STATE OF MISSOURI, ex rel. ATTORNEY GENERAL ERIC SCHMITT, Plaintiff-Respondent v. SCHIER COMPANY, INC., and GARY ALLEN SCHIERSTATE OF MISSOURI, ex rel. ATTORNEY GENERAL ERIC SCHMITT, Plaintiff-Respondent v. SCHIER COMPANY, INC., and GARY ALLEN SCHIER
AFFIRMED
Finding the last of these claims outside of our purview and no merit in the others, we affirm.
Standard of Review
We presume the judgment correct, and the appellant bears the burden of demonstrating reversible error. Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010). Therefore, we must affirm the judgment unless the appellant demonstrates that there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo banc. 1976);
“Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the [trial] court‘s judgment.” Ivie v. Smith, 439 S.W.3d 189, 199 (Mo. banc 2014). “Evidence has probative force if it has any tendency to make a material fact more or less likely.” Id. at 199-200. To determine if the trial court‘s judgment is supported by substantial evidence, we “view the evidence and the reasonable inferences drawn from the evidence in the light most favorable to the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial court‘s superior position to make credibility determinations.” Houston, 317 S.W.3d at 186. All fact issues upon which no specific finding is made must be considered to have been made in accordance with the result reached. Ivie, 439 S.W.3d at 200;
The Evidence
Dairymen‘s Best Creamery Cooperative, LLC (“Dairymen‘s Best“) is a co-op of dairy farmers formed for the рurpose of processing milk into marketable milk products.3 Dairymen‘s Best hired David Cline (“Cline“) to manage and supervise the construction of the dairy-processing plant. Cline‘s responsibilities included ordering the dairy-processing equipment necessary to get the plant operational.
Schier Co. is a company that buys and sells used dairy-processing equipment to dairy operations. Schier Co. does not itself refurbish or manufacture dairy equipment or parts; it obtains all such equipment and parts frоm third parties. Schier is the founder, sole owner, and president of Schier Co. In his role as president, Schier is “responsible for everything that the company does[,]” including approving the contents of the company‘s website.4 Schier Co.‘s website states “[w]e inspect each one of our new and used, reconditioned pieces for the highest quality and efficiency to ensure that all our equipment is long-lasting and reliable.” While the website guaranteed Schier Co.‘s reconditioned equipment to be “frеe from defects[,]” it excluded equipment and pieces obtained from third-party vendors.
Cline, on behalf of Dairymen‘s Best, began looking for dairy-processing equipment to order for the plant. He reviewed Schier Co.‘s website and recommended to the board of Dairymen‘s Best that the necessary processing equipment be ordered from Schier Co. Dairymen‘s Best followed that recommendation and ordered a milk pasteurizer5 from Schier Co.
When the pasteurizer arrived, it appeared that all of its vаluable parts had been removed. The parts that remained were not usable. When inspectors from the State Milk Board came to inspect the pasteurizer, it failed the inspection. When contacted after that failed inspection, Schier agreed to take the machine back and provide a $20,000 credit toward the purchase of a new machine with an upgraded capacity to 1,000 gallon per hour.
Dairymen‘s Best ordered the HTST pasteurizer on January 5, 2015, and remitted the down payment on January 21, 2015.8 Dairymen‘s Best paid the remaining balance on the HTST pasteurizеr before delivery was made. Dairymen‘s Best paid for all equipment it received from Schier Co. in full. The total amount paid by Dairymen‘s Best for the HTST pasteurizer was $79,400.
After delivery, Dairymen‘s Best discovered that the HTST pasteurizer had been refurbished in Mexico. Dairymen‘s Best did not know that the equipment would be coming from Mexico, and it would not have purchased a piece of equipment that did not have nearby factory support. Defendants did not inspect the HTST pasteurizer prior to delivery.
