author: EVELYN V. KEYES, Justice. TERRY JENNINGS, Justice,

text:
    Minh Thu TRAN, Norman L. Roser, and Washington Mutual Bank, FA, Appellants, v. William MACHA and Nita Macha, Appellees.
    No. 01-03-00126-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.

      David W. Holman, Holman, Keeling & York, P.C., Larry E. Meyer, McCormick, Hancock & Newton, Houston, for appellants.
    Anne Edwards, David George, Sandra T. Krider, Edwards & George, LLP, Houston, for appellees.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION ON MOTION FOR REHEARING

EVELYN V. KEYES, Justice.

We issued our memorandum opinion in this case on April 1, 2004. Appellants filed a motion for rehearing on April 16, 2004. We deny the motion for rehearing, but withdraw our original opinion and substitute this in its stead so that we may more explicitly address whether adverse possession can occur following a mutual mistake regarding boundary lines. We decline, however, to address the constitutional argument raised in the motion for rehearing. See Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 166 (Tex.App.-Tyler 2000, pet. denied) (“A motion for rehearing does not afford a party an opportunity to raise new issues.”).

This is an appeal.of a jury’s finding that a 20-foot strip of property belongs to plaintiffs/appellees William and Nita Macha because they were in privity with the property’s previous owner who had acquired that strip of land via adverse possession. In two points of error, defendants/appellants Minh Thu Tran, Norman L. Roser, and Washington Mutual Bank, FA contend that the evidence is legally and factually insufficient to support a finding of adverse possession. We affirm.

Factual & Procedural Background

The disputed property is part of a West University subdivision originally developed and platted in the late 1920s. The lots on the block in question were all intended to be 50 to 55 feet wide. When the lots were staked, however, they were staked so that the intended houses themselves would be located 50 feet apart from one another. This mistake ultimately led to lot 5’s being 70 feet wide instead of 50 feet wide. The extra 20 feet of land were thought to lie on the east side of the house that was eventually built on lot 5 and were thought to belong to lot 5’s owner. Actually, the extra 20 feet lay on the west side of the house built on lot 5. At some point in the 1940s, the original owners of lot 5 built a home and a garage, inadvertently locating the garage and driveway on part of lot 6, as well as on lot 5.

In 1970, the Haliburton family bought lot 5 (4136 Case street). At that time, the Budde family, which was related to the Haliburton family, had been living in the home on lot 6 (4132 Case street) for about 15 years. The Buddes and the Halibur-tons both treated the garage and driveway as belonging to the Haliburtons. The Ha-liburtons used this driveway and garage for their cars for over 20 years, until Lillian Haliburton stopped driving. At that point, she moved her washer and dryer into the garage. Pictures of the adjacent lots show that the Buddes built their own garage and driveway on the east side of their lot, just a few feet away from the Haliburtons’ driveway. Relations between the two families and their neighbors were always cordial through the years.

In 1989, the Machas bought the house on lot 4 and have lived there ever since. In 1995, Tran and her husband, Roser, bought the Budde family home on lot 6. They lived there for several years, then moved into a nearby house. They intended to tear down the house on lot 6 and build a new house there. In the interim, they rented the house to tenants. The Machas and Tran and Roser were friends, as well as neighbors, and discussed jointly buying lot 5 from the Haliburtons and splitting the property so that they would own contiguous extra-large lots. For reasons that are not clear from the record, Roser and Tran apparently withdrew from the deal and the Machas purchased lot 5 from Lillian Haliburton in May 2001, without Roser’s and Tran’s participation. The property disclosure form prepared in anticipation of the sale of lot 5 from the Haliburtons to the Machas indicates that the lot included a free-standing garage in tear-down condition.

When the Machas obtained a survey before buying lot 5, they discovered that lot 5 did not conform to the official platted boundary lines. Therefore, in addition to securing a general warranty deed conveying all of lot 5 from Lillian Haliburton, the Machas secured a quitclaim deed conveying any interest in the western 20-foot portion of lot 6 that Haliburton might have acquired by adverse possession.

Soon thereafter, the Machas put lot 5 on the market. Because of the additional width of the property, its value increased by half, from roughly $200,000 to $300,000. At about the same time, Roser received a letter from the City of West University informing him that the garage that was serving the house built on lot 5 was a hazard and that, as the owner/taxpayer of lot 6, he needed to demolish or repair it. When they discovered that the garage and driveway everyone had thought were part of lot 5 were recorded as part of their lot— lot 6 — Roser and Tran laid claim to that portion of the lot, obtained a fence permit from West University, and fenced it off.

The Machas filed a trespass to try title suit; they sought a temporary restraining order to prevent Roser and Tran from tearing down the garage, and they sought to remove the new fence. Pending a legal resolution of the dispute, the Machas took lot 5 off the market. Roser and Tran counterclaimed, seeking declaratory relief and removal of cloud on their title.

The jury was asked only one question:

Have WILLIAM MACHA and NITA MACHA and their predecessors in privity of estate under whom they claim held the Property in question in peaceable and adverse possession and cultivated, used or enjoyed the Property in question for any period of at least ten years prior to August 24, 2001?
“PRIVITY OF ESTATE” means a transfer and delivery of possession from one possessor to the next.
“PROPERTY” means the westerly twenty feet of Lot 6, Block 26, Colonial Terrace, Section C, an Addition in Harris County, Texas.
“PEACEABLE POSSESSION” means possession of real property that is continuous and not interrupted by a lawsuit to recover the property.
“ADVERSE POSSESSION” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.

The jury unanimously answered, ‘Wes.” The trial court awarded full title and possession to the Machas, and the parties bore their own attorney’s fees. Roser and Tran filed a motion for judgment notwithstanding the verdict, which the trial court denied, and a motion for new trial that was overruled by operation of law.

Analysis

In two related points of error, Roser and Tran contend that the evidence is legally and factually insufficient to support the jury’s finding that the Machas adversely possessed part of lot 6.

Standard of Review

In a no-evidence, legal sufficiency review, we must consider only the evidence and inferences from evidence that support the trial court’s findings and must disregard all evidence and inferences to the contrary. Heldenfels Bros. Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). In a factual sufficiency review, we will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Adverse Possession

Adverse possession is defined as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). A person must bring suit no later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. Tex. Civ. Prac. & Rem.Code Ann. § 16.026 (Vernon 2002). Thus, if the Haliburtons adversely possessed the disputed strip of property, then the Machas possess it because they are in privity with the Haliburtons. See Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex.App.-Houston [1st Dist.] 1992, writ denied), (noting that adverse possession does not have to continue in same person if there is privity of estate between each holder and his successor).

It is not disputed that the Halibur-tons built a driveway and garage on part of lot 6, owned by the Buddes, instead of their own lot, and that everyone believed the Haliburtons owned the garage and driveway built on part on lot 6, which they did not own and on which they did not pay taxes. Nor is it disputed that the Halibur-tons used the garage and driveway continuously for at least 15 years, in derogation of the Buddes’ right to the land, and that the Machas were in privity with the Hali-burtons as possessors of the land. These facts alone constitute legally and factually sufficient evidence to sustain the jury’s finding.

The crux of Roser and Tran’s challenge, both at trial and on appeal, rests on a fundamentally incorrect interpretation of the law of adverse possession. As they define adverse possession, the possession here could not have been adverse because it was not “hostile,” i.e., the possession of the 20-foot strip was accidental, not intentional, and relations between the Halibur-tons and the Buddes at the time the land was being adversely possessed were harmonious and cordial.

The true meaning of “hostile” in the context of adverse possession refers to whether the claim is inconsistent with the rights of the true owner, not to whether the parties themselves are hostile to one another personally. See Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex.App.-Texarkana 2002, pet. denied) (noting that claim is hostile when acts performed by claimant and use made of land are of nature and character that would reasonably notify true owner of adverse claim). There is no authority to suggest a meaning other than this; nor is there any legal requirement that personal animosity be present.

The law is also well settled that adverse possession need not be intentional, so long as it is “visible, open, and notorious.” See Calfee v. Duke, 544 S.W.2d 640, 642 (Tex.1976) (holding claim of adverse possession not defeated by claimant’s lack of knowledge that there could be other claimants for the land); accord King v. Inwood N. Assocs., 563 S.W.2d 309, 312 (Tex.App.-Houston [1st Dist.] 1978, no writ) (noting fact that adverse possessors’ mistaken belief that they owned land in controversy did not defeat claim). In their motion for rehearing, Roser and Tran contend that adverse possession cannot result from a mutual mistake regarding the boundary lines of a property, relying on authority that requires the adverse claim to be plain and positive. In particular, Roser and Tran rely on Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex.1981), to support their proposition. This case, however, does no more than reiterate the definition of adverse possession. Roser and Tran appear to be importing into the definition of adverse possession a scienter requirement, i.e., the possession may be open, and it may be adverse to another’s claim of right, but unless the possessor knows it is adverse to another’s claim there can be no adverse possession. We cannot agree. It is the Haliburtons’ acts of building the driveway and garage, using them openly and continuously for more than 15 years as their own, in derogation of the Buddes’ right to use that land, and conveying them to the Machas that were adverse to the Buddes’ title, regardless of the Haliburtons’ conscious intent to deprive the Buddes of title to the land so used.

