Opinion
No. ED89926
April 15, 2008
Appeal from the Circuit Court of the County of St. Louis Honorable Mark D. Seigel.
Erich Vieth Amy Collignon Gunn John E. Campbell, Simon Passanante, PC 701 Market Street, MO, for appellants.
James W. Erwin Roman P. Wuller Robert J. Wagner, Thompson Coburn LLP One U.S. Bank Plaza St. Louis, MO, for respondent.
Plaintiffs filed an amended class action petition seeking damages, injunctive relief, and certification as a class under sections 407.025 and 407.200 of the Missouri Merchandising Practices Act, section 407.010 et seq. RSMo (2000) (MMPA), and 15 CSR 60-8.060, alleging that the defendant television cable company sent customers television channel guides, which the customers had not solicited, and then billed them for the guides. The trial court entered a judgment dismissing the petition with prejudice on the ground that plaintiffs' damage claims were barred by the voluntary payment doctrine. Plaintiffs appeal, and we affirm.
Section 407.025.1 allows a consumer, who has suffered an ascertainable loss of money or property as a result of the use by another person of a practice declared unlawful by section 407.020, to recover actual damages. Section 407.020.1 provides in part:
1. 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.
Sections 407.025.2 and 407.025.3 govern class actions. Pursuant to section 407.145 of the MMPA, the attorney general has declared negative option billing to be an unlawful practice under section 407.020:
(1) It is an unfair practice for any seller in connection with the advertisement or sale of merchandise to bill, charge or attempt to collect payment from consumers, for any merchandise which the consumer has not ordered or solicited.
15 CSR 60-8.060. In addition, section 407.200 provides:
Where unsolicited merchandise is delivered to a person for whom it is intended, such person has a right to refuse to accept delivery of this merchandise or he may deem it to be a gift and use it or dispose of it in any manner without any obligation to the sender.
James Huch and Ryan Carstens are the remaining plaintiffs in this case. They filed an Amended Petition for Individual and Class Action Relief against Charter Communications, Inc. (Charter) on behalf of themselves and Missouri Charter customers to recover damages and injunctive relief.
In their allegations common to all counts, plaintiffs alleged that plaintiff Huch had contracted with Charter to begin receiving cable television channels and services in April 2005, and plaintiff Carstens had contracted with Charter to begin receiving cable television channels and services in July 2005. They alleged that they did not request Charter's "Paper Guide," also known as the "Channel Guide Magazine" (the Guide); that Charter did not inform plaintiffs that it would charge them for the Guide; that the cost of the Guide was not included as part of their monthly cable channels or services; that the Guide "has been appearing as a separate line item" on their monthly bills; and that Charter charged plaintiffs $2.99 or $3.24 per month for the Guide.
Plaintiffs sought to represent a class of all Missouri consumers who were Charter customers and who had been charged by Charter for receiving the Guide when they had not requested the Guide or had not agreed to pay Charter a separate fee for the Guide.
In Count I, plaintiffs sought damages, attorney's fees, and a permanent injunction on the theory that Charter's actions in billing for the Guide constituted an unfair or deceptive trade practice under the MMPA. In Count II, plaintiffs sought the same relief on the theory that the conduct constituted a per se violation of the MMPA.
Charter filed a motion to dismiss the amended petition on the ground that both claims were barred by the voluntary payment doctrine, and, in addition, there was no recognized cause of action in Missouri for a per se violation of the MMPA, as alleged in Count II. After a hearing, the trial court dismissed the amended petition with prejudice, concluding that plaintiffs' damage claims were barred by the voluntary payment doctrine. The trial court found that plaintiffs knew exactly what services they requested from defendant; that they were, or should have been, aware that their cable bills separately listed a monthly charge for the Guide; they possessed full knowledge at the time of payment that they were being billed for a service which they allegedly never asked for or agreed to; they repeatedly paid the amount billed for the Guide without objection or protest; and they did not allege duress or mistake.
