From Casetext: Smarter Legal Research

Gibbons v. J. Nuckolls, Inc.

Supreme Court of Missouri
Mar 20, 2007
216 S.W.3d 667 (Mo. 2007)

Summary

holding that indirect purchaser status alone does not bar consumers from bringing a claim under the MMPA

Summary of this case from Faltermeier v. FCA U.S. LLC

Opinion

No. SC 88023.

March 20, 2007.

Appeal from the Circuit Court, St. Louis County, Patrick Clifford, Jr., J.

Bernard E. Brown, Fairway, KS, Mitchell B. Stoddard, St. Louis, for appellant.

Paul E. Martin, Keith K. Cheung, St. Louis, for respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, Peter A.

Lyskowski, Asst. Atty. Gen., Jefferson City, for Amicus Curiae Missouri Attorney General.

Gregory C. Mitchell, Jamie J. Cox, Johnny K. Richardson, Jefferson City, for Amicus Curiae Missouri Automobile Dealers' Association.

Alan Kimbrell, Ballwin, for Amicus Curiae ADESA Missouri, Inc.


I.

Rodney Gibbons appeals the circuit court's dismissal of his claim against J. Nuckolls, Inc., d/b/a Fenton Auto Sales (Nuckolls), alleging a violation of the Merchandising Practices Act (MPA). The Court holds that wholesalers are "persons" for purposes of the MPA. The circuit court's judgment is reversed, and the case is remanded.

II.

Nuckolls is an automobile wholesaler. Gibbons purchased a car from a dealership that had purchased the car from Nuckolls. Gibbons sued the dealership and Nuckolls under the MPA, alleging that he was told the car was never in an accident when, in fact, the car had been in an accident before the dealership bought it from Nuckolls. Gibbons alleged that Nuckolls violated the MPA by failing to disclose the accident to the dealership.

The trial court granted Nuckolls' motion to dismiss for lack of privity between Gibbons and Nuckolls. Wholesalers are "persons" within the meaning of the MPA. Privity is not required.

This Court transferred the case from the Court of Appeals, Eastern District, after opinion and has jurisdiction. Mo. Const. art. V, sec. 10.

III.

Review of a circuit court's order granting a motion to dismiss is de novo.

Burke v. Goodman, 114 S.W.3d, 276, 279 (Mo.App. 2003).

V.

The applicable provisions of the MPA state as follows:

The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce . . . in or from the state of Missouri, is declared to be an unlawful practice.

Section 407.020. All references are RSMo 2000.

Section 407.020. All references are RSMo 2000.

Any person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use of employment by another person of a method, act or practice declared unlawful by section 407.020, may bring a private civil action in either the circuit court of the county in which the seller or lesser resides or in which the transaction complained of took place, to recover actual damages.

Section 407.025.

Section 407.025.

"Person" means "any natural person or his legal representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or foreign, company, foundation, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof."

Section 407.010(5).

Section 407.010(5).

The foregoing statutory framework permits an aggrieved party to seek relief from any "person," including a corporation such as Nuckolls. The statute's plain language does not contemplate a direct contractual relationship between plaintiff and defendant, and Missouri courts have not imposed such a requirement through statutory construction. On the contrary, in State v. Polley and State ex rel. Nixon v. Estes, the attorney general was permitted to seek restitution from a wholesaler on behalf of consumers under section 407.100. Though these cases do not directly address whether a consumer could bring such claims under section 407.025, the implication favors Gibbons.

2 S.W.3d 887 (Mo.App. 1999).

108 S.W.3d 795 (Mo.App. 2003).

The statute's broad language of `any person who has suffered any ascertainable loss' contemplates that other parties, besides the direct purchaser or contracting party, who suffer damages resulting from the violator's prohibited conduct under the Act are included among those eligible to receive restitution. The consumer who receives the product or services through a third party such as a builder . . . is included within the meaning of the statute as one for whom restitution shall apply. To hold otherwise would undermine the fundamental purpose of the Act: the protection of consumers.

Polley at 892.

Polley at 892.

In State ex rel. Nixon v. American Tobacco Co., Inc., this Court held that consumers could not intervene in an action pursuant to section 407.100 seeking an injunction, because the statute places such actions within the sole discretion of the attorney general. However, the Court noted that consumers could protect their interests by bringing a private action pursuant to section 407.025 against the tobacco manufacturers, who are similarly upstream from the consumer sale. In Grabinski v. Blue Springs Ford Sales, Inc., a wholesale auto dealer was held liable in an MPA claim. In State ex rel. Ashcroft v. Marketing Unlimited of America, Inc., individual officers of a corporate seller of the merchandise at issue were "persons" liable for violations of section 407.020 and remedies under section 407.100.

34 S.W.3d 122 (Mo. banc 2000).

Id. at 130.

136 F.3d 565 (8th Cir. 1998).

613 S.W.2d 440, 447 (Mo.App. 1981).

Nuckolls undertakes an exercise in strained statutory construction and urges a limited application of Polley, Estes, and Marketing Unlimited, arguing that the MPA accords broader authority to the attorney general, while private plaintiffs can only sue a direct seller. This Court declines to impose such a significant limitation on Missouri consumers. Relevant precedent consistently reinforces the plain language and spirit of the statute to further the ultimate objective of consumer protection, regardless of whether the suit is filed by the state or by an individual.