In their response to the motion for rehearing, the Machas provided additional authority to support the proposition that adverse possession may indeed occur despite a mutual mistake about property boundary lines. See Julien v. Baker, 758 S.W.2d 873, 876-77 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (claim of right cannot be defeated by lack of knowledge of error in land survey); Yates v. Hogstrom, 444 S.W.2d 851, 852-53 (Tex.Civ.App.-Houston [14th Dist.] 1969, no writ) (noting that adverse possession my be found regardless of whether claimant was mistaken as to location of boundary line — “a line may be established as a true boundary line of a tract of land by recognition and acquiescence in the line as the true line by all interested parties for a sufficient length of time”); Boyle v. Burk, 749 S.W.2d 264, 266 (Tex.App.-Fort Worth 1988, writ, denied) (knowledge that claimed property is that of another is not a prerequisite of adverse possession; it is only necessary that claimant thought he was rightful owner and had no competition for ownership, coupled with actual and visible possession and use); Fish v. Bannister, 759 S.W.2d 714, 718 (Tex.App.-San Antonio 1988, no writ) (holding contention that claimants could not formally intend to claim land unless they knew such land was not part of their title was without merit).

We hold that the property under dispute here was adversely possessed, despite the mutual mistake regarding the property lines. Both the garage and the driveway constituted an entirely visible use of lot 6 from the time they were mistakenly built on part of 6, and they were used continually by the Haliburtons for more than 15 years, then by the Machas. This open and continuous use of 20 feet of lot 6 for more than 15 years by the owners of lot 5 in ways inconsistent with the use and enjoyment of the 20-foot strip by the true owners, as if that portion of lot 6 belonged to the owners of lot 5, satisfies the definition of “adverse possession.” The line was established as a true boundary line of this tract of land “by recognition and acquiescence in the line as the true line by all interested parties for a sufficient length of time.” See Yates, 444 S.W.2d at 853.

We overrule both points of error.

We affirm the judgment of the trial court.

Justice JENNINGS, dissenting.

TERRY JENNINGS, Justice,

dissenting from denial of rehearing.

Because the undisputed facts of this case are legally insufficient to sustain a claim of adverse possession, I respectfully dissent.

In their second point of error, appellants contend that there is legally insufficient evidence to support the jury’s finding that appellees “and their predecessors in privity of estate under whom they claim held the Property in question in peaceable and adverse possession.” Appellees concede that they “claim title in this case under Lillian Haliburton.” Appellants assert, however, that there is no evidence that Lillian Haliburton, appellees’ predecessor in privity of estate, intentionally or knowingly adversely possessed the property in question from her relatives, the Budde family.

In reviewing a no-evidence point, we must view the evidence in the light most favorable to the disputed fact, and we disregard all evidence and inferences to the contrary. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). If more than a scintilla of evidence supports the finding, the verdict must be upheld. Id. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

Adverse possession means “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002). Under this definition, the majority concludes that

It is simply not disputed that everyone believed the Haliburtons owned the garage and driveway that were built in part on lot 6, which they did not own and on which they did not pay taxes, and used the garage and driveway continuously for at least 15 years. This fact alone constitutes legally and factually sufficient evidence to sustain the jury’s finding.

(Emphasis added.) In support of its holding that the evidence was legally and factually sufficient to support the jury’s finding of adverse possession, the majority, citing Calfee v. Duke, 544 S.W.2d 640, 642 (Tex.1976), notes that “[t]he law is also well settled that adverse possession need not be intentional, so long as it is ‘visible, open, and notorious.’ ” (Emphasis added.)

However, in Calfee, the Texas Supreme Court expressly stated that “[n]o matter what the use and occupancy of the land may be, the possessor must intend to appropriate it.” 544 S.W.2d at 642 (emphasis added). As explained by the Court in Ellis v. Jansing, “[m]ere occupancy of land without any intent to appropriate it will not support the statute of limitations.” 620 S.W.2d 569, 571 (Tex.1981). Further,

[n]o matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar.

Id. at 571-72 (quoting Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954)).

In Ellis, the Court answered “the question of whether the testimony of [the occupant] that he bought the property [in question] thinking that the boundary was [a] concrete retaining wall and maintained it as part of his yard was sufficient to raise a fact issue of adverse possession.” 620 S.W.2d at 571. In that case, the occupant testified that he had never claimed or intended to claim any property other than that which was described in his deed, or what he thought was contained in his deed, and he had never intended to claim any property owned by abutting property owners. Id. The Court held that these facts were legally insufficient to sustain a claim of adverse possession. Id.

Here, the evidence, viewed in the light most favorable to the jury’s finding, establishes that the Haliburtons used the garage and driveway on the property in question and treated the property as if it were their own. However, there is nothing in the record to indicate that the Hali-burtons ever intended to claim any property from the Buddes that was actually owned by the Buddes, and such an intention cannot be assumed. Even if the evidence supported an inference that both the Buddes and the Haliburtons thought that the Haliburtons had purchased the property in question, this mutual mistake of fact, in the absence of any evidence that the Haliburtons ever claimed or intended to claim the property, is insufficient to raise a fact issue of adverse possession. See id.

Accordingly, I would grant appellants’ motion for rehearing, reverse the judgment of the trial court, and render judgment in favor of appellants.

      . One of the Budde daughters, who lived next door to the Haliburtons while growing up, testified that she and her family had always believed that the Haliburtons owned the garage and driveway. The record further shows that the Machas, Tran., and Roser also all believed the same thing until the land was surveyed in 2001.

      . As a threshold matter, we first address the Machas’ contention that these points of error are waived because Roser and Tran offer a definition of adverse possession that differs slightly from the definition provided to the jury. Roser and Tran define adverse possession as “hostile, exclusive, open and notorious, actual, and continuous for the statutory period.” We consider these differences to be negligible; thus, we conclude that the issues raised on appeal comport with the issues raised before the trial court. See Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 675 (Tex.App.-Houston [1st Dist.] 1986, writ ref’d n.r.e.) (noting that error raised on appeal must comport with objection at trial).


source: Caselaw Access Project

author: /s/ Joseph E. Lambert Chief Justice

license: Public Domain

text:
    Russell L. CROLEY, KBA No. 15853, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0826-KB.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Douglas W. Gott, Bell, Orr, Ayers and Moore, Bowling Green, for Movant.
    Bruce K. Davis, Executive Director, Dana Cox Nickles, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, for Respondent.
   OPINION AND ORDER

Russell L. Croley, KBA Member No. 15853, whose last bar roster address is Oak Tree Plaza, Suite 1A, 1601 W. Everly Brothers Blvd, Central City, KY 42330, was admitted to the practice of law in 1976. Croley moves this Court, through counsel and through agreement with the Kentucky Bar Association, to sanction him with public reprimand for violations of SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.8(h), and SCR 3.130-5.3.

On September 22, 1998, a husband and wife retained Croley to represent them in a personal injury case arising out of an automobile accident that occurred on September 10, 1998. Croley collected and obtained documentary evidence to support the case, including medical records, bills, and photographs. In May 1999, the husband’s medical treatment was completed. By that time, however, Croley failed to either effectuate a settlement or timely file the lawsuit.

In September 2002, after many unanswered telephone calls to Croley, the wife called the circuit clerk’s office and discovered that Croley had failed to file the lawsuit on the husband’s behalf. She then contacted the insurance company and discovered that the time for filing the claim had passed.

On September 21, 2002, they sent a letter to Croley demanding to know the status of the case. Two meetings ensued. At the first, Croley informed the clients that he failed to file the lawsuit in a timely manner because his office staff had not entered the deadline on the calendaring system. At the second meeting, Croley attempted a settlement for $25,000. He did not advise them in writing that they should seek the advice of another attorney. Rather, he delivered a $5,000 check to them, which was not cashed.

The clients sought other counsel and eventually filed a professional negligence lawsuit against Croley. This case was settled between the parties in the amount of $141,000.

Croley admits violating all four Charges from the Inquiry Commission: SCR 3.130-1.3 by failing to diligently pursue a settlement in his client’s case, and by failing to file a lawsuit prior to the expiration of the statute of limitations; SCR 3.130-1.4(a) by fading to adequately communicate with his clients in failing to return phone calls or otherwise respond and by failing to respond to the clients’ requests for information; SCR 3.130-1.8(h) by attempting to settle a professional negligence claim with his client without first advising them in writing that independent representation is appropriate; and, SCR 3.130-5.3 by failing to properly supervise his nonlawyer staff by alleging that his secretary failed to properly calendar the filing deadlines.

In its brief to this Court, the KBA urges a public reprimand as the appropriate sanction. It cites several cases that have issued public reprimand for failure to file a lawsuit on the client’s behalf prior to the running of the statute of limitations. In addition to the failure to file timely this lawsuit, Croley offered a $25,000 settlement for a $141,000 case to unrepresented clients. Furthermore, he blamed his secretary for the calendaring mistake when the clients had repeatedly called for the previous four years. Croley, with nearly 30 years of practice, has acknowledged his misconduct and states that he has implemented more effective office procedures for calendaring deadlines.

This incident marks the first time lawyer discipline will be imposed upon Croley. He has settled the matter with these clients and he claims that he will not have a similar calendaring mistake in the future. He also admits the violations listed above.

THEREFORE, IT IS HEREBY ORDERED:

1. Russell L. Croley is publicly reprimanded for violations of SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.8(h), and SCR 3.130-5.3.
2. Pursuant to SCR 3.450, Croley is directed to pay all costs associated with these disciplinary proceedings in the amount of $8.15, for which execution may issue from this Court upon finality of this Order.