DISCUSSION
On appeal, plaintiffs challenge the denial of injunctive relief and the dismissal of their petition. We first consider the dismissal of the petition.
I. Dismissal of Petition
Plaintiffs assert that the trial court erred in dismissing their petition
because [section] 407.025 provides that Plaintiffs may "recover actual damages" in cases involving unfair, deceptive or fraudulent acts or omissions, in that:
A) The Voluntary Payment Doctrine is an ancient doctrine ill-suited to modern consumer class actions;
B) The prayer of Plaintiffs' Petition, in which Plaintiffs alleged that Defendant inserted unauthorized "Channel Guide" charges into their cable TV bills, included requests to recover actual damages pursuant to specific consumer rights established by [section] 407.025.2 RSMo, [section] 407.200 RSMo and 15 CSR 60-8.060;
C) The Plaintiffs' Petition alleged that Defendant unfairly, deceptively and fraudulently charged its customers for Defendant's Channel Guide, but the voluntary payment doctrine does not apply in cases involving fraudulent conduct;
D) The allegations of the Petition, which the Court is required to accept as true for purposes of a motion to dismiss, did not establish that Plaintiffs had full knowledge of all the relevant facts pertaining to Plaintiffs' alleged transactions with Charter.
The arguments under the first two subpoints attack the viability of the voluntary payment doctrine as a defense in this case. The second two subpoints address whether the allegations of the petition were sufficient to withstand the application of the voluntary payment doctrine.
We first observe that this point fails to comply with Rule 84.04(d) in that it identifies the entire judgment as the error for multiple unrelated reasons. Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n. 2 (Mo.App. 1999); Lamar Adver. of Missouri, Inc. v. McDonald, 19 S.W.3d 743, 745 (Mo.App. 2000).
The error contemplated by Rule 84.04(d) in a court-tried case is not the judgment itself but the trial court's actions or rulings on which the adverse judgment is based, such as explicitly or implicitly making or failing to make a certain factual finding, applying or failing to apply a particular rule of law, taking or failing to take a certain procedural action, etc. See Thummel v. King, 570 S.W.2d 679, 685-688 (Mo. banc 1978). When an appellant makes the entire judgment one error and lists multiple grounds therefor, the result is that the point contains multiple legal issues. Separate issues should be stated in separate points relied on. Id.
Wheeler, 999 S.W.2d at 283 n. 2. Paragraphs A through D should have been stated in separate points, with each point supported by the legal reasons for the claim of error and an explanation of why those legal reasons support the claim. Without condoning this Rule 84.04 violation, we have ex gratia elected to review each subpoint independently, as though each had been set out in a separate point, and we have examined the argument under each subpoint to determine the legal and factual basis for the error.
Standard of Review
"'A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition.'" Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007) (quoting Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001)). In reviewing a trial court's order dismissing a claim for failure to state a claim upon which relief can be granted, we accept all properly pleaded facts as true, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader, in order to determine whether the averments invoke principles of substantive law entitling the plaintiff to relief. Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003); Arnold v. Erkmann, 934 S.W.2d 621, 625-26 (Mo.App. 1996). We examine the petition simply to determine whether the alleged facts meet the elements of a recognized cause of action, or of a cause of action that might be adopted in a particular case. Bosch, 41 S.W.3d at 463 (citing Nazeri v. Missouri College, 860 S.W.2d 303, 306 (Mo. banc 1993)). However, we do not accept a pleader's conclusions. Arnold, 934 S.W.2d at 626. The petition must allege facts that support each essential element of the cause to be pleaded. Id. We may sustain a motion to dismiss based on an affirmative defense if the defense is irrefutably shown by the petition. Elam v. Dawson, 156 S.W.3d 807, 808 (Mo.App. 2005). Our review of a dismissal for failure to state a claim is de novo. Hess, 220 S.W.3d at 768.
