Williams v. Finance Plaza, Inc.

• Decision Date: 30 April 2002
• Docket Number: No. WD 60136.,WD 60136.
• Citation: 78 S.W.3d 175
• Parties: Byther M. WILLIAMS, Respondent, v. FINANCE PLAZA, INC., Appellant.
• Court: Missouri Court of Appeals

78 S.W.3d 175

Byther M. WILLIAMS, Respondent, v. FINANCE PLAZA, INC., Appellant.

No. WD 60136.

Missouri Court of Appeals, Western District.

April 30, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

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Charles E. Weedman, Jr., Harrisonville, Jeannie Willibey, Kansas City, for Appellant.

Dale K. Irwin, Kansas City, for Respondent.

Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and LISA WHITE HARDWICK, JJ.

ROBERT G. ULRICH, P.J.

Finance Plaza, Inc. (Finance Plaza) appeals the judgment following jury trial in favor of Byther Williams in her action against Finance Plaza for federal odometer fraud involving a vehicle she purchased from Finance Plaza. 49 U.S.C. §§ 32705(a) and 32710 (1997). Finance Plaza claims that the trial court erred in (1) submitting to the jury Instruction No. 7 regarding the measure of damages, (2) submitting to the jury Ms. Williams' federal odometer fraud claim, and (3) awarding Ms. Williams attorney's fees in the amount of $47,129.25. Ms. Williams requests this court to award her attorney's fees incurred in this appeal. The judgment of the trial court is affirmed, and the case is remanded with directions consistent with this opinion.

Ms. Williams purchased a 1988 Ford Tempo from Finance Plaza for $6,995 on November 10, 1995. At the time of the purchase, the odometer in the car showed 22,503 miles, and the salesman told her that the miles on the odometer were the actual miles the car had been driven. Ms. Williams was presented with an inspection certificate for the car that showed an odometer reading of 22,505 miles. She also signed an odometer disclosure statement. The odometer statement provided that "the odometer now reads 22,503 miles." A box was also checked on the statement that read, "I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of the mechanical limits." Ms. Williams testified that she did not see the checked box.

Ms. Williams purchased the vehicle on credit and signed a note payable to Finance Plaza. Finance Plaza sold Ms. Williams' note to Regency Financial Corporation, and Regency, in turn, sold the note to Transouth Financial Services.

Ms. Williams had many mechanical problems with the Tempo from the time of the purchase. The car would stall and cease running, it would not start, and it leaked oil. In January 1996, Finance Plaza performed $1,300 of repairs on the car.¹ In June 1996, when the car would not start, Ms. Williams called Finance Plaza to complain, but she was advised that the company no longer carried her note and that she should call Transouth. When she called Transouth, Ms. Williams was told to take the car to a local Buick dealership to trade it in for a dependable car. The Buick dealership discovered that the Tempo had been driven over 100,000 miles, refused to accept it as a trade-in, and directed Ms. Williams to take the car back to Finance Plaza. At Finance Plaza, Ms. Williams spoke to the manager, who told her he could sell her another car. Ms. Williams left with the same Tempo.

Ms. Williams filed a four-count petition on November 10, 1997, alleging federal odometer fraud, state odometer fraud, fraudulent misrepresentation, and negligent misrepresentation. In the first trial, the jury returned a verdict in favor of Ms. Williams on the federal odometer fraud count and a verdict in favor of Finance Plaza on the fraudulent misrepresentation count, and Ms. Williams dismissed the two remaining counts. Thereafter, Ms. Williams filed a motion for attorney's fees. Finance Plaza argued that attorney's fees incurred on the federal odometer fraud count only should be recovered. The trial court found that such fees could not be fairly extricated from the total fees and awarded Ms. Williams $37,095 in attorney's fees. On appeal, this court reversed the judgment in favor of Ms. Williams on her federal odometer fraud claim due to instructional error and remanded the case for a new trial on that claim only. Williams v. Finance Plaza, Inc., 23 S.W.3d 656, 660 (Mo.App. W.D.2000). Although Finance Plaza also appealed the attorney's fees issue, it was not addressed in the first appeal.

Prior to the second trial, Ms. Williams filed a motion in limine asking the trial court to prohibit the introduction of evidence regarding her voluntary bankruptcy petition. The trial court sustained the motion and prohibited Finance Plaza from introducing evidence of Ms. Williams' bankruptcy.