All concur.

ENTERED: November 23, 2005.

/s/ Joseph E. Lambert Chief Justice


text:
    KENTUCKY BAR ASSOCIATION, Complainant v. Robert M. BEAL, Respondent.
    No. 2005-SC-0697-KB.
    Supreme Court of Kentucky.
    Nov. 23, 2005.

      Bruce K Davis, Executive Director, Jay R. Garrett, Kentucky Bar Association, Frankfort, Counsel for Complainant.
    Robert M. Beal, Louisville, Counsel for Respondent.
   OPINION AND ORDER

Robert M. Beal, KBA No. 03887, whose last bar roster address was P.O. Box 70051, Louisville, KY 40270, was admitted to practice on October 25, 1982.

The Inquiry Commission received a complaint from a person who claimed that she paid Beal $135 for him to appear on her behalf in traffic court. This client had responded to a solicitation she received in the mail from Beal because she had gotten a traffic ticket. She considered the various offers she received from attorneys and chose to contact Beal. After a telephonic consultation, she mailed a personal check to Beal for the retainer of his appearance in court to attempt to reduce her charges. The $135 check was cashed by Beal.

Prior to the court date, Beal failed to respond to five telephone calls from this client. The client herself called the circuit clerk and discovered that the court date had been continued for a month. She kept attempting to reach Beal by telephone without avail. The second court date arrived and passed, and she eventually learned from the circuit clerk that an arrest warrant had been issued for her failure to appear. She then retained another attorney and wrote to Beal demanding a refund of the $135 fee. Beal never responded.

Beal was notified by certified letter of the following four disciplinary charges:

Count I alleges violation of SCR 3.130-1.3, failure to diligently represent his client by failing to appear in court on the client’s behalf after accepting a retainer to handle the matter.

Count II alleges violation of SCR 3.130-1.4(a) for failure to keep the client reasonably informed about the status of a matter and failure to comply with reasonable requests for information by failing to respond to numerous phone calls from his client and by failing to inform her of the status of her case.

Count III alleges violation of SCR 3.130 — 1.16(d) for failure to protect a client’s interests upon termination of representation by failing to refund unearned fees upon request of the client.

Count IV alleges violation of SCR 3.130-8.1(b) for failure to respond to a lawful demand for information from a disciplinary authority.

Despite several reminder letters, Beal failed to respond to these charges.

On January 27, 2005, this Court suspended Beal for non-payment of bar dues.

On February 17, 2005, this Court entered an order privately reprimanding Beal for violation of SCR 3.130 — 8.1(b).

In an Opinion and Order, 2005-SC-382-KB, entered on August 25, 2005, this Court publicly reprimanded Beal for violation of SCR 3.130 — 8.1(b), failure to respond to a lawful demand for information from a disciplinary authority.

In an Opinion and Order, 2005-SC-620-KB, entered on October 20, 2005, this Court suspended Beal from the practice of law for a period of 60 days for violations of SCR 3.130-1.3, SCR 3.130-1.4(a)(b), SCR 3.130 — 8.1(b), and SCR 3.130-1.1.

By vote of the Board of Governors, Beal was found guilty on each count of the charge. On the matter of appropriate discipline, the Board recommended by 11 votes to suspend Beal from the practice of law for one year. Seven votes recommended a 181-day suspension. The recommendation included that Beal must refund the $135 unearned fee paid to him by his client.

Based on the foregoing, we find that Beal’s lack of response to these charges, coupled with the nature of the violations, presents a cause for suspension from the practice of law, because suspension is appropriate where it appears that an attorney’s conduct poses a substantial threat of harm to his clients or to the public.

THEREFORE IT IS HEREBY ORDERED as follows:

(1)Respondent, Robert M. Beal, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of one year.

(2) In accordance with SCR 3.450 and SCR 3.480(3), Beal is directed to pay all costs associated with this disciplinary proceeding against him, certified in the amount of $58.95, for which execution may issue from this Court upon finality of this order.

(3) Pursuant to SCR 3.165(6), Beal shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged.

(4) Beal is to pay restitution by refunding the $135 unearned fee to the client.

(5) Pursuant to SCR 3.390, Beal is hereby ordered to provide notice to any clients, if applicable, he currently represents of his inability to provide further legal services, to notify all courts in which he has matters pending of his suspension and to provide the Director of the Kentucky Bar Association with a copy of all such letters simultaneously to their mailing.

(6) This suspension shall run CONSECUTIVELY to the 60-day suspension ordered by this Court, 2005-SC-620-KB, on October 20, 2005.

All concur.

ENTERED: November 23, 2005.

/s/ Joseph E. Lambert Chief Justice


author: PER CURIAM. RICHARD B. TEITELMAN, Judge,

text:
    Lance SCOTT, Appellant/Cross-Respondent, v. BLUE SPRINGS FORD SALES, INC., Respondent/Cross-Appellant, and Robert C. Balderston, Respondent.
    No. SC 86287.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.

      Bernard E. Brown, Dale K. Irwin, Kansas City, for Appellant/Cross-Respondent.
    David J. Roberts, Kevin D. Case, Kansas City, for Respondent/Cross-Appellant.
    J.R. Hobbs, Marilyn B. Keller, Kansas City, for Respondent.
   PER CURIAM.

The issue in this case for this Court is whether the trial court erred in refusing to submit Lance Scott’s claim for punitive damages under section 407.025 to a jury. Scott contends that to the extent section 407.025 prohibits the submission of a punitive damage claim to the jury, it is invalid as depriving him of his constitutional right to a jury trial. This Court has jurisdiction. Mo. Const. article V, section 8.

The trial court erred in failing to submit the punitive damage claim to the jury. Having determined the issue giving this Court jurisdiction, the case is transferred to the Court of Appeals, Western District, for resolution of the remaining issues on appeal.

Background

Lance Scott bought a 1991 vehicle from Blue Springs Ford Sales, Inc., which is owned by Robert C. Balderston. The sale occurred in 1994. As part of the sale, Scott purchased an extended service contract on the used vehicle; however, the extended service policy did not issue because the vehicle had a previous salvage title. Scott was not told at the time of the sale that the vehicle previously had been involved in an accident and was the subject of a salvage title. He was not told that the extended service contract was rejected. In 1999 or 2000, Scott learned of the previous salvage title.

Scott sued under numerous theories, including a claim for violations of chapter 407. He requested punitive damages for the chapter 407 violations and a jury trial on that issue. The court denied the jury trial request, but other issues were submitted to a jury. The court awarded a judgment of $867,599.82, of which $840,000 was punitive damages on a common law fraud claim. The court determined that punitive damages on the chapter 407 claim were not permitted because Scott refused to elect remedies between the chapter 407 punitive damages and the common law fraud punitive damages.

Jury Trial of Chapter 407 Punitive Damages

Article I, section 22(a), of the Missouri Constitution states in pertinent part: “That the right to trial by jury as heretofore enjoyed shall remain inviolate.” State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 84-85 (Mo. banc 2003), drawing on well-established precedent, held that the words “as heretofore enjoyed” was a reference to the right to trial by jury as set out in the Missouri Constitution at the time of statehood in 1820. It noted that in 1820 actions for damages were triable to juries. The Court explained that in applying the right to trial by jury, the question is whether the proceeding is analogous to an action at common law or whether it is in the nature of a suit in equity, id. at 86, and that, from the status of the right as of 1820, the simple analysis is whether the action is a civil action for damages. If so, the jury trial right is to remain inviolate. Id. at 85. Applying these rules, the Court then held that the constitutional right to trial by jury applies even in a statutory action if the statutory remedy is damages because the statutory action is indeed a civil action for damages. Id. at 89.

The specific application in Diehl was to a claim for violation of the Missouri Human Rights Act and the provision of section 213.111.2 stating that “the court may ... award actual and punitive damages.” Even though the statute referred only to “the court,” the right to jury trial was held to apply nonetheless. Similarly, regarding the punitive damages claim in this case, section 407.025.1 states that “... [t]he court may, in its discretion, award punitive damages.... ” There is no basis to distinguish between the two cases. Although Diehl did not specifically address the punitive damage component of the damage award authorized under the statute, there is no question that punitive damages (exemplary damages), as well as actual damages, were recognized under the common law in 1820. See Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893) (listing representative cases).

Blue Springs Ford, citing Fust v. Attorney General, 947 S.W.2d 424 (Mo. banc 1997), and other cases, argues that because the legislature has the power to create or abolish the cause of action at hand, it follows that the legislature has the power to dictate the terms of the cause of action, including whether the court or the jury is to determine punitive damages. Fust, however, holds only that the legislature has the power to create or abolish or otherwise limit the remedy of punitive damages. This argument confuses the judicial process by which claims are determined with the substance of the claims themselves. Though, in general, the legislature is free to establish the substance of a claim, as, for instance, to allow or disallow punitive damages, it is not free to establish a procedure for adjudicating that substantive claim if the procedure contravenes the constitution. In short, a statute is not valid that provides for punitive damages but precludes a jury trial to determine those damages. That is not to say, however, that section 407.025.1 is not valid. Neither section 407.025.1 in this case nor section 213.111.2 in Diehl explicitly prohibits a jury trial. For that reason, just as in Diehl, the Court need not invalidate the statute but reads the statute in light of the constitutional guarantee of a jury trial.

