The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3527/3529

___________ Melissa R. Bird, * * Appellee/Cross-Appellant, * * v. * Appeals from the United * States District Court John Chezik Homerun, Inc.; NKC * for the Western District Motors, Inc., * of Missouri * Appellant/Cross-Appellees. *

___________ Submitted: June 8, 1998 Filed: August 21, 1998

___________ Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________ OWEN M. PANNER, District Judge. Defendan t

John Chezik Homerun, Inc., dba John Chezik Honda ("Chezik") , appeals froma judgment in favor of plaintiff Melissa Bird ("Bird") on her claim fo r common law

fraud. The jury awarded Bird $6,900 in actual damages and $35,000 in punitive damages. Bird cross-appeals the trial court's denial of her motion for a new trial, or for entry of judgment as a matter of law, on her claim for violation of the2

Mis souri Merchandising Practices Act, Mo.Rev.Stat. §§ 407.010-407.102 0 ("Mercha ndising Practices Act"). The jury found that Chezik had committed multiple violations of the Merchandising Practices Act, but awarded Bird no damages on that claim. Bird also cross-appeals the trial court's refusal to give her proposed instruction on actual damages. We affirm in part and reverse in part.
BACKGROUND Bird bought a late-model used car from Chezik. Chezik's salesman tol d Bird that "the only thing wrong with the car is that the pop can holder is broken." The salesman also told Bird that it was a one-owner vehicle which was traded in because the original owner was upgrading to a newer vehicle. None of that was true. Bird subsequentl y learned that the car not o nly had multiple prior owners but had been totaled in a headon collision. A salvage company purchased the wreck and so ld it to a dealer, who then patched it up and sold it at a wholesale auction where it was purchased by Chezik.
At trial, Chezik denied any knowledge of the car's tainted past. However, the jury heard testimony that the damage was poorly repa ired and would have been readily apparen t to an experienced mechanic or car salesman. Chezik's manager, wh o parti cipatedin the sale, had been in the used car business for over two decades an d frequent lybought cars at the wholesale auction. The car was given a thoroug h inspection by Chezik's mechanic before being placed on the lot for sale. Bird paid Chezik $7,671 for the car. She also paid $805 in fees and taxes to title the car, and $ 2,544.94 to finance the car. There was expert testimony that the vehicle wouldhave been worth $8,725 if it had been as represented, but in its true condition was worth only its salvage value of $1,800, a difference of $6,925.
The jury f

ound for Bird on Count I, common law fraud, and awarded actua l damag es of $6,900 and punitive damages of $35,000. The jury returned a specia l verdict which specifically found that Chezik "fraudulently misrepresent[ed]" that the3

car (a) "was a one-owner vehicle," (b) "had been traded in because its prior owne r wanted to upgrade his car," and (c) "had nothing wrong with it except a pop ca n ho lder." The jury also found that Chezik "fraudulently conceal[ed] (represent[ed] by silence) that the [car] had sustained prior wreck damage."
On Count II, the jury returned a special verdict which found that Chezik ha d violated the Merc handising Practices Act by "misrepresenting" that the car (a) "was a one-owner vehicle," (b) "had been traded in because i ts prior owner wanted to upgrade his car," and (c) "had nothing wrong with it except a pop can holder." The jury also found that Chezik had violated the Merchandising Practices Act by "concealin g (representing by silence)" that the car "had sustained prior wreck dam age." In addition, the jury found that Chezik had vi olated the Merchandising Practices Act "with respect to th e charging of" a "'title, filing and document fee.'" However, the jury then foun d th atplaintiff had suffered no actual damages as a result of these misrepresentations

