State ex rel. Webster v. Myers, WD
| Decision Date | 05 September 1989 |
| Docket Number | No. WD,WD |
| Citation | 779 S.W.2d 286 |
| Parties | STATE of Missouri ex rel. William L. WEBSTER, Attorney General, Appellant, v. Kyle MYERS, Respondent. 41613. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Jefferson City, John J. Oldenburg, Jr., Asst. Atty. Gen., Kansas City, for appellant.
Richard T. Brewster, Jr., Kansas City, for respondent.
Before NUGENT, P.J., and CLARK and FENNER, JJ.
Appellant, State of Missouri, appeals the order of the trial court sustaining respondent Myers' motion to dismiss. The State's underlying cause of action was filed pursuant to Section 407.100 1 of the Missouri Merchandising Practices Act.
The State's petition alleged that Myers engaged in violations of § 407.020 by offering for sale and selling used motor vehicles and in connection therewith, misrepresenting and falsely stating the actual mileage of such used motor vehicles. Specifically the petition made allegations as to the sale of seven different vehicles, with the following dates of sale: February 9, 1984; February 14, 1984; February 22, 1984; April 26, 1984; July 11, 1984; July 14, 1984 and July 25, 1984.
Myers filed a motion to dismiss which was sustained by the trial court.
The first issue addressed herein is whether the State's action filed pursuant to § 407.100 for violations of § 407.020, was preempted by §§ 407.511 through 407.556. Chapter 407, RSMo 1986, is known as the Merchandising Practices Act. Sections 407.100 and 407.020 are general sections relating to unlawful merchandising practices. Sections 407.511 through 407.556 relate specifically to the altering of motor vehicle odometers.
In regard to the first issue the State argues that §§ 407.100 and 407.020 are not preempted by §§ 407.511 through 407.556. It is the State's position that §§ 407.511 through 407.556 are not exclusive in regard to odometer fraud, but that they are cumulative to the general provisions of Chapter 407. Myers argues that Dover v. Stanley, 652 S.W.2d 258 (Mo.App.1983), is directly on point.
Dover was decided on May 10, 1983. The court in Dover at 264, held that claims relating to unlawful practices stemming from or based upon motor vehicle odometers are limited to and must be pursued in conformity with § 407.510 through § 407.556, RSMo 1978, the sections of the Merchandising Practices Act dealing specifically with motor vehicle odometers, and not upon the general provisions of § 407.020, RSMo 1978. The court cited Dismuke v. City of Sikeston, 614 S.W.2d 765, 766 (Mo.App.1981), for the proposition that where a specific statute and a general statute dealing with the same subject exist, the specific statute prevails over the general statute. Dover v. Stanley, 652 S.W.2d at 263.
At the time of the decision in Dover, § 407.550, RSMo 1978, provided in its entirety, as follows:
"The attorney general or any prosecuting attorney of this state may bring an action in any circuit court for injunctive relief to restrain any violation of sections 407.510 to 407.555."
Effective January 1, 1984, subsequent to the court's decision in Dover, § 407.550, RSMo 1978, was repealed and replaced with what is now § 407.551, which provides as follows:
"1. The attorney general or any prosecuting attorney of this state may bring an action in any circuit court for injunctive relief to restrain any violations of sections 407.511 to 407.556.
2. Notwithstanding any other provision of chapter 536, RSMo, or any other provision of law to the contrary, the attorney general or prosecuting attorney may after notice amend any such action to seek the revocation or suspension of any license issued by the department of revenue pursuant to chapter 301, RSMo. The decision of the circuit court to revoke or suspend a license may be appealed as in any other civil matter.
3. The remedies available in this section are cumulative and in addition to any other remedies available." (Emphasis added.)
It is significant to the case at bar that § 407.551, effective January 1, 1984, renders the holding in Dover inapplicable herein. Contrary to the statutory authority at the time of the decision in Dover, the remedies provided by §§ 407.511 through 407.556 are and have been, since the enactment of § 407.551, effective January 1, 1984, cumulative and in addition to any other remedies available. Section 407.551.3. Therefore, an action for injunctive relief and restitution under the general provisions of § 407.100 of the Merchandising Practices Act has not been preempted by the provisions of §§ 407.511 through 407.556 since January 1, 1984.
The second issue addressed in this appeal is whether or not the state's cause of action pursuant to § 407.100 is an invalid retrospective application of the law to acts which occurred in 1984.
Section 407.100 was amended effective May 31, 1985, to provide as follows:
1. Whenever it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in any method, act, use, practice or solicitation, or any combination thereto, declared to be unlawful by this chapter, he may seek and obtain, in an action in a circuit court, an injunction prohibiting such person from continuing such methods, acts, uses, practices, or solicitations, or any combination thereof, or engaging therein, or doing anything in furtherance thereof.
2. In any action under subsection 1 of this section, and pursuant to the provisions of the Missouri Rules of Civil Procedure, the attorney general may seek and obtain temporary restraining orders, preliminary injunctions, temporary receivers, and the sequestering of any funds or accounts if the court finds that funds or property may be hidden or removed from this state or that such orders or injunctions are otherwise necessary.
3. If the court finds that the person has engaged in, is engaging in, or is about to engage in any method, act, use, practice or soliciation, or any combination thereof, declared to be unlawful by this chapter, it may make such orders or judgments as may be necessary to prevent such person from employing or continuing to employ, or to prevent the recurrence of, any prohibited methods, acts, uses, practices or solicitations, or any combination thereof, declared to be unlawful by this chapter.
4. The court, in its discretion, may enter an order of restitution, payable to the state, as may be necessary to restore to any person who has suffered any ascertainable loss, including, but not limited to, any moneys or property, real or personal, which may have been acquired by means of any method, act, use, practice or solicitation, or any combination thereof, declared to be unlawful by this chapter. It shall be the duty of the attorney general to distribute such funds to those persons injured.
5. The court, in its discretion, may appoint a receiver to insure the conformance to any orders issued under subsection 3 of this section or to insure the payment of any damages ordered under subsection 4 of this section.
6. The court may award to the state a civil penalty of not more than one thousand dollars per violation; except that, if the person who would be liable for such penalty shows, by a preponderance of the evidence, that a violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error, no civil penalties shall be imposed.
7. Any action under this section may be brought in the county in which the defendant resides, in which the violation alleged to have been committed occurred, or in which the defendant has his principal place of business.
8. The attorney general is authorized to enter into consent judgments or consent injunctions with or without admissions of violations of this chapter. Violation of any such consent judgment or consent injunction shall be treated as a violation under section 407.110. (Emphasis added.)
Prior to its amendment in 1985, § 407.100, RSMo 1978, provided as follows:
Whenever it appears to the attorney general that a person has engaged in or is engaging in any method, act, or practice declared to be unlawful by sections 407.010 to 407.130, he may, after notice to such person, if such notice can be given in the manner provided in section 407.040, seek and obtain in an action in a circuit court an injunction prohibiting such person from continuing such methods, acts, or practices or engaging therein...
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