Election of Remedies

This Court recently iterated the theories of the election of remedies doctrine and the election of inconsistent theories of recovery. Trimble v. Pracna, 167 S.W.3d 706, 711 (Mo. banc 2005). The election of remedies doctrine is a doctrine of estoppel, basically providing that where a party has the right to pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to final judgment, that party cannot thereafter pursue another and inconsistent remedy. Entirely distinct from the election of remedies is the election of inconsistent theories of recovery. Under this doctrine, a party must elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the trier of fact. If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is error to submit them together.

Each of these theories requires an inconsistency to exist with multiple theories of recovery. In this case, there is no inconsistency between a punitive damage award for fraud and a punitive damage award for violation of chapter 407. See Davis v. Cleary Building Corp., 143 S.W.3d 659, 669-70 (Mo.App.2004).

If a plaintiffs punitive damages for violation of chapter 407 and for fraud are the same, then the damage awards merge. Trimble v. Pracna, 167 S.W.3d 706, 711 (Mo. banc 2005). Although the jury found Scott was entitled to punitive damages as to the common law fraud claim, there has been no jury finding as to punitive damages on the chapter 407 violations. It would not be proper to assume that the same, or any, amount of punitive damages would be awarded for such violations. Therefore, a new trial must be awarded to determine the amount of punitive damages for the chapter 407 claim.

Once there is a jury finding as to the proper amount of punitive damages for each claim, the trial court can determine the extent to which the awards merge and whether the amount of the award is in accordance with State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), and enter judgment accordingly-

Conclusion

Scott is entitled to a jury determination of punitive damages for the chapter 407 violations. Having resolved the issue giving this Court jurisdiction, the case is transferred to the Court of Appeals, Western District, for resolution of the remaining issues. Hoskins v. Business Men’s Assur., 79 S.W.3d 901, 905 (Mo. banc 2002).

WOLFF, C.J., STITH, PRICE, LIMBAUGH, and RUSSELL, JJ., concur.

TEITELMAN, J., concurs in separate opinion filed.

WHITE, J., concurs in opinion of TEI-TELMAN, J.

RICHARD B. TEITELMAN, Judge,

concurring.

I concur in the majority opinion and write separately to emphasize the importance of a jury’s punitive damage award in cases brought under statutes such as the Missouri Merchandising Practices Act.

Missouri’s Merchandising Practices Act, Chapter 407, RSMo, is designed to protect Missouri consumers from fraudulent business practices. State ex rel. Nixon v. Telco Directory Publ’g., 863 S.W.2d 596, 601 (Mo. banc 1993). To remedy violations and to deter future prohibited conduct, the statute allows for injunctive relief, payment to the State for the cost of prosecution, punitive damages, restitution to injured consumers, and attorney’s fees. All of these remedial measures are important, but the possibility of punitive damages provides one of the most effective deterrents of future misconduct by a defendant or by others who may be similarly tempted to engage in fraudulent business practices.

In their briefs before this Court, the defendants assert that the punitive damages in this case are excessive for, among other reasons, being disproportionate to the amount of compensatory damages. While this may or may not be the case, it is important to note that while the degree of disparity between the actual damages and punitive damages is relevant in determining whether punitive damages are excessive, this factor alone is not determinative. Instead, courts review punitive awards using three factors: (1) the reprehensibility of the defendant’s misconduct; (2) the disparity between the harm and the punitive award; and (3) the difference between the punitive award and penalties authorized or imposed in comparable cases. State Farm Mut. Ins. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Because each case must be assessed on its own facts, no court has imposed inviolable constitutional limits on the ratio between punitive and compensatory. To do so would require the courts to supplant the jury’s considered decision in favor of an arbitrary limit that may have no relationship whatsoever to the extent and severity of the defendant’s misconduct.

The Supreme Court’s opinion in State Farm Mut. Ins. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), does not hold otherwise. In Campbell, the Court offered the following dicta:

Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. Id. at 425, 123 S.Ct. 1513.

However, the Court qualified this dicta by stating that in cases involving egregious conduct but a small amount of compensatory damages, ratios greater than a single digit may comport with due process. Id. The Court’s refusal to adopt an arbitrary ratio for reviewing punitive damage awards is consistent with the recognition that punitive damages further a State’s legitimate interests in punishing wrongful conduct and deterring its repetition. State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).

Subsequent cases reflect the proper application of Campbell. For instance, in Kemp v. American Telephone & Telegraph Company, 393 F.3d 1354 (11th Cir.2004), AT & T was found to have, as part of a wide practice, billed a customer for improper charges disguised as long-distance charges. The court upheld an award of $115.05 in compensatory damages and $250,000 in punitive damages. Although this amounted to a punitive to compensatory ratio of 2,172:1, the court noted that a lesser amount of punitive damages would utterly fail to serve the traditional purposes underlying an award of punitive damages, which are to punish and deter. Id. at 1363-65. Similarly, in Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir.2003), the court discussed Campbell at length in upholding an award of $5,000 in compensatory damages and $186,000 in punitive damages where a motel had re-rented rooms known to be infested with bedbugs. Although the ratio of punitive to compensatory was 37:1, the court recognized that a larger punitive damage award was necessary in order to have a sufficient deterrent effect. Id. at 678.

As the foregoing cases establish, courts must consider the propriety of punitive damage awards by giving full consideration to all relevant factors, including whether the award provides a sufficient deterrent effect. There is nothing in the law that vests appellate courts with a license to toss aside considered jury verdicts based upon arbitrary ratios or mathematical formulae. To do so would undermine the essential deterrent effect provided by properly awarded punitive damages.

      . All statutory references are to RSMo 2000. Chapter 407 is commonly referred to as the Missouri Merchandising Practices Act.


author: RONNIE L. WHITE, Judge.

text:
    Melissa Elaine PIRISKY, Appellant, v. Adrian Dennis MEYER, Respondent.
    No. SC 86594.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.
    Allen E. Moss, Jr., Cape Girardeau, for Appellant.
    Diane C. Howard, Cape Girardeau, for Respondent.
   RONNIE L. WHITE, Judge.

I.

Melissa Elaine Pirisky (Mother) challenges the judgment of the Circuit Court of Cape Girardeau awarding Adrian Dennis Meyer (Father) custody of their minor child. This Court has jurisdiction, Mo. Const, art. V, sec. 10. The judgment is affirmed.

II.

Mother dissolved her marriage with Father on May 20, 1994. At the time of the dissolution the parties resided near Cape Girardeau, Missouri, and the Circuit Court of Cape Girardeau appropriately exercised jurisdiction over the matter. Mother and Father were awarded joint legal custody of their minor child. Mother was awarded primary physical custody, and while Father was allowed frequent visitation, the initial judgment did not set a specific visitation schedule beyond the child’s fifth birthday. Father was, and continues to be, on active duty with the United States Air Force. Although he maintains his residency in Missouri, Father must adjust his schedule for child visitation based upon the varying location and duration of his active duty assignments.

Almost immediately following the court’s original 1994 decree, Mother refused Father visitation and he had to obtain an order of enforcement to see his child prior to reporting to an overseas duty station. In 1996, Mother and child relocated to Tucson, Arizona. In 2002, at the age of twelve, the child expressed an interest in residing with Father, prompting Mother to prohibit the child from having any contact with Father. In June 2003, Father obtained a modification order from the Missouri court awarding joint physical custody and setting out specific periods of visitation.

Mother still refused to allow visitation and in October 2003, Father filed another motion to modify in Cape Girardeau seeking a change in physical custody based upon Mother’s interference with visitation and because of Mother’s efforts to alienate the child’s affection. Mother sought assumption of jurisdiction over this action by the Pima County Superior Court, but the Arizona court declined jurisdiction. Mother failed to appear and defend in the Missouri modification action, and in a default ruling the Circuit Court of Cape Girardeau found in favor of Father and awarded him full legal and physical custody.

III.

Mother challenges the judgment of the Cape Girardeau Circuit Court claiming that it lacked subject matter jurisdiction to enter its order of modification pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA). “Jurisdiction under the UCCJA to hear custody matters is characterized as subject matter jurisdiction, which may not be waived, and may not be conferred by consent of the parties and must be based upon circumstances at the time the court’s jurisdiction is invoked.”

There are only two states that would have jurisdiction of this case pursuant to the UCCJA; Arizona, the minor child’s home state where he had resided with Mother since 1996, and Missouri, Father’s residence and the jurisdiction where the initial custody decree and subsequent enforcement and modification orders were issued. Arizona declined to assume jurisdiction and under that circumstance, the appropriate test for jurisdiction is found in section 452.450.1(4), which provides:

1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (8), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

Under section 452.450.1(4) while the physical presence of the child is insufficient alone to confer jurisdiction, it is also not required.

Mother contends that when the Arizona court declined to exercise jurisdiction that it failed to make a specific finding that it did so because Missouri would be the more appropriate forum and that the lack of this specific finding is fatal to Missouri assuming jurisdiction. Mother also asserts that the best interests of the child would only be satisfied in a forum where the child has maximum contacts with the forum state and that insufficient contacts exist for Missouri to assume jurisdiction.