Privity of contract is not required under similar statutes of numerous other states. See Tandy v. Marti, 213 F.Supp.2d 935 (D.Ill.2002); Waterbury Petroleum Products, Inc. v. Canaan Oil and Fuel Company, Inc., 193 Conn. 208, 477 A.2d 988 (Conn. 1984); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870 (Fla.App. 1989); Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185, 552 N.E.2d 95 (1990); Speakman v. Allmerica Fin. Life Ins. Annuity Co., 367 F.Supp.2d 122 (D.Mass.2005); Katz v. Schacter, 251 N.J.Super. 467, 598 A.2d 923 (App.Div. 1991); Garner v. Borcherding Buick, Inc., 84 Ohio App.3d 61, 616 N.E.2d 283 (1992); Raudebaugh v. Action Pest Control, Inc., 59 Or.App. 166, 650 P.2d 1006 (1982); Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., 393 Pa.Super. 339, 574 A.2d 641 (1990); State ex rel. Miller v. Cutty's Des Moines Camping Club, Inc., 694 N.W.2d 518 (Iowa 2005); Bohls v. Oakes, 75 S.W.3d 473 (Tex.App. 2002). Furthermore, national experts generally consider privity irrelevant to the analysis. See National Consumer Law Center, Unfair and Deceptive Acts and Practices (6th ed.2004), § 4.2.15.3: "The concept of privity of contract is irrelevant to UDAP [unfair and deceptive acts and practices] claims, since they are not based on contract. Instead, whether a consumer can sue a particular defendant is a question of interpretation of terms in the UDAP statute." As applied to the present case, this Court interprets the statutory definition of "person" to include wholesalers.

V.

The judgment is reversed, and the case is remanded.


Summaries of

Gibbons v. J. Nuckolls, Inc.

Supreme Court of Missouri
Mar 20, 2007
216 S.W.3d 667 (Mo. 2007)

holding that indirect purchaser status alone does not bar consumers from bringing a claim under the MMPA

Summary of this case from Faltermeier v. FCA U.S. LLC

holding that privity of contract is not required to find a violation of the MMPA

Summary of this case from Chamineak v. Jefferson Capital Sys., LLC

finding that the phrase "any person" in the MMPA "does not contemplate a direct contractual relationship between plaintiff and defendant"

Summary of this case from Faltermeier v. FCA U.S. LLC

reversing trial court’s dismissal of an action against a car wholesaler who withheld from a car dealer that a car had previously been in a crash, where the dealer then also represented to the consumer that the vehicle had not been in a crash

Summary of this case from Faltermeier v. Fca U.S. LLC

In Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667 (Mo. 2007) (en banc), the Missouri Supreme Court held the MMPA's "plain language does not contemplate a direct contractual relationship between plaintiff and defendant, and Missouri courts have not imposed such a requirement through statutory construction." Id.

Summary of this case from Tucker v. Ethicon, Inc.

In Gibbons, the court held that a wholesaler who sold a car to a dealer, who then sold it to the plaintiff, could be liable to the plaintiff/buyer under the MMPA when the wholesaler failed to inform the dealer that the car had previously been in an accident.

Summary of this case from Tucker v. Ethicon, Inc.

In Gibbons, a consumer sued a car dealership and a wholesaler for failure to disclose that the car he purchased had been in a prior accident.

Summary of this case from In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig.

explaining that a consumer who receives the product through a third party is included within the statute

Summary of this case from Zaccarello v. Medtronic, Inc.

In Gibbons, the plaintiff, purchaser of a defective car, was allowed to recover from the car wholesaler for allegedly failing to disclose to the car dealership (from which the plaintiff bought the car) that the car had been in an accident.

Summary of this case from In re Pool Prods. Distribution Mkt. Antitrust Litig.

In Gibbons, a wholesale dealer of automobiles sold a car to a retail dealership, and did not disclose that the car in question had been damaged in an accident.

Summary of this case from State ex rel. Koster v. Professional Debt Management, LLC

In Gibbons, a wholesale dealer of automobiles sold a car to a retail dealership, and did not disclose that the car in question had been damaged in an accident.

Summary of this case from State ex rel. Koster v. Portfolio Recovery Associates, LLC

In Gibbons, although the wholesale dealer had no direct involvement with the consumer who purchased the car, the deceptive conduct was deemed to have occurred "in connection with" the sale of the car to the retail dealership by the wholesaler, and subsequently to the plaintiff.

Summary of this case from State ex rel. Koster v. Professional Debt Management, LLC

In Gibbons, although the wholesale dealer had no direct involvement with the consumer who purchased the car, the deceptive conduct was deemed to have occurred "in connection with" the sale of the car to the retail dealership by the wholesaler, and subsequently to the plaintiff.

Summary of this case from State ex rel. Koster v. Portfolio Recovery Associates, LLC
Case details for

Gibbons v. J. Nuckolls, Inc.

Case Details

Full title:Rodney D. GIBBONS, Appellant, v. J. NUCKOLLS, INC., d/b/a Fenton Auto…

Court:Supreme Court of Missouri

Date published: Mar 20, 2007

Citations

216 S.W.3d 667 (Mo. 2007)

Citing Cases

Livers Bronze v. Turner

Appellant concedes that this is generally the proper standard of review for such motions, but it asserts that…

State ex rel. Koster v. Portfolio Recovery Associates, LLC

The State acknowledges that the Missouri Supreme Court has not yet addressed the applicability of the MPA to…