

Because of the multiplicity of appeals and points, we shall separately address the issues arising under each count of the petition.

2. Count I, the Fraud Count

Count I alleged that "the representations, warranties and guarantees" of all the defendants "were false and fraudulent ... and were made with a malicious and willful intent to defraud the plaintiff ... (and) that plaintiff relied on the aforesaid false and fraudulent representations" to his damage. Plaintiff based his claim on the written "guarantee" and Mr. Maddox's oral assurances that Midas would replace the brake linings if they wore out within the 30,000 mile period.

At the close of plaintiff's evidence when it became apparent that the plaintiff would seek punitive damages, the court interrupted counsel for Midas:

THE COURT: Well, just a minute. Before you object ... I am going to say that, at this point in time, there is no evidence, in my opinion, as to any fraudulent misrepresentation made by Midas International ....

MR. FORMBY: Well, Your Honor, I think we have certainly made a submissible...

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