Contrary to Mother’s assertions, section 452.450.1(4) does not contain an express requirement for a specific finding for why the Arizona court declined jurisdiction. It is not only implicit in the Arizona order that Missouri would be the more appropriate forum, but the UCCJA instructs that as long as sufficient contacts remain with the forum issuing the original child custody or modification order that any competing forum should defer to that jurisdiction in additional custody actions to achieve stability in the law and avoid forum shopping. The “sufficient” or “maximum contacts” requirement in this instance is satisfied by Father having maintained his Missouri residency; the fact that Missouri was the jurisdiction where the original and subsequent custody and modification decrees were issued; and because the only other forum that could adjudicate custody had declined jurisdiction. This Court finds the law and the facts support a finding of subject matter jurisdiction in this case.

Mother claims alternatively that the circuit court abused its discretion when denying her motion to set aside the default judgment or grant a new trial for “good cause” or excusable neglect. On November 10, 2003, 57 days before the January 6, 2004 trial, Mother was personally served with the motion to modify. On December 10, 2003, the Arizona court overruled Mother’s motion for it to assume jurisdiction of the matter. On December 30, 2003, Mother consented to the withdrawal of her Arizona attorney in a signed statement acknowledging that she understood that failure to respond or appear in Missouri could result in a default judgment. Mother made two requests for additional time, which were denied. Mother was fully informed of the consequences of failing to appear or in failing to retain Missouri counsel to appear on her behalf. Mother’s willful disregard of the process of the court does not constitute “good cause” or “excusable neglect.”

IV.

The judgment is affirmed.

      .Sections 452.440 et seq. All statutory citations are to RSMo 2000 unless otherwise noted.

        . Lavalle v. Lavalle, 11 S.W.3d 640, 651 (Mo.App.1999).

      .Section 452.450.

      . Section 452.450.2 and 3.

      . See State ex rel. Rashid v. Drumm, 824 S.W.2d 497, 503 (Mo.App.1992); In re Marriage of Dooley, 15 S.W.3d 747, 757 (Mo.App.2000).

      . Commissioners’ Notes, UCCJA § 14(a), 9 U.L.A. 580; and UCCJEA (Adopted by Arizona) §§ 202 U.L.A. 673-674 & 207 U.L.A. 682-683 (Master ed.1999).

      . Dobbs v. Dobbs, 838 S.W.2d 502, 503 (Mo.App.1992); Newton v. Newton, 811 S.W,2d 868, 869 (Mo.App.1991), Lydic v. Manker, 789 S.W.2d 129, 131 (Mo.App.1990).

      . See Rules 74 and 75.

      . Rule 74.05(d) provides that "[g]ood cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.” "Excusable neglect” pursuant to Rule 74.06, is defined as: "Failure to take the proper steps at the proper time, not in consequence of the party’s own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his counsel or on promises made by the adverse party.” Nandan v. Drummond, 5 S.W.3d 552, 556 (Mo.App.1999).


author: PER CURIAM.

text:
    Stephanie BRUNS, Respondent, v. Steven BRUNS, Appellant.
    No. ED 85490.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 4, 2005.
    Application for Transfer to Supreme Court Denied Nov. 10, 2005.
    Scott C. Trout, St. Louis, MO, for appellant.
    Mary Ann Weems, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J„ and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Steven W. Bruns (hereinafter, “Father”) appeals from the trial court’s judgment legally separating him from his wife, Stephanie A. Bruns. Father raises four points on appeal. Father claims the trial court erred in its determination of custody of their minor child and its valuation of their real property.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial and competent evidence in the record and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Timothy PROSSER, Appellant.
    No. ED 84632.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 10, 2005.

      Margaret M. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Timothy Prosser (Defendant) appeals from the judgment upon his conviction by a jury of one count of felonious possession of methamphetamine, Section 195.202, RSMo 2000 (Count I), and one count of felonious possession of drug paraphernalia with intent to manufacture methamphetamine, Section 195.233, RSMo 2000 (Count II). Defendant was sentenced to consecutive terms of seven years’ imprisonment on Count I and four years’ imprisonment on Count II. On appeal, Defendant argues the trial court erred (1) in overruling his objections to the introduction of evidence seized as the result of a search warrant, (2) in failing to conduct a second suppression hearing when the case was transferred to a new venue, and (3) in allowing the State to present rebuttal evidence on collateral issues raised by the State on cross-examination. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Nick FORTNER, et al, Appellant, v. FLEETWOOD HOMES OF TENNESSEE INC., et al, Respondent.
    No. WD 65126.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    John B. Neher, Lexington, for appellant.
    Steven Martin Aaron, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Nick Fortner (Fortner) appeals from a summary judgment in favor of Fleetwood Homes of Tennessee, Inc. (Fleetwood). Fortner contends that there are controverted material facts that prevent summary judgment. We dismiss the appeal because it is moot. In a separate proceeding this court has granted a writ of prohibition finding that the case had been properly dismissed while the summary judgment motion was pending and, therefore, the trial court had no jurisdiction to rule upon the summary judgment motion. State ex rel. Fortner v. Rolf, WD 64974, — S.W.3d -, 2005 WL 2397226 (September 30, 2005). Because this appeal is on the merits of that motion, it is now moot.

Appeal dismissed.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.


text:
    Dennis WEISENBURGER, Appellant, v. CITY OF ST. JOSEPH, Missouri, Respondent.
    No. WD 64401.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.
    Daniel L. Radke, St. Joseph, MO, for appellant.
    Timothy J. Davis, St. Joseph, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Weisenburger appeals the trial court’s summary judgment in favor of the City of St. Joseph. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Frank KRYSA, et ux., Respondents, v. Emmett PAYNE, et ux., Appellants.
    No. WD 64589.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.

      John Robert Loss, Kansas City, MO, for appellants.
    Bernard E. Brown, Kansas City, MO, for respondents.
    Before ROBERT G. ULRICH, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

Appellants Emmett and Terri Payne appeal from a judgment entered against them in favor of Respondents Frank and Shelly Krysa on Respondents’ claims of fraudulent nondisclosure and fraudulent misrepresentation arising from Appellants’ sale of a used truck to Respondents. The jury awarded Respondents $18,449.53 in actual damages and $500,000 in punitive damages. For the following reasons, we affirm the judgment.

In November 2000, Respondents were shopping for a truck to pull them 28-foot trailer. During the course of their search, they visited Payne’s Car Company, a used car dealership owned and operated by Appellants. Appellants’ salesperson, Kemp Crane, showed Respondents around the car lot. Respondents informed Crane that they were looking for a dependable truck that had room for their whole family and that could tow at least 8,000 pounds. Respondents did not find anything that interested them on the lot that day.

A few weeks later, Crane called Respondents and told them that he had a truck on the lot that he thought might meet their needs. Respondents went to the lot to look at that truck. While Respondents were not interested in the truck that Crane had called about, they noticed a 1991 Ford F-350 diesel, extended-cab truck running at the back of the lot that interested them. When asked why the engine was running, Crane told the Respondents that the battery was being charged. Crane told the Respondents that the truck was in perfect shape and that it would have no problem pulling an 8,000-pound load. Crane informed the Respondents that the truck would make it to 400,000 miles if they took care of it. Respondents took the truck on a test drive, but did not take it out on the highway. It seemed to drive fine on the test drive. Upon opening the hood, Mr. Krysa noticed that the hood was a different color than the rest of the truck. Crane said the different color was due to the fact that the truck had recently been repainted. Crane informed the Respondents that the truck was in their price range and would cost $9,900. He offered Respondents $1,500 for their trade-in.

The following day, Mr. Krysa went to the dealership and put down a deposit on the truck. The Respondents subsequently arranged for a loan from their credit union and borrowed an additional $1,400 from Mr. Krysa’s mother to purchase the truck.

On November 17, the Respondents returned to finalize their purchase of the truck. When they arrived, the engine on the truck was again running. Crane informed them that they had put some fuel in the truck and then left it running so that it would be warm for the Respondents because it was cold out that day. Crane also informed the Respondents that they had replaced the steering column because it had “frozen up”. When Mrs. Krysa asked Crane where the truck had come from, Crane told her that it was “a one-owner trade-in from McCarthy.” Respondents then paid for the truck and took possession of it, but the title to the truck was not provided to them at that time.

Later that day, Respondents noticed that the power locks did not work on the vehicle. A few days later, Mr. Krysa drove the truck to work, but it took him approximately three hours to get it started at the end of the day. Mr. Krysa also noticed that the heater was not working right.

Mr. Krysa bought a book about the truck and tried to fix the problems by disconnecting the power locking function and replacing the fuel pump. In the process of replacing the fuel pump, he noticed that the radiator was smashed up, the radiator cap did not have a seal, and the thermostat was missing. Mr. Krysa also noticed broken glass on the floor underneath the front seats and that the driver’s side window had been replaced.

Shortly thereafter, Mr. Krysa attempted to tow his trailer from the lake back to their house. Within the first two miles, he had his foot almost to the floor trying to get the truck to pull the trailer and a large amount of smoke was pouring out of the back of the truck. Mr. Krysa had to turn around and return the trailer to the lake.

Mr. Krysa also noticed that the truck was consuming a lot of oil, requiring four quarts in the first 120 miles he drove it. In addition, the oil pressure decreased every time the gas pedal was depressed instead of increasing.

Mr. Krysa’s brother-in-law suggested that Respondents obtain a “CARFAX” report for the truck. Upon obtaining that report, Respondents discovered that the truck had thirteen prior owners.