No exhibits were attached to the petition or incorporated into it. Although some documents outside the pleadings, specifically copies of a cable bill and a cable guide, were submitted to the court during the litigation of the motion to dismiss, the trial court did not treat the motion as one for summary judgment and did not rely on these documents in entering the dismissal. As a result, our review on this appeal is confined to the allegations of the petition. City of Chesterfield v. DeShelter Homes, 938 S.W.2d 671, 673 (Mo.App. 1997); Jordan v. City of Kansas City, 972 S.W.2d 319, 322 (Mo.App. 1998). Although plaintiffs have referred to these exhibits in their argument, we cannot consider any documents that were not attached to or incorporated into the pleadings. See Williams v. Belgrade State Bank, 953 S.W.2d 187, 190 (Mo.App. 1997); State ex rel. Hwy. Com'n v. London, 824 S.W.2d 55, 61 n. 5 (Mo.App. 1991).
Plaintiffs have also argued "facts" that were not alleged in the petition. References to matters not in the record on appeal are improper. Pattie v. French Quarter Resorts, 213 S.W.3d 237, 239 (Mo.App. 2007). In particular, on review of a motion to dismiss for failure to state a claim, we do not consider statements of fact made in a brief that were not alleged in the petition. See Estate of Saling, 924 S.W.2d 312, 314 (Mo.App. 1996).
An appellant must cite legal authority in support of its points relied on if precedent is appropriate and available, or, if there is no authority, explain why citations are unavailable. Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978). If a party fails to support a contention with argument beyond conclusions, we consider the point abandoned. Beatty v. State Tax Com'n, 912 S.W.2d 492, 498-499 (Mo. banc 1995) (citing Thummel, 570 S.W.2d at 687). In addition, errors that first appear in the argument section of a brief and are not encompassed by the point relied on are not preserved for review. Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 346 (Mo.App. 2006).
A. Application to Modern Consumer Class Transactions
Plaintiffs' first subpoint is that the voluntary payment doctrine "is an ancient doctrine ill-suited to modern consumer class actions." Plaintiffs' argument under this subpoint fails to support this conclusion and ignores the cases from numerous jurisdictions in which the doctrine has been successfully used as a defense in consumer class and individual actions.
The voluntary payment doctrine is the name given to "'the universally recognized rule that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal, or that there was no liability to pay in the first instance.'" American Motorists Ins. Co. vs. Shrock, 447 S.W.2d 809, 811-812 (Mo.App. 1969) (quoting 40 Am. Jur., Payment, Sec. 157, pp. 820, 821). See also Eisel v. Midwest Bankcentre, 230 S.W.3d 335, 339 (Mo. banc 2007); Cridlebaugh v. Putnam County State Bank, 192 S.W.3d 540, 544 (Mo.App. 2006). It is a principle based on "waiver and consent." Eisel, 230 S.W.3d at 339. This is because payments made with "'full knowledge of all the facts constitute voluntary payments.'" Delmar Bank of University City v. Douglas, 366 S.W.2d 80, 82 (Mo.App. 1963) (quoting American Brewing Co. v. City of St. Louis, 187 Mo. 367, 86 S.W. 129 (1905)). The requisite knowledge includes "'means of knowledge.'" American Motorists, 447 S.W.2d at 813 (quoting Todd v. Travelers Insurance Company, 71 Pa. D. C. 98 (1949)). If money has been voluntarily paid with full knowledge of the facts, it cannot be recovered, even if the payment was made under a mistake of law. American Motorists, 447 S.W.2d at 811. However, the defense does not apply if the payment was made under fraud or duress because a payment made under such circumstances would not be voluntary.Cridlebaugh, 192 S.W.3d at 544; American Motorists, 447 S.W.2d at 812.
The doctrine requires a person who wants to resist an unjust demand to do so before making payment, and not after. Cridlebaugh, 192 S.W.3d at 544 (citing American Motorists, 447 S.W.2d at 812). The underlying reason for the doctrine is that fairness requires a payor to notify the payee of any dispute about the payment immediately, and does not allow a payor to pay without protest and raise the dispute by litigation at a later time, after the payee has accepted and used the payment without notice that the payment is disputed.American Motorists, 447 S.W.2d at 812-13.
