Williams v. The Finance Plaza, Inc.

• Decision Date: 23 May 2000
• Citation: Williams v. The Finance Plaza, Inc., 23 S.W.3d 656 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) Byther M. Williams, Respondent v. The Finance Plaza, Inc., Appellant WD57152 0
• Court: Missouri Court of Appeals

23 S.W.3d 656 (Mo.App. W.D. 2000)

Byther M. Williams, Respondent v. The Finance Plaza, Inc., Appellant

WD57152

Missouri Court of Appeals Western District

05/23/2000

Appeal From: Circuit court of Jackson County, Hon. Lee E. Wells, Judge

Counsel for Appellant: Dale K. Irwin

Counsel for Respondent: Charles E. Weedman

Opinion Summary: In this federal odometer law cause of action, the trial court erroneously submitted an instruction to the jury that improperly defined "intent to defraud" required for liability under the federal odometer law. Part of the definition of "intent to defraud" included the word careless which implies mere negligence. Consequently, the instruction misled and misdirected the jury and prejudiced the defendant.

The judgment is reversed and the case is remanded for a new trial.

Thomas H. Newton, Judge

Byther M. Williams purchased an automobile from The Finance Plaza (Finance). Ms. Williams later filed a petition for damages against Finance. After a trial, a jury returned a verdict in favor of Ms. Williams on her claim of violation of the federal odometer law. Finance appeals. We reverse and remand for a new trial.

Background and Procedural History

On November 10, 1997, Ms. Williams filed a four-count petition in the Circuit Court of Jackson County against used car dealer, Finance. The counts were for federal odometer law violation, state federal odometer law violation, fraudulent misrepresentation and negligent misrepresentation. On January 19, 1999, the trial of the case began, and the following evidence was presented.

On November 10, 1995, Ms. Williams entered into a sales contract to purchase a 1988 Ford Tempo. The Tempo's odometer registered 22,500 miles. Ms. Williams testified that a Finance salesman told her that the 22,500 miles showing on the odometer were the "actual miles" on the vehicle and that the car had been "well taken care of." The purchase price was $6,995. Ms. Williams signed three separate documents - a motor vehicle sales contract, an application for Missouri title and license, and an odometer mileage statement. Finance also issued an inspection certificate to her. On the application for title and license, the car's mileage was listed as 22,503 miles, and on the inspection certificate, it was listed as being 22,505 miles.

Ms. Williams began having problems with the Tempo soon after the purchase. The car leaked oil, and it stopped on numerous occasions. When she attempted to trade the Tempo for another car at a Buick dealership, Ms. Williams was informed that the Tempo actually had over 100,000 miles on it. She returned the car to Finance. Ms. Williams testified that she would not have purchased the Tempo if she had known the car had over 100,000 miles on it.

Prior to closing arguments at the trial, an instruction conference was held between the attorneys and the judge. Finance's attorney submitted written objections to the jury instructions with the court. Specifically, Finance objected to Instruction No. 7, the verdict director for the federal odometer claim. Finance also filed an alternative Instruction No. 7, but the court rejected it. The jury returned a verdict in favor of Ms. Williams on her federal odometer claim. The jury returned a verdict in favor of Finance, however, on her fraudulent misrepresentation claim. The counts for negligent misrepresentation and violation of the state odometer statute were dismissed with prejudice before submission to the jury.

Finance appeals from the jury verdict and raises four points.

standard of review

To reverse on grounds of instructional error, Finance must show that the offending instruction, misdirected, misled or confused the jury. Doe v. Alpha Therapeutic Corp., 3 S.W.3d 404, 419 (Mo. App. E.D. 1999). Furthermore, prejudice must have resulted from the instructional error. Van Volkenburgh v. McBride, 2 S.W.3d 814, 821 (Mo. App. W.D. 1999).

Legal Analysis

In her first point, Finance argues that the trial court erred by submitting the jury instruction pertaining to violation of the federal odometer law, 49 U.S.C. section 32710, because the instruction inaccurately defined the phrase "intent to defraud." Finance specifically argues that the use of the term "careless," in the definition of "intent to defraud," inaccurately defines the phrase because "careless" is synonymous with "negligent," and case law provides that more than mere negligence must be shown to find a violation of the federal odometer statute.

Mrs. Williams' federal odometer cause of action was based on 49 U.S.C. section 32705(a). That section states in part:

(a)(1) Disclosure requirements. -- Under regulations prescribed by the Secretary of Transportation that include the way in which information is disclosed and retained under this section, a person transferring ownership of a motor vehicle shall give the transferee the following written disclosure:

(A) Disclosure of the cumulative mileage registered on the odometer.

(B) Disclosure that the actual mileage is unknown, if the transferor knows that the odometer reading is different from the number of miles the vehicle has actually traveled.

(2) A person transferring ownership of a motor vehicle may not violate a regulation prescribed under this section or give a false statement to the transferee in making the disclosure required by such a regulation.

Furthermore, damages for violation of section 32705 are prescribed in 49 U.S.C. section 32710, which states, in pertinent part:

A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater.

49 U.S.C. section 32710(a) (emphasis added).

The submitted jury verdict director pertaining to the federal odometer claim, Instruction No. 7, read as follows:

Your verdict must be for plaintiff Byther Williams and against defendant The Finance Plaza, Inc. on plaintiff's claim for violation of the Federal odometer statute if you believe:

First, that defendant The Finance Plaza, Inc., knew or should have known that the true mileage was different from the number of miles shown on the odometer of the Ford Tempo; and

Second, defendant The Finance Plaza, Inc.'s salesman misrepresented the mileage to plaintiff; and

Third, that defendant acted with intent to defraud plaintiff.

To act with the intent to defraud means to make a reckless or careless statement of a vehicle's mileage without knowledge of the truth or falsity of the statement or without reasonable grounds for belief in the truth of the statement.

At trial, Finance filed Defendant's Objections to Instructions -- a series of written objections to the instructions submitted to the jury. With regard to the phrase "intent to defraud," Finance complained, "Instruction No. 7 does not correctly define intent to defraud and Defendant believes that its tendered instruction correctly defines intent to defraud." Finance proposed another version of the verdict director. Finance's proposed instruction would have stated, "To act with intent to defraud means to act with the specific intent to deceive or cheat, ordinarily for the purpose of bringing some financial gain to one's self." The trial court denied the proposed instruction. Finance then incorporated its Objections to Instructions into its motion for new trial.

Rule 70.03 provides, "Counsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." The objection to Instruction No. 7 recited in Finance's Objections to Instructions directed the trial court's attention to its alternative instruction. That alternative instruction specifically defined "intent to defraud" as acting with...