Lance Scott, Appellant/Cross-Respondent, v. Blue Springs Ford Sales, Inc., Respon-
dent/Cross-Appellant, and Robert C. Balderston, Respondent.
No. SC86287
SUPREME COURT OF MISSOURI
176 S. W3d 140; 2005 Mo. LEXIS 453
November 22, 2005, Filed
PRIOR HISTORY: [*1] APPEAL FROM THE Ford Sales, Inc., 2004 Mo. LEXIS 128 (M0., Oct. 26,
CIRCUIT COURT OF JACKSON COUNTY. The Hon- 2004)
orable Marco A. Roldan, Judge. Scott v. Blue Springs
CASE SUMMARY:
PROCEDURAL POSTURE: The Circuit Court of Jackson County (Missouri) refused to submit appellant vehicle pur-
chaser's claim for punitive damages under Mo. Rev. Stat. § 407.025 (2000) to a jury. The purchaser appealed, contend-
ing that to the extent § 407.025 prohibited the submission of a punitive damage claim to the jury, it was invalid as de-
priving him of his constitutional right to a jury trial.
OVERVIEW: The purchaser was not told that the vehicle previously had been involved in an accident and was the
subject of a salvage title. He was not told that the extended service contract was rejected. He sued under numerous theo-
ries, including a claim for violations of Mo. Rev. Stat. ch. 407 (2000). The trial court determined that punitive damages
on the chapter 407 claim were not permitted because the purchaser refused to elect remedies between chapter 407 puni-
tive damages and common law fraud punitive damages. There was no inconsistency between a punitive damage award
for fraud and a punitive damage award for violation of chapter 407. If the purchaser's punitive damages for violation of
chapter 407 and for fraud were the same, then the damage awards merged. Although the jury found the purchaser was
entitled to punitive damages as to the common law fraud claim, there had been no jury finding as to punitive damages
on the chapter 407 violations. It would not be proper to assume that the same, or any, amount of punitive damages
would be awarded for such violations. Therefore, a new trial was needed to determine the amount of punitive damages
for the chapter 407 claim.
oUTcoME: The judgment was reversed. Having detemiined the issue giving the court jurisdiction, the case was trans-
ferred to the Court of Appeals, Westem District, for resolution of the remaining issues on appeal.
LexisNexis(R) Headnotes
Contracts Law > Remedies > Punitive Damages
[HN1] Mo. Rev. Stat. § 407.025.1 (2000) states that the court may, in its discretion, award punitive damages.
Contracts Law > Remedies > Election of Remedies
[HN2] The election of remedies doctrine is a doctrine of estoppel, basically providing that where a party has the right to
pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to final judgment, that
party cannot thereafter pursue another and inconsistent remedy. Entirely distinct from the election of remedies is the
election of inconsistent theories of recovery. Under this doctrine, a party must elect between theories of recovery that
are inconsistent, even though pled together as pemiitted by Mo. Sup. Ct. R. 55.10, before submitting the case to the trier
Case 2:02-cv-O2281—SIVIIVI Document 271 -3 Filed O2/O8/2006 Page 1 of 4
Page 2
176 S.W.3d 140; 2005 Mo. LEXIS 453, *
of fact. If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is
error to submit them together. Each of these theories requires an inconsistency to exist with multiple theories of recov-
ery.
Mr Fgrcmmd Kang§(2§tS- Scott sued under numerous theories, including a
MO ' ` ` ’ y’ claim for violations of chapter 407. He requested puni-
` tive damages for the chapter 407 violations and a jury
For RESPONDENT/CROSS_APPELLANT_ Mr David trial on that issue. The court denied the jury trial request,
J Roberts Mr Kcvinl) Case Kansas cit MO ` but other issues were submitted to a jury. The court
` ’ ` ' ’ y` ` awarded a judgment of $ $67,599.82, of which $ 840,000
_ . was punitive damages on a common law fraud claim.
