Rodney D. Gibbons, Appellant, v. J. Nuckolls, Inc., d/b/a Fenton Auto Sales, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Rodney D. Gibbons, Appellant, v. J. Nuckolls, Inc., d/b/a Fenton Auto Sales, Respondent. Case Number: ED87508 Handdown Date: 07/18/2006 Appeal From: Circuit Court of St. Louis County, Hon. Patrick Clifford, Jr. Counsel for Appellant: Mitchell B. Stoddard Counsel for Respondent: Keith K. Cheung and Paul E. Martin Opinion Summary: Rodney D. Gibbons appeals the circuit court's judgment dismissing his petition with respect to J. Nuckolls, Inc., d/b/a Fenton Auto Sales (Fenton), an automobile wholesaler. Gibbons's petition alleged that Fenton violated the Missouri merchandising practices act (MPA), section 407.025, RSMo, when it sold a Honda Accord to Ed Napleton Honda, which then sold it to Gibbons without disclosing a prior collision. AFFIRMED. Division Two holds: The circuit court did not err when it dismissed Gibbons's petition for lack of privity between Gibbons and Fenton. The statutory language of the MPA, as well as case law interpreting the statute, indicate that it was not intended to apply to transactions between consumers and wholesalers. Citation: Opinion Author: Kenneth M. Romines, Judge Opinion Vote: AFFIRMED. Gaertner, Sr., P.J., and Draper III, J., concur. Opinion: This case involves the applicability of the Missouri Merchandising Practices Act (MPA), Section 407.025 RSMo(FN1), to third-party automobile wholesalers.

Facts On 27 December 2004, Rodney D. Gibbons (Gibbons) bought a 2003 Honda Accord from Ed Napleton Honda (Napleton) in St. Peters, Missouri. Napleton had purchased the Accord from J. Nuckolls, Inc., d/b/a Fenton Auto Sales (Fenton), an automobile wholesaler. Gibbons later sued Fenton(FN2) in the Circuit Court of St. Louis County for violating the MPA, which states, in pertinent part: Any person(FN3) 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 or 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 lessor resides or in which the transaction complained of took place, to recover actual damages. Section 407.025.1. Section 407.020.1 defines "unlawful practice": 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...is declared to be an unlawful practice. In his petition, Gibbons alleged that, when he purchased the Accord from Napleton, Napleton told him that the Accord had never been in an accident; and he has since learned that the Accord was in a front-end collision prior to the time Napleton bought it from Fenton. Gibbons also alleged that Fenton violated the MPA when it "failed to disclose existing accident damage to Napleton about which they knew or, upon reasonable inspection, should have known, and when they further knew or had reason to believe that Napleton was not likely to disclose the accident damage to a consumer;" and, as a result, Gibbons incurred $11,069.00 in damages. Fenton filed a Motion to Dismiss, in which it asserted that Gibbons "has no legal cause of action against [Fenton] for the reasons that there is no privity between [Gibbons] and [Fenton], contractually or otherwise. Consequently, [Fenton] did not owe any duty to [Gibbons]." On 31 October 2005, the Circuit Court, Hon. Patrick Clifford Jr., dismissed Gibbons's petition with respect to Fenton, with prejudice and at Gibbons's cost. The Court did not specify the reason for the dismissal. Gibbons appealed, and filed a motion to recover $4,100 in attorney's fees, which is taken with the case. Standard of Review Our review of the Circuit Court's order granting the motion to dismiss is de novo. Burke v. Goodman, 114

S.W.3d 276, 279 (Mo. App. E.D. 2003). Because the Circuit Court did not state a basis for its dismissal, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss; as such, we presume this dismissal was based on the lack of privity between Gibbons and Fenton. Id. We will affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss, regardless of whether the Court relied on that ground. Id. Discussion Gibbons argues that his MPA claim against Fenton was improperly dismissed for lack of privity. Gibbons urges us to find that the MPA does not require privity of contract, and applies to automobile wholesalers such as Fenton. Gibbons also argues that, because Chapter 407 is remedial, it requires a liberal interpretation, in order to give consumers the maximum benefit of its protection. We are not persuaded by Gibbons's arguments. First, the statutory language of the MPA—"purchases or leases merchandise," Section 407.025.1; and "in connection with the sale or advertisement of any merchandise," Section 407.020.1—implies that the MPA was intended to apply to consumer transactions—such as the sale between Napleton and Gibbons, but not the sale between Fenton and Napleton. Additionally, the following language in Section 407.025.1, "[any person]...may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place...." (emphasis added), suggests that the MPA was passed in order to provide recourse specifically against sellers and lessors—not wholesalers. In fact, cases involving claims brought under the MPA involve consumer transactions, such as claims brought by cigarette purchasers against cigarette manufacturers; claims brought by telephone customers against telephone service providers; and claims brought by automobile purchasers against automobile dealerships. None of the suits involving automobile sales include claims brought against automobile wholesalers—rather, these claims are made against the car dealer. See, e.g., Krysa v. Payne, 176 S.W.3d 150 (Mo. App. W.D. 2005); Morehouse v. Behlmann Pontiac-GMC Truck Service, Inc., 31 S.W.3d 55 (Mo. App. E.D. 2000); and Viene v. Concours Auto Sales, Inc., 787 S.W.2d 814 (Mo. App. E.D. 1990). We decline to expand the purview of the MPA beyond the scope which was intended by its statutory language and confirmed by Missouri case law. We note that Gibbons has a separate and distinct MPA Claim against Napleton. Also, we note Gibbons could have pursued relief against Fenton for a common law fraud. The judgment is affirmed. Because Gibbons is denied relief on appeal, his request for attorney's fees is also

denied. Footnotes: FN1. All statutory references are to RSMo (2000). FN2. Gibbons also sued Napleton for an MPA violation, and fraud. Because only Gibbons' claims against Fenton were dismissed, the allegations against Napleton are not discussed in this appeal. FN3. "Person" is defined as: "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). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.