Scott v. Blue Springs Ford Sales, Inc.

• Citation: 215 S.W.3d 145
• Decision Date: 21 November 2006
• Docket Number: No. WD 64428.,WD 64428.
• Parties: Lance SCOTT, Appellant-Respondent, v. BLUE SPRINGS FORD SALES, INC., Respondent-Appellant, Robert C. Balderston, Respondent.
• Court: Missouri Court of Appeals

215 S.W.3d 145

Lance SCOTT, Appellant-Respondent, v. BLUE SPRINGS FORD SALES, INC., Respondent-Appellant Robert C. Balderston, Respondent.

No. WD 64428.

Missouri Court of Appeals, Western District.

November 21, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2007.

Application for Transfer Denied March 20, 2007.

COPYRIGHT MATERIAL OMITTED

Bernard E. Brown, Fairway, KS, for Appellant-Respondent.

Kevin D. Case and David J. Roberts, Kansas City, MO, for Respondent-Appellant.

James R. Hobbs and Marilyn B. Keller, Kansas City, MO, for Respondent.

Before: EDWIN H. SMITH, C.J., and NEWTON and HOLLIGER, JJ.

EDWIN H. SMITH, Chief Judge.

Lance Scott (Scott) filed suit in the Circuit Court of Jackson County against Blue Springs Ford Sales, Inc. (BSF), and Robert Balderston (Balderston), seeking damages, injunctive relief, and attorney's fees, regarding the sale to him by BSF of a 1991 Ford Explorer (the Explorer) in March of 1994, which, unbeknownst to him, had been wrecked and on which a salvage title had been issued. Balderston was the president and sole shareholder of BSF.

In his amended petition of April 17, 2001, Scott alleged sixteen counts, Counts I-VIII against BSF and Counts IX-XVI against Balderston. At trial, only Counts I-IV and VIII, against BSF, and Counts IX-XII, against Balderston, were submitted to the jury. The other counts were abandoned. As to BSF, in Count I, Scott sought both compensatory and punitive damages for common law fraud for fraudulent misrepresentation as to the Explorer being wrecked and a salvage title being issued; in Count II, he sought both compensatory and punitive damages, injunctive relief, and attorney's fees, pursuant to § 407.025.1¹ of the Missouri Merchandising Practices Act (MMPA), for violation of § 407.020 of the MMPA with respect to the undisclosed condition of the Explorer at the time of sale; in Count III, he sought both compensatory and punitive damages for conversion by BSF of the payment Scott made on a service contract for the Explorer; in Count IV, he sought both compensatory and punitive damages for negligent misrepresentation as to the undisclosed condition of the Explorer at the time of sale; and in Count VIII, he sought both compensatory and punitive damages for breach of express and implied warranties of §§ 400.2-313 and 400.2-314(2)(a), respectively, and attorney's fees, pursuant to the Magnuson-Moss Warranty Act (MMWA), Title 15 U.S.C. § 2310(d). As to Balderston, in Count IX, Scott sought both compensatory and punitive damages for Balderston allegedly conspiring with BSF to defraud him as to the condition of the Explorer at the time of sale; in Count X, he sought both compensatory and punitive damages, injunctive relief, and attorney's fees, pursuant to § 407.025.1 of the MMPA, for Balderston allegedly conspiring with BSF to violate § 407.020 as to the condition of the Explorer at the time of sale; in Count XI, he sought both compensatory and punitive damages for Balderston allegedly conspiring with BSF to wrongfully convert Scott's payment for the service contract on the Explorer; and in Count XII, he sought both compensatory and punitive damages for Balderston allegedly conspiring with BSF to negligently misrepresent the condition of the Explorer at the time of sale.

The issue of punitive damages as to Counts II and X, the MMPA counts against BSF and Balderston, and Count VIII, the breach of warranty count against BSF, was not submitted to the jury. As to Counts II and X, the trial court, interpreting § 407.025.1, concluded that such damages were for the assessment by the court alone. By agreement of the parties, assessment of compensatory damages for conversion, Counts III and XI, was also reserved for the trial court. And, as a matter of law, Scott's request for injunctive relief, as to Counts II and X, and his request for attorney's fees as to those counts, and Count VIII, the breach of warranty claim against BSF, were reserved for determination by the trial court.

The jury returned verdicts for Scott and against BSF on Counts I-III and VIII, and for BSF and against Scott on Count IV, the negligent misrepresentation count. As to Scott's claims against Balderston, the jury returned verdicts for Balderston and against Scott on all four counts submitted, Counts IX-XII. As to Counts I, II, and VIII, the jury assessed compensatory damages of $25,500. As to Count III, conversion, the trial court assessed compensatory damages of $2,099.82. As to the issue of punitive damages submitted to the jury, it assessed punitive damages of $840,000. As to punitive damages on Count II, the MMPA claim against BSF, the trial court found in favor of BSF "upon [Scott's] refusal to make an election of remedies between common law fraud and action under the Missouri Merchandising Practices Act," because it believed that an election of remedies issue was presented, rather than a merger of judgments issue.