After receiving the CARFAX report, Mr. Krysa went back to the dealership to discuss the truck’s problems and the CAR-FAX report with Mr. Payne. Upon examining the radiator, Mr. Payne stated that “it looked like it had been sabotaged to be sold.” When Mr. Payne went for a ride in the truck with Mr. Krysa, the truck lacked power, spewed smoke, and the oil pressure decreased when the gas pedal was depressed. Mr. Payne acknowledged that the truck appeared to have been involved in a wreck. Mr. Payne told Mr. Krysa that he would allow Respondents to return the truck and credit the purchase price toward the purchase of one of his other vehicles, but would not return their money to them. Respondents lacked the means to pay much more than the $9,900 they had paid for the F-350 and were unable to find any vehicle on the lot that met their needs that did not cost substantially more than that.

Subsequently, Respondents had the vehicle inspected by an automotive expert, Richard Diklich, who quickly discovered that .the truck was actually two vehicles that had been welded together. Diklich advised Respondents to avoid driving the vehicle because of safety concerns. Additional facts will be discussed infra, as needed.

On February 1, 2001, Respondents filed a petition against Appellants in the Circuit Court of Jackson County asserting claims of fraudulent nondisclosure, fraudulent misrepresentation, violation of the Missouri Merchandising Practices Act, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose. The case was tried from May 10 to 14, 2004. The jury returned verdicts for Respondents on all of their claims. The jury awarded Respondents $18,449.53 in compensatory damages and $500,000 in punitive damages, and the trial court entered judgment against Appellants in that amount. Appellants bring three points on appeal.

In their first point, Appellants claim the trial court erred in denying their motion for new trial or, in the alternative, for remittitur because the award of $500,000 in punitive damages was so excessive as to violate their right to due process. Appellants contend that the amount of punitive damages awarded “bore no logical relation to the alleged actual harm and was the product of improper motives or a clear absence of the exercise of honest judgment by the jury.”

“The assessment of damages is primarily a function for the jury.” McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387, 395 (Mo.App. W.D.2004). Once the jury has assessed damages, however, “[t]he trial court has broad discretion in ordering remittitur.” Coggins v. Laclede Gas Co., 37 S.W.3d 335, 342 (Mo.App. E.D.2000). This Court must ordinarily “defer to the jury’s and the trial judge’s determination of damages because they are in much better positions than the appellate court to assess the credibility of damage witnesses and to determine the appropriate compensation.” Foster v. Catalina Indus., Inc., 55 S.W.3d 385, 392 (Mo.App. S.D.2001). Accordingly, “[t]he appellate court should exercise its power to interfere with the judgment of the jury and trial court with hesitation and only when the verdict is manifestly unjust.” McCormack, 159 S.W.3d at 395.

In this case, however, Appellants challenge the punitive damages awarded as being constitutionally excessive. Punitive damages differ from compensatory damages in that “[c]ompensatory damages ‘are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct,’” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 1519, 155 L.Ed.2d 585 (2003), while “[t]he well-established purpose of punitive damages is to inflict punishment and to serve as an example and a deterrent to similar conduct.” Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996).

The decision to punish a tortfea-sor through an award of punitive damages “'is an exercise of state power that must comply with the Due Process Clause of the Fourteenth Amendment.’” Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 177 (Mo.App. W.D. banc 1997) (quoting Honda Motor Co. v. Oberg, 512 U.S. 415, 434, 114 S.Ct. 2331, 2342, 129 L.Ed.2d 336 (1994)). As noted by this Court in Letz:

The constitutional concerns are both procedural and substantive. Procedurally, the “traditional common law approach,” which includes proper jury instruction and review of a jury award by the trial court and an appellate court, generally satisfies due process. Substantively, when an award can fairly be categorized as “grossly excessive” in relation to the interests of punishment and deterrence, it penetrates the “zone of arbitrariness” that violates the Due Process Clause of the Fourteenth Amendment.

Id. at 177 (internal citations omitted). In this appeal, Appellants make no procedural due process claim but rather contend that the verdict was so grossly excessive as to violate their substantive right to Due Process.

“The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Campbell, 538 U.S. at 416, 123 S.Ct. at 1519-20. “To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Id. 538 U.S. at 417, 123 S.Ct. at 1520.

With regard to whether a punitive award is grossly excessive, “the relevant constitutional line is ‘inherently imprecise,’ rather than one ‘marked by a simple mathematical formula.’” Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434-35, 121 S.Ct. 1678, 1684, 149 L.Ed.2d 674 (2001) (internal citations omitted). “‘[T]he amount of punitive damages should reflect the enormity of the defendant’s offense and be related to actual or potential harm resulting therefrom.’” Henderson v. Fields, 68 S.W.3d 455, 486-87 (Mo.App. W.D.2001) (quoting Letz, 975 S.W.2d at 177). In determining whether the amount of a punitive award has crossed the line and is unconstitutionally excessive, the United States Supreme Court has “instructed courts evaluating a punitive damages award’s consistency with due process to consider three criteria: (1) the degree of reprehensibility of the defendant’s misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Cooper Indus., Inc., 532 U.S. at 440, 121 S.Ct. at 1687 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 1598-99, 134 L.Ed.2d 809 (1996)); see also Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633, 635 (Mo. banc 2004).

In this case, after considering Appellants’ due process excessiveness claim, the trial court denied their motion for remittitur, implicitly finding that the verdict was not so grossly excessive as to violate their right to due process. While we must defer to the findings of fact made by the trial court, the question of whether the amount of the punitive award falls within constitutional limits under the facts of the case, as found by the trial court, calls for the application of constitutional standards to the facts of the case. Cooper Indus., Inc., 532 U.S. at 435, 121 S.Ct. at 1685 (internal citations omitted). Therefore, this Court must review the trial court’s determination of the constitutionality of the punitive award de novo, deferring to the trial court’s findings of fact, unless they are clearly erroneous. Id. 532 U.S. at 436, 440 n. 14, 121 S.Ct. at 1685-86, 1688 n. 14 (internal citations omitted).

We first consider the reprehensibility of Appellants’ actions. This factor “is considered ‘the most important indicium’ of the reasonableness of a punitive damages award.” Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 589 (Mo.App. W.D.2001) (quoting Gore, 517 U.S. at 575, 116 S.Ct. at 1599). The U.S. Supreme Court has directed courts to determine the reprehensibility of a defendant’s conduct by considering whether:

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Campbell, 538 U.S. at 419, 123 S.Ct. at 1521. In evaluating the reprehensibility of Appellants’ actions, we defer to the factual findings of the jury and the trial court and “are ‘limited to a consideration of the evidence which supports the verdict excluding that which disaffirms it.’” Coggins, 37 S.W.3d at 343 (quoting Botanicals on the Park, Inc. v. Microcode Corp., 7 S.W.3d 465, 470 (Mo.App. E.D.1999)); see also Cooper Indus., Inc., 532 U.S. at 440 n. 14, 121 S.Ct. at 1687-88 n. 14. In other words, we view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard all contrary evidence and inferences.

While the damage actually sustained by Respondents was relatively small and was economic in nature, the record clearly supports a finding that Appellants acted indifferently to or in reckless disregard of the safety of Respondents in selling them a vehicle that they knew or should have known was not safe to drive and that the potential harm to the Respondents was much greater than the harm that was actually incurred.

Mr. Payne testified that he had about thirty years of experience in the car industry and had inspected more vehicles than he could count. He said that he was accustomed to inspecting vehicles to look for signs of possible previous damage. Mr. Payne stated that he had performed a “walk-around inspection” of the vehicle where he looked for obvious signs of body damage, checked the tires, checked the paint, and looked for broken glass, but that the only problem that he saw with the truck was that it had a bunch of chips or pits in the paint on the right side. He admitted being aware that the underside of the hood was a different color than.the rest of the truck, indicating that the hood had previously been replaced, and acknowledged that one of the things that would suggest wreck damage to a vehicle was if the hood had been replaced. Mr. Payne said that he could have had the truck put up on a lift for additional inspection or had someone else inspect it for damage but stated that he had not done so. He testified that he had $1,100 in paint and bodywork performed on the car by Maaco Painting. When questioned about what was contained on the bill from Maaco Painting, Mr. Payne confessed that, in addition to repainting the truck, Maaco Painting also had repaired the left and right rear fenders, straightened the left bed of the truck, and straightened the right cab. He then stated that he could not remember what was wrong with the truck that prompted the listed repairs.

In contrast, Respondents’ automotive expert, Richard Dildich, testified that it would have been obvious to a person knowledgeable about inspecting automobiles, as Mr. Payne claimed to be, that the truck had been previously wrecked or had something major happen to it after conducting a brief visual inspection of the vehicle. Diklich stated that he noticed the hood had apparently been replaced, as it was red underneath and the core support was painted white, while the rest of the truck was brown. He further stated that he noticed fender washers on the hood latch and “a pretty good-sized area of weld repair on a bracket under the hood back at the right side.” Diklich testified that he observed a wide gap around the windshield molding on the left side that could be seen from fifteen feet away and was asymmetrical with the right side. He indicated that, upon looking inside the cab to see why the gap existed, he almost immediately found that the truck had been sectioned across the A-pillars on both sides and re-welded. Diklich stated that it was rare for just those pillars to be cut, so he looked underneath the vehicle and saw a'butt-welded seam all the way across the floor pan. He testified that the welding was clearly a repair job and was poorly done, with wire whiskers sticking out, poor corrosion proofing, burn-through, and some holes. This observation led him to immediately conclude that the front end of the truck had been grafted onto the back end of another truck. Diklich stated that he also found that the VIN plate on the dashboard had been rewelded in place. He also found that one of the four big bolts and nuts that hold the cab down was missing.