;(;l;;EI?;i;1:?(§?TMLgr' J`R` H0bbS’ Ms' Marilyn B` The court determined [*3] that punitive damages on the
’ y’ ' chapter 407 claim were not permitted because Scott re-
JUDGES_ Wolff C J smh Price Limbaugh and RuS_ fused to elect remedies between the chapter 407 punitive
sell, JJ, concur; Teitelman, J., concurs in separate opin- damages and the common law fraud Pumuvc damagw
ion filed; White, J., concurs in opinion of Teitelman, J. Jury Trial of Chapter 407 Punitive Damages
OPINION Article I, section 22(a), of the Missouri Constitution
` states in pertinent part: "That the right to trial by jury as
en banc heretofore enjoyed shall remain inviolate." State ex rel.
Diehl v. OMalley, 95 S.W3d 82, 84-85 (Mo. banc 2003),
PER CURIAM drawing on well-established precedent, held that the
The issue in this case for this Court is whether the Words nas heretofore Enjoyed., was a rcfcrcncc to the
trial court erred in refusing to submit Lance Scott's claim gist;) ttggaldlsgcju? Ssatiiiggt Eligczgdlifoxgcgogii
for punitive damages under section 407.025 nl to a jury. 1820 cd ns forodama S was mabic to mics The
Scott contends that to the extent section 407.025 prohib- C It a Q) . d th t. gc] . th . ht t al b ` .
its the submission of a punitive damage claim to the jury, (hou ext? anis hsthm TEP ymg dt? Us oai y
it is invalid as depriving him of his constitutional right to c.qucS on IS W cr c Pmccc ng I? an Ogcus
a jury trial. This com has jurisdiction. M0. Const. arm action at common law or whether it is in the nature of a
cle V section 3 suit in equity, id. at 86, and that, from the status of the
’ ` right as of 1820, the simple analysis is whether the action
is a civil action for damages. If so, the jury trial right is
to remain inviolate. Id. at 85. Applying these [*4] rules,
200;lCh’;"t j‘;2‘;‘;‘y '°f°'°‘[°°s f""° (fi RS'? me com then held that the cmmimmmai right to mi by
Misséuri I`]/;;_chandi;;1;I;I;;:iZcgc;§c O as B jury applies even in a statutory action if the statutory
` remedy is damages because the statutory action is indeed
a civil action for damages. Id. at 89.
damaIigli:€
to the Court of Appeals, Westem District, for resolution d al d ` d g ,, E h h
of the remaining issues on appeal. may...awar actu an punitive amages. ven t oug
the statute referred only to "the court," the right to jury
Background trial was held to apply nonetheless. Similarly, regarding
, the punitive damages claim in this case, [HNI] section
S 5"an? gcgti bzught abi 1:91 vchlglcb HEHE) gh? 407.025.1 states that ". . . the court may, in its discretion,
Bgigggtosr Th; Eze Téégreg his 1;;/gc Asypag gf thé award punitive damages .... " There is no basis to distin-
..1., Scott p...h...d ... .......d.d sm. com 0.. U,. gw;*;,,Qgy¢ggd;;s*gg cygjjvygggggg §;g*’0j;j,¤g;
used vehicle; however, the extended service policy did pc y g P .
. . . . the damage award authorized under the statute, there is
not issue because the vehicle had a previous salvage title. no ucstion that unmvc dama CS (cxcm lary damages)
Scott was not told at the time of the sale that the vehicle as 2/cu as actual? dama cs Wim mm Sized under thé
previously had been involved in an accident and was the common law in 1820 S; iake Shore gt M S R CO v
subject of a salvage title. He was not told that the ex- Prentice 147 U S j01 13 S Ct 261 é7` Ly`Ed `gi
tended service contract was rejected. In 1999 or 2000, (1893) (iisting rcbréscntétivc [*5] (;ascS)’ ` `
Scott leamed of the previous salvage title. `
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176 S.W.3d 140; 2005 Mo. LEXIS 453, *
Blue Springs Ford, citing Fust v. Attorney General, found Scott was entitled to punitive damages as to the
947 S.W2d 424 (M0. banc 1997), and other cases, argues common law fraud claim, there has been no jury finding
that because the legislature has the power to create or as to punitive damages on the chapter 407 violations. It
abolish the cause of action at hand, it follows that the would not be proper to assume that the same, or any,
legislature has the power to dictate the terms of the cause amount of punitive damages would be awarded for such
of action, including whether the court or the jury is to violations. Therefore, a new trial must be awarded to
determine punitive damages. F ust, however, holds only determine the amount of punitive damages for the chap-
that the legislature has the power to create or abolish or ter 407 claim.
otherwise limit the remedy of punitive damages. This . . .
