STATE OF MISSOURI, ex rel.                           )
ATTORNEY GENERAL ERIC                                )
SCHMITT,                                             )
                                                     )
        Plaintiff-Respondent,                        )
                                                     )
v.                                                   )        No. SD35829
                                                     )
SCHIER COMPANY, INC., and                            )        Filed: January 28, 2020
GARY ALLEN SCHIER,                                   )
                                                     )
        Defendants-Appellants.                       )

             APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY

                                 Honorable Kenneth F. Thompson
AFFIRMED

        Schier Company, Inc. (“Schier Co.”) and Gary Allen Schier (“Schier”)

(collectively, “Defendants”) appeal the trial court’s judgment in favor of State of

Missouri, ex rel. Attorney General Joshua Hawley,1 (“A.G.”) for violations of the

Missouri Merchandising Practices Act (“MMPA”). Defendants claim the trial court erred

in entering judgment in favor of A.G. under the MMPA and awarding “rescission”2

because: (1) A.G. failed to meet its burden of proof on the element of “misrepresentation

or concealment, suppression or omission of a material fact”; (2) A.G. failed to meet its

1
  While this appeal was pending, Attorney General Eric Schmitt was substituted for Joshua Hawley as the
respondent pursuant to Rule 52.13(d). All rule references are to Missouri Court Rules (2019).
2
  The judgment does not use the word “rescission”; it orders Defendants to “pay restitution of $79,400 to
the State of Missouri pursuant to sec. 407.170.4 [sic] RSMo.” Unless otherwise indicated, all statutory
references are to RSMo 2016.


                                                    1
burden of proof on the element of “ascertainable loss”; (3) rescission was not pled in the

petition or requested any time prior to trial; (4) there was no “evidence of probative force

showing that [Schier] had actual or constructive knowledge of actionable wrong and

participated therein” to hold Schier individually liable; and (5) “application of the MMPA

is unfair, unjust, and outside the scope intended by the legislature[.]”

        Finding the last of these claims outside of our purview and no merit in the others,

we affirm.

                                    Standard of Review

        We presume the judgment correct, and the appellant bears the burden of

demonstrating reversible error. Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D.

2010). Therefore, we must affirm the judgment unless the appellant demonstrates that

there is no substantial evidence to support it, it is against the weight of the evidence, or it

erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo

banc. 1976); Rule 84.13(d).

        “Substantial evidence is evidence that, if believed, has some probative force on

each fact that is necessary to sustain the [trial] court’s judgment.” Ivie v. Smith, 439

S.W.3d 189, 199 (Mo. banc 2014). “Evidence has probative force if it has any tendency

to make a material fact more or less likely.” Id. at 199-200. To determine if the trial

court’s judgment is supported by substantial evidence, we “view the evidence and the

reasonable inferences drawn from the evidence in the light most favorable to the

judgment, disregard all evidence and inferences contrary to the judgment, and defer to the

trial court’s superior position to make credibility determinations.” Houston, 317 S.W.3d

at 186. All fact issues upon which no specific finding is made must be considered to




                                               2
have been made in accordance with the result reached. Ivie, 439 S.W.3d at 200; Rule

73.01(c).

        A judgment is against the weight of the evidence only if the trial court could not

have reasonably found, from the record at trial, the existence of a fact necessary to

sustain the judgment. Id. at 206. This challenge differs from a challenge to the

sufficiency of the evidence. It is a test of how much persuasive value evidence has—not

simply whether sufficient evidence exists that tends to prove a necessary fact. Id. Like a

substantial-evidence challenge, however, we defer to the trial court’s factual findings

when those alleged facts are contested. Id. at 200, 206. The against-the-weight standard

serves only as a check on a trial court’s potential abuse of power in weighing the

evidence. Id. at 206.

                                            The Evidence

        Dairymen’s Best Creamery Cooperative, LLC (“Dairymen’s Best”) is a co-op of

dairy farmers formed for the purpose of processing milk into marketable milk products.3

Dairymen’s Best hired David Cline (“Cline”) to manage and supervise the construction of

the dairy-processing plant. Cline’s responsibilities included ordering the dairy-

processing equipment necessary to get the plant operational.