. The trial court refused to submit the issue of punitive damag es to the jury on this count.
Count III all eged breach of express and implied warranties and violation of the Magnuson-Moss Act, 15 U.S.C . § 2310. The jury found for Chezik on this count and Bird has not appealed. Both sides filed post-trial motions, which the trial court denied in a thorough 78- page opinion.
CHEZIK'S APPEAL Ch ezik's arguments were fully considered and rejected by the trial court, an d there is little that we can add to its detailed opinion. The evidence at trial was adequate t o support both the jury's verdict in favor of Bird and the award of punitive damages. $35,000 in punitive damages was neither excessive under the circumstances no r dispropo rtionate to the amount of damages sustained. The trial court did not err b y admitting evidence of two other instances in which Chezik allegedly sold used cars toFor purposes of this appeal, the principal difference between the two claims 2 is that the Merchandising Practices Act provides for statutory attorney fees, whereas fees are not recoverable on the common law fraud claim. 4 consumers without disclosing that the vehicles had bee n seriously damaged in a wreck. This testim ony was admissible to show that the sale to Bird was neither an isolate d incident nor inadvertent. Knowledge and intent were elements of the fraud claim and also were re levant to Bird's prayer for punitive damages. The trial court considere d whether the incidents were sufficiently similar to be probative of the point for whic h they were offered, and weighed the p robative value of this evidence against the risk of unfair prejudice or confusion. We decline to disturb the trial court's reas oned judgment.
Ch ezik's final assignment of error is that the trial court should have exclude d testimony from the buyers of two other wrecked cars that Chezik sold because those witnesses "were barred from [te stifying] by their previous settlement of claims against John Chezik Honda." Brief for Appellant at 8. We disagree. Even assum ing that those settlement agreements purported to prohibit the signatories from testifying in another proceeding, those agreements were not binding upon Bird or the trial court, neither of which was a party to those settlement agreements. See Baker v. General Motor s Corp. , ___ U.S. ___, 118 S. Ct. 657 (1998).
BIRD'S CROSS-APPEAL On Count I, common law fraud, the jury specifically found that Che zik had made certain misrepresentations and awarded Bird $6,900 in actual damages and $35,000 in punitive damages. On Count II, the Merchandi sing Practices Act, the jury again found that Ch ezik had made those same misrepresentations, plus one additiona l misrepresentation. The jury also found - -five different times-- that Chezik violated the Merchandising Practices Act. Nevertheless, when asked to decide the a mount of actual damages that Bird sustained as a result of th ose violations, the jury responded "none." 25

Bird timely objecte d to the alleged inconsistency and requested that the jury be sent back to resume its deliberations, thereby preserving this error for appeal. Se e Polac co v. Curators of the Univ. of Missouri , 37 F3d 366, 369 n.2 (8th Cir. 1994)

. The tri al court concluded that the verdicts were not inconsistent. Accordingly, th e court denied Bird's request and discharged the jury. When possible, this court must harmonize inconsistent verdicts, viewing the case in any rea sonable way that makes the verdicts consistent. Anheuser-Busch, Inc. v

. John Labatt Ltd. , 89 F.3d 1339, 1347 (8th Cir. 1996). However, we can find n o principled basis upon which to reconcile the jury's inconsistent findings. The jury specifically found the same misrepresentatio ns on both counts, the mode of calculating da mages was the same, and there is no variation in the essential elements of the tw o counts that could account for this discrepancy. If the misrepres entations caused $6,900 in actual damages under Count I, then they must have caused that amount of actua l damages under Count II which also included one additional misrepresentation. Jury Instruction No. 13, given by the tr ial court, correctly states that damage to the plaintiff is a required element of a clai m for violation of the Merchandising Practices Act. The jury found, five different times, that Chezik violated th at Act, yet also purported to find that Bird had sustained no damages. The only plausible explanation f or the jury's failure to award damages on Count II is that the jury had already awarded Bird damages on Count I for essenti ally the same conduct and did not want to award her the same damages twice. The jury did find against Bird on Count III, her claims for breach of express and implied warranty and of the Magnuson-Moss Act. However, the jury was instructed that it could n ot find for Bird on this claim unless the jury found that she had timel y given Chezik notice of the defects. There was testimony that she had not

. Accordingly, the adverse finding on C ount III does not alter our conclusions regarding Counts I and II.6

W eremand to the district court with instructions to enter judgment as a matter of law for the plaintiff on Count II, with the amount of actual damages on that coun t being the same as for Count I. Bird also assigns error to the jury instruction on actual damages, which the trial court limited to the difference between the fair market value of the vehi cle if it had been as re presented versus the vehicle's actual value. In Grabinski v. Blue Springs For d Sales, Inc

. , 136 F3d 565 (8th Cir 1998), decided while this appeal was pending, w e held under similar circumstances that the buyer "was also entitled to recover othe r expenses of which there was evidence, including interest charges, repair costs, lost time fromwork, excessive gasoline costs, towing charges, and other costs relating t o 'p roblems arising from the fraudulent transactions.'" Id at 570 (construing Missour i law).
Grabins ki allows a plaintiff to recover consequential damages, in addition t o benefito f the bargain damages, for expenses that are attributable to the fraud

. However , Grabinski does not permit recovery of expenses that would have bee n incurred even if

the vehicle had been as represented. There was testimony that Bird's vehicle had to be align ed and frequently needed new tires. In theory, Bird could have recovered those costs if the jury found that they resulted from the fraud, but she offered no evidence from which the jury could have fixed those costs. Bird is not entitled to reco ver the finance charges and taxes she paid to purchase the car, since she woul d ha ve incurred those costs even if the vehicle had been exactly as represented

. Accordingly, any error in the jury instructions was harmless.
CONCLUSION We affirm the jury's verdict in favor of Bird on Count I (fraud) and the verdict as to liability on Count II (Merchandising Practices Act). We reverse and remand to7

the district court for entry of judgment in Bird's favor on her claim for compensatory damages on Count II, in the same amount as for Count I.
Affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.