Plaintiffs begin their argument under this subpoint by referring to Missouri cases from 1863 and 1923 that applied the voluntary payment doctrine and, they conclude, without supporting authority, that the doctrine was meant only to resolve simple transactions. In the absence of legal authority supporting this conclusion, we do not consider this conclusory argument further.
Plaintiffs next argue that in today's world, Charter's customers are busy with work and family obligations and do not review inconspicuous charges on their bills before paying them, and therefore should not be bound by the voluntary payment doctrine. Plaintiffs did not allege that they did not see the charges, much less that they were too busy to see them. Therefore, this argument has no place in an appeal from a dismissal for failure to state a claim. A party cannot rely on unpleaded facts to support a claim that the petition states a cause of action. Saling, 924 S.W.2d at 314.
Plaintiffs also argue under this subpoint that the defense should not be available to a defendant with unclean hands. Ordinarily, the "unclean hands" doctrine is a defense limited to suits in equity against a plaintiff seeking equitable relief. See Kay v. Vatterott, 657 S.W.2d 80, 83 (Mo.App. 1983); Swisher v. Swisher, 124 S.W.3d 477, 483 (Mo.App. 2003); Nieberg Real Estate v. Taylor-Morley-Simon, 867 S.W.2d 618, 626 (Mo.App. 1993). Plaintiffs do not cite any legal authority supporting the use of the unclean hands doctrine by a plaintiff to defeat an affirmative defense in an action of law. Accordingly, this argument is also abandoned. Beatty, 912 S.W.2d at 498-99.
Plaintiffs then argue that courts have criticized the use of the voluntary payment doctrine in modern transactions, citing a Missouri case and several out-of-state cases. Plaintiffs first cite Eisel, 230 S.W.3d at 339-40. Eisel held that the voluntary payment doctrine was not a defense to a claim for the return of document preparation fees because the fees were charged for work that constituted the unauthorized practice of law, in violation of section 484.020 RSMo (2000). 230 S.W.3d at 337, 339-40. The court reasoned that a lay person cannot be burdened with the responsibility of recognizing the unauthorized practice of law in order to withhold payment for unauthorized legal services, and activities that violate section 484.020 are not subject to waiver, consent, or lack of objection. Id. at 339-40.
This is not a comparable situation to Eisel. Here, plaintiffs alleged that they were charged for receipt of a television channel guide that they did not order. A consumer can recognize when he or she is billed for merchandise that he or she has not ordered. Further, this is a transaction that can be subject to waiver, consent, or lack of objection. Although legal services cannot be lawfully provided by a non-lawyer, a television channel guide can lawfully be sold. A cable television subscriber who has not requested a television channel guide can waive his or her right to not pay the amounts billed for that guide.
The three officially reported out-of-state cases cited by plaintiffs in their brief are: Criterion Ins. Co. v. Fulgham, 247 S.E.2d 404 (Va. 1978); Time Warner Entertainment Co. v. Whiteman, 802 N.E.2d 886 (Ind. 2004); and Pratt v. Smart Corp., 968 S.W.2d 868 (Tenn.App. 1997). In addition, in their reply brief, plaintiffs cite Indoor Billboard v. Integra Telecom, 170 P.3d 10 (Wash. 2007). None of these cases holds that the doctrine should be abolished because it does not apply to modern complex transactions, the subject of this subpoint. Moreover, none of these cases represents a majority view on the use of the voluntary payment doctrine as a defense in illegal billing cases.
They also cite a 1992 unpublished federal district court opinion from the District of Columbia. This unpublished opinion has no precedential or persuasive value in this court, and we do not consider it. See State Resources v. Lawyers Title Ins., 224 S.W.3d 39, 47 n. 10 (Mo.App. 2007).
Criterion and Whiteman are facially not on point. In both cases, the respective courts reached their decisions by finding an exception to, or abandoning, the rule that a mistake of law does not prevent application of the voluntary payment doctrine. In the case before us, plaintiffs have not alleged a mistake of law, so the issue of whether Missouri should abandon or recognize exceptions to the rule that a mistake of law does not prevent application of the voluntary payment doctrine is not before us.
