Smith v. Leif Johnson Ford, Inc.
| Decision Date | 17 August 2021 |
| Docket Number | No. ED 109494,ED 109494 |
| Parties | Dennis N. SMITH, Jr., et al., Respondent, v. LEIF JOHNSON FORD, INC., Appellant, v. Direct Marketing Advantage, LLC, Third-Party Defendant. |
| Court | Missouri Court of Appeals |
For Appellant: Brian E. McGovern, Andrew M. Lammert, William C. Jarvis, 828 Maryville Centre Dr., Ste. 300, Town and Country, MO 63017.
For Respondent: David T. Butsch, Christopher E. Roberts, 231 S. Bemiston Ave., Ste. 260, Clayton, MO 63105.
Leif Johnson Ford, Inc. ("Ford") appeals from the circuit court's order certifying a class action filed by Dennis N. Smith, Jr. ("Smith") individually and on behalf of all other similarly situated plaintiffs alleging a violation of the Telephone Consumer Protection Act ("TCPA"). Ford claims the circuit court erred in certifying the class because Smith fails the typicality requirement for class actions and because common questions of law or fact do not predominate. The circuit court did not abuse its discretion in certifying the class because Ford has not shown Smith's claim was atypical in any material way from the class whose members’ cellphone numbers received prerecorded voicemail messages ("ringless voicemails") without consent in violation of the TCPA under Rule 52.08(a)1 or that the circuit court erred in finding that common questions of law and fact predominate pursuant to Rule 52.08(b)(3). Accordingly, we affirm the circuit court's order certifying the class.
Smith, a Missouri resident, filed a putative class action against Ford, a Texas car dealership doing business nationwide and in Missouri. Smith alleged Ford violated the TCPA by sending ringless voicemails promoting Ford's automotive sales and service business without prior express written consent to the cellphones of Smith and the class members in May 2019.
Ford's general manager, Anthony Hewitt ("Hewitt"), entered into a contract with Direct Marketing Advantage ("DMA") to market its business to customers and potential customers in Texas in May 2019. Ford maintained Hewitt only authorized a direct mail marketing campaign within the State of Texas and did not discuss or request other marketing tools with DMA, including ringless voicemails. Smith produced evidence in the record showing that Hewitt authorized DMA to provide marketing services to Ford through ringless voicemails, e-mails, and mailings, including a contract showing DMA would make 8,408 ringless voicemails. DMA engaged another company, "My Lead Guys," to place the ringless voicemails.
Smith and other class members received the ringless voicemail messages. Smith produced a call-log spreadsheet listing the phone numbers that received the ringless voicemails (the "Manifest"). Fred Trudeau, employed as President of Ford, stated by affidavit that the Manifest was a business record of Ford's. The circuit court determined Trudeau confirmed that ringless voicemails were delivered to the phone numbers on the Manifest in May 2019. Ford denied creating the Manifest and denied knowing who created the Manifest. The Manifest contains 3,769 entries of individuals with associated phone numbers and addresses. The entries list Texas addresses and reflect various area codes. Two phone numbers in the Manifest have area code (314) phone numbers, one of which belonged to Smith.
Ford moved for summary judgment, arguing it was not liable because it never authorized, requested, agreed to, or ratified DMA to engage in a ringless voicemail campaign on its behalf. Based on the evidence in the summary-judgment record, the circuit court denied Ford's motion for summary judgment.
Smith then moved for class certification. Following briefing and oral argument in which the circuit court considered the pleadings and evidence from affidavits and deposition testimony as well as the summary-judgment record, the circuit court entered its order granting class certification in February 2021. The circuit court addressed the criteria in Rule 52.08(a) and made detailed findings that the class satisfied the requirements for numerosity, commonality, typicality, and adequacy. Relevant to this appeal, the circuit court found the class satisfied the typicality requirement because Smith alleged the owners of the 3,769 cellphone numbers listed on the Manifest received ringless voicemails without prior express written consent in violation of the TCPA. Regarding the issue of predominance, the circuit court likewise found the proposed class met the requirements of Rule 52.08(b)(3) in that the class had a TCPA claim stemming from Ford's alleged actions in causing ringless voicemails to be delivered to the 3,769 phone numbers on the Manifest without prior express written consent. In finding that a class action would be the superior method for fairly and efficiently adjudicating the controversy under Rule 52.08(b)(3), the circuit court noted that Ford raised no objection to adjudicating the matter in the circuit court of St. Louis County. The circuit court granted Smith's motion to certify the following class: "Those individuals who owned at the relevant time the cell[ ]phone numbers listed on the Manifest of those numbers to which prerecorded [ringless voicemails] were placed in May, 2019, promoting [Ford's] automotive sales and service business."