Dairymen‘s Best hirеd a local metal-working company to install the HTST pasteurizer. After installation, inspectors from the State Milk Board inspected the HTST pasteurizer. The inspectors observed several defects in the equipment that rendered it PMO non-compliant. Don Falls, an inspector and state rating officer for the State Milk Board, determined that the HTST would not pass under PMO regulations because: the thermometers were too short to reach the milk flow; there was an improper slope in a holding tube along with an improperly oriented concentric reducer; there was a weld that was too rough; an improper vacuum-breaker was installed; the programmable logic controller (“PLC“) was not pre-approved; and the balance-tank slope was incorrect. The HTST pasteurizer would not power-up unless factory technicians attached external computers to operate it. Even then, the equipment would not send the liquid through the entire process. There were alsо problems with the flow-diversion valves.9 The homogenizer was not the correct size to work with the HTST pasteurizer because the rates of gallons per hour did not match. Because the inspectors were unable to determine who had manufactured the flow-diversion valves installed on the HTST pasteurizer, they were unable to certify the machine as PMO-compliant.
In addition to the equipment‘s obvious defects, Schier Co. failed to provide information about the programmable logic controller (“PLC“) -- the software that governs certain functions of the HTST pasteurizer.11 Without that information, inspectors cannot determine if the software will perform as required.
Several of the tests the inspectors needed to run could only be done with the machine powered-up. And, as previously noted, the equipment would not turn on until a factory technician overrode the installed controls with an attached lаptop computer. Two technicians from Mexico came to work on the machine, but neither was able to get the HTST pasteurizer to operate. When the technicians turned the machine on, it would not maintain a temperature necessary for the machine to make milk flow in a forward direction so that it could be pasteurized.
Dairymen‘s Best documented a list of defects and provided it to Schier Co. in an email indicating that the HTST pasteurizer had failed inspection. Schier received the email and reviewed it, but he denied having any knowledge that inspectors said there were specific defects that prevented them from certifying the equipment as PMO compliant.
Dairymen‘s Best obtained an estimate for the repairs required to make the equipment operable and PMO-compliant, and it requested that Schier Co. pay for the modifications. Defendants refused. Cline also requested that Schier Co. refund the money that Dairymen‘s Best paid for the non-compliant HTST pasteurizer.
A.G. filed a petition against Defendants alleging violations of the MMPA that claimed Defendants had engaged in unfair or deceptive trade practices by representing that the HTST pasteurizer was PMO-compliant when, in fact, it was not (Count 1), that Defendants concealed, suppressed, or omitted the material fact that the equipment was not PMO-compliant (Count 2), and that Defendants misrepresented that all equipment is inspected to ensure that it is long-lasting and reliable (Count 3). In its request for relief, A.G. requested, in part, that the trial court enter a judgment “[r]equiring Defendants, pursuant to
Analysis
Briefing Deficiencies
Before we may address the merits of any of Defendants’ arguments, we must consider the briefing deficiencies that have mаterially hindered impartial appellate review. Compliance with
First, Defendants have failed to comply with
In points 1 and 2, Defendants claim that A.G. “failed to meet its burden of proof” as to a necessary element of a MMPA claim.14 Whether a necessary fact has been proven is a matter left solely to the fact-finder unless the proposition is not supported by substantial evidence or is against the weight of the evidence. Here, Defendants claim neither.
As a result, Defendants have failed to follow the рroper analytical framework necessary to support either a not-supported-by-substantial evidence or an against-the-weight-of-the-evidence challenge.15
Further, all five of Defendants’ error-claims violate
Finally, Defendants’ brief also fails to explain how each challenge was preserved for appellate review.
Defendants, by failing to comply with
By failing to comply with the rules of appellate procedure, Defendants have preserved nothing for our review. In re Marriage of Fritz, 243 S.W.3d 484, 487 (Mo. App. E.D. 2007); Smith, 436 S.W.3d at 704 n.4. Points 3 and 5 also fail for other reasons that we will address briefly, ex gratia.