BSF appealed the trial court's judgment for Scott to this court. Thereafter, Scott filed an appeal in the Missouri Supreme Court. Upon the parties' motions to transfer, BSF's appeal was transferred to the Supreme Court and consolidated with Scott's appeal, with Scott being designated the "appellant" and BSF being designated the "cross-appellant."

In his appeal to the Supreme Court, Scott raised four claims of error. In Point I of his appeal, Scott claimed that the trial court erred in refusing to submit the issue of punitive damages to the jury on Count II of his amended petition against BSF, his MMPA claim, because the trial court's application of § 407.025.1, that the assessment of punitive damages was expressly reserved to the trial court, violated article I, section 22(A) of the Missouri Constitution. The Court found for Scott on this claim. Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140, 143 (Mo. banc 2005). Thereafter, the Supreme Court transferred the case to this court to resolve all remaining issues as to Scott's appeal and BSF's cross-appeal. Id.

As to his remaining claims of error, in Point II, Scott claims that the trial court erred in refusing to grant him injunctive relief, enjoining BSF from making similar misrepresentations to future buyers, as to his MMPA claim, Count II, because having "established BSF's multiple and continuing violations of § 407.020 causing him loss and threatening public safety," § 407.025.1 expressly authorized and mandated such relief. In Point III, as to his claims against Balderston, he claims that the trial court erred in excluding evidence of similar sales of wrecked vehicles by BSF between 2000 and 2002 and evidence of a verdict and settlement in two other cases involving the sale of wrecked vehicles by BSF and Blue Springs Wholesale Outlet (Wholesale), because it was relevant to show Balderston's intent to conspire with BSF to sell rebuilt wrecked vehicles, like Scott's Ford Explorer, during the relevant time frame, and to rebut Balderston's defense at trial that while "there may have been some problems with wrecked cars sold in the 1990s, [when] he and BSF had learned about them[, they] had taken multiple steps to correct those problems." In Point IV, he claims that the trial court erred in denying his request for attorney's fees as to his MMPA claim, Count II, and his MMWA claim, Count VIII, as expressly provided in § 407.025.1 of the MMPA and 15 U.S.C. § 2310(d)(1) of the MMWA, because in doing so, it misapplied the law by taking into consideration the amount of the awards of compensatory and punitive damages made to Scott.

In its cross-appeal, BSF raises five points. In Point I, it claims that the trial court erred in admitting, over its objection, evidence of alleged similar occurrences of sales of wrecked vehicles to show, inter alia, a fraudulent intent in the sale of the Explorer to Scott, because it was not admissible against BSF, in that the sales were conducted by separate legal entities, Blue Springs Nissan (BSN) and Wholesale, not BSF. In Point II, it claims that the trial court erred in allowing, over its objection, Scott's expert testimony regarding safety issues concerning the Explorer, because the mandates of § 490.065, governing the admission of expert testimony, were not satisfied. In Point III, it claims that the trial court erred in overruling its motion for a new trial based on an award of excessive compensatory damages, as to Counts I, II, and VIII, or, in the alternative, denying its request to remit the award as being excessive, pursuant to § 537.068, because the award was not supported by the record, but was engendered by the bias, passion and prejudice of the jury, caused by the trial court's admission of evidence of alleged similar occurrences of sales of wrecked vehicles by BSN and Wholesale. In Point IV, it claims that the trial court erred in overruling its motion for a new trial based on an award of excessive punitive damages, as to Count I, or, in the alternative, denying its request to remit the award as being excessive, pursuant to § 510.263, because the award was so excessive that it had to have been engendered solely by the bias, passion and prejudice of the jury caused by the trial court's admission of evidence of alleged similar occurrences of sales of wrecked vehicles by BSN and Wholesale. In Point V, it claims that the trial court erred in overruling its motion for directed verdict at the close of the evidence and its motion for judgment notwithstanding the verdict (JNOV), with respect to Scott's breach of warranty claim, Count VIII, because Scott failed to carry his burden of showing that BSF, after being given a reasonable opportunity to do so, failed to cure the alleged defect.

As to Scott's appeal, the judgment of the Circuit Court of Jackson County is affirmed, except with respect to Point I, which was decided by the Missouri Supreme Court in Scott, 176 S.W.3d at 143. As to BSF's cross-appeal, the circuit court's judgment is...