Section 25 Unfair Practice Determined by Conduct, Not Intent

• Library: Consumer Law and Practice 2010

Missouri courts have held that the determination of whether the defendant has, is, or will violate the statute hinges on an analysis of the defendant's conduct, not the defendant's intent. State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. E.D. 1988); see also State ex rel. Ashcroft v. Mktg. Unlimited of Am., Inc., 613 S.W.2d 440, 445 (Mo. App. E.D. 1981). The court in Marketing Unlimited of America held that the key element in proving a violation of Chapter 407, RSMo, was establishing that the defendant's conduct constituted unfair practices.

For example, in Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228 (Mo. App. S.D. 2006), the defendant sold the plaintiff a heating and air conditioning unit with a lifetime warranty. Id. at 230-31. Although the defendant honored the warranty on five occasions, the defendant subsequently...