At trial, Ms. Williams introduced requests for admission wherein Finance Plaza admitted that it had originally purchased the Tempo on or about August 24, 1994, from John Chezik Honda, and at the time of the purchase, the odometer registered 89,901 miles. Finance Plaza then sold the car to Michael and Carrie Goad for $5,995 in September 1994, and at the time of the sale, the odometer registered 89,920. Finance Plaza then reacquired the car and sold it to Ms. Williams in November 1995.

Ms. Williams testified that she believed that the actual value of the Tempo with its actual miles driven in November 1995 was approximately $1,000. Richard Diklich, an instructor in automobile technology for Longview Community College and an automobile consultant, testified that the Tempo had a value of $1,500 in November 1995.

The jury returned a verdict in favor of Ms. Williams for federal odometer fraud and assessed damages at $4,000. The trial court's judgment favored Ms. Williams with an award of three times her actual damages, $12,000, in accordance with 49 U.S.C. Section 32710(a). Thereafter, Ms. Williams filed a motion for attorney's fees. She requested a total of $47,347.50 in attorney's fees consisting of $10,034.25 for the fees incurred in the retrial plus the $37,095 in fees awarded by the trial court in the first trial. The trial court awarded Ms. Williams $47,129.25. This appeal by Finance Plaza followed.

I. Instruction No. 7 — Measure of Damages

In its first point on appeal, Finance Plaza argues that the trial court erred in submitting to the jury Instruction No. 7 regarding the measure of damages based on the benefit of the bargain standard. Instruction No. 7 provided:

If you find in favor of the plaintiff, then you must award plaintiff such sum as you believe was the difference between the actual value of the Ford Tempo on the date it was sold to plaintiff and what its value would have been on that date had the Ford Tempo been as represented by defendant.

Finance Plaza contends that the benefit of the bargain rule did not apply because Ms. Williams disaffirmed the contract in her Chapter 13 bankruptcy proceeding.

Finance Plaza's first point was not properly preserved for appellate review. Although it objected to the instruction at trial, it failed to include this issue in its motion for new trial. Hutchison v. Mo. Highway and Transp. Comm'n, 996 S.W.2d 109, 110 (Mo.App. E.D.1999); Lohmann By and Through Lohmann v. Norfolk & W. Ry. Co., 948 S.W.2d 659, 666 (Mo.App. W.D.1997). Thus, the point is reviewed for plain error under Rule 84.13(c). Hutchison, 996 S.W.2d at 110. Rule 84.13(c) provides, "Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."

Generally, Missouri courts apply the benefit of the bargain rule to determine damages in cases of fraud and deceit. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988); Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883, 886 (Mo.App. E.D.1994). The benefit of the bargain rule awards a defrauded party the difference between the actual value of the property and what its value would have been if it had been as represented. Heberer, 744 S.W.2d at 443; Sunset Pools, 869 S.W.2d at 886. The benefit of the bargain rule does not apply, however, where the purchaser rescinds and returns the property received or where she received nothing of value. Heberer, 744 S.W.2d at 443. In such case, the purchaser may seek restitution to recover the amount she paid with interest from the date of payment plus incidental losses and expenses suffered as a result of the seller's misrepresentations. Heberer, 744 S.W.2d at 443; Sunset Pools, 869 S.W.2d at 886.

Finance Plaza argues that because Ms. Williams disaffirmed the contract to purchase the Tempo in her Chapter 13 bankruptcy proceeding, the correct measure of damages was restitution rather than benefit of the bargain. Although Finance Plaza discusses at length its view of the effect of the Chapter 13 proceeding, the trial court ruled that evidence of Ms. Williams' bankruptcy was inadmissible. Finance Plaza does not attack that evidentiary ruling in a point relied on. Instead, it attempts to alter its point relied on in its reply brief to assert that the trial court erred in excluding evidence regarding Ms. Williams' bankruptcy. Assertions of error made for the first time in a reply brief do not present issues for appellate review. Pearman v. Dep't of Soc. Servs., 48 S.W.3d 54, 55 (Mo.App. W.D.2001). The sole purpose of a reply brief is to rebut arguments made by respondents in their briefs, not to raise new points on appeal. Id. Appellate courts are generally precluded from addressing assertions made for the first time in a reply brief because a respondent has no opportunity to address the new argument. In re Tri-County Levee Dist., 42 S.W.3d 779, 783 n. 2 (Mo.App. E.D.2001). Finance Plaza's challenge of the evidentiary ruling in its reply brief is, therefore, not addressed in this appeal. Because no evidence of Ms. Williams' disaffirming the contract was presented, Finance Plaza's argument that restitution was the correct measure of damages in this case is without merit.

The next question is whether benefit of the bargain was the correct...