. . . . . Once there is a jury finding as to the proper amount
argument confuses the judicial process by wluch claims of unitivc dama es for each claim the mal court can
are determined with the substance of the claims them- dctgnninc the exim to which thgawards mer 6 d
selves. Though, in general, the legislature is free to es- . . g an
. . . whether the amount of the [*8] award is in accordance
tabhsh the substance of aclaim, as, for instance, to allow with State Farm V Cam bell 538 U S 408 123 S Ct
or disallow punitive damages, it is not free to establish a 1513 155 L. Ed d 585l}2063) and éritcr d men; ac;
procedure for adjudicating that substantive claim if the df 1 ' ’ J g
procedure contravenes the constitution. In short, a statute cor mg y'
is not valid that provides for punitive damages but pre- Conclusion
cludes a jury trial to determine those damages. That is Scott is entitled to a .u determination Of unitivc
not to say, however, that section 407.025.1 is not valid. J ry. . . p 1 d
Neither section 407.025.1 in this case [*6] nor section da“T“g°S f‘?’.‘“° °*?"‘P‘°‘ 407 ‘C‘°l?‘“F’“S· H“"“‘g T°S° V°
213.111.2 in Diehl explicitly prohibits a jury trial. For the Issue gwmg this Coun JunSdlctmn’ the cfm: is mms-
. . . - . ferred to the Court of Appeals, Westem District, for reso-
that rcasom Just as m Diehl, the Qomit med not mvahqatc lution of the remaining issues. Hoskins v. Business Men 's
ggngwggggggcfggijgg ggjggftc m *·gh* of the ¤¤*·S*·*¤· 79 srrrr 901, 905 (Mo. time non.
Election of Remedies Wolff, CJ., Stith, Price, Limbaugh, and Russell, JI, con-
This Court recently iterated the theories of the elec- cum
tion of remedies doctrine and the election of inconsistent Teitelman J concurs in Sc mate 0 inion med
theories of recovery. Trimble v. Pracna, 167 S.W3d 706, ’ " P p ’
717’ 2005 WL 1620434*2 (M0` banc 2005)` [HN2] The White J concurs in o inion of Teitelman J
election of remedies doctrine is a doctrine of estoppel, ’ " P ’ `
basically providing that where a party has the right to _ . .
pursue one of two inconsistent remedies and makes an C0NCURBY' Rlchard B' Teitelman
election, institutes suit, and prosecutes it to final judg-
ment, that patty cannot thereafter pursue another and CONCUR:
inconsistent remedy. Entirely distinct from the election Concurring Opinion
of remedies is the election of inconsistent theories of . . . . . .
recovery. Under this doctrine, a party must elect between Icomim m th? majomy Opmuin ajm Wn}? Separately
meones or recovery trier are inconsistent, even though ‘° °'“*’i‘“‘Z° “‘° "“p°“a“°° °f “ l“’Y S P““‘""° d“"“‘$°
pled together as permitted by Rule 5510, before submip award in cases brought under statutes such as the Mis-
ting the case to the trier of fact. If two counts are so in- Scum Merchandising Practices ACL
consistent that proof of one necessarily negates, repudi- Missouri's Merchandising Practices Act, Chapter
atcs, and [*7] disproves the other, it is error to submit 407, RSMo, is designed to protect Missouri consumers
them together. from fraudulent business practices. State ex rel. Nixon v.
Each of these theories requires an inconsistency to Telco Directory Publ.g" $63 S'W2d 59f’ 601 (M0' banc
exist with multiple theories of recovery. In this case, 199`i)’.T° remedy Vmlamms and to [ 9] . qctcbfuturc
there is no inconsistency between a punitive damage prohibited conduct, the statute allows for injunctive. re-
award for fraud and a punitive damage award for viola- hcfi Payment to the Stat? for thc. cost of pmsccuuom
don of chapter 407. SCC Davis vn Cleary Building Cmp., pumtivel damages, restitution to injured consumers, and
143 S_W3d 659, 66970 (M0. App. 2004)· attomey s fees. All of these remedial measures are impor-
tant, but the possibility of punitive damages provides one
If a plaintiffs punitive damages for violation of of the most effective deterrents of future misconduct by a
chapter 407 and for fraud are the same, then the damage defendant or by others who may be similarly tempted to
awards merge. Trimble v. Pracna, 167 S.W3d 706, 717, engage in fraudulent business practices.