Point 3 – Rescission as the Appropriate Remedy
Defendants’ third point claims the trial court erred in granting rescission “because rescission was not timely requested, in
To satisfy
Here, Defendants were sufficiently advised that A.G. was seeking to restore Dairymen‘s Best to its prior position. The language in Paragraph C of A.G.‘s Petition against Defendants advised Defendants that A.G. was seeking “full restitution[,]” and it even referenced
The court, in its discretion, may enter an order of restitution, payable to the state, as may be necessary to restore to any person who has suffered any ascertainable loss, including, but not limited to, any moneys or property, real or personal, which may have been acquired by means of any method, act, use, practice or solicitation, or any combination thereof, declarеd to be unlawful by this chapter. It shall be the duty of the attorney general to distribute such funds to those persons injured. Such funds may or may not be interest-bearing accounts, but any interest which accrues to any such account shall be sent at least annually by the attorney general to the director of revenue to be deposited in the state treasury to the credit of the state general revenue fund.
(Emphasis added.)
Defendants had notice of—and the court had discretion to award—restitution. Defendants’ argument that “rescission” was not requested ignores that notice and the language of the judgment stating that Defendants “shall pay restitution of $79,400[,]” not that “rescission” was being granted.16 Restitution (as opposed to rescission) merely requires the restoration of Dairymen‘s Best to the position it would have occupied if the transaction with Defendants had never been made. A.G. had the ability to request restitution in its petition,
Point 3 is denied.
Point 5 – The Public Policy Argument
Point 5 claims:
The trial court abused its discretion in granting judgment in favor of [A.G.] under the [MMPA], because application of the MMPA is unfair, unjust, and outside the scope intended by the legislature, in that [Dairymen‘s Best] and [DMCI] had unclean hands, treating this dispute as a violation of the MMPA rather than . . . as a proxy for sophisticated corporate entities disputing a business transaction.
Point 5 fails to identify a legal argument that would warrant reversal by this intermediate appellate court. Instead, Defendants make a public-policy argument that the MMPA should not apply to this type of case but “should be subject to civil litigation rather than an action under the MMPA.”
“Policy arguments, while useful in the face of an ambiguous statute, are of no benefit when the statute is not ambiguous.” State ex rel. McDonald‘s Corp. v. Midkiff, 226 S.W.3d 119, 126 (Mo. banc 2007) (quoting Havens Steel Co. v. Missouri Prop. & Cas. Ins. Guar. Ass‘n, 956 S.W.2d 906, 909 (Mo. banc 1997)). Further, an intermediate appellate court is an “error-correcting court, not a policy making court[.]” Wilder v. John Youngblood Motors, Inc., 534 S.W.3d 902, 913 (Mo. App. S.D. 2017) (quoting Saint Francis Med. Ctr. v. Watkins, 413 S.W.3d 354, 357 (Mo. App. S.D. 2013)).
Defendants do not argue that the MMPA is ambiguous. Instead, Defendants ask us to redefine the reach of the MMPA to exclude claims involving a consumer that is a corporation. Such a request is a public-policy argument to be prеsented to the citizens’ elected representatives, not to this court.
Point 5 is also denied, and the judgment of the trial court is affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS
Notes
- identify a challenged factual proposition, the existence of which is necessary to sustain thе judgment;
- identify all of the favorable evidence in the record supporting the existence of that proposition; and,
- demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.
- identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
- identify all of the favorable evidence in the record supporting the existence of that proposition;
- identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court‘s credibility determinations, whether explicit or implicit; and,
- demonstratе why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.
Point 2 claims the trial court erred in granting judgment in favor of A.G. under the MMPA because A.G. “failed to show that [Dairymen‘s Best] suffered an ascertainable loss.”THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF [A.G.] UNDER THE [MMPA], BECAUSE [A.G.] FAILED TO MEET THE BURDEN OF PROOF AS TO THE NECESSARY ELEMENTS OF THEIR ACTION ALLEGING VIOLATION OF THE MMPA, IN THAT [A.G.] FAILED TO SHOW THAT DEFENDANTS ENGAGED IN MISREPRESENTATION OR CONCEALMENT, SUPPRESSION OR OMISSION OF A MATERIAL FACT.