Diklich also testified that the repairs that had been made to the vehicle did not approach industry standards for repair and posed significant safety risks to occupants of the vehicle in the event of an accident. He stated that, in the event of a collision, there was a risk of the windshield becoming detached and that an even bigger concern was the truck’s ability to withstand a roll-over crash or something like a tree limb landing on the roof. Diklich had advised Mr. Krysa to avoid driving the vehicle because of these safety concerns.

In addition, Mr. Payne admitted that a dealer is required to disclose that a vehicle has been rebuilt if he is aware of that fact. Appellants’ salesperson, Crane, testified that it was very important to know if a vehicle had frame or structural damage and that that fact be disclosed to potential buyers if the salesperson is aware of it. And Diklich added that the sale of rebuilt wrecked cars without disclosure was a significant problem in the used car industry.

While Mr. Payne claimed not to have had any idea that the vehicle had any non-cosmetic problems, the jury was not required to believe him and clearly found that his testimony was not credible. The record more than sufficiently supports an inference that Mr. Payne was aware that the truck had significant structural and mechanical problems or that he recklessly disregarded obvious signs' of such problems. Such behavior was particularly reprehensible in light of the potential danger to the safety of his customers. See Parrott v. Carr Chevrolet, Inc., 331 Or. 537, 17 P.3d 473, 488 (2001) (“[Djefendant’s failure to disclose that the [used vehicle] previously had been damaged also implicated its overall safety and evinced an indifference not only to plaintiffs health and safety, but also to the health and safety of the general public that would share the road with a potentially unsafe vehicle.”). Thus, while Appellants’ motives may have been economic in nature and the damages actually sustained by Respondents were likewise economic in nature, Appellants’ conduct evinced an indifference to or a reckless disregard of the health and safety of others.

Moreover, the record also supports a finding that this was not an isolated incident and was part of a larger pattern of behavior on the part of Appellants. The United States Supreme Court has recognized that “ ‘repeated misconduct is more reprehensible than an individual instance of malfeasance,’” and, therefore, “ ‘a recidivist may be punished more severely than a first offender.’” Campbell, 538 U.S. at 428, 123 S.Ct. at 1523 (quoting Gore, 517 U.S. at 577, 116 S.Ct. at 1599-1600). Evidence that a defendant has “repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful” provides “relevant support for an argument that strong medicine is required to cure the defendant’s disrespect for the law.” Gore, 517 U.S. at 576-77, 116 S.Ct. at 1599.

Mr. Payne testified that his sale of the truck to the Krysas was consistent with the standard practices of his dealership. He subsequently admitted having previously purchased numerous vehicles with express disclosures that they had frame damage, body damage, and/or unibody damage and resold them without providing the buyer with any disclosure of the previous damage. He indicated that this was his standard practice if he did not feel like the damage was substantial based upon his visual inspection of the vehicle. Counsel questioned Mr. Payne about several specific vehicles that he had purchased at auction with disclosures of unibody and structural damage and then resold at a substantial profit without any disclosure of the damage to the purchaser. In each instance, Mr. Payne stated that he did not feel any disclosure was necessary because he did not see any signs of significant problems when he visually inspected the vehicle. Thus, the jury could reasonably have determined that Appellants had a pattern of disregarding warnings of structural damage to vehicles where such damage was not obvious.

The evidence also supported a finding that the harm sustained by Respondents was the result of intentional malice, trickery, or deceit, and was not merely an accident. Mr. Payne had a significant amount of work done to the vehicle to make it appear to be in good shape. This included, among numerous other repairs, straightening both the bed and cab of the truck. Appellants’ salesman, Kemp Crane, lied to Appellants on several occasions about the condition of the truck, its origin, and its capabilities. This evidence, in addition to other evidence previously described, sufficiently established that Appellants affirmatively misrepresented the condition of the F-350 to Respondents in an attempt to trick them into buying the vehicle.

Finally, we note that Respondents were financially vulnerable. The purchase price of the truck was at the upper limit of what they were able to afford. After discovering the safety problems posed by the truck and because Appellants refused to refund their purchase price, Respondents were unable to obtain another vehicle for their use, leaving them with only one safe vehicle for their family. They were forced to either risk driving the truck with its safety problems, to borrow various vehicles from friends and family, or to alter their schedules to drive each other around. “[IJnfliction of economic injury, especially when done intentionally through affirmative acts of misconduct or when the target is financially vulnerable, can warrant a substantial penalty.” Gore, 517 U.S. at 576, 116 S.Ct. at 1599 (internal citation omitted).

In sum, while the harm actually sustained by Respondents in this case was economic as opposed to physical, Appellants’ conduct did pose a significant risk to the physical welfare of Respondents and evinced an indifference to or reckless disregard of the health or safety of Respondents and the general public as well. Furthermore,' the conduct was consistent with Appellants’ regular business practices and was not an isolated incident, involved acts of intentional trickery and deceit, and targeted victims that were financially vulnerable. Thus, in society’s eyes, viewing the totality of the circumstances, Appellants’ conduct can only be seen as exhibiting a very high degree of reprehensibility.

We next examine the second indicium of an excessive punitive award: the ratio of the punitive award to the actual or potential harm to the plaintiff. Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 666 (Mo.App. W.D.1997). The United States Supreme Court has “been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award,” but has noted that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Campbell, 538 U.S. at 424-25, 123 S.Ct. at 1524. The Supreme Court has specifically noted, however, that “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Gore, 517 U.S. at 582, 116 S.Ct. at 1602; see also Campbell, 538 U.S. at 425, 123 S.Ct. at 1524; Letz, 975 S.W.2d at 179.

Appellants contend that the ratio between the actual damages awarded, $18,449.53, and the punitive award, $500,000, is grossly excessive, in that the ratio of punitive to actual damages is approximately 27:1.

The initial problem with Appellants’ argument is that it fails to consider the evidence of the potential harm that could have been sustained by the Respondents. As noted supra, the proper consideration is “the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award.” Cooper Indus., Inc., 532 U.S. at 440, 121 S.Ct. at 1687 (emphasis added and parentheses omitted). The record contains evidence that the condition of the truck posed a significant safety risk. Thus, the potential harm to Respondents was certainly greater than the economic damages they actually sustained.

The other major weakness in Appellants’ argument is the fact that the amount of actual damages awarded was relatively small. See Letz, 975 S.W.2d at 179 (noting that an award of $19,000 in actual damages was “relatively small”). As noted supra, higher ratios are more likely to be constitutionally permissible where the amount of actual damages is small and the actions of the defendants are particularly egregious. Both of these elements are satisfied in this case.

We also note that, in their testimony, Appellants expressed their unwillingness to alter their business practices. Mr. Payne testified that the only change he would be making to how the dealership conducted business was to get CARFAX reports for all of the vehicles they sold and that their only reason for doing so was to protect themselves. This is consistent with the fact that Appellants had failed to alter their business practices after being involved in the losing end of two prior lawsuits involving similar car sales, one of which resulted in a verdict against Mr. Payne for $170,000. Accordingly, it was reasonable for the jury to conclude that a significantly larger award would be necessary to deter Appellants from similar behavior in the future.

This case in not unlike Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024 (8th Cir.2000), a used car sale case wherein the Eighth Circuit affirmed a collective punitive to collective actual ratio of 27:1. In Grabinski, the salesperson told the plaintiff that the vehicle ran perfectly, had one previous owner, and had never been wrecked. Mechanical problems soon arose with the vehicle, and the plaintiff investigated the vehicle’s history and discovered that it had been wrecked, rebuilt, and had more than one previous owner. At trial, the plaintiffs expert testified that the vehicle had signs of wreck damage that should have been obvious to a vehicle appraiser on visual examination. The jury awarded the plaintiff a total of $7,835 in actual damages and $210,000 in punitive damages (approximately a 27:1 ratio). Id. at 1026. In affirming the award, the Eighth Circuit concluded “that the defendants’ conduct was egregious and that it demonstrated a clear and disturbing disregard for [plaintiffj’s safety and her economic interests” and that, while the award was generous, “it was far from ‘grossly excessive.’ ” Id. at 1027.

Having compared the record in this case to the facts involved in Grabinski, we see little to distinguish the two cases other than that the facts in Grabinski do not mention any evidence that the rebuilt vehicle was unsafe to drive, potentially making the facts of the instant case more egregious than those in Grabinski.

The facts in the case at bar also bear a good deal of similarity to those in Parrott v. Carr Chevrolet, Inc., 331 Or. 537, 17 P.3d 473 (2001), wherein the Oregon Supreme Court affirmed an award of $11,496 in compensatory damages and $1 million in punitive damages (an 87:1 ratio) where the defendant car dealership sold the plaintiff a Suburban that had been previously involved a serious accident and was missing several pieces of emissions control equipment. Id. at 476, 478. The Oregon Supreme Court held that the $1 million dollar award was constitutionally permissible where the plaintiffs experts had testified that, even without conducting a detailed inspection of the Suburban, a minimally trained dealership employee would have recognized several “red flags” indicating that the vehicle had been altered. Id. at 480. In addition, a public records check on the vehicle reflected that it had been severely damaged in California and had a “title brand”. Id. at 478. The court noted:

[t]here was evidence from which the jury could have found that defendant knew of the extensive defects of the Suburban and of its branded title and odometer discrepancy, and that it concealed those facts from plaintiff. There was evidence from which the jury could have concluded that defendant’s treatment of plaintiff was not an isolated incident in that it had established business procedures that it could employ to cover any failure to disclose. There was evidence that defendant also used abusive tactics to cover its deceptions. Furthermore, from the evasive, inconsistent, and implausible explanations given by defendant’s representatives as to defendant’s business practices, the jury could infer that defendant had no intention of altering its practices in the future.

