On October 28, 1986, a jury returned a verdict against appellant for $10,000.00, and the district court 1 trebeled that amount under the provisions of the Federal Odometer Statute. 2 This appeal comes from the court’s denial of appellant’s motion for judgment notwithstanding the verdict, and the court’s award to appellee of attorney’s fees totalling $12,000.00.
Sam Schwartz is the president and sole stockholder of Columbia Classics Corporation (hereinafter called “Columbia”), a New York corporation. Columbia is in the business of buying and selling special interest, antique, and vintage automobiles. In early 1981, Schwartz received information that a 1969 Mercedes Benz Model 600 automobile might be for sale. He contacted the owner of the car, Monica Petricek, and arranged to view the vehicle at her New Jersey home. The exterior of the car was in poor condition, but the interior was like new. The odometer showed approximately 8,200 miles.
On March 21, 1981, Schwartz had Petri-cek execute an odometer mileage statement and a bill of sale transferring the automobile to Columbia for $11,000.00. Schwartz drove the car to Columbia's shop on Long Island, where the spark plugs and fluids were changed, and the exterior of the car was painted.
In February 1982, Schwartz drove the car to Scottsdale, Arizona, in order to sell it at an auction. John Bacheldor, the owner of Kirkwood Classic Motorcars (Kirkwood), of St. Louis, purchased the vehicle for $29,-000.00. Bacheldor towed the car on a trailer to St. Louis, where he showed it to appellee, Van Praag. Van Praag had been a buyer and seller of antique and special interest automobiles for many years, and he regularly attended car auctions throughout the United States. Van Praag purchased the 1969 Mercedes Benz and took possession on April 5, 1982. Bacheldor advised Van Praag that the mileage was approximately 11,500 miles.
Shortly after he took possession of the car, Van Praag began having problems with it, and he became suspicious of the mileage. After he made a number of repairs, Van Praag contacted Mercedes Benz of North America, Mercedes Benz of Man-hatten, and Contemporary Motors of Little Silver, New Jersey. The records he obtained from these sources indicated that the car had been driven over 105,000 miles. 3
Van Praag filed an action against Columbia and Kirkwood in the Circuit Court of
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT FOR LACK OF PERSONAL JURISDICTION OVER APPELLANT. Columbia contends that the district court did not have jurisdiction over it under the Missouri long-arm statute, 4 because Columbia did not have sufficient minimum contacts in Missouri to invoke the jurisdiction of Missouri courts. Columbia states, for instance, that its only office is in Cedarhurst, New York, it has no employees or agents in Missouri, and it does not advertise in Missouri.
The inquiry we make to determine the existence of long-arm jurisdiction is a two-part one: first, whether the facts presented satisfy the statutory requirements, and, second, whether the exercise of personal jurisdiction is consistent with due process.
Mountaire Feeds, Inc. v. Agro Impex, S.A.,
The legislative objective behind Missouri’s long-arm statute was to extend the jurisdiction of Missouri courts over non-resident defendant’s to the extent permissible under the due process clause of the Fourteenth Amendment.
Institutional Food Marketing Assocs., Ltd. v. Golden State Strawberries,
Turning to the facts before us, this case was dismissed by the St. Louis County Circuit Court based on Schwartz’s affidavit that Columbia had no contact whatsoever with Missouri and that all the significant events surrounding the sale from Columbia to Kirkwood occurred in Arizona. When the case was re-filed in Arizona, Columbia moved to dismiss for lack of venue and personal jurisdiction, stating that all significant events surrounding the sale of the
The Court finds that the Missouri district court properly had personal jurisdiction over Columbia based on the affidavits Columbia presented to the Arizona court, asserting that all aspects of the sale occurred in Missouri. A litigant may, by conduct, waive objections to personal jurisdiction.
Floyd v. Kellogg Sales Co.,
II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS FOR DIRECTED VERDICT BECAUSE APPELLEE WAS NOT THE REAL PARTY IN INTEREST TO PROSECUTE THIS ACTION. Columbia contends that Van Praag is not the real party in interest in this action because the ownership of the car did not pass directly from Kirkwood to Van Praag. Kirkwood, rather, gave its bill of sale to Olive Locust Corporation, and the ownership of the car passed from Olive Locust to Van Praag and his wife on June 27, 1982. Columbia argues that the real parties in interest are either Olive Locust or Van Praag and his wife, but not Van Praag alone.