        Schier Co. is a company that buys and sells used dairy-processing equipment to

dairy operations. Schier Co. does not itself refurbish or manufacture dairy equipment or

parts; it obtains all such equipment and parts from third parties. Schier is the founder,

sole owner, and president of Schier Co. In his role as president, Schier is “responsible for


3
  Dairymen’s Marketing Cooperative, Inc. (“DMCI”) is the parent company of Dairymen’s Best. DMCI
operates by obtaining raw milk from its members and then markets that milk to dairy processors. DMCI
began exploring ways to process DMCI’s milk into milk products to avoid the costs associated with
transporting the milk to a processor. Dairymen’s Best was the entity created to carry out that mission.


                                                    3
everything that the company does[,]” including approving the contents of the company’s

website.4 Schier Co.’s website states “[w]e inspect each one of our new and used,

reconditioned pieces for the highest quality and efficiency to ensure that all our

equipment is long-lasting and reliable.” While the website guaranteed Schier Co.’s

reconditioned equipment to be “free from defects[,]” it excluded equipment and pieces

obtained from third-party vendors.

         Cline, on behalf of Dairymen’s Best, began looking for dairy-processing

equipment to order for the plant. He reviewed Schier Co.’s website and recommended to

the board of Dairymen’s Best that the necessary processing equipment be ordered from

Schier Co. Dairymen’s Best followed that recommendation and ordered a milk

pasteurizer5 from Schier Co.

         When the pasteurizer arrived, it appeared that all of its valuable parts had been

removed. The parts that remained were not usable. When inspectors from the State Milk

Board came to inspect the pasteurizer, it failed the inspection. When contacted after that

failed inspection, Schier agreed to take the machine back and provide a $20,000 credit

toward the purchase of a new machine with an upgraded capacity to 1,000 gallon per

hour.

         Schier told Cline that the second pasteurizer would be built from the frame of a

used pasteurizer with new components that would make the machine “like new[.]”

Schier personally spoke with Cline and promised that the second pasteurizer would be



4
  According to the Schier Co. website, Schier is “involved in locating and providing equipment to the
people that are going to build their plant or change equipment in the plant or add a piece of equipment to
the plant.” Schier has never manufactured dairy products. Schier “deal[s] with people purchasing
equipment from all over the world[.]”
5
  The evidence was that a milk pasteurizer is a piece of equipment that “heats the milk to kill any pathogens
that are in the milk that might be harmful to . . . a consumer” and thus is “vital to dairy manufacturing.”


                                                     4
“PMO [Pasteurized Milk Ordinance] compliant.”6 The written invoice for the second

pasteurizer (the “HTST pasteurizer”) stated it would be a “PMO legal 1,000-gallon-per-

hour HTST pasteurizer system[.]”7

        Dairymen’s Best ordered the HTST pasteurizer on January 5, 2015, and remitted

the down payment on January 21, 2015.8 Dairymen’s Best paid the remaining balance on

the HTST pasteurizer before delivery was made. Dairymen’s Best paid for all equipment

it received from Schier Co. in full. The total amount paid by Dairymen’s Best for the

HTST pasteurizer was $79,400.

        After delivery, Dairymen’s Best discovered that the HTST pasteurizer had been

refurbished in Mexico. Dairymen’s Best did not know that the equipment would be

coming from Mexico, and it would not have purchased a piece of equipment that did not

have nearby factory support. Defendants did not inspect the HTST pasteurizer prior to

delivery.

        Dairymen’s Best hired a local metal-working company to install the HTST

pasteurizer. After installation, inspectors from the State Milk Board inspected the HTST

pasteurizer. The inspectors observed several defects in the equipment that rendered it

PMO non-compliant. Don Falls, an inspector and state rating officer for the State Milk

Board, determined that the HTST would not pass under PMO regulations because: the


6
  To be used in the production of dairy products, Missouri requires pasteurizers to pass an inspection
performed by the State Milk Board. To pass inspection, pasteurizers must comply with a series of
regulations called the Pasteurized Milk Ordinance (“PMO”). Evidence at trial indicated that the PMO is
promulgated by the Food and Drug Administration and has been adopted by all 50 states.
7
  An HTST pasteurizer heats and cools the milk continuously as it flows through the machine. Schier Co.’s
website advertised “New Custom Built HTST High Temperature Short Time Pasteurizes [sic] for the Dairy
Industry[.]”
8
  Schier Co. stated that the HTST pasteurizer would be delivered 60 days after the order, on March 4, 2015.
While Cline was concerned about late delivery, he never told Schier Co. to skip inspecting the equipment.
On May 15, 2015, Schier emailed Dairymen’s Best that the HTST pasteurizer was being tested and would
be ready to ship that day.


