I. Introduction:
The Missouri Court of Appeals for the Eastern District of Missouri recently decided a case of first impression regarding the timing of any requisite mental state for claims of “false promise” pursuant to the Missouri Merchandising Practices Act (“MMPA). In Susan Brands v. Savvy Surrounding Style, LLC, No. ED112731, the Court of Appeals reversed the decision of the Circuit Court of St. Charles County, Missouri, finding that in order to prove the requisite falsity or misleading nature of a design professional’s intent or ability to perform its obligations, evidence of the design professional’s intent or ability to perform its obligations at some point before, during, or after contract formation is required. Brands v. Savvy Surrounding Style, LLC, 2025 Mo.App. LEXIS 802 (Mo. App. E.D. 2025).
The MMPA, under Chapter 407, allows for the recovery of damages by “[a]ny person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of an act or practice declared unlawful by section 407.020[.]” RSMo. § 407.025.1(1). Acts deemed unlawful by Section 407.020 include “deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertising of any merchandise in trade or commerce…” RSMo. § 407.020.1.
II. Case Background:
In Brands, Defendant Savvy Surrounding Style, LLC (“Savvy”) entered into a contract with Plaintiff Susan Brands (“Brands”) for the purpose of performing interior design services for Brands’ home in April of 2018. Brands, 2025 Mo.App. LEXIS 802, *2. Over a four-month period, the parties entered into eight additional contracts for designs and materials to be provided by Savvy. Id.
At trial, it was undisputed that Savvy performed the contracted work, including meeting with Brands in her home, taking measurements, creating computer-aided design (CAD) software drawings, and exploring furniture layouts. Id. It was also undisputed at trial that Brands was happy with the services provided by Savvy from the outset and, in fact, continued to expand the scope of work requested. Id. at *2. As late as July 23, 2018, Brands sent an email to Savvy stating “[] I’m happy with how the room turned out” and “I really appreciate all the progress you [] have made so far.” Id. at *2-3.
The relationship broke down on August 6, 2018, when Brands learned one of the project managers for Savvy, with whom Brands had been working, was moving out of state and would no longer be personally working on Brands’ project. Id. at 3. Brands became upset because “Mercury was in retrograde[]” and she refused to “start anything new” during this time. Id. According to Brands, this includes the signing of contracts and scheduling of appointments, and the record showed she did not “want to start over with someone who was brought on board during a retrograde.” Id. Brands’ demeanor changed “like a flip of a switch[,]” and she became rude and hostile to employees of Savvy Id.
Savvy’s owner called Brands in an attempt to salvage the relationship, and Brands yelled and called the owner names. Id. at 4. Savvy’s owner was called a thief and that she “suck[s] at her job. Id. The owner ultimately told Brands that Savvy would no longer be working on the project, severing all nine contracts. Id. Savvy attempted to end the relationship amicably, sending a binder of materials regarding each contract and offering to reduce the balance of $21,214.61 by $3,805.74 for materials and work not completed. Id. Brands refused the offer, paid the balance upon receipt of furniture, and filed suit claiming breach of contract, unjust enrichment, and violation of the MMPA. At trial, the jury found in favor of Brands on the breach of contract and MMPA claims, awarding $13,533.67 in damages plus costs and attorneys’ fees in the amount of $135,879.46. Id. at 5. Savvy appealed, arguing Brands had failed to show the intent necessary to establish a viable “false promise” claim under the MMPA. Id. at 5-6.
III. Decision:
The Court of Appeals agreed with Savvy, reversing the trial court’s decision because there was no evidence of Savvy’s “present intent not to perform contemporaneous to entering [the] agreements[.]” Id. at 5-6. While acknowledging that the MMPA “does not put forth a scienter requirement for civil liability[,]” the Court looked to the authority of the attorney general for its definition of “false promise,” noting that “any statement or representation which is false or misleading as the maker’s intention or ability to perform a promise, or likelihood the promise will be performed.” Id. at 8-9 (citing Plubell v. Merck & Co., 289 S.W.3d 707 (Mo. App. W.D. 2009), 15 C.S.R. 60-9.060 (emphasis added). While the attorney general’s definitions of terms like deception exclude intent as an element, 15 CSR 60-9.020(1)-(2), its inclusion into the definition of false promise demonstrates the necessity of claimants to establish “evidence the representation was false or misleading as to the maker’s intent or ability to perform before, during, or after entering the contracts.” Id. at 12-13. Because Brands failed to establish that Savvy intended to renege on its contractual obligations at any time surrounding Savvy’s statements to the contrary, Brands’ false promise claim necessarily failed. Id.
IV. Conclusion:
Going forward, Missouri construction and design professionals should be cognizant of the proof required for a viable MMPA “false promise” claim under Brands v. Savvy Surrounding Style, LLC, and seek appropriate litigation remedies in the event of deficient pleadings.