Pratt and Indoor Billboard are both cases brought by consumers to recover amounts billed in violation of state statutes. In Pratt, a patient filed a class action petition against a copying company to recover a partial refund of the charges paid for copies of medical records under a Tennessee statute that limited copying charges to the copier's reasonable costs and provided a private right of action. The appellate court held that in Tennessee the voluntary payment doctrine did not apply to transactions that violated a public policy established by a statute.Pratt, 968 S.W.2d at 872. In Indoor Billboard, the plaintiff, as class representative, sought to recover damages under Washington's Consumer Practice Act (CPA), alleging that the defendant telecommunications company had wrongfully included an unauthorized surcharge on its bills. In reversing summary judgment for defendant because of the existence of disputed facts on the "but for" causation element of a CPA claim in Washington, the court also concluded that the voluntary payment doctrine was not a defense to a CPA case because it construed the CPA liberally in plaintiffs' favor. 170 P.3d at 24. We do not find Pratt or Indoor Billboard persuasive because these cases were decided under different state statutes, with different essential elements, and in the context of different common law precedent than would be the case in Missouri.
Moreover, they are not representative of any general trend or consensus criticizing the use of the voluntary payment doctrine as a defense in individual or class action consumer lawsuits seeking to recover illegal fees or surcharges.
The majority of jurisdictions support the use of the voluntary payment doctrine as an affirmative defense in actions to recover fees or surcharges alleged to be illegal. Whiteman, 800 N.E.2d at 891. See, e.g., Hassen v. MediaOne of Greater Florida, Inc., 751 So.2d 1289, 1290 (Fla.App. 1 Dist. 2000) (voluntary payment doctrine barred cable television subscribers' unlawful penalty lawsuit to recover late fees billed and paid); Telescripps Cable Co. v. Welsh, 542 S.E.2d 640, 642-643 (Ga.App. 2000) (voluntary payment doctrine barred cable subscribers' class action lawsuit on theories of breach of contract and money had and received to recover late fees billed and paid); Cotton v. Med-Cor Health Information Solutions, 472 S.E.2d 92, 96 (Ga.App. 1996) (voluntary payment doctrine barred former hospital patients' lawsuit to recover excess fees paid for copies of records in violation of Georgia's Health Records Act); Harris v. ChartOne, 841 N.E.2d 1028, 1032-1033 (Ill.App. 5 Dist. 2005) (voluntary payment doctrine barred patients' class action lawsuit on multiple common law and statutory theories, including the Illinois Consumer Fraud and Deceptive Business Practices Act and medical record access statutes, to recover excess charges billed and paid for copies of medical records); Smith v. Prime Cable of Chicago, 658 N.E.2d 1325 (Ill.App. 1 Dist. 1995) (voluntary payment doctrine barred cable subscribers' class action lawsuit to recover damages and equitable relief under theories of breach of contract and violation of the Illinois Consumer Fraud and Deceptive Trade Practices Acts on the claim that a pay-per-view concert was an hour shorter than advertised when they paid the bill after viewing the shortened concert); Horne v. Time Warner Operations, Inc., 119 F. Supp. 2d 624, 628-630 (S.D. Miss. 1999), aff'd, 228 F.3d 408 (5th Cir. 2000) (voluntary payment doctrine barred cable subscribers' lawsuit on eight legal and equitable causes of action to recover $5.00 late fees billed and paid); Solomon v. Bell Atlantic Corp., 9 A.D.3d 49, 777 N.Y.S.2d 50 (2004) (voluntary payment doctrine barred DSL subscribers' class action under New York's deceptive acts and practices statute to recover fees paid for Internet service that was slower than advertised because they continued to subscribe after experiencing the problems); Dillon v. U-A Columbia Cablevision, 100 N.Y.2d 525, 526, 790 N.E.2d 1155, 1156 (N.Y. 2003) (voluntary payment doctrine barred cable subscriber's class action lawsuit to recover $5.00 late fees as unlawful