Id. at 487. The court noted that “[u]nlike in Gore, the tortious conduct ... did not involve undisclosed cosmetic damage to a new vehicle,” and, instead, the defendant had “made material misrepresentations about the Suburban’s condition that affected its value” and caused the defendant to be unable to obtain insurance coverage or proper registration to allow him to drive the vehicle. Id. at 488. The court further noted that the “defendant’s failure to disclose that the Suburban previously had been damaged also implicated its overall safety and evinced an indifference not only to plaintiffs health and safety, but also to the health and safety of the general public that would share the road with a potentially unsafe vehicle.” Id.

The court held that the “Defendant deliberately misrepresented or failed to disclose to plaintiff material information that implicated the value and safety of the Suburban. Defendant also demonstrated a willful disregard of the legislative protections for Oregon consumers and an unwillingness to modify its practices.” Id. The court also noted:

Because defendant’s tortious conduct was a routine part of its business practice that it was unwilling to change, we also consider the potential injury that its misconduct may have caused to past, present, and future customers. Additionally, although the actual economic harm that plaintiff suffered in this proceeding was relatively small, the harm was the result of defendant’s ‘particularly egregious’ acts.

Id. at 489.

In this case, given the relatively small amount of actual damages awarded, the egregious nature of Appellants’ acts, Appellants’ open refusal to alter their behavior, and the magnitude of the potential harm that could have been sustained had the structural problems with the truck not been discovered by Respondents’ expert, the ratio of the punitive to actual damages does not, in and of itself, offend due process. See id.; TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 459-60, 462, 113 S.Ct. 2711, 2721, 2722-23, 125 L.Ed.2d 366 (1993) (affirming a 526 to 1 ratio in a slander of title action, where the actual damages were relatively small ($19,000), because the misconduct was part of a large pattern of outrageous conduct and that the harm likely to result from defendant’s misconduct was much larger); Weaver, 54 S.W.3d at 589 (upholding a 66:1 punitive damages to actual damages ratio in a case where a church elder grabbed a female reverend’s breasts and further evidence was introduced indicating that further physical and verbal harassment had occurred); Routh Wrecker Serv. Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240, 241-42 (1998) (affirming a punitive damages award of $75,000 where only $1,000 had been awarded in actual damages where a used car dealer had a customer arrested because he mistakenly thought the customer had taken a car from his lot without paying for it and then failed to notify the prosecuting attorney after finding the car present on his lot until the date of the probable cause hearing); Kemp v. American Tel. & Tel., Co., 393 F.3d 1354, 1357-58, 1364, 1365 (11th Cir.2004) (remitting award of punitive damages to $250,000 where actual damages were $115.05, a 2,173:1 ratio, in a case where AT & T improperly collected gambling debts incurred in game played by Georgia citizens over the telephone because anything “less than $250,000 would not serve a meaningful deterrent to a corporation like AT & T”).

Finally, the third factor we must consider in assessing whether a punitive award is excessive is how the punitive award compares to the civil or criminal penalties that could be imposed for comparable misconduct. Gore, 517 U.S. at 583, 116 S.Ct. at 1603. In this vein, in addition to any potential fines or imprisonment that might be imposed on the defendants, we must consider the impact their actions could have on their business licensure. See Id. 517 U.S. at 583-84 & n. 40, 116 S.Ct. at 1603 & n. 40; Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir.2003).

Pursuant to § 301.562, a car dealership’s use of fraud, deception, or misrepresentation in the sale of a vehicle constitutes grounds for discipline by the Administrative Hearing Commission which could result in the suspension or revocation of the dealership’s license. While the record does not contain any evidence indicating what the suspension or revocation of Appellants’ dealership license would cost Appellants, such a sanction would certainly severely impact upon their business and may well be more costly to Appellants than a punitive award of $500,000. See Mathias, 347 F.3d at 678 (proclaiming the Court’s firm belief that the defendant would prefer to pay the $186,000 in punitive damages awarded to each plaintiff rather than lose its license). Accordingly, the punitive damage award does not appear to be significantly out of line with the civil sanctions that could be imposed upon Appellants.

Having carefully considered the factors set forth in Gore, we are simply not left with the impression that the jury’s award was grossly excessive given the relatively small amount of actual damages awarded, the egregious nature of Appellants’ acts, Appellants’ pattern of engaging in similar behavior, Appellants’ open refusal to alter their behavior, and the magnitude of the potential harm that could have resulted. Point denied.

In their second point, Appellants claim that the trial court erred in denying their motion in limine in which they sought to exclude from evidence any reference to a prior case, Soper v. Payne Motor Co., that had been filed against Mr. Payne. Appellants argue that the previous case was too dissimilar and remote in time to have had any probative value to the case at issue.

In their third point, Appellants assert that the trial court erred in denying their motion in limine to exclude evidence related to another case, Sloan v. Morse Chevro let, wherein Mr. Payne sold a defective minivan to Mrs. Sloan while working at Morse Chevrolet. Appellants contend that the situation in that case was too dissimilar to the Krysa’s claim to have any probative value and that it also should have been excluded because Mr. Payne wasn’t a named defendant and had no judgment entered against him. These two points will be addressed together.

“Denial of a motion in limine is interlocutory and presents nothing for appellate review.” Ryan v. Maddox, 112 S.W.3d 476, 479 (Mo.App. W.D.2003). “‘It is a timely objection at trial, when the evidence is offered, which preserves the matter for review, and not the rejection of a motion in limine.’” Henderson, 68 S.W.3d at 479 (quoting Slankard v. Thomas, 912 S.W.2d 619, 627 (Mo.App. S.D.1995)). “‘After the denial of a motion in limine, a specific objection must be made at the time the evidence discussed in the motion in limine is introduced at trial’ in order to preserve the issue for appeal.” Id. (quoting Bowls v. Scarborough, 950 S.W.2d 691, 702 (Mo.App. W.D.1997)).

Appellants failed to offer any objection at trial to the evidence introduced related to the Soper or Sloan cases. In fact, on numerous occasions, counsel for Appellants specifically stated that he had “no objection” to the admission of evidence related to each of those two cases. “This response constituted a waiver of any claim of error regarding the admissibility of the evidence.” McCormack, 159 S.W.3d at 399. Accordingly, not only did Appellants fail to preserve their claims of error regarding to the admission of evidence related to the Soper and Sloan cases, they affirmatively waived any claim they might have had. Points denied.

The judgment is affirmed.

All concur.

      . While Missouri case law also allows for a trial court’s decision not to remit a punitive award to be reviewed for reasonableness under an abuse of discretion standard, Appellants have not made such a challenge in this appeal. See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 662 (Mo.App. W.D. banc 1997).

      . If no constitutional challenge is raised, the role of the appellate court is to review the reasonableness of the award under an abuse of discretion standard. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433, 121 S.Ct. 1678, 1684, 149 L.Ed.2d 674 (2001).

      . Indeed, before awarding punitive damages in Missouri, a jury must find that the Plaintiff has made a "showing, by clear and convincing proof, of a culpable mental state on the part of the defendant, either by a wanton, willful or outrageous act, or reckless disregard for an act's consequences (from which evil motive is inferred).”'Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633, 635 (Mo. banc 2004). The jury was instructed that it could determine that punitive damages were appropriate if they found that "the conduct of Payne’s Car Company was outrageous because of Payne's Car Company's evil motive or reckless indifference to the rights of others." Thus, in determining that a punitive damages award was appropriate, the jury necessarily found that Appellants actions were prompted by evil motive or a reckless indifference. Appellants do not challenge the jury's determination that punitive damages were appropriate on appeal and merely focus on whether the amount of the punitive damages award violated their right to due process.

      . The underlying facts of the case were set forth in the Eighth Circuit’s previous opinion: Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565, 567-68 (8th Cir.1998).

      . The verdicts were entered against five different defendants. The jury awarded the plaintiff actual damages of $5,300 against the retailer and its three employees jointly and severally for concealing the wreck damage and $2,535 against all of the defendants jointly and severally for other concealed defects. Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024, 1026 (8th Cir.2000). The jury awarded punitive damages of $100,000 against the retailer, $50,000 against the wholesaler, $30,000 against one employee, $20,000 against a second employee, and $10,000 against a third employee. Id. Thus, the individual ratios that were affirmed were 99:1, 55:1, 16:1, 11:1, and 5:1, respectively. Id.

      . While noting the inclusion of this as a factor in the Gore analysis, Appellants wholly fail to address this factor on appeal, apparently conceding that this factor does not weigh in their favor.

      . This factor "is accorded less weight in the reasonableness analysis than the first two guideposts.” Kemp v. American Tel. & Tel., 393 F.3d 1354, 1364 (11th Cir.2004).

      . Even had Appellants requested plain error review of their claim, plain error review is unavailable where counsel affirmatively states that he or she has no objection to the admission of the evidence. McCormack v. Capital Elec. Const. Co., 159 S.W.3d 387, 399 (Mo.App. W.D.2004).