                                                    5
thermometers were too short to reach the milk flow; there was an improper slope in a

holding tube along with an improperly oriented concentric reducer; there was a weld that

was too rough; an improper vacuum-breaker was installed; the programmable logic

controller (“PLC”) was not pre-approved; and the balance-tank slope was incorrect. The

HTST pasteurizer would not power-up unless factory technicians attached external

computers to operate it. Even then, the equipment would not send the liquid through the

entire process. There were also problems with the flow-diversion valves.9 The

homogenizer was not the correct size to work with the HTST pasteurizer because the

rates of gallons per hour did not match. Because the inspectors were unable to determine

who had manufactured the flow-diversion valves installed on the HTST pasteurizer, they

were unable to certify the machine as PMO-compliant. Dairymen’s Best would not have

agreed to purchase a PMO non-compliant pasteurizer.10

         In addition to the equipment’s obvious defects, Schier Co. failed to provide

information about the programmable logic controller (“PLC”) -- the software that

governs certain functions of the HTST pasteurizer.11 Without that information,

inspectors cannot determine if the software will perform as required.

         Several of the tests the inspectors needed to run could only be done with the

machine powered-up. And, as previously noted, the equipment would not turn on until a

factory technician overrode the installed controls with an attached laptop computer. Two

technicians from Mexico came to work on the machine, but neither was able to get the


9
  Flow-diversion valves are necessary to prevent unpasteurized milk from being sent to the pasteurized milk
storage tank.
10
   For a few months, Dairymen’s Best produced cheese curds and yogurt using the less efficient method of
vat pasteurization. This method was not economically viable, and the plant was eventually closed.
11
   Under the PMO, vendors are required to “provide a built-in program for test procedures or a protocol that
shall be provided so that all applicable public health tests . . . can be performed by the Regulatory
Agency[.]”


                                                     6
HTST pasteurizer to operate. When the technicians turned the machine on, it would not

maintain a temperature necessary for the machine to make milk flow in a forward

direction so that it could be pasteurized.

        Dairymen’s Best documented a list of defects and provided it to Schier Co. in an

email indicating that the HTST pasteurizer had failed inspection. Schier received the

email and reviewed it, but he denied having any knowledge that inspectors said there

were specific defects that prevented them from certifying the equipment as PMO-

compliant.

        Dairymen’s Best obtained an estimate for the repairs required to make the

equipment operable and PMO-compliant, and it requested that Schier Co. pay for the

modifications. Defendants refused. Cline also requested that Schier Co. refund the

money that Dairymen’s Best paid for the non-compliant HTST pasteurizer.

        A.G. filed a petition against Defendants alleging violations of the MMPA that

claimed Defendants had engaged in unfair or deceptive trade practices by representing

that the HTST pasteurizer was PMO-compliant when, in fact, it was not (Count 1), that

Defendants concealed, suppressed, or omitted the material fact that the equipment was

not PMO-compliant (Count 2), and that Defendants misrepresented that all equipment is

inspected to ensure that it is long-lasting and reliable (Count 3). In its request for relief,

A.G. requested, in part, that the trial court enter a judgment “[r]equiring Defendants,

pursuant to [section] 407.100.4, to provide full restitution to any consumers who suffered

any ascertainable loss.” The trial court heard evidence and entered a judgment against

Defendants. The judgment awarded A.G.: $79,400 for restitution; $7,940 for the




                                               7
Missouri Merchandising Practices Fund; $1,000 as a civil penalty; and $85,901.27 for the

costs of investigating and prosecuting the case.

                                                Analysis

                                        Briefing Deficiencies

        Before we may address the merits of any of Defendants’ arguments, we must

consider the briefing deficiencies that have materially hindered impartial appellate

review. Compliance with Rule 84.04 is mandatory “to ensure that appellate courts do not

become advocates by speculating on facts and on arguments that have not been made.”

Myrick v. Eastern Broad., Inc., 970 S.W.2d 885, 886 (Mo. App. S.D. 1998). These

deficiencies alone are sufficient for us to deny each of Defendants’ points.12 Bridges v.

American Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo. App. W.D. 2004).

        First, Defendants have failed to comply with Rule 84.04(d). Rule 84.04(d)(1)(B)

requires a point to “[s]tate concisely the legal reasons for the appellant’s claim of

reversible error[.]” “[E]ach Murphy ground is a separate, distinct legal claim.” For

instance, ‘an against-the-weight-of-the-evidence’ analysis is distinctly different from the

analysis to be employed on a claim that a judgment is not supported by substantial

evidence.”13 Smith v. Great Am. Assur. Co., 436 S.W.3d 700, 703-04 (Mo. App. S.D.