penalty when plaintiff knew she would be charged a late fee and paid the late fees); McWethy v. Telecommunications, Inc., 988 P.2d 356, 357-58 (Okla.Civ.App. Div. 1 1999) (voluntary payment doctrine barred cable subscriber's class action lawsuit on theory of recovery of illegal penalty to recover $3.00 late fees billed and paid); BMG Direct Marketing, Inc. v. Peake, 178 S.W.3d 763, 776 (Tex. 2005) (voluntary payment doctrine barred music club subscribers' class action lawsuit based on unjust enrichment to recover $1.50 late fees billed and paid); Putnam v. Time Warner Cable, 649 N.W.2d 626, 637 (Wis. 2002) (voluntary payment doctrine barred cable subscribers' class action lawsuit on multiple common law and equitable theories and violation of Wisconsin's Trade Practices Act to recover damages and equitable relief arising out of $5.00 late fees billed and paid); Butcher v. Ameritech Corp., 727 N.W.2d 546, 550 (Wis.App. 2006) (voluntary payment doctrine barred telecommunications customers' lawsuit based on theories of breach of contract, money had and received, unjust enrichment, tax statute violations, and state constitutional violations to recover sales taxes billed and paid for services not subject to taxation).
Included in the above cases are cases from New York, Illinois, and Wisconsin that have held, contrary to Indoor Billboard, that the voluntary payment doctrine is a defense to claims brought under their respective state consumer protection statutes.Solomon, 9 A.D.3d at 55, 777 N.Y.S.2d at 56; Smith, 658 N.E.2d at 1336-37;Harris, 841 N.E.2d at 1030-32; Putnam, 649 N.W.2d at 630 n. 2, 637. Also included are cases from Georgia and Illinois that, contrary to Pratt, have held the voluntary payment doctrine to be a defense in cases alleging violations of those states' statutes regarding medical records fees. Cotton, 472 S.E.2d at 95-96; Harris, 841 N.E.2d at 1030-1031.
Although none of the out-of-state cases that apply the voluntary payment doctrine apply Missouri law, or the MMPA, we have cited them to demonstrate that the majority of jurisdictions that recognize the voluntary payment doctrine as an affirmative defense also apply it to consumer lawsuits based on allegedly illegal billing transactions. Plaintiffs' argument that the voluntary payment doctrine does not apply to "modern complex transactions" has no merit.
None of plaintiffs' arguments support their claim that the voluntary payment doctrine is not suited to "modern consumer class actions." This subpoint is denied.
B. Consumer Rights Established by Statute — Affirmative Defense
In the argument under this subpoint, plaintiffs argue that the voluntary payment doctrine conflicts with the legislative intent of the MMPA and that the voluntary payment doctrine should not be available as a defense to statutory claims.
Plaintiffs first argue that the public policy behind the MMPA should bar the application of the voluntary payment doctrine as an affirmative defense in this case. Section 407.200 gives a consumer who has received unsolicited merchandise the right to refuse delivery of the merchandise or treat it as a gift and use it in any manner without any obligation to pay for it. Thus, the statute makes negative option billing not legally enforceable. However, the voluntary payment doctrine applies to payments of money made on demands that are not legally enforceable. National Enameling Stamping Co. v. City of St. Louis, 40 S.W.2d 593, 595 (Mo. 1931). Although the MMPA provides for a private right of action to recover damages suffered as a result of an unfair practice, it does not prevent a consumer from waiving his or her statutory rights by paying for the merchandise. Finally, while negative option billing is an unfair practice, it does not rise to the level of fraud or duress as would bar the voluntary payment doctrine. Plaintiffs have not demonstrated that the public policy behind the MMPA would preclude the voluntary payment doctrine from being used as a defense to prevent a consumer who has waived his or her rights by voluntary payment from repudiating his or her prior payments and recovering them back in a private damage action under the MMPA.