The pertinent statute is 15 U.S.C. § 1989(a).
5
The purpose of the statute is to punish odometer tamperers by imposing civil penalties upon them and to reward purchasers who discover such tampering and bring it to the attention of the federal courts.
Delay v. Hearn Ford,
The Court is further of the opinion that Mrs. Van Praag is not a necessary party to this action. The record indicates that Mrs. Van Praag was not involved with the purchase and transfer of the vehicle, and she never saw the odometer statement. Her name was merely placed on the car title, apparently several months after Van Praag took possession of the automobile. We conclude that Van Praag is the real party in interest to prosecute this action under the statute.
III. WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT BECAUSE APPELLEE DID NOT BRING THIS CAUSE OF ACTION WITHIN THE STATUTE OF LIMITATIONS. Under 15 U.S.C. § 1989(b), an action to enforce liability created under § 1989(a) must be brought within two years from the date on which liability arises. Columbia raises this point on the erroneous basis that Van
IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE READING OF DEPOSITIONS WHICH HAD NOT BEEN SIGNED AND FOR WHICH THE REQUIRED AFFIDAVITS HAD NOT BEEN PROVIDED. The depositions at issue are those of Harry and Monica Petricek, who sold the automobile to Schwartz in 1981. Columbia objected to the reading of certain portions of the depositions because they were not signed in compliance with F.R.C.P. Rule 30(e). The depositions were taken by Brenda Levy, a court reporter from New York, on March 21,1986. The Petriceks refused to sign the depositions. Levy submitted a notarized letter explaining that the policy of her office was to do nothing with depositions beyond preparing the transcript and sending them to counsel. Van Praag’s counsel contacted the Petriceks but was unable to secure their signatures. Van Praag contends that strict compliance with Rule 30(e) was not possible, but that under the circumstances, Columbia was not prejudiced by the admission of the depositions. Columbia asks us to remand the case for a new trial.
Columbia cites
Bunch v. Bullard,
V. WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTIONS FOR DIRECTED VERDICT BECAUSE APPELLEE FAILED TO MAKE A SUBMISSIBLE CASE UNDER THE FEDERAL ODOMETER STATUTE. Columbia contends that it should have been granted a directed verdict for two reasons: first, because Van Praag failed to prove Columbia gave a false odometer statement with “intent to defraud” as required by 15 U.S.C. § 1989(a); and second, the Court improperly instructed the jury concerning Van Praag’s reliance on the odometer statement. Columbia asserts that there is no evidence by which the jury could have found that Columbia knowingly, recklessly, or with gross negligence gave a false odometer statement. We do not agree. Monica Petricek testified, in her deposition, that Schwartz presented to her a blank odometer statement for her signature, and that she and Schwartz never discussed mileage. Schwartz testified that he completed the statement with Mrs. Petricek.
It is well established that questions of credibility and the weight to be given to the evidence are matters for the jury.
Thieman v. Johnson,
Columbia also argues that the district court erred by instructing the jury that, assuming Van Praag relied on the odometer statement given by Columbia, in doing so he exercised a degree of care reasonable in his situation. Columbia contends that, throughout the trial, Van Praag claimed to be an expert in classical cars, and that the reasonableness of his reliance on the odometer statement must be examined. Van Praag replies that Schwartz drove the car for nine months without incident, and that Columbia is now arguing that Van Praag and Bacheldor should have known right away of the excess mileage.
We hold that the instruction was proper. The jury heard all of the testimony and was able to determine the reasonableness of Van Praag’s reliance on the odometer statement. The jury had sufficient evidence from which it could made this determination, and we will not disturb the jury’s finding.
CONCLUSION
We conclude that there is sufficient evidence in the record to affirm the district court on all points raised.
Affirmed.
Notes
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri.
. 15 U.S.C. §§ 1981 et seq.
.There is no allegation that anyone had tampered with the odometer. The parties agree that a "rollover" had occurred, meaning that when the odometer reached 100,000 miles, the five-digit display read "00000.”
. Section 506.500, RSMo.1986, which provides, in part:
1. Any person or firm, whether or not a resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
. 15 U.S.C. § 1989(a) provides:
(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or f 1,500, whichever is the greater; and
(2) in the case of any sucessful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.