594 S.W.3d 245
Mo. Ct. App.2020Background
- Dairymen’s Best (a dairy cooperative) bought an HTST pasteurizer from Schier Company, Inc. after reviewing Schier Co.’s website and relying on promises that equipment would be PMO‑compliant and inspected.
- The HTST pasteurizer cost $79,400; on delivery it had numerous defects, required factory support from Mexico, failed State Milk Board PMO inspection, and would not operate properly.
- Schier (company president) had promised the unit would be PMO‑compliant and the invoice described it as a “PMO legal 1,000‑gallon‑per‑hour HTST pasteurizer system.” Schier Co. refused to pay for repairs or refund.
- The Missouri Attorney General sued under the Missouri Merchandising Practices Act (MMPA) alleging misrepresentation, concealment/omission, and false website claims; requested restitution under §407.100.4.
- The trial court awarded restitution ($79,400), a contribution to the Merchandising Practices Fund, a civil penalty, and investigation/prosecution costs; defendants appealed.
- The appellate court affirmed, rejecting defendants’ arguments about evidentiary sufficiency, pleading/timeliness of rescission, individual liability of Schier, and policy challenges to MMPA coverage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.G. proved misrepresentation or concealment under the MMPA | Schier Co. advertised and Schier promised the HTST was PMO‑compliant and inspected; evidence of defects and missing PLC info supports misrepresentation/omission | A.G. failed to meet its burden to prove misrepresentation or concealment | Court found substantial evidence supports misrepresentation/omission and affirmed judgment |
| Whether Dairymen’s Best suffered an ascertainable loss under the MMPA | Paid $79,400 for non‑compliant, nonworking equipment; loss equates to restitutionable amount | A.G. failed to prove ascertainable loss | Court held evidence supported ascertainable loss and restitution award |
| Whether rescission or restitution was improperly awarded because not pleaded/timely requested | A.G. requested “full restitution” under §407.100.4 (restorative relief) in the petition | Defendants argued ‘‘rescission’’ was not alleged or requested before trial | Court treated the remedy as restitution (which was pled); restitution was authorized and entry of $79,400 was proper |
| Whether Schier can be held individually liable for corporate acts | A.G. presented evidence Schier controlled company operations, approved website, and made oral promises | Defendants claimed no probative evidence Schier had knowledge or participated in actionable wrong | Court concluded record supports individual liability given Schier’s control and promises; claim preserved as supported by evidence |
| Whether MMPA improperly applies to a corporate purchaser (public‑policy) | A.G. applied MMPA to restore consumer (Dairymen’s Best) harmed by deceptive practices | Defendants argued MMPA shouldn’t cover sophisticated corporate buyers; case should be ordinary commercial litigation | Court declined policy rewriting; MMPA clearly applies and court is not the forum to narrow statute’s reach |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for trial‑court judgments)
- Ivie v. Smith, 439 S.W.3d 189 (Mo. banc 2014) (definition and review of substantial evidence)
- Houston v. Crider, 317 S.W.3d 178 (Mo. App. S.D. 2010) (appellate deference and framework for challenges)
- J.A.R. v. D.G.R., 426 S.W.3d 624 (Mo. banc 2014) (distinguishing types of appellate challenge and briefing requirements)
- State ex rel. McDonald’s Corp. v. Midkiff, 226 S.W.3d 119 (Mo. banc 2007) (courts should not rework clear statutory schemes on public‑policy grounds)
- Sivigliano v. Harrah’s N. Kansas City Corp., 188 S.W.3d 46 (Mo. App. W.D. 2006) (pleading need not label plaintiff’s theory of recovery)