2005 WL 1620434*2 (M0. banc 2005). Although the jury
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176 S.W.3d 140; 2005 Mo. LEXIS 453, *
In their briefs before this Court, the defendants as- compensatory damages, ratios greater than a single digit
sert that the punitive damages in this case are excessive may comport with due process. Id. The Court's refusal to
for, among other reasons, being disproportionate to the adopt an arbitrary ratio for reviewing punitive damage
amount of compensatory damages. While this may or awards is consistent with the recognition that punitive
may not be the case, it is important to note that while the damages [*11] further a State's legitimate interests in
degree of disparity between the actual damages and puni- punishing wrongful conduct and deterring its repetition.
tive damages is relevant in determining whether punitive State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 416,
damages are excessive, this factor alone is not deterrnina- 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003). Subsequent
tive. Instead, courts review punitive awards using three cases reflect the proper application of Campbell. For
factors: (1) the reprehensibility of the defendant's mis- instance, in Kemp v. American Telephone & Telegraph
conduct; (2) the disparity between the harm and the puni- Company, 393 F.3d 1354 (11th Cir. 2004), AT&T was
tive award; and (3) the difference between the punitive found to have, as part of a wide practice, billed a cus-
award and penalties authorized or imposed in compara- tomer for improper charges disguised as long-distance
ble cases. State Farm Mut. Ins. v. Campbell, 538 U.S. charges. The court upheld an award of $ 115.05 in com-
408, 418, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003). pensatory damages and $ 250,000 in punitive damages.
[*10] Because each case must be assessed on its own Although this amounted to a punitive to compensatory
facts, no court has imposed inviolable constitutional lim- ratio of 2,172:1, the court noted that a lesser amount of
its on the ratio between punitive and compensatory. To punitive damages "would utterly fail to serve the tradi-
do so would require the courts to supplant the jury's con- tional purposes underlying an award of punitive dam-
sidered decision in favor of an arbitrary limit that may ages, which are to punish and deter." Id. at 1363-65.
have no relationship whatsoever to the extent and sever- Similarly, in Mathias v. Accor Economy Lodging, Inc.,
ity of the defendant's misconduct. 347 F .3d 672 (7th Cir. 2003), the court discussed Camp-
Thc Supm com Opinion in Sm Fm MM- bZii.ZIJ€"%`§`.$E ZEhSi‘§"ig?§`61>`B?»"in°fQi.i{$Z°JZ.fS'L`Q
ms. v. Campbell, 538 as. 408, 123 s. cr. 1513, 155 1. P 'Y g ’ P . g
. where a motel had re—rented rooms known to be infested
Ed. 2d 585 (2003), does not hold otherwise. In Campbell, . . . .
. . _ with bedbugs. Although [*12] the ratio of punitive to
the Court offered the following dicta. _ .
compensatory was 37.1, the court recognized that a lar-
ger punitive damage award was necessary in order to
have a sufficient deterrent effect. Id. at 678.
Sslljugiglgzgiggc g;:1g§S£2;clp;;x;3;f As the foregoing cases establish, courts must con-
that in racticc few awards éxwcdin Q sider the propriety of punitive damage awards by giving
. ’ .’ . . g full consideration to all relevant factors, including
single-digit ratio between punitive and . .
com cnsam dama cs to a si nmcam whether the award provides a sufficient deterrent effect.
d P .ry . g ’ g There is nothing in the law that vests appellate courts
egree, will satisfy due process. Id. at . h 1. ....
425 wit a 1cense to toss aside considered jury verdicts based
' upon arbitrary ratios or mathematical formulae. To do so
would undermine the essential deterrent effect provided
However, the Court qualified this dicta by stating that in by properly awarded pumuvc damagw
cases involving egregious conduct but a small amount of Richard B. Teitelman, Judge
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