Defending Missouri Merchandising Practices Act Claims
Any contractors who work on residential property will inevitably have to deal with a difficult customer at some point in their career.
The customer may raise various issues about your work. like complaining about whether the work is defective or not, the aesthetic appeal, and a garden variety of other issues that arise in these situations.
In the event that a consumer, or “putative consumer,” brings a claim against a contractor on the basis of the Missouri Merchandising Practices Act, the contractor’s attorney should know several defenses to protect the client from such claims.
This article was designed to provide a few but certainly not all, common defenses used by a contractor in a Missouri Merchandising Practices Act claim case.
The first defense deals with the issue of damages.
1.No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
One of the elements of a Missouri Merchandising Practices Act claim is that the damages need to be ascertainable. Oftentimes the homeowner may be unpleased with the work product of a contractor, but the homeowner will not have actually incurred damages.
The homeowner’s dissatisfaction with the aesthetics of a contractor’s work product might be an example of an area that may not cause the homeowner actual damages.
This is not always the case, however, as it may be a question of fact for the judge or jury to make a judgment call on as to what the contract says regarding aesthetics and/or whether the work was performed in a good and workmanlike manner.
Another situation where the homeowner may not incur damages is if a contractor performs defective work on a project but subsequently remedies that defective work.
In any event, the damages element of the Missouri Merchandising Practices Act is a susceptible place which your lawyer should consider attacking in the event you are sued in these types of situations.
2. Superseding/Intervening Force (i.e., third party) caused damages
If the contractor was not the cause of the damages, then obviously the consumer’s claim is subject to attack. This is a common defense as many projects consist of a slew of different people working on the job simultaneously.
The work performed by one contractor may cause damage to or adversely affect the work of another contractor. In these situations, the superseding/intervening force (another contractor) can be a defense to a Missouri Merchandising Practices Act claim.
Depending on the language contained in the contract, acts of God may also relieve a contractor from contractual duties. As this defense is specific to the factual circumstances, and in particularly the language in the contract, each case needs to be individually assessed.
If you have a question about a construction law case, please feel free to contact one of our attorneys.
3. The construction work was not for personal, family, or household purposes
If you’re working on a residence, you still cannot be sure that the residence is owned by a consumer. This element must be proven by the alleged consumer.
However, when a project has commercial aspects or when the owner of the property, even if it appears residential, is a commercial entity, you may have a defense to a Missouri Merchandising Practices Act claim.
One example of a susceptible area of attack would be work performed on a rental home. Often times limited liability companies will own rental homes and will have a contractor perform work on their property.
If you are a construction company defending a consumer protection act claim, you should always check the deed of the property and be cognizant of the entity that is making the payments.
Depending on the factual circumstances, a lawyer defending one of these cases may be well-advised to assert a defense attacking the personal, family, or household element.
Conclusion: Contractor Defenses Against Consumers on a Construction Project
This article gives a few defenses that you can assert as a contractor if you’re caught in the middle of a consumer protection case. There are other defenses out there, but you should always consult an experienced construction law attorney when preparing your defense in a case.
The following is a list of the three potential defenses discussed in this article:
- No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
- Superseding/Intervening Force (i.e., third party) caused damages
- The work was not for personal, family, or household purposes
Depending on the facts of your case, these defenses could be your liability shield. Your lawyer should be aware of these defenses and, more importantly, should assert them in any applicable cases.
Consumer Protection in a Construction Law Case
Most people get their homes remodeled or perform some type of addition or other construction project on their homes. This is just a part of life, and it usually signifies moving up the ladder. However, most people do not anticipate that a contractor will destroy their kitchen or use poor craftsmanship when repairing a roof, which causes substantial water damage to the home.
In these situations, most people don’t know what to do. They spent most of their reserve cash on the remodel. They have never been involved in a lawsuit, and they don’t know what to do.
This article was written by a St. Louis Construction law attorney and was meant to address the issues described above and talk about some of the benefits that consumers have in a situation like that.
While it seems like a tough road, and perhaps will be, consumers do have certain advantages when a construction project goes south in Missouri.
1. Jury usually sides with the little guy & awards big damages
The U.S. Department of Justice (“USDOJ”) conducted a 2005 study on damage awards in cases in the state courts throughout the United States.
The USDOJ found that juries awarded an average of $74,000 in contract cases versus a petty $25,000 when the case was decided by a judge. http://www.bjs.gov/content/pub/ascii/cbjtsc05.txt
Many members of a jury decide a case based on emotion, regardless of whether it is a construction law claim or not.
They’ll ask themselves what would be a fair outcome, but they’ll also consider the financial positions of the parties involved. Often times, a construction company has a lot of money and can overpower a consumer.
The jury can see this and will account for this factor, usually empathizing with the little guy. This fact alone makes it extremely important to hire a well-versed St. Louis construction lawyer, so you don’t fall victim to the caprice of the jury.
A good construction lawyer will usually be able to preclude evidence that leads to the financial status of the company involved in the proceeding. To the contrary, a good construction law attorney who represents a consumer may be able to expose this fact and capitalize on it with the jury.
In any event, it is important to know that that when you deal with a jury, it is always a roll of the dice because of the emotional factor.
Construction companies have to ask themselves whether they are willing to bet the business on the litigation. A good lawyer can advise the construction companies as to the proper way to proceed in such instances.