Ford sought leave to appeal the interlocutory order of class certification. We granted leave, and this appeal follows.
Ford raises two points on appeal. Point One argues the circuit court erred in certifying the class because Smith's claims are different from and atypical of the class, and Smith is not a member of the class. Point Two asserts the circuit court erred in certifying the class because individual issues predominate over common issues.
We review an order certifying a class under the abuse-of-discretion standard. Frank v. Enviro-Tech Services, 577 S.W.3d 163, 166 (Mo. App. E.D. 2019) (). "The circuit court abuses its discretion ‘if its order is clearly against the logic of the circumstance, is arbitrary and unreasonable, and indicates a lack of careful consideration.’ " State ex rel. Gen. Credit Acceptance Co., LLC v. Vincent, 570 S.W.3d 42, 46 (Mo. banc 2019) (quoting State ex rel. Coca-Cola v. Nixon, 249 S.W.3d 855, 860 (Mo. banc 2008) ). Where the record can support class certification under Rule 52.08, the circuit court has not abused its discretion. Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 164-65 (Mo. App. W.D. 2006) (internal citation omitted). "It cannot be said that the [circuit] court abused its discretion where reasonable persons could differ with the propriety of its ruling." Id. at 164 (internal quotation omitted). Because class certification is subject to later modification and because Rule 52.08 provides a mechanism for de-certifying a class before a decision on the merits, "a court should err in favor of, and not against, allowing maintenance of the class action[.]" Frank, 577 S.W.3d at 167 (internal quotation omitted); Dale, 204 S.W.3d at 164 (internal quotation omitted).
Preliminarily, we note sua sponte that Ford's briefing suffers from several Rule 84.04 deficiencies. Compliance with the briefing requirements of Rule 84.04 is mandatory, and failure to substantially comply preserves nothing for our review and is grounds for dismissal of the appeal. King v. King, 548 S.W.3d 440, 442 (Mo. App. E.D. 2018) (internal citations omitted).
We first address Ford's Points Relied On. Rule 84.04(d) requires Ford to identify the circuit court's ruling or action challenged, state the legal reasons for the claim of reversible error, and explain why the legal reasons in the context of the particular case support the claim of reversible error. Id. at 442-43 (emphasis added). Rule 84.04(d)(1) provides appellants with the following template:
The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ]."
(Emphasis in original).
Ford's first point states as follows: "The Trial Court erred in certifying a class action for claims which Smith, the sole class representative, does not possess because Smith's claim are markedly different from and not typical of the class and he is not a member of the class." Although this point presents a general statement of alleged trial court error, the point fails to identify the specific legal reason or reasons for the claim of reversible error. While citing generally to Rule 52.08, this point does not specify the Rule 52.08(a) typicality requirement for class certification. But more importantly, the point lacks any explanation of the legal reasons, in the context of this case, why Smith's claims are not typical of the claims of the class. Ford does not summarize or note any relevant facts that purportedly make Smith's claims "markedly different" and make Smith "not a member of the class" so as to explain why the class fails Rule 52.08(a) ’s typicality requirement. See King, 548 S.W.3d at 442-43 (citing Rule 84.04(d) ). Point Two similarly is not compliant with Rule 84.04(d) for the same reasons in that it merely contains the general assertion the circuit court erred in certifying the class "where individual issues, and the need for individual inquiries and mini-trials, predominate over common ones." Again, this point does not reference or identify any "individual issue" upon which Ford challenges the trial court's class certification of Smith's claims.
We often are called upon to remind counsel that Rule 84.04(d)(1) "is not a judicial word game or a matter of hypertechnicality; it serves to put opposing...
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