State v. Simmons
270 S.W.3d 523, 2008 WL 5212173, 2008 Mo. App. LEXIS 1717 (2008)
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Rule of Law:
The criminal provisions of the Missouri Merchandising Practices Act (MMPA) apply to any person who makes a misrepresentation in the sale of merchandise, regardless of whether the transaction is between two businesses or whether the buyer is an 'end consumer.'
Facts:
- Randy Kell, a cattle producer, responded to an advertisement for cattle placed by Robert Simmons.
- On October 18, 2003, Simmons showed Kell several groups of cattle, representing that all of the cows had raised at least one set of calves on the farm.
- Based on Simmons's representations, Kell agreed to purchase 396 cows and provided a $10,000 down payment.
- Simmons and Kell agreed that Kell would have an opportunity to inspect the cattle again on the day of delivery, October 23, 2003, before they were loaded.
- On the delivery day, Simmons arrived late and informed Kell that two truckloads of cows had already been sent to Kell's farm, preventing the agreed-upon pre-loading inspection.
- Upon delivery, Kell immediately noticed that the cows were not the same ones Simmons had shown him.
- An investigation later revealed that 152 of the cows Kell received had been purchased from sale barns less than three months prior, making it impossible for them to have raised calves on the farm as Simmons had claimed.
- Weeks after the delivery, Kell drove by the pastures where Simmons had originally shown him the cattle and saw that the original, higher-quality cows were still there.
Procedural Posture:
- Randy Kell and another individual, Don Collins, filed separate complaints against Robert Simmons with the Missouri Office of the Attorney General.
- The State charged Simmons in a state trial court with multiple counts of unlawful merchandising practices under the MMPA; the trial proceeded on one count related to Kell and one count related to Collins.
- The trial court denied Simmons's motion to sever the two counts into separate trials.
- At trial, the court denied Simmons's motion for acquittal at the close of all evidence.
- A jury found Simmons guilty of the count involving the sale to Kell but acquitted him of the count involving the sale to Collins.
- The trial court entered a judgment consistent with the jury's verdict and sentenced Simmons to six months in jail and an $8,000 fine.
- Simmons (appellant) appealed the judgment to the Missouri Court of Appeals, Western District, with the State of Missouri as the appellee.
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Issue:
Does the criminal provision of the Missouri Merchandising Practices Act (MMPA), which prohibits misrepresentation in the sale of merchandise, apply to a private commercial transaction between two businessmen?
Opinions:
Majority - Howard, J.
Yes, the criminal provision of the MMPA applies to a private commercial transaction between two businessmen. The court reasoned that the plain language of the statute is broad and does not contain limitations to 'end consumers' or 'public' transactions. The MMPA defines 'person,' 'merchandise,' and 'sale' in expansive terms that clearly cover the transaction between Simmons and Kell. The court rejected Simmons's argument that the Act only protects end consumers, noting that the terms 'consumer' or 'end consumer' do not appear in the relevant criminal provision. Crucially, the court contrasted the criminal provision with the MMPA's civil action provision (§ 407.025), which explicitly limits private lawsuits to purchasers who bought merchandise 'primarily for personal, family or household purposes.' The absence of this restrictive language in the criminal statute indicates a clear legislative intent for the criminal penalties to apply more broadly to all types of commercial transactions, including those between businesses.
Analysis:
This decision significantly clarifies the scope of Missouri's primary consumer protection statute, establishing that its criminal enforcement provisions are not limited to traditional consumer-merchant transactions. By extending the MMPA's protection to business-to-business sales, the court empowers the Attorney General to prosecute a wider range of commercial fraud. This precedent strengthens the legal framework against dishonest dealings in commercial settings and confirms that the absence of limiting language in one statutory section, when such language exists in another, is a strong indicator of broader legislative intent. Future cases involving commercial fraud in Missouri will likely rely on this interpretation to apply the MMPA's criminal penalties beyond the typical consumer context.
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