To make an example of the contrary, a good construction law attorney representing a consumer will play the jury’s emotions by telling a captivating story, keeping the jury’s attention and swaying their emotions.
For those reasons, choosing the right attorney to represent your company, or you as a homeowner, is critical, especially if the stakes are high.
The next question you might ask yourself then, is how am I going to afford a good St. Louis Construction lawyer?
The answer is: your construction lawyer could potentially be free…
2. Attorneys Fees Could be Paid for Under the Missouri Merchandising Practices Act
The Missouri Merchandising Practices Act (“MMPA”) is an act in Missouri that allows for attorney’s fees to the prevailing party (at the court’s discretion).
R.S.Mo. 407.025, denominated the Merchandising Practices Act, states the following:
The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.
Beware and note, the phrase: may award to the prevailing party attorney’s fees…
First, the term may means discretionary, and in practice, the Court decides attorney’s fees under the MMPA. So really whatever the court believes the outcome should be.
Also, to the prevailing party: this makes it a high stakes game because the loser could end up footing two attorneys’ bills.
Missouri courts are supposed to take into consideration the purpose of the statute, which is typically lenient toward consumers, thus giving the consumers more incentive to pursue their claims against the contractors.
There’s also the underlying goal of reaching an equitable result, which means that the more egregious the case is–for example if a contractor tries to scam a consumer–the more likely the court will award attorney’s fees.
In order to pursue attorney’s fees, you first must have expenses from an attorney first–this is the difficult task, but you may be able to arrange a contract with the attorney to help you survive the litigation process from a financial standpoint (with the hopes or expectation that you will ultimately recover attorney’s fees).
3. Construction Law Cases under the MMPA are Fairly Easy to Prove
Usually a consumer case is fairly easy to prove in the context of a construction law proceeding.
That’s because there are four elements in a Missouri Merchandising Practices claim (consumer construction law claim), and many of them, by the the nature of the MMPA elements, are already proven (or stipulated to) in a construction law case.
The elements of the MMPA relating to construction law are roughly the following:
- The homeowner purchased merchandise from the general contractor
- The purchase was for personal, family, or household purposes
- The homeowner suffered an ascertainable loss of money or property
- The loss occurred as a result of an unlawful act under the Merchandising Practices Act.
Below, each element will be discussed:
A.The homeowner purchased merchandise from the general contractor
Merchandise is defined in the Missouri Revised Statutes section 407.010 as “any objects, wares, goods, commodities, intangibles, real estate or services”.
Services is the key word in the statute. Any general contractor hired by a homeowner is providing services. That alone satisfies the first element.
B. The purchase was for personal, family, or household purposes
This is an easy element to satisfy as well. One of the few difficulties that may arise is if the home upon which the general contractor is working happens to be a rental home. Otherwise, the work being performed on the home is clearly for personal, family, or household purposes.
C. The homeowner suffered an ascertainable loss of money or property
This element again is easily satisfied if the contractor screws up your home. The money that you spent on the renovation or construction project was basically just wasted on the contractor’s failed performance.
If the contractor did not cause a loss of money or property against the contractor, then the homeowner has no business bringing the lawsuit in the first place. Accordingly, suffering an ascertainable loss of money or property is yet another element that a homeowner can prove by showing that the work was not performed according to the contract or that it was not performed in a good and workmanlike manner.
Usually in a trial, this element can be proven through a subsequent contractor who came to perform the repairs or to provide an estimate regarding what it takes to repair the defective work.
D. The loss occurred as a result of an unlawful act under the Merchandising Practices Act
The following is a list of unlawful acts that can be committed under the Missouri Merchandising Practices Act:
- false pretense
- false promise
- unfair practice
- concealment of a material fact
- suppression of a material fact
- omission of a material fact
This is by far the most difficult element of the MMPA that a homeowner has to prove. Most attorneys will argue that defective work under a contract is merely defective work, and perhaps breaches the warranty that each construction contract imposes: the duty to perform the work in a good and workmanlike manner.
The lawyer will continue to arue: “without some conscious, intentional misrepresentation, all the homeowner has is a breach of contract claim.”
However, Missouri law has been pretty clear that in an MMPA claim, the conduct of the actor is what is the most important.
Thus, the rebuttal argument from opposing counsel (homeowner’s attorney) becomes the following: “the contractor made representations to the homeowner that he was competent and experienced in performing the renovation work, but the contractor either (1) did not have the experience and competence as represented or (2) committed an unfair practice by cutting corners to save money when the contractor knew the procedure to perform the work properly.
Accordingly, many homeowners, despite all odds seemingly stacked against them, do have a legitimate chance in a battle against a big construction company.
In order to fully protect these rights, you should always contact a competent construction law attorney in St. Louis.
Conclusion as to Why Construction Law Cases are Teed up for Consumers
This article told you 3 reasons why consumers may have an advantage in a Missouri construction law case.
- The jury usually sides with the consumer because they feel empathy for that person or for the family suffering from the shoddy work.
- Attorney’s fees are a potential threat to the contractor–beware, however, attorney’s fees could be imposed against the consumer, but such cases are rare
- Elements of the claim (MMPA) are fairly easy to prove
While it may seem like a daunting task for a consumer to fight against a big construction company, we have St. Louis construction law attorneys that will help you fight back.
We know construction law well, and we know how to protect consumers from these terrible situations.
Please contact our lawyers if you are faced with a situation like this. Our lawyers have handled numerous cases like this in the past, and we are happy to discuss your case with you.