2014) (citing J.A.R. v. D.G.R., 426 S.W.3d 624, 630 (Mo. banc 2014)).




12
   They also fail for other, substantive reasons as set forth infra.
13
   A not-supported-by-substantial-evidence challenge requires completion of the following three sequential
steps:

        (1) identify a challenged factual proposition, the existence of which is necessary to
            sustain
            the judgment;
        (2) identify all of the favorable evidence in the record supporting the existence of that
            proposition; and,
        (3) demonstrate why that favorable evidence, when considered along with the reasonable


                                                    8
            In points 1 and 2, Defendants claim that A.G. “failed to meet its burden of proof”

as to a necessary element of a MMPA claim.14 Whether a necessary fact has been proven

is a matter left solely to the fact-finder unless the proposition is not supported by

substantial evidence or is against the weight of the evidence. Here, Defendants claim

neither.

            As a result, Defendants have failed to follow the proper analytical framework

necessary to support either a not-supported-by-substantial evidence or an against-the-

weight-of-the-evidence challenge.15



                 inferences drawn from that evidence, does not have probative force upon the
                 proposition such that the trier of fact could not reasonably decide the existence of the
                 proposition.

An against-the-weight-of-the-evidence challenge incorporates these three steps and then adds a fourth:

            (1) identify a challenged factual proposition, the existence of which is necessary to
                sustain
                the judgment;
            (2) identify all of the favorable evidence in the record supporting the existence of that
                proposition;
            (3) identify the evidence in the record contrary to the belief of that proposition, resolving
                all
                conflicts in testimony in accordance with the trial court’s credibility determinations,
                whether explicit or implicit; and,
            (4) demonstrate why the favorable evidence, along with the reasonable inferences drawn
                from that evidence, is so lacking in probative value, when considered in the context
                of the totality of the evidence, that it fails to induce belief in that proposition.

Houston, 317 S.W.3d at 187.
14
     Defendants’ first point states, in toto:

            THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF [A.G.]
            UNDER THE [MMPA], BECAUSE [A.G.] FAILED TO MEET THE BURDEN OF
            PROOF AS TO THE NECESSARY ELEMENTS OF THEIR ACTION ALLEGING
            VIOLATION OF THE MMPA, IN THAT [A.G.] FAILED TO SHOW THAT
            DEFENDANTS ENGAGED IN MISREPRESENTATION OR CONCEALMENT,
            SUPPRESSION OR OMISSION OF A MATERIAL FACT.

Point 2 claims the trial court erred in granting judgment in favor of A.G. under the MMPA because A.G.
“failed to show that [Dairymen’s Best] suffered an ascertainable loss.”
15
   Defendants’ attempted to correct this defect by identifying a Murphy claim in their reply brief. Such a
procedure comes too late as arguments omitted from an initial brief may not be supplied by a reply brief.
Russell v. Division of Emp’t Sec., 43 S.W.3d 442, 444 (Mo. App. S.D. 2001). Even then, the reply brief


                                                          9
         Defendants’ fourth point claims the trial court erred in holding Schier individually

liable “because there was no evidence of probative force that would justify individual

liability for corporate acts, in that [A.G.] . . . failed to produce evidence . . . showing that

[Schier] had actual or constructive knowledge of actionable wrong and participated

therein.” (Emphasis added.) Although this point arguably asserts a not-supported-by-

substantial-evidence claim, it fails for the same reason as points 1 and 2: Defendants’

argument is deprived of any analytical or persuasive value by its failure to engage in the

analytical process set forth in Houston. J.A.R., 426 S.W.3d at 632.

         Further, all five of Defendants’ error-claims violate Rule 84.04(e), which requires

that “[f]or each claim of error, the argument shall also include . . . the applicable standard

of review.” (Emphasis added.) While Defendants included a general section titled

“Standard of Review[,]” that section does not specify the standard of review applicable to

each claim of error.