Plaintiffs next argue that the voluntary payment doctrine is an equitable doctrine and cite a series of cases to the effect that equity should not override or destroy statutory rights: Seifert v. Seifert, 708 S.W.2d 150, 156 (Mo.App. 1985); Milgram v. Jiffy Equipment Co., 247 S.W.2d 668, 676 (Mo. 1952); McGhee v. Dixon, 973 S.W.2d 847, 849 (Mo. banc 1998); Estate of Dugger v. Dugger, 110 S.W.3d 423, 430 (Mo.App. 2003); Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). These cases are not on point. Seifert held that one party's legal rights in a certificate of deposit were superior to another party's equitable rights in the same certificate of deposit. 708 S.W.2d at 156. The remaining cases apply the rule that if a statute creates a procedure to be followed in a particular situation, such as for the distribution of corporate assets, the recovery of attorney's fees in agency proceedings, the recording of a deed, or the grant of guardianship over minor children, neither a court of equity nor a court of law is free to ignore the statute and follow a different procedure. None of these cases involves the application of a common law affirmative defense to a claim based on a statute, and none holds that common law affirmative defenses would not be available if the claim was based on a violation of a statute.
The Missouri Supreme Court has held that the voluntary payment doctrine is a defense to a lawsuit to recover a portion of a fine the plaintiff voluntarily paid pursuant to a plea agreement that exceeded the maximum fine allowed by statute. Ferguson v. Butler County, 247 S.W. 795, 796-97 (Mo. banc 1923). Plaintiffs have not cited any contrary, relevant authority to support its claim that the voluntary payment doctrine is not an affirmative defense to a statutory claim. This subpoint is denied.
C. Fraud Exception to Voluntary Payment Doctrine
In their argument under this subpoint, plaintiffs contend that they pleaded that their payments were induced by fraud and that the voluntary payment doctrine does not apply in cases involving fraud, citing Ferguson, 247 S.W. at 796, and American Motorists, 447 S.W.2d at 811. Fraud is one of the exceptions to the voluntary payment doctrine because if the payment has been induced by fraud, the payment is not voluntary.Cridlebaugh, 192 S.W.3d at 544. Plaintiffs support their contention that this is a fraud claim by arguing that "consumers" who "allege" that they have been "tricked into paying inconspicuous and illegally-inflated charges" do not have all the facts. However, the petition does not contain any allegations that the charges were "inconspicuous" or "illegally inflated," or that plaintiffs were "tricked." As we have already stated, a plaintiff cannot rely on unpleaded "facts" in arguing that the petition states a cause of action. Saling, 924 S.W.2d at 314.
Plaintiffs also argue that they alleged fraud in that Charter billed them for the extra charge without their permission or request and that "these actions constitute fraudulent and deceptive practices." In Missouri, common law fraud has nine essential elements: "a representation; that is false; that is material; the speaker's knowledge of its falsity or ignorance of its truth; the speaker's intent it be acted on; the hearer's ignorance of the falsity of the representation; the hearer's reliance; the hearer's right to rely on it; and injury." State ex rel. PaineWebber v. Voorhees, 891 S.W.2d 126, 128 (Mo. banc 1995); see also Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 765 (Mo. banc 2007). Further, the circumstances of each element of fraud must be pleaded with particularity. Bohac v. Walsh, 223 S.W.3d 858, 863 (Mo.App. 2007). A plaintiff may not rely on conclusions. Id. Plaintiffs' allegations do not state a claim for common law fraud. Moreover, the petition specifically negates a cause of action for fraud because it alleges that the charges appeared as a line item on the bills sent to plaintiffs. As a result, plaintiffs could reasonably have known about the charges by reading the bills, which defeats their claim that they alleged fraud. See PaineWebber, 891 S.W.2d at 129.
Having failed to properly plead the elements of fraud in their petition, plaintiffs cannot avoid the application of the voluntary payment doctrine on the ground of fraud. This subpoint is denied.