         Finally, Defendants’ brief also fails to explain how each challenge was preserved

for appellate review. Rule 84.04(e) requires appellants to include in their argument for

each claim of error “a concise statement describing whether the error was preserved for

appellate review[.]” We “will not, on review, convict a trial court of error on an issue

which was not put before it to decide.” First Bank Centre v. Thompson, 906 S.W.2d

849, 859 (Mo. App. S.D. 1995). “Even in a court-tried case, where a post-trial motion is

not necessary to preserve an otherwise properly raised issue for appellate review, the


incorrectly combines a not-supported-by-substantial-evidence challenge with an against-the-weight-of-the-
evidence challenge. Points that include multiple issues are multifarious and preserve nothing for appellate
review. City of Joplin v. Wallace Bajjali Dev. Partners, L.P., 522 S.W.3d 327, 330 (Mo. App. S.D. 2017).
A point relied on should contain only one issue, and parties may not group multiple challenges into a single
point relied on. Id.; J.A.R., 426 S.W.3d at 630 n.10; Cooper v. Bluff City Mobile Home Sales, Inc., 78
S.W.3d 157, 167 (Mo. App. S.D. 2002) (collapsing disparate contentions of error into a single point relied
on is a violation of Rule 84.04(d)).


                                                    10
appellant must make some effort to bring the alleged error to the trial court’s attention.”

Heck v. Heck, 318 S.W.3d 760, 767 (Mo. App. W.D. 2010) (citation omitted).

       Defendants, by failing to comply with Rule 84.04(e), have failed to provide us

with the information necessary to determine if the arguments they now present were

actually presented to the trial court. It is not this court’s duty to supplement a deficient

brief with its own research. In re V.C.N.C., 458 S.W.3d 443, 447 (Mo. App. E.D. 2015),

abrogation on other grounds recognized by In re K.M.A.-B., 493 S.W.3d 457, 473 n.6

(Mo. App. E.D. 2016). “Neither is it our job to ‘comb the record’ in search of facts to

support [Appellants’] claim of error or demonstrate it is properly preserved for appellate

review.” Carruthers v. Serenity Mem’l Funeral & Cremation Serv., LLC, 576 S.W.3d

301, 305 (Mo. App. E.D. 2019) (quoting Wong v. Wong, 391 S.W.3d 917, 919-20 (Mo.

App. E.D. 2013)).

       By failing to comply with the rules of appellate procedure, Defendants have

preserved nothing for our review. In re Marriage of Fritz, 243 S.W.3d 484, 487 (Mo.

App. E.D. 2007); Smith, 436 S.W.3d at 704 n.4. Points 3 and 5 also fail for other reasons

that we will address briefly, ex gratia.

                      Point 3 ‒ Rescission as the Appropriate Remedy

       Defendants’ third point claims the trial court erred in granting rescission “because

rescission was not timely requested, in that there was no evidence that [Dairymen’s Best]

requested a rescission of the alleged agreement in the pleadings or at any time prior to

trial.” Defendants’ argument is unavailing as the language of the judgment ordered

Defendants to pay “restitution of $79,400[,]” and A.G. unequivocally requested, in

paragraph C of its request for relief, that the trial court enter a judgment “[r]equiring

Defendants, pursuant to [section] 407.100.4, to provide full restitution to any consumers


                                              11
who suffered any ascertainable loss.” Defendants’ use of the word “rescission” ignores

the actual relief sought in A.G.’s request for relief.

        To satisfy Rule 55.05, “the pleading need not label the plaintiff’s theory of

recovery.” Sivigliano v. Harrah’s N. Kansas City Corp., 188 S.W.3d 46, 49 (Mo. App.

W.D. 2006). “The purpose of fact-pleading is to present, define[,] and isolate the

controverted issues so as to advise the trial court and the parties of the issues to be tried

and to expedite the trial of a cause on the merits.” Id. at 48 (citation omitted).

        Here, Defendants were sufficiently advised that A.G. was seeking to restore

Dairymen’s Best to its prior position. The language in Paragraph C of A.G.’s Petition

against Defendants advised Defendants that A.G. was seeking “full restitution[,]” and it

even referenced section 407.100.4, the statutory basis for the request. Section 407.100.4

provides:

                The court, in its discretion, may enter an order of restitution,
        payable to the state, as may be necessary to restore to any person who has
        suffered any ascertainable loss, including, but not limited to, any moneys
        or property, real or personal, which may have been acquired by means of
        any method, act, use, practice or solicitation, or any combination thereof,
        declared to be unlawful by this chapter. It shall be the duty of the attorney
        general to distribute such funds to those persons injured. Such funds may
        or may not be interest-bearing accounts, but any interest which accrues to
        any such account shall be sent at least annually by the attorney general to
        the director of revenue to be deposited in the state treasury to the credit of
        the state general revenue fund.

(Emphasis added.)

        Defendants had notice of—and the court had discretion to award—restitution.