D. Full Knowledge
Plaintiffs last assert that the petition did not establish that plaintiffs had full knowledge of all the facts when they paid their bills. This argument has no merit. Plaintiffs alleged that the monthly bills contained a separate line item for the Guide and had a separate charge for it. As set out above, these allegations show that plaintiffs had full knowledge that they were being billed for the Guide. Id. If the amount of the charge and the subject matter of the charge appear on a bill submitted to a party, that party is deemed to have knowledge of the facts. See National Enameling, 40 S.W.2d at 595-96; see also, Harris, 841 N.E.2d at 1032-33; McWethy, 988 P.2d at 357-58; Putnam, 649 N.W.2d at 633-34.
Plaintiffs additionally argue that they should not be deemed to have full knowledge if they did not see the charge on the bill due to "negligence or inadvertence." Because plaintiffs did not allege in the petition that they did not see the charges on the bill, their argument that the petition refuted the "full knowledge" element of the voluntary payment doctrine has no merit. This subpoint is denied.
Summary
The voluntary payment doctrine bars recovery of fees previously paid with full knowledge of the facts, in the absence of properly pleaded allegations of fraud, duress, or mistake of fact. Plaintiffs did not plead these exceptions and have not provided a persuasive rationale to recognize a new exception to the application of the doctrine. The trial court did not err in granting the motion to dismiss. This point is denied.
II. Injunctive Relief
Plaintiffs also contend that the trial court erred in dismissing their prayer for injunctive relief under the MMPA because section 407.025.2 provides that a court may order injunctive relief. Even if plaintiffs' claim is properly brought under section 407.025.2, because of our disposition of Point I, this point is moot. Section 407.025 governs private causes of action under the MMPA. Section 407.025.1 allows a consumer to bring an action for damages and also allows the award of equitable relief to a prevailing party, which includes an injunction. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 161 (Mo.App. 2006). If a party is not the prevailing party in the civil action authorized under section 407.025.1, that party is not entitled to equitable relief under that section. Freeman Health System v. Wass, 124 S.W.3d 504, 508-09 (Mo.App. 2004). Section 407.025.2 is more explicit: it allows a court to order an injunction as a remedy "in addition to damages." Thus, even if plaintiffs' class action was properly brought under section 407.025.2, which defendant disputes, that section does not provide for injunctive relief independent of a successful damage claim. This point is denied.
Defendant questions whether section 407.025.2 is the appropriate subsection of the statute for plaintiffs' class action against an individual defendant. Defendant argues that subsection authorizes class actions only against a class of defendants rather than against individual defendants.
Conclusion
The judgment of the trial court is affirmed.
Robert G. Dowd, Jr., J. and Kenneth M. Romines, J., concur.
OPINION SUMMARY
Plaintiffs filed an amended class action petition seeking damages, injunctive relief, and certification as a class under sections 407.025 and 407.200 of the Missouri Merchandising Practices Act, section 407.010 et seq. RSMo (2000), and 15 CSR 60-8.060, alleging that the defendant cable television company sent customers unsolicited television channel guides, which the customers had not solicited, and then billed them for the guides. The trial court entered a judgment dismissing the petition with prejudice on the ground that plaintiffs' damage claims were barred by the voluntary payment doctrine.
AFFIRMED.
Division One Holds:
1. Plaintiffs have not demonstrated that the voluntary payment doctrine "is an ancient doctrine ill-suited to modern class actions."
2. Plaintiffs have not demonstrated that the voluntary payment doctrine may not be used as an affirmative defense in a cause of action based on a statute.
3. Fraud is one of the exceptions to the voluntary payment doctrine because if the payment has been induced by fraud, it is not voluntary. However, plaintiffs did not allege fraud.
4. The petition alleged that the monthly bills received by plaintiffs contained a separate line item for the channel guides, refuting plaintiffs' claim that the petition did not establish that plaintiffs had full knowledge of the facts when they paid their bills.
Robert G. Dowd, Jr., J. and Kenneth M. Romines, J., concurring.