Defendants’ argument that “rescission” was not requested ignores that notice and the

language of the judgment stating that Defendants “shall pay restitution of $79,400[,]” not




                                              12
that “rescission” was being granted.16 Restitution (as opposed to rescission) merely

requires the restoration of Dairymen’s Best to the position it would have occupied if the

transaction with Defendants had never been made. A.G. had the ability to request

restitution in its petition, and the trial court had the necessary discretion to award it.17

         Point 3 is denied.

                                Point 5 – The Public Policy Argument

         Point 5 claims:

         The trial court abused its discretion in granting judgment in favor of
         [A.G.] under the [MMPA], because application of the MMPA is unfair,
         unjust, and outside the scope intended by the legislature, in that
         [Dairymen’s Best] and [DMCI] had unclean hands, treating this dispute as
         a violation of the MMPA rather than . . . as a proxy for sophisticated
         corporate entities disputing a business transaction.

         Point 5 fails to identify a legal argument that would warrant reversal by this

intermediate appellate court. Instead, Defendants make a public-policy argument that the




16
   “[R]escission of a contract involves restoration of the status quo of the parties[.]” Dilts v. Lynch, 655
S.W.2d 118, 121 (Mo. App. S.D. 1983). “Rescission damages are provided when a party rescinds the
contract by returning the property to the seller, thus entitling that party to a refund.” Kerr, 439 S.W.3d at
813. While rescission necessarily requires restoring the parties to the status quo, restitution, as used in
section 407.100.4, merely requires restoring the consumer (as opposed to both parties) to the consumer’s
prior position. Restitution is defined as “restoration of [the] status quo and is the amount which would put
plaintiff in as good a position as he would have been if no contract had been made, and restores to plaintiff
[the] value of what he parted with[.]” Harris v. Desisto, 932 S.W.2d 435, 447 (Mo. App. W.D. 1996)
(citing Black’s Law Dictionary 1313 (6th ed. 1990)) (emphasis added). Section 407.100.4 makes no
mention of “rescission” or placing the defendant in the same position it would have been in had the
transaction at issue never occurred. Although rescission and restitution are similar, they are nonetheless
distinct remedies.
17
   The judgment does state that “Defendants . . . may arrange for the removal and remove the two HTSTs
from their current location and into the possession of Defendants or their assigns.” To the extent that this
relief might be considered “rescission,” the authorization to have the equipment returned to Defendants at
Defendants’ option does not prejudice Defendants in any way. “In order to demonstrate reversible error,
therefore, an appellant must demonstrate that the challenged trial court ruling or action was legally
erroneous and that appellant was actually prejudiced as a result of that erroneous ruling or action.” In re
J.G.H. v. Greene Cty. Juvenile Office, 576 S.W.3d 257, 260 (Mo. App. S.D. 2019). The trial court had
discretion under the statute to restore Dairymen’s Best to the position it had been in (i.e., order restitution).
Section 407.100.4. To the extent that it erred in permitting a return of the HTST pasteurizer to Defendants
at the option of Defendants, it is an error in Defendants’ favor, putting them in a better position than they
would have been in had the trial court merely ordered restitution to Dairymen’s Best.


                                                       13
MMPA should not apply to this type of case but “should be subject to civil litigation

rather than an action under the MMPA.”

       “Policy arguments, while useful in the face of an ambiguous statute, are of no

benefit when the statute is not ambiguous.” State ex rel. McDonald’s Corp. v. Midkiff,

226 S.W.3d 119, 126 (Mo. banc 2007) (quoting Havens Steel Co. v. Missouri Prop. &

Cas. Ins. Guar. Ass’n, 956 S.W.2d 906, 909 (Mo. banc 1997)). Further, an intermediate

appellate court is an “error-correcting court, not a policy making court[.]” Wilder v.

John Youngblood Motors, Inc., 534 S.W.3d 902, 913 (Mo. App. S.D. 2017) (quoting

Saint Francis Med. Ctr. v. Watkins, 413 S.W.3d 354, 357 (Mo. App. S.D. 2013)).

       Defendants do not argue that the MMPA is ambiguous. Instead, Defendants ask

us to redefine the reach of the MMPA to exclude claims involving a consumer that is a

corporation. Such a request is a public-policy argument to be presented to the citizens’

elected representatives, not to this court.

       Point 5 is also denied, and the judgment of the trial court is affirmed.



DON E. BURRELL, J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS

JEFFREY W. BATES, J. – CONCURS




                                              14
